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City Council Agenda Packet 05/13/2013
CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29 1 H AVENUE, MUNICIPAL BUILDING Mav 13,2013 7:00 p.m. -Council Meeting Individuals with disabilities are encouraged to participate in all public meetings sponsored by the City of Wheat Ridge. Call Heather Geyer, Administrative Services Director, at 303-235-2826 at least one week in advance of a meeting if you are interested in participating and need inclusion assistance. 6:30p.m. PRESENTATION: Bicycle Colorado-Scott Christopher CALL TO ORDER PLEDGE OF ALLEGIANCE ROLLCALL OF MEMBERS APPROVAL OF MINUTES OF April 22. 2013 PROCLAMATIONS AND CEREMONIES Emergency Medical Services Week National Military Appreciation Month Peace Officers Memorial Day CITIZENS' RIGHT TO SPEAK a. Citizens, who wish , may speak on any matter not on the Agenda for a maximum of 3 Minutes and sign the Public Comment Roster. b . Citizens who wish to speak on Agenda Items, please sign the GENERAL AGENDA ROSTER or appropriate PUBLIC HEARING ROSTER before the item is called to be heard. APPROVAL OF AGENDA L CONSENTAGENDA a. Motion to approve award of ITB-13-13 , installation of 38th Banner Poles to WL Contractors, Inc., Arvada , Co, in the contract amount of $40,309 , with a contingency amount of $4 ,030 CITY COUNCIL AGENDA: May 13, 2013 CONSENT AGENDA (con't) Page -2- b. Motion to approve award of ITB-13-01, 2013 Overlay and Concrete Rehabilitation Project Base, bid and bid alternative #1, to Asphalt Specialties Company, Henderson, CO in the Contract amount of $1, 137,585.75, and to approve a contingency amount of $56,880 c. Resolution No. 17-2013-approving a contract with the Colorado Department of Transportation for the Wadsworth Boulevard Planning and Environmental Linkage Study from 36th to 46th Ave. d. Motion to approve the Point to Point Network and Internet Connections Agreement with Century Link, in a form approved by the City Attorney e. Motion to appoint Debra Rosenthal as the Jefferson County Library Board Liaison, At-Large f. Correction to Council Minutes for April 8, 2013 ORDINANCES ON FIRST READING 2. Council Bill No . 08-2013 -An Ordinance amending the penalties for violating Sections 1203 and 1208 of the Model Traffic Code for Colorado, as adopted by the City, concerning the parking of major vehicles and parking privileges for persons with disabilities, respectively, and making conforming amendments to Section 13-2 of the Wheat Ridge Code of Laws. CITY MANAGER'S MATTERS CITY ATTORNEY'S MATTERS ELECTED OFFICIALS' MATTERS ADJOURNMENT to Special Study Session BICYC L co LORA oo LiveWell Wheat Rtdge Patrick Goff City of Wheat Ridge 7500 West 29th Avenue Wheat Ridge , CO 80033 May 7, 2013 Dear Patrick: Thank you again for the opportunity to present to City Council during the study session on May 13. An emerging body of data shows that bicycling is good for business at the state, regional , and local (city) level. Based on a range of studies and examples, it's increasingly apparent that investments in bicycle-friendly infrastructure can substantially boost local business activity. Our presentation will focus on some of the emerging data and consider how Wheat Ridge can further capitalize on the bicycling market in the months and years ahead. Kind regards, Gil McCormick (Wheat Ridge Cyclery) Rachel Hultin (Urban Niche Realty) Scott Christopher (Bicycle Colorado) Ted Heyd (LiveWell Wheat Ridge) CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING April 22, 2013 Mayor DiTull io called the Regular City Council Meeting to order at 7:00 p .m. ROLLCALL OF MEMBERS Joyce Jay Mike Stites Davis Reinhart Bud Starker Joseph DeMott Kristi Davis Tracy Langworthy Absent: George Pond Also present: City Clerk , Janelle Shaver; City Treasurer, Larry Schulz; City Attorney , Gerald Dahl ; City Manager, Patrick Goff; Police Chief, Daniel Brennan ; Public Works Director, Tim Paranto ; Senior Planner, Meredith Reckert; other staff, guests and interested citizens . APPROVAL OF MINUTES OF March 25. 2013 Motion by Councilmember Stites for approval of the Minutes of April 8, 2013 ; seconded by Councilmember Starker; carried 7-0 . MOMENT OF SILENCE In response to last Monday 's bombing at the Boston Marathon , Mayor DiTullio moved to the podium and asked for a moment of silence for the following : • The City of Boston and its residents • The victims and their families • The first responde rs , law enforcement and medical staff who all performed with surgical precision. PROCLAMATIONS AND CEREMONIES Day Without Hate Friday April26, 2013 Mayor DiTullio read the proclamation and presented it to Wheat Ridge High School math teacher Michael Schmidt. Mr. Schmidt explained that Day Without Hate was started in 2007 by some Standley Lake High School students and has since spread across the region , state and nation. He announced that this Friday April 26 is designated as Day Without Hate and all people are encouraged to wear white sh irts that day. He displayed this year's special t-sh irt which includes the color purple in honor of Jessica Ridgeway. City Council Minutes April 22, 2013 Page 2 National Crime Victims' Rights Week --April 21-27 The Mayor read a proclamation declaring the week of April 21 -27 as Crime Victims ' Rights week. Jessica from Victim Outreach Information (VOl) was present to receive the proclamation and thanked the City. Commander Dave Pickett and Chief Brennan were present. Chief Brennan reminded City Council of the victim advocacy services that VOl provides to the Police Department. We have no paid staff to work with victims, and these dedicated volunteers are available any day of the week, any hour of the day. They provide a valuable service to the community and we should look at any opportunity we have to support their efforts . Mental Health Month -May. 2013 The Mayor read a proclamation announcing the month of May as Mental Health Month. Paul Barnett, the vocational services manager with Jefferson Center for Mental Health and Chris User from the Summit Center received the proclamation . Mr. Barnett spoke of the growing need for mental health services. He said the Jefferson Center for Mental Health, which is celebrating its 55th year of service, provided mental health and substance abuse treatment to 19,000 people last year--a 31% increase over the previous 4 years . He thanked the City for its support. Essay Contest Winners (6th & ath grade) The Mayor introduced Dave Holland from the Jefferson Foundation to present the awards, and Jerry Phifer from Rep . Perlmutter's office who had something for the students. Mr. Holland and The Jefferson Foundation sponsored this year's 1oth Annual Wheat Ridge 6th Grade Essay Contest. The topic was "Making a Difference", and the entries were judged by students at WR High School. Mr. Holland presented awards to winners Jacy Dille' (Stober-North), Alfredo Castro (Pennington), and middle school winner Cara Leone (Everitt). Winners not present include Sophia Thomas (Stober), Katlyn Theisen (Wilmore-Davis), Bella Briganti (Prospect Valley), Aunna Roberts (Kullerstrand) and Julia Pope (Maple Grove). CITIZENS' RIGHT TO SPEAK Ted Heyd, Lakewood, of LiveWell Wheat Ridge, announced that Colorado Plus, a new business in Wheat Ridge, won 3rd Place in a national contest to win a free bicycle . parking corral. The facebook contest was sponsored by a company in Wisconsin . DECISIONS, RESOLUTIONS AND MOTIONS .L Motion adopting the 2012-2013 Colorado Municipal League Policy Statement City Council Minutes April 22, 2013 Page 3 Councilmember Reinhart introduced Item #1. The CML Policy Statement guides the CML Executive Board, committees and advocacy team during the legislative session and throughout the year. Adoption of the Statement by City Council will provide guidance to the City's representative (currently Mr. Reinhart) when voting on Policy issues at Policy Committee meetings. Motion by Councilmember Reinhart to adopt the 2012-2013 Colorado Municipal league Policy Statement; seconded by Councilmember Starker; carried 7-0. 2. Resolution 14-2013-authorizing Wheat Ridge's participation in the 2013 Metro Mortgage Assistance Plus Program and delegating to the City and County of Denver the authority of Wheat Ridge to take action and exercise power under a Delegation And Participation Agreement on behalf of Wheat Ridge with respect to the program Councilmember DeMott introduced Item #2. This program provides grants for down payment and closing cost assistance paired with competitive, fixed-rate, 30-year VA and FHA home loans to qualified low and moderate income purchasers. The loans are pooled into Government National Mortgage Association (GNMA) Certificates and sold by US Bank. There is no cost or liability to the City. Councilmembers noted that the interest rate is a little higher, but the money for down payment and closing cost assistance is a grant that does not have to be repaid. Motion by Councilmember DeMott to approve Resolution No. 14-2013, a resolution authorizing Wheat Ridge's participation in the 2013 Metro Mortgage Assistance Plus Program and delegating to the City and County of Denver the authority of Wheat Ridge to take action and exercise power under a Delegation and Participation Agreement on behalf of Wheat Ridge with respect to the Program; seconded by Councilmembers Stites and Jay; carried 7-0. ~ Resolution 15-2013-approving the Sex Offender Tracking and Registration System (SOTAR) Intergovernmental Agreement with the Board of County Commissioners of the County of Douglas, Colorado Councilmember Stites introduced Item #3. The Douglas County Sheriffs Department has developed a software system to manage and exchange information regarding sex offenders. They are making the system available to other law enforcement agencies. Currently 35 organizations (including county, municipal and federal agencies) participate in City Council Minutes April 22 , 2013 Page4 the SOTAR program . It provides law enforcement with a database and a number of helpful tools for tracking and registration. It also provides website searches and e-mail notifications to the community. The WR Police staff believes that community education is an important part of this aspect of public safety. Douglas County currently funds the program and there is no service fee for the City's use of SOT AR , but there may come a time when a user fee may have to be negotiated . When or how much is unknown . Motion by Councilmember Stites to approve Resolution No . 15-2013, a resolution to approve the Sex Offender Tracking and Registration System (SO TAR) Intergovernmental Agreement with the Board of County Commissioners of the County of Douglas , Colorado ; seconded by Councilmember Langworthy; carried 7-0. 4. Resolution 16-2013-amending the Fiscal year 2012 Budget to reflect the approval of increased available beginning fund balance in certain funds Councilmember Starker introduced Item #4. This resolution allows the City to adjust the 2012 beginning fund balance to reflect increased revenue in the General Fund, Open Space Fund , and the Municipal Court Fund that totals $2,422 ,03 . State law requires that final budgeted expenditures do not exceed final budgeted revenues. Motion by Councilmember Starker to approve Resolution No . 16-2013-a resolution amending the Fiscal Year 2012 Budget to reflect the approval of increased available beginning fund balance in certain funds; seconded by Councilmember Reinhart . Councilmember Langworthy inquired about some of the figures . Upon examination Mr. Goff agreed there was a mistake and said they should be corrected . Motion by Councilmember Langworthy to have the amount under Total Revenues for the General Fund be corrected before final publication ; seconded by Councilmember Starker; carried 7-0 . The main motion carried 7-0. 5. Motion to appoint Deborah Bollig to the Cultural Commission, District IV, term ending March 2, 2014 Councilmember Langworthy introduced Item #5 . City Council Minutes April 22, 2013 Page 5 Motion by Councilmember Langworthy to appoint Deborah Bollig to the Cultural Commission, term to expire March 2, 2014; seconded by Councilmember DeMott; carried 7-0. CITY MANAGER'S MATTERS Mr. Goff announced several community events: • E-waste recycling event this Saturday (April 27) at Anderson Park from 9-1. Citizens can bring unwanted electronics and have them recycled for a small fee. • 38th Avenue Clean-up Day has been rescheduled to May 11, same time 9-11 am . If folks want to help they can call WR2020 at 720-259-1030. • Thursday, April 25th RTD will host a FasTracks/Gold Line Open House at our Rec Center from 5:30-7:30 PM. Included will be information on the NW Subarea Plan from the City's open house that was cancelled last week due to snow. CITY ATTORNEY'S MATTERS CITY CLERK'S MATTERS Clerk Shaver reported there is still a vacancy on the Liquor Board for District IV. Anyone interested should contact the City Clerk's Office. ELECTED OFFICIALS' MATTERS Kristi Davis reminded folks of the District 1 and 2 meeting next Monday, April 29th from 6:30-8:00PM at City Hall. She encouraged people to attend. Bud Starker congratulated Brooke White on the grand opening of People's Market at 29th & Depew last Saturday and he encouraged people to patronize the store. They have fresh bread, honey and other fine products . Mike Stites had attended the grand opening of People's Market last Saturday. He welcomed them to the community and thinks the business will go over quite well. Mike's positive thing: You may have the opportunity to help your neighbor scoop his driveway tomorrow morning. Tracy Langworthy announced the rescheduling of Arbor Day at Prospect Park this Saturday from 9-11 am. If you'd like to help replant some new trees or sign up to care for a tree to ensure it thrives, you can go online for the information. -The 3r annual Child Safety Fair is this Saturday from 11-3 at Wheat Ridge 5-8 school. There will be a bike rodeo, car seat checks and other fun. Joyce Jay announced that Jeffco Open Space will be having a public meeting Tuesday, April 30 at the Rec Center from 6-8 PM to discuss the decisions about Crown Hill Open Space projects. People interested in Crown Hill will want to attend. Davis Reinhart acknowledged the opening of the Light Rail through Lakewood this coming weekend. Although not in Wheat Ridge it is of regional importance. There will City Council Minutes April 22 , 2013 Page6 be free rides all day Saturday and celebrations at the various stations from 1 0:00 - 2:00 . -He noted that former Councilman Lloyd Donnelly passed away this past Friday. Lloyd was a long time resident of the city and Mr. Reinhart recognized his service to the community over the years . Mayor DiTullio had a number of announcements. • He congratulated the owners of People 's Market on a great grand opening and ribbon cutting. They are teaming up with the other businesses at 29th and Depew and the Mayor thinks it will do great. • He offered condolences to the family of Lloyd Donnelly, with whom he served on City Council. • He also offered condolences to the family of Paul Ryan , who worked with some businesses in Wheat Ridge for a while on billboards and most recently worked for the Mayor of Denver. • ACT tests are tomorrow at Wheat Ridge High School. Junior should arrive at 7 :00am. Revive the Greenbelt is coming this Saturday . Some students from the high school will be working on Friday planting trees in the greenbelt. • The Jefferson County Historical Commission is having their 1oth Annual Historic Symposium in Wheat Ridge this year. The theme is "What is Old is New: Embracing Our Agricultural Past While Shaping a Sustainable Future". It will be at the Active Adult Center on May 4th from 8:30 to 3:30 . For additional information folks should contact Dennis Dempsey at: 303 -271-8734 or ddempsey@jeffco .us The regular Council Meeting adjourned at 7:39pm. Following a short break a Special Study session convened . J~ elle Shaver, City Clerk APPROVED BY CITY COUNCIL ON April 22 , 2013 BY A VOTE OF __ to __ Davis Reinhart, Mayor pro tern The preceding Minutes were prepared according to §47 of Robert's Rules of Order, i.e. they contain a record of what was done at the meeting, not what was said by the members. Recordings and DVD's of the meetings are available for listening or viewing in the City Clerk's Office , as well as copies of Ordinances and Resolutions . ~ ~ ~ ..... ~ r City of . • :?WheatRi_dge ITEM NO: I ()._, DATE : May 13 ,2013 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION TO APPROVE AWARD OF ITB-13-13, INSTALLATION OF 38TH AVENUE BANNER POLES TO WL CONTRACTORS, INC., ARVADA, CO, IN THE CONTRACT AMOUNT OF $40,309, WITH A CONTINGENCY AMOUNT OF $4,030 0 PUBLIC HEARING r8J BIDS/MOTIONS D RESOLUTIONS ~- Public Works Director ISSUE: D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2 ND READING D YES City staff is implementing another phase of the 38th Avenue Corridor Plan adopted by City Council in October, 2011. Through standard procurement, the City awarded a bid in March for purchase ofbanner poles for two locations on 38th Avenue. Approval of a contract with WL Contractors Inc., for the installation of the banner poles is now recommended at a cost of $40 ,309. PRIOR ACTION: The proposed 38tfi Avenue banner poles installation project was discussed at the February 25 , 2013 City Council Study Session. The City Council approved the acquisition of the poles on March 25 , 2013. FINANCIAL IMPACT: Funding for the installation of the banner poles has been approved in the Revitalization Projects line item ofthe 2013 Capital Investment Program budget in the amount of$100,000. The costs associated with this contract will be paid from account number 30-303-800-892 , and these funds will be encumbered for the length ofthe project in accordance with Ordinance #787 , 1989 Series . Council Action Form May 13 ,2013 Page 2 BACKGROUND: Bids for the ITB-13-13, 38th A venue Banner Poles Installation were opened on April 22, 2013 . One bid was received as a result of the formal bid process . The bid meets the initial bid requirements and is within budget. The apparent low bidder is WL Contractors Inc., Arvada, CO, with the bid amount of$40,309 . The engineering estimate is $40,272 for the work. Award is based on the lowest responsive and responsible bid that meets all of the bid requirements , is qualified to install the poles, and is within budget. The bid is for installation of four banner poles with cable and pulley systems on 38 1h Avenue near Teller Street and Ames Street. The pole foundations will be installed sufficiently early to allow the banners poles to be installed once they are shipped to the site. The banner poles were ordered through the approved acquisition process earlier because of the significant time required for fabrication and transportation. Staffhas scheduled the project to be completed before this year's Carnation Festival on August 16th . A 10% contingency amount of $4 ,030 is requested for the cost of other items related to the project. Staff assessed the criteria for contribution to the 1% Public Art Fund for this project per Ordinance 15-02 and determined that allocation of funds is not required. RECOMMENDATIONS: Based upon the contractor's demonstrated capabilities and performance OD: previous proje~ts , and the bid being within the budget for the project, staff recommends the bid be awarded to WL Contractors Inc. RECOMMENDED MOTION: "I move to award ITB-13-13 , 38ih Banner Poles Installation to WL Contractors, Inc., Arvada , in the amount of$40,309, with a contingency amount of$4,030 and that the Director ofPublic Works be authorized to issue change orders up to a total contract and contingency amount of $44,339 ." Or, "I move to deny the award ofiTB-13-13 , 38th Banner Poles Installation to WL Contractors, Inc., Arvada, for the following reason(s) " REPORT PREPARED/REVIEWED BY: Report Initiated by: Steve Nguyen, Engineering Manager Report Prepared by: Tim Paranto , Director of Public Works Reviewed by: Patrick Goff, City Manager, Jennifer Nellis, Purchasing Agent ATTACHMENTS: 1. Bid Tab Sheet " • • #.. City of • WlieatRi_dge PROJECT: ITB-13-13 BANNER POLES-INSTALLATION DUE DATE/TIME: MONDAY, APRIL22,2013 BY 1 P.M. LOCAl TIME REQUESTED BY: MARK WESTBERG, PUBliC WORKS -ENGINEERING OPENED BY: JENNIFER NELLIS, PURCHASING AGEN WITNESSED BY: DENISE WOOD, PURCHASING TECHNICIAN VENDOR W.L Contractors lOCATION Arvada, CO SIGNATURE PAGE YES ACKNOWLEDGE ADDENDA (2) YES CONTRACTOR 'S QUAUFICATION FORM YES NON -DISCRIMINATION ASSURANCE FORM YES ' ILLEGAL ALIEN COMPLIANCE FORM YES LIST OF SUB -CONTRACTORS YES NON -COLLUSION AFFADAVIT YES BID BOND N/A BASE BID, TOTAL: $ 40,309 .00 page 1 of l .... ~~£~ .. ~ r-City of • :?WheatR.i_dge ITEM NO: I (y, DATE: May 13 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION TO APPROVE AWARD OF ITB-13-01, 2013 OVERLAY AND CONCRETE REHABILITATION PROJECT BASE BID AND BID ALTERNATE #1, TO ASPHALT SPECIALTIES COMPANY, HENDERSON, CO, IN THE CONTRACT AMOUNT OF $1,137,585.75, AND TO APPROVE A CONTINGENCY AMOUNT OF $56,880 0 PUBLIC HEARING ~ BIDS /MOTIONS 0 RESOLUTIONS 0 ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2ND READING QUASI-JUDICIAL: 0 YES .£.e .. :~ Public Works Director ISSUE: The 2013 Overlay and Concrete Rehabilitation Project was developed to provide needed maintenance and resurfacing treatments to a number of selected streets by priority in accordance with the city-wide maintenance plan. The program is intended to extend the life of pavement on streets that are structurally sound. The project also includes: concrete and handicap ramp replacement on streets being resurfaced , striping maintenance of high volume streets throughout the City by priority, spot pavement patching citywide, and concrete replacement associated with the City Hall Entry Plaza project. This project is the last of three preventive maintenance projects that the City will implement this year. Staff recommends that the Asphalt Specialties Company be awarded a contract for the Base Bid and Alternate Bid 1 in the amount of$1 ,137 ,585.75. PRIOR ACTION: None Council Action Form May 13 ,2013 Page 2 FINANCIAL IMPACT: Funding for this program has been approved in the Preventive Maintenance Projects line item of the 2013 Capital Improvement Program budget. This project is the last of the three preventive maintenance projects that will be funded from this account. Performing this project will extend the useful life of the streets that are treated from seven to fifteen years. Funding for Bid Alternate #1 , which is the concrete replacement associated with the City Hall Plaza project, has been approved in the City Hall Improvements/Maintenance line item. BACKGROUND: Bids for the 2013 Overlay and Concrete Rehabilitation Project were opened on April 30 , 2013. Four bids were received. All bids met the initial bid requirements yet only two bids were within the base budget, established as $1 ,150,000. The apparent low bidder is Asphalt Specialties , Henderson , CO , with the total base bid amount of$1 ,113 ,610. Award is based on the lowest responsive and responsible bid that meets all of the bid requirements, is qualified to perform the work , and is within budget. The bids were comprised of four parts ; a Base Bid and Alternate Bids 1 through 3. Alternate Bids 1 through 3 were prepared as bid options , such that if the cost of the base bid is reasonable , additional streets can be added to the project. Base Bid -Pavement overlay and concrete replacement on a number of local streets throughout the City by priority Alternate #1-Concrete rehabilitation at City Hall entrance as part of entrance plaza improvements Alternate #2-Pavement overlay on Hift Court and 41 51 A venue Alternate #3-Pavement striping on 381 Avenue from Wadsworth to Sheridan Bid Ranges Base Bid: $1 ,113 ,610.00-$1 ,363 ,131.25 AI ternati ve: #1 $23 ,139.75-$24 ,545.00 #2 $32 ,808.00 -$40 ,511.00 #3 $59,216.75-$66,435.00 Engineer Estimate $1 ,155 ,167.00 $20,985.00 $33 ,684.50 $21,923.00 Based on budget availability , staff recommends Base Bid and Bid Alternative #1 be selected for construction. Alternate Bids 2 and 3 are not recommended for inclusion due to budget constraints. The lowest responsible and responsive bidder, Asphalt Specialties Co . of Henderson , Colorado , has met the bid and qualification requirements. The price for the Base Bid and Bid Alternate #1 IS $1 ,137 ,585.75 . A 5% contingency amount of $56 ,880 is requested for the cost of other items related to the project. PROJECT: ITB-13-01 .2013 OVERLAY PROJECT ... '. w:fi~;t Ri9ge REQUESTED BY: RUSS HIGGINS, PUBliC WORKS -ENGINEERING OPENED BY: JENNIFER NELLIS, PURCHASING A.GEN DUE DATE/TIME: TUESDAY, APRil30, 2013 BY 1 P.M. lOCAl TIME I ,->- WITNESSED BY: DENISE WOOD~ PURCHASING TECHNICIAN ~ MARTIN MARimA VENDOR APC 1 ASPHALT SPECIALTIES CO. BRANNAN SAND & GRAVEL MATERIALS LOCATION GOLDEN, CO HENDERSON, CO DENVER, CO WESTMINSTER, CO -. --.. --· -- SIGNATURE PAGE YES YES YES YES ACKNOWLEDGE ADDENDA (2) YES YES YES YES CONTRACTOR'S QUALIFICATION FORM YES YES YES YES NON-DISCRIMINATION ASSURANCE FORM YES YES YES YES ILLEGAL ALIEN COMPLIANCE YES YES YES YES LIST OF SUB-CONTRACTORS YES YES YES YES NON-COLLUSION AFFADAVIT YES YES YES YES BID BOND YES YES YES YES BASE BID, TOTAL: $ 1,149,196.00 $ 1,113,610.00 $ 1,363,131.25 s 1,175,863.61 BID AlTERNATE #1: $ 24,545.00 $ 23,975.75 $ 23,139.75 s 23,248.78 BID ALTERNATE #2: s 32,808.00 s 33,113.75 $ 40,511.00 $ 35,769.92 BID ALTERNATE #3: $ 66,435.00 s 65,932.00 s 59,216.75 s 65,289.51 ---· -------- page lofl N .. c CD E .c u ca .. 4 ~~~, .. ~ ., City of • JP'WheatRi__dge ITEMNO:k DATE: May 13 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 17-2013 - A RESOLUTION APPROVING A CONTRACT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION FOR THE WADSWORTH BOULEVARD PLANNING AND ENVIRONMENTAL LINKAGE STUDY FROM 36th TO 46th A VENUE D PUBLIC HEARING D BIDS/MOTIONS [8] RESOLUTIONS D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2ND READING QUASI-JUDICIAL:0 Y' _.- -2::-£~2£ Director of Public Works ISSUE: The City was awarded funding for a transportation study on Wadsworth Boulevard from 36th to 461h A venue through the Denver Regional Council of Governments (DR COG) Transportation Improvement Program (TIP) in September 2012. The project will conduct a Planning and Environmental Linkage Study (PEL) to identify traffic congestion and safety issues, and develop multi-modal solutions and related environmental mitigation for future construction improvements to address mobility in this highway corridor. The federal grant will provide $636,000 to assist in funding the estimated $1 ,200,000 project. The Colorado Department of Transportation (CDOT) will administer the project's federal funding , while the City will manage the study. Entering into an Intergovernmental Agreement (IGA) with CDOT is necessary to formally authorize the project. The IGA provides that the City finance the cost of the project, with CDOT reimbursing 53% of the costs, not to exceed $636 ,000 . Council Action Form May 13 ,2013 Page2 PRIOR ACTION: None FINANCIAL IMPACT: City staff will administer the study and COOT will reimburse 53% of all project-related costs , not to exceed $636 ,000. While the project cost is not expected to exceed the project estimate, any unlikely shortfall will be provided by the City. The City's portion is not expected to exceed $564 ,000 . Funding for this program has been approved in the Wadsworth PEL line item of the 2013 Capital Improvement Program Budget in the amount of$1 ,200 ,000. Likewise, the 2013 CIP revenues include the expected reimbursements. BACKGROUND: In March 2012 , the City applied to the OR COG for federal transportation funds available for fiscal years 2012 through 2017 to help fund a transportation and environmental study on Wadsworth Boulevard from 36 1h to 46th Avenue . ORCOG awarded the grant in September 2012 . This project will provide a study and findings which will be utilized for the design and environmental assessment of future transportation improvements. The goal ofthe PEL study will be to establish the purpose and need of a required future highway environmental study , define the study area for subsequent phases , and develop reasonable alternatives with logical termini , along with independent utility and program priorities , timeframes , and potential funding to be used in updating transportation plans and Transportation Improvement Programs (TIPs). The improvement of this segment of Wadsworth Boulevard has been a high priority for both COOT and the City of Wheat Ridge for more than 20 years. Lack of available funding is the primary reason for postponing improvements. It is anticipated the study will identify the improvements needed to widen Wadsworth Boulevard between 36th and 46th Avenues to six travel lanes , including the major intersections at 38th and 44th A venues , provide additional tum lanes at key congested intersections , and install medians to better manage access. Bike lanes and detached sidewalks will also be studied to serve additional modes of transportation. Although the contract states that the City will provide a match of $132 ,000 , the City agreed to provide an overmatch amount of$432 ,000 as a competitive advantage against other funding applications. The IGA addresses the federal grant and only the required minimum local match per federal regulations. The City will be responsible for providing the local match of$564,000 committed in the application to ORCOG. RECOMMENDATIONS: Staff recommends approving the contract with COOT to proceed with the transportation study. Council Action Form May 13,2013 Page 3 RECOMMENDED MOTION: "I move to approve Resolution No.17-2013, a resolution approving a contract with the Colorado Department of Transportation for the Wadsworth Boulevard Planning and Environmental Linkage Study from 361h to 46th Avenue." Or: "I move to postpone indefinitely Resolution No. 17-2013, a resolution approving a contract with the Colorado Department of Transportation for the Wadsworth Planning and Environmental Linkage Study from 361h to 46th Avenue, for the following reason(s): " REPORT PREPARED/REVIEWED BY: Steve Nguyen, Engineering Manager Tim Paranto, Director of Public Works Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 17-2013 2. CDOT Contract No. 19488 (minus exhibits D-K) CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 17 Series of 2013 TITLE: A RESOLUTION APPROVING A CONTRACT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION FOR THE WADSWORTH BOULEVARD PLANNING AND ENVIRONMENTAL LINKAGE STUDY FROM 36TH TO 46TH AVENUE WHEREAS, the City Council wishes to provide for the planning and environmental study of the Wadsworth Boulevard corridor from 36th to 46th Avenue; and WHEREAS, the City has been awarded a federal transportation grant by the Denver Regional Council of Governments (DRCOG) to conduct a study of this particular transportation corridor; and WHEREAS, the City has negotiated a contract with the Colorado Department of Transportation (COOT), DRCOG's funding steward, for the funding of the Project; and WHEREAS, the project funds are programmed in the 2013 Capital Investment Program budget in the total amount of $1,200,000 in the Wadsworth PEL account to finance the project cost and will seek reimbursement of 53% of the Project costs from COOT upon Project completion; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, that: Section 1. Contract Approved. The contract between the City and (COOT) for Project 19488: Wadsworth Boulevard Planning and Environmental Linkage Study from 36th to 46th Avenue, is hereby approved and the Mayor and City Clerk are authorized and directed to execute the same. This Resolution shall be effective immediately upon adoption. DONE AND RESOLVED this __ day of _____ , 2013. Jerry DiTullio, Mayor ATIEST: Janelle Shaver, City Clerk Attachment 1 (FMLAWRK) PROJECT STU 1211-081, (19488) REGION 6/(JH) STATE OF COLORADO Department of Transportation Intergovernmental Agreement with City of Wheat Ridge TABLE OF CONTENTS Rev 11/28/12 Routing t# 13 HA6 54978 10, 271001851 1. PARTIES ......................................................................................................................................... 2 2 . EFFECTIVE DATE AND NOTICE OF NONLIABILITY ..................................................................... 2 3. RECITALS ....................................................................................................................................... 2 4 . DEFINITIONS .................................................................................................................................. 2 5. TERM and EARLY TERMINATION ................................................................................................. 3 6. SCOPE OF WORK .......................................................................................................................... 3 7 . OPTION LEITER MODIFICATION .................................................................................................. 7 8. PAYMENTS ..................................................................................................................................... 8 9. ACCOUNTING .............................................................................................................................. 10 10. REPORTING -NOTIFICATION ................................................................................................... 11 11 . LOCAL AGENCY RECORDS ...................................................................................................... 11 12 . CONFIDENTIAL INFORMATION-STATE RECORDS .................................................................. 12 13. CONFLICT OF INTEREST .......................................................................................................... 12 14 . REPRESENTATIONS AND WARRANTIES ................................................................................. 12 15. INSURANCE ............................................................................................................................... 13 16. DEFAULT-BREACH .................................................................................................................... 14 17 . REMEDIES .................................................................................................................................. 15 18 . NOTICES and REPRESENTATIVES ........................................................................................... 17 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE ............................................ 17 20. GOVERNMENTAL IMMUNITY .................................................................................................... 17 21 . STATEWIDE CONTRACT MANAGEMENT SYSTEM ................................................................. 18 22. FEDERAL REQUIREMENTS ....................................................................................................... 18 23 . DISADVANTAGED BUSINESS ENTERPRISE (DBE) ................................................................. 18 24 . DISPUTES ................................................................................................................................... 18 25 . GENERAL PROVISIONS ............................................................................................................ 19 26. COLORADO SPECIAL PROVISIONS ......................................................................................... 22 27. SIGNATURE PAGE ..................................................................................................................... 24 28. EXHIBIT A-SCOPE OF WORK ................................................................................................... 1 29. EXHIBIT B-LOCAL AGENCY RESOLUTION .............................................................................. 1 30. EXHIBIT C -FUNDING PROVISIONS .......................................................................................... 1 31 . EXHIBIT D-OPTION LEITER ..................................................................................................... 1 32 . EXHIBIT E-LOCAL AGENCY CONTRACT ADMINISTRATION CHECKLIST ............................. 1 33 . EXHIBIT F-CERTIFICATION FOR FEDERAL-AID CONTRACTS ............................................... 1 34. EXHIBIT G-DISADVANTAGED BUSINESS ENTERPRISE ........................................................ 1 35 . EXHIBIT H-LOCAL AGENCY PROCEDURES FOR CONSULTANT SERVICES ........................ 1 36 . EXHIBIT 1-FEDERAL-AID CONTRACT PROVISIONS ................................................................ 1 37 . EXHIBIT J-FEDERAL REQUIREMENTS .................................................................................... 1 38 . EXHIBIT K-SUPPLEMENTAL FEDERAL PROVISIONS ............................................................. 1 Attachment 2 1. PARTIES THIS AGREEMENT is entered into by and between the City of Wheat Ridge (hereinafter called the "Local Agency"}, and the STATE OF COLORADO acting by and through the Department of Transportation (hereinafter called the "State" or "CDOr). 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY This Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State Controller or their designee (hereinafter called the "Effective Date"). The State shall not be liable to pay or reimburse the Local Agency for any performance hereunder, including , but not limited to costs or expenses incurred , or be bound by any provision hereof prior to the Effective Date . 3. RECITALS A. Authority, Appropriation, And Approval Authority exists in the law and funds have been budgeted , appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment and the required approval , clearance and coordination have been accomplished from and with appropriate agencies. i. Federal Authority Pursuant to Title I, Subtitle A , Section 1108 of the "T ransportation Equity Act for the 2 1'1 Century" of 1998 (TEA-21) and/or the "Safe, Accountable , Flexible, Efficient Transportation Equity Act: A Legacy for Users" (SAFETEA-LU) of 2005 and to applicable provisions of Title 23 of the United States Code and implementing regulations at Title 23 of the Code of Federa l Regulations, as may be amended , (collectively referred to hereinafter as the "Federal Provisions"), certain federal funds have been and are expected to continue to be allocated for transportation projects requested by the Local Agency and eligible under the Surface Transportation Improvement Program that has been proposed by the State and approved by the Federal Highway Administration ("FHWA"). li. State Authority Pursuant to CRS §43-1 -223 and to applicable portions of the Federal Provisions, the State is responsible for the general administration and supervision of performance of projects in the Program , including the administration of federal funds for a Program project performed by a Local Agency under a contract with the State. This Agreement is executed under the authority of CRS §§29-1-203, 43-1-110; 43-1-116 , 43-2-101(4)(c) and 43-2-104.5. B. Consideration The Parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Agreement. C. Purpose The purpose of th is Agreement is to disburse Federa l funds to the Local Agency pursuant to COOT's Stewardship Agreement with the FHWA. D. References All references in this Agreement to sections (whether spelled out or using the§ symbol), subsections , exhibits or other attachments, are references to sections , subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted . 4. DEFINITIONS The following terms as used herein shall be construed and interpreted as follows : A. Agreement or Contract "Agreement" or "Contract" means this Agreement , its terms and conditions , attached exhibits, documents incorporated by reference under the terms of this Agreement, and any future modifying agreements , exhibits, attachments or references that are incorporated pursuant to Colorado State Fiscal Rules and Policies. B . Agreement Funds "Agreement Funds" means funds payable by the State to Local Agency pursuant to this Agreement. Page 2 of24 C. Budget "Budget" means the budget for the Work described in Exhibit C. D. Consultant and Contractor "Consultant" means a professional engineer or designer hired by Local Agency to design the Work and "Contractor" means the general construction contractor hired by Local Agency to construct the Work. E. Evaluation "Evaluation" means the process of examining the Local Agency 's Work and rating it based on criteria established in §6 and Exhibits A and E . F. Exhibits and Other Attachments The following exhibit(s) are attached hereto and incorporated by reference herein: Exhibit A (Scope of Work), Exhibit B (Resolution), Exhibit C (Funding Provisions), Exhibit D (Option Letter), Exhibit E (Local Agency Contract Administration Checklist), Exhibit F (Certification for Federal-Aid Funds), Exhibit G (Disadvantaged Business Enterprise), Exhibit H (local Agency Procedures), Exhibit I (Federal-Aid Contract Provisions), Exhibit J (Federal Requirements) and Exhibit K (Supplemental Federal Provisions). G. Goods "Goods" means tangible material acquired, produced, or delivered by the Local Agency either separately or in conjunction with the Services the Local Agency renders hereunder. H. Oversight "Oversight" means the term as it is defined in the Stewardship Agreement between COOT and the Federal Highway Administration ("FHWA") and as it is defined in the Local Agency Manual. I. Party or Parties "Party" means the State or the Local Agency and "Parties" means both the State and the Local Agency J. Work Budget Work Budget means the budget described in Exhibit C. K. Services "Services" means the required services to be performed by the Local Agency pursuant to this Contract. L. Work "Work" means the tasks and activities the Local Agency is required to perform to fulfill its obligations under this Contract and Exhibits A and E , including the performance of the Services and delivery of the Goods. M. Work Product "Work Product" means the tangible or intangible results of the Local Agency's Work, including , but not limited to, software, research , reports , studies, data, photographs, negatives or other finished or unfinished documents, drawings, models, surveys, maps , materials, or work product of any type , including drafts. 6. TERM and EARLY TERMINATION The Parties' respective performances under this Agreement shall commence on the Effective Date . This Agreement shall terminate after ten (10) years of state controllers signature in section 27 , unless sooner terminated or completed as demonstrated by final payment and final audit. 6. SCOPE OF WORK A . Completion T he Local Agency shall complete the Work and other obligations as described herein in Exhibit A. Work performed prior to the Effective Date or after final acceptance shall not be considered part of the Work. B . Goods and Services Page 3 of24 The Local Agency shall procure Goods and Services necessary to complete the Work. Such procurement shall be accomplished using the Contract Funds and shall not increase the maximum amount payable hereunder by the State. C. Employees All persons employed hereunder by the Local Agency, or any Consultants or Contractors shall be considered the Local Agency's , Consultants' or Contractors' employee(s) for all purposes and shall not be employees of the State for any purpose. D. State and Local Agency Commitments I. Design If the Work includes preliminary design or final design or design work sheets , or special provisions and estimates (collectively referred to as the MPians "), the Local Agency shall comply with and be responsible for satisfying the following requirements : a) Perform or provide the Plans to the extent required by the nature of the Work. b) Prepare final design in accordance with the requirements of the latest edition of the American Association of State Highway Transportation Officials (AASHTO) manual or other standard , such as the Uniform Building Code, as approved by the State. c) Prepare provisions and estimates in accordance with the most current version of the State's Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction or Loca l Agency specifications if approved by the State. d) Include details of any required detours in the Plans in order to prevent any interference of the construction Work and to protect the traveling publ ic . e) Stamp the Plans produced by a Colorado Registered Professional Eng ineer. f) Provide final assembly of Plans and all other necessary documents. g) Be responsible for the Plans' accuracy and completeness . h) Make no further changes in the Plans following the award of the construction contract to Contractor unless agreed to in writing by the Parties . The Plans shall be considered final when approved i n writing by COOT and when final they shall be incorporated herein . II. Local Agency Work a) Local Agency shall comply with the requirements of the Americans With Disabilities Act (ADA), and applicable federal regulations and standards as contained in the document MADA Accessibility Requirements in COOT Transportation Projects". b) Local Agency shall afford the State ample opportunity to review the Plans and make any changes in the Plans that are directed by the State to comply with FHWA requirements . c) Local Agency may enter into a contract w ith a Consultant to perform all or any portion of the Plans and/or of construction admin istration . Provided , however, if federal-aid funds are involved in the cost of such Work to be done by such Consultant, such Consultant contract (and the performance/provision of the Plans under the contract) must comply with all applicable requirements of 23 C.F.R. Part 172 and with any procedures implementing those requirements as provided by the State, including those in Exhibit H . If the Local Agency enters into a contract with a Consultant for the Work: (1) Local Agency shall submit a certification that procurement of any Consultant contract complies with the requirements of 23 C.F.R. 172.5(1) prior to entering into such Consultant contract, subject to the State's approval. If not approved by the State, the Local Agency shall not enter into such Consultant contract. (2) Local Agency shall ensure that all changes in the Consultant contract have prior approval by the State and FHWA and that they are in writing . Immediately after the Consultant contract has been awarded , one copy of the executed Consultant contract and any amendments shall be submitted to the State. (3) Local Agency shall require that all billings under the Consultant contract comply w ith the State's standardized billing format. Examples of the billing formats are available from the COOT Agreements Office. Page 4 of 24 (4) Local Agency (and any Consultant) shall comply with 23 C.F.R. 172.5(b) and (d) and use the COOT procedures described in Exhibit H to administer the Consultant contract. (5) Local Agency may expedite any COOT approval of its procurement process and/or Consultant contract by submitting a letter to COOT from the Local Agency's attorney/authorized representative certifying compliance with Exhibit H and 23 C.F.R. 172.5(b)and (d). (6) Local Agency shall ensure that the Consultant contract complies with the requirements of 49 CFR 18.36(i) and contains the following language verbatim : (a) The design work under this Agreement shall be compatible with the requirements of the contract between the Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third-party beneficiary of this agreement for that purpose. (b) Upon advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction of the project. (c) The consultant shall review the Construction Contractor's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, Standard Soecifications for Road and Bridge Construction, in connection with this work. d) The State, in its sole discretion, may review construction plans, special provisions and estimates and may require the Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. ill. Construction If the Work includes construction, the Local Agency shall perform the construction in accordance with the approved design plans and/or administer the construction in accordance with Exhibit E. Such administration shall include Work inspection and testing; approving sources of materials; performing required plant and shop inspections; documentation of contract payments, testing and inspection activities; preparing and approving pay estimates; preparing, approving and securing the funding for contract modification orders and minor contract revisions; processing Construction Contractor claims; construction supervision; and meeting the Quality Control requirements of the FHWA/COOT Stewardship Agreement, as described in the Local Agency Contract Administration Checklist. a) If the Local Agency is performing the Work, the State may, after providing written notice of the reason for the suspension to the Local Agency, suspend the Work, wholly or in part, due to the failure of the Local Agency or its Contractor to correct conditions which are unsafe for workers or for such periods as the State may deem necessary due to unsuitable weather, or for conditions considered unsuitable for the prosecution of the Work, or for any other condition or reason deemed by the State to be in the public interest. b) The Local Agency shall be responsible for the following: (1) Appointing a qualified professional engineer, licensed in the State of Colorado, as the Local Agency Project Engineer (LAPE), to perform engineering administration. The LAPE shall administer the Work in accordance with this Agreement, the requirements of the construction contract and applicable State procedures. (2) For the construction of the Work, advertising the call for bids upon approval by the State and awarding the construction contract(s) to the low responsible bidder(s). Page 5 of24 (a) All advertising and bid awards, pursuant to this agreement, by the Local Agency shall comply with applicable requirements of 23 U.S.C. §112 and 23 C.F.R. Parts 633 and 635 and C.R.S . § 24-92-101 et seq . Those requirements include, without limitation, that the Local Agency and its Contractor shall incorporate Form 1273 (Exhibit I) in its entirety verbatim into any subcontract(s) for those services as terms and conditions therefor, as required by 23 C.F.R. 633 .102(e). (b) The Local Agency may accept or reject the proposal of the apparent low bidder for Work on which competitive bids have been received. The Local Agency must accept or reject such bid within three (3) working days after they are publicly opened. (c) As part of accepting bid awards, the Local Agency shall provide additional funds, subject to their availability and appropriation, necessary to complete the Work if no additional federal-aid funds are available. (3) The requirements of this §6(D)(iii)(c)(2) also apply to any advertising and awards made by the State. (4) If all or part of the Work is to be accomplished by the Local Agency's personnel (i.e . by force account) rather than by a competitive bidding process, the Local Agency shall perform such work in accordance with pertinent State specifications and requirements of 23 C.F .R. 635, Subpart 8 , Force Account Construction. (a) Such Work will normally be based upon estimated quantities and firm unit prices agreed to between the Local Agency, the State and FHWA in advance of the Work, as provided for in 23 C.R.F. 635.204(c). Such agreed unit prices shall constitute a commitment as to the value of the Work to be performed . (b) An alternative to the preceeding subsection is that the Local Agency may agree to participate in the Work based on actual costs of labor, equipment rental, materials supplies and supervision necessary to complete the Work. Where actual costs are used, eligibility of cost items shall be evaluated for compliance with 48 C.F.R. Part 31. (c) If the State provides matching funds under this Agreement, rental rates for publicly owned equipment shall be determined in accordance with the State's Standard Specifications for Road and Bridge Construction §109 .04 . (d) All Work being paid under force account shall have prior approval of the State and/or FHWA and shall not be initiated until the State has issued a written notice to proceed. E. State's Commitments a) The State will perform a final project inspection of the Work as a quality control/assurance activity. When all Work has been satisfactorily completed, the State will sign the FHWA Form 1212. b) Notwithstanding any consents or approvals given by the State for the Plans, the State shall not be liable or responsible in any manner for the structural design, details or construction of any major structures designed by, or that are the responsibility of, the Local Agency as identified in the Local Agency Contract Administration Checklist, Exhibit E. F. ROW and Acquistion/Relocation a) If the Local Agency purchases a right of way for a State highway, including areas of influence, the Local Agency shall immediately convey title to such right of way to COOT after the Local Agency obtains title . b) Any acquisition/relocation activities shall comply with all applicable federal and state statutes and regulations, including but not limited to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended and the Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Page 6 of24 Programs as amended (49 C.F.R. Part 24), COOT's Right of Way Manual , and COOT's Policy and Procedural Directives. c) The Parties' respective compliance responsibilities depend on the level of federal participation ; provided however, that the State always retains Oversight responsibilities . d) The Parties' respective responsibilities under each level in COOT's Right of Way Manual (located at http ://www.dot.state.co .us /ROW Manuai D and reimbursement for the levels will be under the following categories: (1) Right of way acquisition (3111) for federal participation and non-participation ; (2) Relocation activities, if applicable (3109); (3) Right of way incidentals, if applicable (expenses incidental to acquisition/relocation of right of way-3114). G. Utilities If necessary, the Local Agency shall be responsible for obtaining the proper clearance or approval from any utility company which may become involved in the Work. Prior to the Work being advertised for bids, the Local Agency shall certify in writing to the State that all such clearances have been obtained . a) Railroads If the Work involves modification of a railroad company's facilities and such modification will be accomplished by the railroad company, the Local Agency shall make timely application to the Public Utilities commission requesting its order providing for the installation of the proposed improvements and not proceed with that part of the Work without compliance. The Local Agency shall also establish contact with the railroad company involved for the purpose of complying with applicable provisions of 23 C .F .R. 646, subpart 8, concerning federal-aid projects involving railroad facilities and : b) Execute an agreement setting out what work is to be accomplished and the location(s) thereof, and which costs shall be eligible for federal participation. c) Obtain the railroad's detailed estimate of the cost of the Work. d) Establish future maintenance responsibilities for the proposed installation . e) Proscribe future use or dispositions of the proposed improvements in the event of abandonment or elimination of a grade crossing. f) Establish future repair and/or replacement responsibilities in the event of accidental destruction or damage to the installation . H. Environmental Obligations The Local Agency shall perform all Work in accordance with the requirements of the current federal and state environmental regulations including the National Environmental Policy Act of 1969 (NEPA) as applicable. I. Maintenance Obligations The Local Agency shall maintain and operate the Work constructed under this Agreement at its own cost and expense during their usefu l life, in a manner satisfactory to the State and FHWA, and the Local Agency shall provide for such maintenance and operations obligations each year. Such maintenance and operations shall be conducted in accordance with all applicable statutes , ordinances and regulations pertaining to maintaining such improvements. The State and FHWA may make periodic inspections to verify that such improvements are being adequately maintained . 7. OPTION LETTER MODIFICATION An option letter may be used to authorize the Local Agency to begin a phase without increasing total budgeted funds , increase or decrease the encumberance amount as shown on Exhibit C , and/or tranfer funds from one phase to another. Option letter modification is limited to the specific scenarios listed below. The option letter shall not be deemed valid until signed by the State Controller or an authorized delegate. A. Option to begi n a phase and/or Increase or decrease the encumberance amount Page 7 of24 The State may authorize the Local Agency to begin a phase that may include Design , Construction , Environmental , Utilities, ROW Incidentals or Miscellaneous (this does not apply to Acquisition/Relocation or Railroads} as detailed in Exhibit A and at the same terms and conditions stated in the original Agreement, with the total budgeted funds as shown on Exhibit C remaining the same . The State may increase or decrease the encumbrance amount for a particular phase by replacing the original funding exhibit (Exhibit C) in the original Agreement with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2 , C-3 , etc}. The State may exercise this option by providing a fully executed option to the Local Agency within thirty (30} days before the initial targeted start date of the phase , in a form substantially equivalent to Exhibit D. If the State exercises this option , the Agreement will be considered to include this option provision . B. Option to transfer funds from one phase to another phase The State may permit the Local Agency to transfer funds from one phase (Design , Construction , Environmental , Utilities , ROW Incidentals or Miscellaneous} to another as a result of changes to state , federal , and local match . The original funding exhibit (Exhibit C) in the original Agreement will be replaced with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be tabled C-2 , C-3 , etc.} and attached to the option letter. The funds t ransferred from one phase to another are subject to the same te rms and cond itions stated in the original Agreement w ith the total budgeted funds remaining the same. The State may un ilaterally exercise this option by prov iding a fully executed option to the Local Agency within thirty (30) days before the initial targeted start date of the phase , in a form substantially equivalent to Exhibit D. Any transfer of funds from one phase to another is limited to an aggregate maximum of 24.99% of the original dollar amount of either phase affected by a transfe r. A bilateral amendment is required for any transfer exceeding 24 .99% of the original dollar amount of the phase affected by the increase or decrease. C. Option to do both Options A and B The State may authorize the Local Agency to begin a phase as detailed in Exhibit A , and encumber and transfer funds from one phase to another. The original funding exhibit (Exhibit C) in the original Agreement will be replaced with an updated Exhibit C-1 (subsequent exhibits to Exhibit C-1 shall be labeled C-2 , C-3 , etc.} and attached to the option letter. The addition of a phase and encumbrance and transfer of funds are subject to the same terms and conditions stated in the origina l Agreement with the total budgeted funds remaining the same . The State may unilaterally exercise this option by providing a fully executed option to the Local Agency within thirty (30) days before the initial targeted start date of the phase, in a form substantially equ ivalent to Exhibit D. 8. PAYMENTS The State shall , in accordance with the provisions of this §8 , pay the Local Agency in the amounts and us ing the methods set forth below: A. Maximum Amount The maximum amount payable is set forth in Exhibit Cas determined by the State from availab le funds . Payments to the Local Agency are limited to the unpaid encumbered balance of the Agreement set forth in Exhibit C . The Local Agency shall provide its match share of the costs as evidenced by an appropriate ordinance/resolution or other authority letter which expressly authorizes the Local Agency the authority to enter into this Agreement and to expend its match share of the Work . A copy of such ordinance/resolution or authority letter is attached hereto as Exhibit B. B. Payment i. Advance, Interim and Final Payments Any advance payment allowed under this Contract or in Exhibit C shall comply with State Fisca l Rules and be made in accordance with the provisions of this Contract or such Exh ibit. Page 8 of 24 The Local Agency shall initiate any payment requests by submitting invoices to the State in the form and manner, approved by the State. II. Interest The State shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced represents performance by the Local Agency previously accepted by the State. Uncontested amounts not paid by the State within 45 days shall bear interest on the unpaid balance beginning on the 46th day at a rate not to exceed one percent per month until paid in full; provided, however, that interest shall not accrue on unpaid amounts that are subject to a good faith dispute. The Local Agency shall invoice the State separately for accrued interest on delinquent amounts. The billing shall reference the delinquent payment, the number of days interest to be paid and the interest rate . Ill. Available Funds-Contingency-Termination The State is prohibited by law from making commitments beyond the term of the State's current fiscal year. Therefore, the Local Agency's compensation beyond the State's current Fiscal Year is contingent upon the continuing availability of State appropriations as provided in the Colorado Special Provisions. The State's performance hereunder is also contingent upon the continuing availability of federal funds. Payments pursuant to this Contract shall be made only from available funds encumbered for this Contract and the State's liability for such payments shall be limited to the amount remaining of such encumbered funds . If State or federal funds are not appropriated, or otherwise become unavailable to fund this Contract, the State may terminate this Contract immediately, iri whole or in part, without further liability in accordance with the provisions hereof. iv. Erroneous Payments At the State's sole discretion, payments made to the Local Agency in error for any reason, including, but not limited to overpayments or improper payments, and unexpended or excess funds received by the Local Agency, may be recovered from the Local Agency by deduction from subsequent payments under this Contract or other contracts, Agreements or agreements between the State and the Local Agency or by other appropriate methods and collected as a debt due to the State. Such funds shall not be paid to any party other than the State. C. Use of Funds Contract Funds shall be used only for eligible costs identified herein. D. Matching Funds The Local Agency shall provide matching funds as provided in §8.A. and Exhibit C. The Local Agency shall have raised the full amount of matching funds prior to the Effective Date and shall report to the State regarding the status of such funds upon request. The Local Agency's obligation to pay all or any part of any matching funds, whether direct or contingent, only extend to funds duly and lawfully appropriated for the purposes of this Agreement by the authorized representatives of the Local Agency and paid into the Local Agency's treasury. The Local Agency represents to the State that the amount designated "Local Agency Matching Funds" in Exhibit C has been legally appropriated for the purpose of this Agreement by its authorized representatives and paid into its treasury. The Local Agency does not by this Agreement irrevocably pledge present cash reserves for payments in Mure fiscal years, and this Agreement is not intended to create a multiple-fiscal year debt of the Local Agency. The Local Agency shall not pay or be liable for any claimed interest, late charges, fees, taxes or penalties of any nature, except as required by the Local Agency's laws or policies. E. Reimbursement of Local Agency Costs The State shall reimburse the Local Agency 's allowable costs , not exceeding the maximum total amount described in Exhibit C and §8 . The applicable principles described in 49 C.F .R. 18 Subpart C and 49 C .F.R. 18.22 shall govern the State's obligation to reimburse all costs incurred by the Local Agency and submitted to the State for reimubursement hereunder, and the Local Agency shall comply with all such principles. The State shall reimburse the Local Agency for the federal-aid share of properly documented costs related to the Work after review and Page 9 of24 approval thereof, subject to the provisions of this Agreement and Exhibit C . However, any costs incurred by the Local Agency prior to the date of FHWA authorization for the Work and prior to the Effective Date shall not be reimbursed absent specific FHWA and State Controller approval thereof. Costs shall be : i. Reasonable and Necessary Resonable and necessary to accomplish the Work and for the Goods and Services provided . II. Net Cost Actual net cost to the Local Agency (i.e. the price paid minus any items of value received by the Local Agency that reduce the cost actually incurred); 9. ACCOUNTING The Local Agency shall establish and maintain accounting systems in accordance with generally accepted accounting standards (a separate set of accounts , or as a separate and integral part of its current accounting scheme). Such accounting systems shall , at a minimum , provide as follows: A . Local Agency Performing the Work If Local Agency is performing the Work, all allowable costs, including any approved services contributed by the Local Agency or others, shall be documented using payrolls , time records , invo ices , contracts, vouchers, and other applicable records . B . Local Agency-Checks or Draws Checks issued or draws made by the Local Agency shall be made or drawn against properly signed vouchers detailing the purpose thereof. All checks, payrolls , invoices, contracts, vouchers , orders, and other accounting documents shall be on file in the office of the Local Agency ,clearly identified , readily accessible , and to the extent feasible , kept separate and apart from all other Work documents. C. State-Administrative Services The State may perform any necessary admin istrative support services required hereunder. The Local Agency shall reimburse the State for the costs of any such services from the Budget as provided for in Exhibit C. If FHWA funding is not available or is withdrawn , or if the Local Agency term inates this Agreement prior to the Work being approved or completed , then all actual incurred costs of such services and assistance provided by the State shall be the Local Agency's sole expense. D. Local Agency-Invoices The Local Agency's invoices shall describe in detail the reimbursable costs incurred by the Local Agency for which it seeks reimbursement, the dates such costs were incurred and the amounts thereof, and shall not be submitted more often than monthly. E. Invoicing Within 60 Days The State shall not be liable to reimburse the Local Agency for any costs unless COOT rece ives such invoices within 60 days after the date for which payment is requested , including final invoicing . Final payment to the Local Agency may be withheld at the discretion of the State until completion of final audit. Any costs incurred by the Local Agency that are not allowable under 49 C .F .R. 18 shall be reimbursed by the Local Agency, or the State may offset them against any payments due from the State to the Local Agency . F. Reimbursement of State Costs COOT shall perform Oversight and the Local Agency shall reimburse COOT for its related costs. The Local Agency shall pay invoices within 60 days after receipt thereof. If the Local Agency fails to remit payment within 60 days , at COOT's request , the State is authorized to withhold an equal amount from future apportionment due the Local Agency from the Highway Users Tax Fund and to pay such funds directly to COOT . Interim funds shall be payable from the State Highway Supplementary Fund (400) until COOT is reimbursed . If the Local Agency fails to make payment within 60 days, it shall pay interest to the State at a rate of one percent per month on the delinquent amounts until the billing is paid in full . COOT's invoices shall describe in detail the reimbursable costs incu rred , the dates incurred and the amounts thereof, and shall not be submitted more often than monthly. Page 10 of 24 10. REPORTING-NOTIFICATION Reports, Evaluations, and Reviews required under this §10 shall be in accordance with the procedures of and in such form as prescribed by the State and in accordance with §18, if applicable. A. Performance, Progress, Personnel, and Funds The Local Agency shall submit a report to the State upon expiration or sooner termination of this Agreement, containing an Evaluation and Review of the Local Agency's performance and the final status of the Local Agency's obligations hereunder. B. Litigation Reporting Within 10 days after being served with any pleading related to this Agreement, in a legal action filed with a court or administrative agency, the Local Agency shall notify the State of such action and deliver copies of such pleadings to the State's principal representative as identified herein. If the State or its principal representative is not then serving, such notice and copies shall be delivered to the Executive Director of COOT. C. Noncompliance The Local Agency's failure to provide reports and notify the State in a timely manner in accordance with this § 1 0 may result in the delay of payment of funds and/or termination as provided under this Agreement. D. Documents Upon request by the State, the Local Agency shall provide the State, or its authorized representative, copies of all documents, including contracts and subcontracts, in its possession related to the Work. 11. LOCAL AGENCY RECORDS A. Maintenance The Local Agency shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work or the delivery of Services (including, but not limited to the operation of programs) or Goods hereunder. The Local Agency shall maintain such records until the last to occur of the following : (I) a period of three years after the date this Agreement is completed or terminated, or (II) three years after final payment is made hereunder, whichever is later, or (Ill) for such further period as may be necessary to resolve any pending matters, or (lv) if an audit is occurring, or the Local Agency has received notice that an audit is pending, then until such audit has been completed and its findings have been resolved (collectively, the "Record Retention Period"). B. Inspection The Local Agency shall permit the State, the federal government and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe the Local Agency's records related to this Agreement during the Record Retention Period to assure compliance with the terms hereof or to evaluate the Local Agency's performance hereunder. The State reserves the right to inspect the Work at all reasonable times and places during the term of this Agreement, including any extension. If the Work fails to conform to the requirements of this Agreement, the State may require the Local Agency promptly to bring the Work into conformity with Agreement requirements, at the Local Agency's sole expense. If the Work cannot be brought into conformance by re-performance or other corrective measures, the State may require the Local Agency to take necessary action to ensure that future performance conforms to Agreement requirements and may exercise the remedies available under this Agreement at law or in equity in lieu of or in conjunction with such corrective measures. C. Monitoring The Local Agency also shall permit the State, the federal government or any other duly authorized agent of a governmental agency, in their sole discretion, to monitor all activities conducted by the Local Agency pursuant to the terms of this Agreement using any reasonable procedure, including , but not limited to : internal evaluation procedures, examination of program Page 11 of24 data, special analyses, on-site checking, formal audit examinations , or any other procedures. All such monitoring shall be performed in a manner that shall not unduly interfere with the Local Agency 's performance hereunder. D. Final Audit Report If an audit is performed on the Local Agency's records for any fiscal year covering a portion of the term of this Agreement, the Local Agency shall submit a copy of the final audit report to the State or its principal representative at the address specified herein. 12. CONFIDENTIAL INFORMATION-STATE RECORDS The Local Agency shall comply with the provisions of this §12 if it becomes privy to confidential information in connection with its performance hereunder. Confidential information , includes , but is not necessarily limited to , state records , personnel records, and information concerning individuals. Nothing in this §12 shall be construed to require the Local Agency to violate the Colorado Open Records Act, C.R.S . §§ 24-72-1001 et seq . A. Confidentiality The Local Agency shall keep all State records and information confidential at all times and to comply with all laws and regulations concerning confidentiality of information . Any request or demand by a third party for State records and information in the possession of the Local Agency shall be immediately forwarded to the State's principal representative . B. Notification The Local Agency shall notify its agents, employees and assigns who may come into contact with State records and confidential information that each is subject to the confidentiality requirements set forth herein , and shall provide each with a written explanation of such · requirements before they are permitted to access such records and information . C. Use, Security, and Retention Confidentia l information of any kind shall not be distributed or sold to any third party or used by the Local Agency or its agents in any way, except as authorized by the Agreement and as approved by the State. The Local Agency shall provide and maintain a secure environment that ensures confidentiality of all State records and other confidential information wherever located . Confidential information shall not be retained in any files or otherwise by the Local Agency or its agents, except as set forth in this Agreement and approved by the State. D. Disclosure-Liability Disclosure of State records or other confidential information by the Local Agency for any reason may be cause for legal action by third parties against the Local Agency, the State or their respective agents. The Local Agency is proh ibited from provid ing indemnification to the State pursuant to the Constitution of the State of Colorado , Article XI , Section 1, however, the Local Agency shall be responsible for any and all claims , damages , liability and court awards includ ing costs , expenses, and attorney fees and related costs, incurred as a result of any act or omission by the Local Agency , or its employees, agents , or assignees pursuant to this §12. 13. CONFLICT OF INTEREST The Local Agency shall not engage in any business or personal activities or practices or ma intain any relationships which conflict in any way with the full performance of the Local Agency's obligations hereunder. The Local Agency acknowledges that with respect to this Agreement even the appearance of a conflict of interest is harmful to the State's interests. Absent the State's prior written approval, the Local Agency shall refrain from any practices , activities or relationships that reasonably appear to be in conflict with the full performance of the Local Agency's obligations to the State hereunder. If a conflict or appearance ex ists , or if the Local Agency is uncertain whether a conflict or the appearance of a conflict of interest exists, the Local Agency shall submit to the State a disclosure statement setting forth the relevant details for the State's consideration . Failure to promptly submit a disclosure statement or to follow the State's direction in regard to the apparent conflict constitutes a breach of this Agreement. 14. REPRESENTATIONS AND WARRANTIES Page 12 of 24 The Local Agency makes the following specific representations and warranties, each of which was relied on by the State in entering into this Agreement. A. Standard and Manner of Performance The Local Agency shall perform its obligations hereunder, including in accordance with the highest professional standard of care, skill and diligence and in the sequence and manner set forth in this Agreement. B. Legal Authority -The Local Agency and the Local Agency's Signatory The Local Agency warrants that it possesses the legal authority to enter into this Agreement and that it has taken all actions required by its procedures , by-laws , and/or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Agreement, or any part thereof, and to bind the Local Agency to its terms. If requested by the State, the Local Agency shall provide the State with proof of the Local Agency's authority to enter into this Agreement within 15 days of receiving such request. C. Licenses, Permits, Etc. The Local Agency represents and warrants that as of the Effective Date it has, and that at all times during the term hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other authorization required by law to perform its obligations hereunder. The Local Agency warrants that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to properly perform this Agreement, without reimbursement by the State or other adjustment in Agreement Funds . Additionally, all employees and agents of the Local Agency performing Services under this Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities . The Local Agency, if a foreign corporation or other foreign entity transacting business in the State of Colorado, further warrants that it currently has obtained and shall maintain any applicable certificate of authority to transact business in the State of Colorado and has designated a registered agent in Colorado to accept service of process. Any revocation , withdrawal or non-renewal of licenses , certifications, approvals , insurance, permits or any such similar requirements necessary for the Local Agency to properly perform the terms of this Agreement shall be deemed to be a material breach by the Local Agency and constitute grounds for termination of this Agreement. 15. INSURANCE The Local Agency and its contractors shall obtain and maintain insurance as specified in this section at all times during the term of this Agreement: All policies evidencing the insurance coverage required hereunder shall be issued by insurance companies satisfactory to the Local Agency and the State. A . The Local Agency I. Public Entitles If the Local Agency is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101 , et seq ., as amended (the "GIA"), then the Local Agency shall maintain at all times during the term of this Agreement such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. The Local Agency shall show proof of such insurance satisfactory to the State, if requested by the State. The Local Agency shall require each Agreement with their Consultant and Contractor, that are providing Goods or Services hereunder, to include the insurance requirements necessary to meet Consultant or Contractor liabilities under the GIA. ii. Non-Public Entities If the Local Agency is not a "public entity" within the meaning of the Governmental Immunity Act, the Local Agency shall obtain and maintain during the term of this Agreement insurance coverage and policies meeting the same requirements set forth in §16(B) with respect to subcontractors that are not "public entities". B. Contractors Page 13 of24 The Local Agency shall require each contract with Contractors , Subcontractors, or Consultants , other than those that are public entities, providing Goods or Services in connection with this Agreement, to include insurance requirements substantially similar to the following : i. Worker's Compensation Worker's Compensation Insurance as required by State statute , and Employer's Liability Insurance covering all of the Local Agency's Contractors, Subcontractors , or Consultant's employees acting within the course and scope of their employment. ii. General Liability Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations , fire damage, independent contractors , products and completed operations, blanket liability, personal injury, and advertising liability with minimum limits as follows: (a) $1 ,000,000 each occurrence; (b) $1,000,000 general aggregate; (c) $1 ,000,000 products and completed operations aggregate; and (d) $50,000 any one fire . If any aggregate limit is reduced below $1 ,000,000 because of claims made or paid , contractors, subcontractors , and consultants shall immediately obtain additiona l insurance to restore the full aggregate limit and furnish to the Local Agency a certificate or other document satisfactory to the Local Agency showing compliance with this provision . Iii. Automobile Liability Automobile Li ability Insurance covering any auto (including owned , hired and non -owned autos) with a minimum limit of $1 ,000,000 each accident combined single limit. iv. Additionallnsured The Local Agency and the State shall be named as additional insured on the Commercial General Liability policies (leases and construction contracts requ ire additional insured coverage for completed operations on endorsements CG 2010 11/85, CG 2037 , or equivalent). v . Primacy of Coverage Coverage required of the Consultants or Contractors shall be primary over any insurance or self-insurance program carried by the Local Agency or the State. vi. Cancellation The above insurance policies shall include provisions preventing cancellation or non-renewal without at least 45 days prior notice to the Local Agency and the State by certified mail. vii. Subrogation Waiver All insurance policies in any way related to this Agreement and secured and maintained by the Local Agency's Consultants or Contractors as required herein shall include clauses stating that each carrier shall waive all rights of recovery , under subrogation or otherwise , against the Local Agency or the State , its agencies , institutions , organizations , officers , agents , employees , and volunteers. C. Certificates The Local Agency shall provide certificates showing insurance coverage required hereunder to the State within seven business days of the Effective Date of this Agreement. All Contractors, Subcontractors, or Consultants shall provide certificates showing insurance coverage required hereunder to the Loca l Agency 5 business days prior to work commencing by the Contractor, Subcontractors, or Consultants . No later than 15 days prior to the expiration date of any such coverage , the Local Agency and each Contractor, Subcontractor, or Consultant shall deliver to the State or the Local Agency certificate of insurance evidencing renewals thereof. In addition , upon request by the State at any other time during the term of this Agreement or any sub- contract , the Local Agency and each Contractor, Subcontractor, or Consultant shall , within 10 days of such request, supply to the State evidence satisfactory to the State of compliance with the provision of this §15 . 16. DEFAULT-BREACH Page 14 of 24 A. Defined In addition to any breaches specified in other sections of this Agreement, the failure of either Party to perform any of its material obligations hereunder in whole or in part or in a timely or satisfactory manner constitutes a breach . B. Notice and Cure Period In the event of a breach , notice of such shall be given in writing by the aggrieved Party to the other Party in the manner provided in §18 . If such breach is not cured within 30 days of receipt of written notice, or if a cure cannot be completed within 30 days, or if cure of the breach has not begun within 30 days and pursued with due diligence, the State may exercise any of the remedies set forth in §17. Notwithstanding anything to the contrary herein, the State , in its sole discretion , need not provide advance notice or a cure period and may immediately terminate this Agreement in whole or in part if reasonably necessary to preserve public safety or to prevent immediate public crisis. 17. REMEDIES If the Local Agency is in breach under any provision of this Agreement, the State shall have all of the remedies listed in this §17 in addition to all other remedies set forth in other sections of this Agreement following the notice and cure period set forth in §16(B). The State may exercise any or all of the remedies available to it, in its sole discretion , concurrently or consecutively. A. Termination for Cause and/or Breach If the Local Agency fails to perform any of its obligations hereunder with such diligence as is required to ensure its completion in accordance with the provisions of this Agreement and in a timely manner, the State may notify the Local Agency of such non-performance in accordance with the provisions herein. If the Local Agency thereafter fails to promptly cure such non- performance within the cure period , the State, at its option, may terminate this entire Agreement or such part of this Agreement as to which there has been delay or a failure to properly perform. Exercise by the State of this right shall not be deemed a breach of its obligations hereunder. The Local Agency shall continue performance of this Agreement to the extent not terminated , if any. i. Obligations and Rights To the extent specified in any termination notice, the Local Agency shall not incur further obligations or render further performance hereunder past the effective date of such notice, and shall terminate outstanding orders and sub-Agreements with third parties. However, the Local Agency shall complete and deliver to the State all Work, Services and Goods not cancelled by the termination notice and may incur obligations as are necessary to do so within this Agreement's terms. At the sole discretion of the State, the Local Agency shall assign to the State all of the Local Agency's right, title, and interest under such terminated orders or sub-Agreements . Upon termination , the Local Agency shall take timely , reasonable and necessary action to protect and preserve property in the possession of the Local Agency in which the State has an interest. All materials owned by the State in the possession of the Local Agency shall be immediately returned to the State. All Work Product, at the option of the State, shall be delivered by the Local Agency to the State and shall become the State's property. ii. Payments The State shall reimburse the Local Agency only for accepted performance received up to the date of termination . If, after termination by the State, it is determined that the Local Agency was not in default or that the Local Agency's action or inaction was excusable, such termination shall be treated as a termination in the public interest and the rights and obligations of the Parties shall be the same as if this Agreement had been terminated in the public interest, as described herein . ill. Damages and Witholdlng Notwithstanding any other remedial action by the State, the Local Agency also shall remain liable to the State for any damages sustained by the State by virtue of any breach under this Page 15 of 24 Agreement by the Local Agency and the State may withhold any payment to the Local Agency for the purpose of mitigating the State's damages, until such time as the exact amount of damages due to the State from the Local Agency is determined . The State may withhold any amount that may be due to the Local Agency as the State deems necessary to protect the State, including loss as a result of outstanding liens or claims of former lien holders, or to reimburse the State for the excess costs incurred in procuring similar goods or services. The Local Agency shall be liable for excess costs incurred by the State in procuring from third parties replacement Work, Services or substitute Goods as cover . B. Early Termination in the Public Interest The State is entering into this Agreement for the purpose of carrying out the public policy of the State of Colorado, as determined by its Governor, General Assembly, and/or Courts. If this Agreement ceases to further the public policy of the State, the State, in its sole discretion, may terminate this Agreement in whole or in part. Exercise by the State of this right shall not constitute a breach of the State's obligations hereunder. This subsection shall not apply to a termination of this Agreement by the State for cause or breach by the Local Agency, which shall be governed by §17(A) or as otherwise specifically provided for herein . I. Method and Content The State shall notify the Local Agency of the termination in accordance with §18, specifying the effective date of the termination and whether it affects all or a portion of this Agreement. II. Obligations and Rights Upon receipt of a termination notice, the Local Agency shall be subject to and comply with the same obligations and rights set forth in §17(A)(i). iii. Payments If this Agreement is terminated by the State pursuant to this §17(8), the Local Agency shall be paid an amount which bears the same ratio to the total reimbursement under this Agreement as the Services satisfactorily performed bear to the total Services covered by this Agreement, less payments previously made. Additionally, if this Agreement is less than 60% completed, the State may reimburse the Local Agency for a portion of actual out-of-pocket expenses (not otherwise reimbursed under this Agreement) incurred by the Local Agency which are directly attributable to the uncompleted portion of the Local Agency's obligations hereunder; provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to the Local Agency hereunder. C. Remedies Not Involving Termination The State, its sole discretion, may exercise one or more of the following remedies in addition to other remedies available to it: i. Suspend Performance Suspend the Local Agency's performance with respect to all or any portion of this Agreement pending necessary corrective action as specified by the State without entitling the Local Agency to an adjustment in price/cost or performance schedule. The Local Agency shall promptly cease performance and incurring costs in accordance with the State's directive and the State shall not be liable for costs incurred by the Local Agency after the suspension of performance under this provision. ii. Withold Payment Withhold payment to the Local Agency until corrections in the Local Agency's performance are satisfactorily made and completed . iii. Deny Payment Deny payment for those obligations not performed that due to the Local Agency's actions or inactions cannot be performed or, if performed, would be of no value to the State; provided that any denial of payment shall be reasonably related to the value to the State of the obligations not performed . iv. Removal Demand removal of any of the Local Agency's employees, agents, or contractors whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or Page 16 of24 whose continued relation to this Agreement is deemed to be contrary to the public interest or not in the State's best interest. v. Intellectual Property If the Local Agency infringes on a patent, copyright, trademark , trade secret or other intellectual property right while performing its obligations under this Agreement, the Local Agency shall , at the State's option (a) obtain for the State or the Local Agency the right to use such products and services; (b) replace any Goods, Services, or other product involved with non-infringing products or modify them so that they become non-infringing ; or, (c) if neither of the forgegoing alternatives are reasonably available, remove any infringing Goods, Services , or products and refund the price paid therefore to the State. 18. NOTICES and REPRESENTATIVES Each individual identified below is the principal representative of the designating Party. All notices required to be given hereunder shall be hand delivered with receipt required or sent by certified or registered mail to such Party's principal representative at the address set forth below. In addition to but not in lieu of a hard-copy notice , notice also may be sent by e-mail to the e-mail addresses , if any, set forth below. Either Party may from time to time designate by written notice substitute addresses or persons to whom such notices shall be sent. Unless otherwise provided herein , all notices shall be effective upon receipt. A. State: Paul Neiman COOT Region 6 2000 South Holly Street Denver, CO 80222 (720) 497-6986 Qaul.neiman@state.co.us B. Local Age ncy: Mark Westberg City of Westminster 7500 West 29m Avenue Westminster, CO 80033 (303) 235-2863 mwestberg@ci. wheatridge.co.us 19. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE Any software, research , reports , studies, data, photographs, negatives or other documents, drawings, models, materials, or work product of any type , including drafts, prepared by the Local Agency in the performance of its obligations under this Agreement shall be the exclusive property of the State and all Work Product shall be delivered to the State by the Local Agency upon completion or termination hereof. The State's exclusive rights in such Work Product shall include, but not be limited to, the right to copy, publish , display, transfer, and prepare derivative works. The Local Agency shall not use , willingly allow, cause or permit such Work Product to be used for any purpose other than the performance of the Local Agencys's obligations hereunder without the prior written consent of the State . 20 . GOVERNMENTAL IMMUNITY Notwithstanding any other provision to the contrary, nothing herein shall constitute a waiver, express or implied , of any of the immunities, rights , benefits , protection , or other provisions of the Colorado Governmental Immunity Act, CRS §24-10-101 , et seq., as amended. Liability for claims for injuries to persons or property arising from the negligence of the State of Colorado , its departments, institutions , agencies , boards , officials , and employees and of the Local Agency is controlled and limited by the provisions of the Governmental Immunity Act and the risk management statutes, CRS §24-30-1501 , et seq ., as amended. Page 17 of24 21. STATEWIDE CONTRACT MANAGEMENT SYSTEM If the maximum amount payable to the Local Agency under this Agreement is $100,000 or greater, either on the Effective Date or at anytime thereafter, this §21 applies . The Local Agency agrees to be governed , and to abide, by the provisions of CRS §24-102-205, §24- 1 02-206, §24-1 03-601 , §24-1 03 .5-101 and §24-1 05-102 concerning the monitoring of vendor performance on state agreements/contracts and inclusion of agreement/contract performance information in a statewide contract management system . The Local Agency's performance shall be subject to Evaluation and Review in accordance with the terms and conditions of this Agreement, State law, including CRS §24-103 .5-101 , and State Fiscal Rules , Policies and Guidance. Evaluation and Review of the Local Agency's performance shall be part of the normal Agreement administration process and the Local Agency's performance will be systematically recorded in the statewide Agreement Management System . Areas of Evaluation and Review shall include , but shall not be limited to quality, cost and timeliness . Collection of information relevant to the performance of the Local Agency's obligations under this Agreement shall be determined by the specific requirements of such obligations and shall include factors tailored to match the requirements of the Local Agency's obligations . Such performance information shall be entered into the statewide Contract Management System at intervals established herein and a final Evaluation , Review and Rating shall be rendered within 30 days of the end of the Agreement term . The Local Agency shall be notified following each performance Evaluation and Review, and shall address or correct any identified problem in a timely manner and maintain work progress. Should the final performance Evaluation and Review determine that the Local Agency demonstrated a gross failure to meet the performance measures established hereunder, the Executive Director of the Colorado Department of Personnel and Administration (Executive Director), upon request by COOT, and showing of good cause , may debar the Local Agency and prohibit the Local Agency from bidding on future Agreements. The Local Agency may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements, which may result in either removal or correction of the evaluation (CRS §24- 105-102(6)), or (b) under CRS §24-105-102(6), exercising the debarment protest and appeal rights provided in CRS §§24-109-106 , 107,201 or 202, which may result in the reversal of the debarment and reinstatement of the Local Agency, by the Executive Director, upon showing of good cause. 22. FEDERA~ REQUIREMENTS The Local Agency and/or their contractors, subcontractors, and consultants shall at all times during the execution of this Agreement strictly adhere to, and comply with, all applicable federal and state laws, and their implementing regulations , as they currently exist and may hereafter be amended . A listing of certain federal and state laws that may be applicable are described in Exhibit I, Exhibit J and Exhibit K. 23. DISADVANTAGED BUSINESS ENTERPRISE (DBE) The Local Agency will comply with all requirements of Exhibit G and the Local Agency Contract Administration Checklist regarding DBE requirements for the Work, except that if the Local Agency desires to use its own DBE program to implement and administer the DBE provisions of 49 C .F.R. Part 26 under this Agreement, it must submit a copy of its program's requirements to the State for review and approval before the execution of this Agreement. If the Local Agency uses any State- approved DBE program for this Agreement, the Local Agency shall be solely responsible to defend that DBE program and its use of that program against all legal and other challenges or complaints , at its sole cost and expense . Such responsibility includes, without limitation, determinations concerning DBE eligibility requirements and certification , adequate legal and factual bases for DBE goals and good faith efforts. State approval (if provided) of the Local Agency's DBE program does not waive or modify the sole responsibility of the Local Agency for use of its program . 24. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by agreement shall be decided by the Chief Engineer Page 18 of 24 of the Department of Transportation . The decision of the Chief Engineer will be final and conclusive unless, within 30 calendar days after the date of receipt of a copy of such written decision , the Local Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive D irector of COOT. In connection with any appeal proceeding under this clause , the Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Local Agency shall proceed diligently with the performance of this Agreement in accordance with the Chief Engineer's decision . The decision of the Executive Director or his duly authorized representative for the determination of such appeals shall be final and conclusive and serve as final agency action . This dispute clause does not preclude consideration of questions of law in connection with decisions provided for herein . Nothing in this Agreement, however, shall be construed as making final the decision of any administrative official, representative , or board on a question of law. 26. GENERAL PROVISIONS A. Assignment The Local Agency's rights and obligations hereunder are personal and may not be transferred , assigned or subcontracted without the prior written consent of the State. Any attempt at assignment, transfer, or subcontracting without such consent shall be void . All assignments and subcontracts approved by the Local Agency or the State are subject to all of the provisions hereof. The Local Agency shall be solely responsible for all aspects of subcontracting arrangements and performance. B. Binding Effect Except as otherwise provided in §26(A), all provisions herein contained , including the benefits and burdens, shall extend to and be binding upon the Parties' respective heirs , legal representatives , successors , and assigns . C. Captions The captions and headings in this Agreement are for convenience of reference only, and shall not be used to interpret, define , or limit its provisions. D. Counterparts This Agreement may be executed in multiple identical original counterparts, all of which shall constitute one agreement. E. Entire Understanding This Agreement represents the complete integration of all understandings between the Parties and all prior representations and understandings, oral or written, are merged herein . Prior or contemporaneous addition, deletion, or other amendment hereto shall not have any force or affect whatsoever, unless embodied herein. F.lndemnification-General If Local Agency is not a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101 , et seq ., the Local Agency shall indemnify, save, and hold harmless the State, its employees and agents , against any and all claims, damages, liability and court awards including costs , expenses , and attorney fees and related costs, incurred as a result of any act or omission by the Local Agency, or its employees, agents, subcontractors or assignees pursuant to the terms of this Agreement. This clause is not applicable to a Local Agency that is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24-10-101 , et seq . G. Jurisdction and Venue All suits, actions, or proceedings related to this Agreement shall be held in the State of Colorado and exclusive venue shall be in the City and County of Denver. H. Limitations of Liability Any and all limitations of liability and/or damages in favor of the Local Agency contained in any document attached to and/or incorporated by reference into this Agreement, whether referred to as an exhibit, attachment, schedule , or any other name, are void and of no effect. This includes , Page 19 of 24 but is not necessarily limited to , limitations on (i) the types of liabilities , (II) the types of damages, (Ill) the amount of damages, and (iv) the source of payment for damages. I. Modification i. By the Parties Except as specifically provided in this Agreement, modifications of this Agreement shall not be effective unless agreed to in writing by both parties in an amendment to this Agreement, properly executed and approved in accordance with applicable Colorado State law, State Fiscal Rules , and Office of the State Controller Policies, including , but not limited to , the policy entitled MODIFICATIONS OF AGREEMENTS -TOOLS AND FORMS . II. By Operation of Law This Agreement is subject to such modifications as may be required by changes in Federal or Colorado State law, or their implementing regulations. Any such required modification automatically shall be incorporated into and be part of this Agreement on the effective date of such change , as if fully set forth herein . J. Order of Precedence The provisions of this Agreement shall govern the relationship of the State and the Local Agency. In the event of conflicts or inconsistencies between this Agreement and its exhibits and attachments , such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: I. Colorado Special Provisions , ii. The provisions of the main body of this Agreement, Iii. Exhibit A (Scope of Work), iv. Exhibit B (Local Agency Resolution), v. Exhibit C (Funding Provisions), vi. Exhibit D (Option Letter), vii. Exhibit E (Local Agency Contract Administration Checklist), viii. Other exhibits in descending order of their attachment. K. Severability Provided this Agreement can be executed and performance of the obligations of the Parties accomplished within its intent, the provisions hereof are severable and any provision that is declared invalid or becomes inoperable for any reason shall not affect the validity of any other provision hereof. L. Survival of Certain Agreement Terms Notwithstanding anything herein to the contrary, provisions of this Agreement requiring continued performance, compliance , or effect after termination hereof, shall survive such termination and shall be enforceable by the State if the Local Agency fails to perform or comply as required . M. Taxes The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and from all State and local government sales and use taxes under CRS §§39-26-101 and 201 et seq. Such exemptions apply when materials are purchased or services rendered to benefit the State; provided however, that certain political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the product or service is provided to the State. The Local Agency shall be solely liable for paying such taxes as the State is prohibited from paying for or reimbursing the Local Agency for them . N. Third Party Beneficiaries Enforcement of this Agreement and all rights and obligations hereunder are reserved solely to the Parties , and not to any third party. Any services or benefits which third parties receive as a result of this Agreement are incidental to the Agreement, and do not create any rights for such third parties. 0. Waiver Page 20 of24 Waiver of any breach of a term , provision , or requirement of this Agreement, or any right or remedy hereunder, whether explicitly or by lack of enforcement, 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. THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Page 21 of 24 26. COLORADO SPECIAL PROVISIONS The Special Provisions apply to all Agreements except where noted in italics . 1. CONTROLLER'S APPROVAL. CRS §24-30-202 (1). This Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or designee. 2. FUND AVAILABILITY. CRS §24-30-202(5.5). Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated , budgeted , and otherwise made available . 3. GOVERNMENTAL IMMUNITY. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied , of any of the immunities , rights , benefits , protections , or other provisions , of the Colorado Governmental Immunity Act , CRS §24-10-101 et seq ., or the Federal Tort Claims Act, 28 U .S.C . §§1346(b) and 2671 et seq ., as applicable now or hereafter amended. 4. INDEPENDENT CONTRACTOR. The Local Agency shall perform its duties hereunder as an independent contractor and not as an employee. Neither The Local Agency nor any agent or employee of The Local Agency shall be deemed to be an agent or employee of the State. The Local Agency and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for The Local Agency or any of its agents or employees. Unemployment insurance benefits shall be available to The Local Agency and its employees and agents only if such coverage is made available by The Local Agency or a third party . The Local Agency shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Agreement. The Local Agency shall not have authorization , express or implied, to bind the State to any Agreement, liability or understanding , except as expressly set forth herein . The Local Agency shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State , and (c) be solely responsible for its acts and those of its employees and agents. 5. COMPLIANCE WITH LAW. The Local Agency shall strictly comply with all applicable federal and State laws, rules , and regulations in effect or hereafter established , including , without limitation , laws applicable to discrimination and unfair employment practices. 6. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation , execution , and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules , and regulations shall be null and void . Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint , defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this Agreement, to the extent capable of execution . 7. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra-judicial body or person . Any provision to the contrary in this contact or incorporated herein by reference shall be null and void . 8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this Agreement shall not be used for the acquisition , operation , or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. The Local Agency hereby certifies and warrants that, during the term of this Agreement and any extensions, The Local Agency has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds . If the State determines that The Local Agency is in violation of this provision , the State may exercise any remedy available at law or in equity or under this Agreement, including , without limitation , immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions . 9. EMPLOYEE FINANCIAL INTEREST. CRS §§24-18-201 and 24-50-507. The signatories aver that to their knowledge , no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Agreement. The Local Agency has no interest and shall not acquire any interest , direct or indirect, that would conflict in any manner or degree Page 22 of24 with the performance of The Local Agency's services and The Local Agency shall not employ any person having such known interests. 10. VENDOR OFFSET. CRS §§24-30-202 (1) and 24-30-202.4. [Not Applicable to Intergovernmental agreements] Subject to CRS §24-30-202.4 (3 .5), the State Controller may withhold payment under the State 's vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearages ; (b) unpaid balances of tax, accrued interest , or other charges specified in CRS §39-21-101 , et seq .; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts requ ired to be paid to the Unemployment Compensation Fund ; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action . 11. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101. [Not Applicable to Agreements relating to the offer, Issuance, or sale of securities, Investment advisory services or fund management services, sponsored projects, Intergovernmental Agreements, or lnfonnation technology services or products and services) The Local Agency certifieS , warrants , and agrees that it does not knowingly employ or contract with an illegal alien who shall perform work under this Agreement and shall confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Agreement, through participation in theE-Verify Program or the State program established pursuant to CRS §8 -17 .5- 102(5)(c), The Local Agency shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into a contract with a subcontractor that fails to certify to The Local Agency that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. The Local Agency (a) shall not use E-Verify Program or State program procedures to undertake pre-employment screening of job applicants while this Agreement is being performed , (b) shall notify the subcontractor and the contracting State agency within three days if The Local Agency has actual knowledge that a subcontractor is employing or contracting with an illegal alien for work under this Agreement, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of receiving the notice , and (d) shall comply with reasonable requests made in the course of an investigation , undertaken pursuant to CRS §8-17.5-102(5), by the Colorado Department of Labor and Employment. If The Local Agency participates in the State program , The Local Agency shall deliver to the contracting State agency, Institution of Higher Education or political subdivision , a written , notarized affirmation , affirming that The Local Agency has examined the legal work status of such employee, and shall comply with all of the other requirements of the State program . If The Local Agency fails to comply with any requirement of this provision or CRS §8-17.5-101 et seq ., the contracting State agency, institution of higher education or political subdivision may terminate th is Agreement for breach and , if so terminated , The Local Agency shall be liable for damages. 12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101. The Local Agency, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of pe~ury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq ., and (c) has produced one form of identiftcation required by CRS §24-76 .5-103 prior to the effective date of this Agreement. SPs Effective 1/1/09 THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Page 23 of24 Print: Title: Print: Title: 27. SIGNATURE PAGE Agreement Routing Number 13 HAS 54978 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT • Persons signing for The Local Agency hereby swear and afflnn that they are authorized to act on The Local Agency's behalf and acknowledge that the State Is relying on their representations to that effect THE LOCAL AGENCY STATE OF COLORADO CITY OF WHEAT RIDGE John W. Hickenlooper, GOVERNOR Colorado Department of Transportation Donald E. Hunt, Executive Director By: Timothy J. Harris. P.E ., Chief Engineer *Signature Date: Date: 2nd The Local Agency Signature if Needed *Signature Date : ALL AGREEMENTS REQUIRE APPROVAL BY THE STATE CONTROLLER CRS §24-30-202 requires the State Controller to approve all State Agreements. This Agreement Is not valid until signed and dated below by the State Controller or delegate. The Local Agency Is not authorized to begin perfonnance until such time. If The Local Agency begins perfonnlng prior thereto, the State of Colorado Is not obligated to pay The Local Agency for such perfonnance or for any goods and/or services provided hereunder. STATE CONTROLLER David J. McDermott, CPA By: __________________________________________________________________________________________ __ Colorado Department of Transportation Date: _________ _ Page 24 of24 28. EXHIBIT A-SCOPE OF WORK The eventual project will widen this highway to 6 travel lanes, provide additional turn lanes at key congested intersections, and install medians to better manage access . Medians will be added and possible driveway consolidation will be done to better manage access along the corridor. Bike lanes and detached sidewalks will also be added to serve additional modes of transportation. Also included will be new street and pedestrian lights , likely LED , along with streetscape improvements consisting of landscaping and street furniture . The goal of the PEL Study will be to establish the Purpose and Need , define the study area for subsequent phases, develop reasonable alternatives with logical termini and independent utility, and program priorities, timeframes, and potential funding to be used in updating transportation plans and transportation improvement programs (TIPs). The Study will include development and evaluation of alternatives based on consideration of the Purpose and Need, geometric, planning , and environmental factors , the location of developed areas, a traffic analysis, and public and agency input. PEL Study alternatives will initially be developed based on available environmental and community data, and will be refined through agency and public input and other on-going studies. Once the feasible alternatives are selected , interim phasing options will be developed and prioritized to facilitate incremental improvements that could be done prior to a full widening project. The intent of the PEL Study analysis is not to identify impacts, but rather to identify potential roadblocks for those PEL Study alternatives which provide the best balance in meeting the Purpose and Need and avoiding/minimizing the potential to affect resources during subsequent study phases. The Study will be developed and documented in a form that can be incorporated by reference , as appropriate, in subsequent NEPA document(s). All final deliverables will be of such quality that they could be incorporated directly or by reference into these NEPA documents. Exhibit A -Page 1 of 1 29. EXHIBIT B -LOCAL AGENCY RESOLUTION LOCAL AGENCY ORDINANCE or RESOLUTION Exhibit B -Page 1 of 1 30. EXHIBIT C -FUNDING PROVISIONS STU 1211-081 (19488) A. Cost of Work Estimate The Local Agency has estimated the total cost the Work to be $768,209.00 , which is to be funded as follows· 1 BUDGETED FUNDS a. Federal Funds (FY 13 STM Metro@ 82.79%) $636,000.00 b. Local Agency Matching Funds (FY 13 STM Metro@ 17.21%) $132,209.00 !ToTAL BUDGETED FUNDS $768,209.00 2 ESTIMATED COOT -INCURRED COSTS a. Federal Share $0.00 (82.79% of Participating Costs) b . Local Agency Local Agency Share of Participating Costs $0.00 Non-Participating Costs (Including Non-Participating lndirects) $0.00 Estimated to be Billed to Local Agency $0.00 TOTAL ESTIMATED COOT-INCURRED COSTS $0.00 3 ESTIMATED PAYMENT TO LOCAL AGENCY a. Federal Funds Budgeted (1a) $636,000.00 b. Less Estimated Federal Share of COOT-Incurred Costs (2a) $0.00 TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $636,000.00 FOR COOT ENCUMBRANCE PURPOSES Total Encumbrance Amount $768,209.00 Less ROW Acquisition 3111 and/or ROW Relocation 3109 $0.00 Net to be encumbered as follows: 1$768,209.00 WBS Element <<<<<>>>> Design 3020 $0.00 WBS Element 19488.10.50 Mise 3404 $768,209.00 WBS Element <<<<<>>>> Const 3301 $0.00 Exhibit C -Page 1 of 2 B. Matching Funds The matching ratio for the federal participating funds for this Work is 82.79% federal-aid funds (CFDA #20.205) to 17.21% Local Agency funds, it being understood that such ratio applies only to the $768,209.00 that is eligible for federal participation, it being further understood that all non-participating costs are borne by the Local Agency at 100%. If the total participating cost of performance of the Work exceeds $768 ,209.00, and additional federal funds are made available for the Work, the Local Agency shall pay 17.21% of all such costs eligible for federal participation and 1 00% of all non-participating costs; if additional federal funds are not made available, the Local Agency shall pay all such excess costs. If the total participating cost of performance of the Work is less than $768,209.00, then the amounts of Local Agency and federal-aid funds will be decreased in accordance with the funding ratio described herein . The performance of the Work shall be at no cost to the State. C. Maximum Amount Payable The maximum amount payable to the Local Agency under this Agreement shall be $636,000 .00 (For COOT accounting purposes, the federal funds of $636,000.00 and the Local Agency matching funds of $132,209 .00 will be encumbered for a total encumbrance of $768,209 .00), unless such amount is increased by an appropriate written modification to this Agreement executed before any increased cost is incurred . It is understood and agreed by the parties hereto that the total cost of the Work stated hereinbefore is the best estimate available, based on the design data as approved at the time of execution of this Agreement, and that such cost is subject to revisions (in accord with the procedure in the previous sentence) agreeable to the parties prior to bid and award. D. Single Audit Act Amendment All state and local government and non-profit organizations receiving more than $500,000 from all funding sources defined as federal financial assistance for Single Audit Act Amendment purposes shall comply with the audit requirements of OMB Circular A-133 (Audits of States, Local Governments and Non-Profit Organizations) see also , 49 C.F.R. 18.20 through 18.26. The Single Audit Act Amendment requirements applicable to the Local Agency receiving federal funds are as follows: i. Expenditure less than $500,000 If the Local Agency expends less than $500,000 in Federal funds (all federal sources, not just Highway funds) in its fiscal year then this requirement does not apply. ii. Expenditure exceeding than $500,000-Highway Funds Only If the Local Agency expends more than $500,000 in Federal funds, but only received federal Highway funds (Catalog of Federal Domestic Assistance, CFDA 20 .205) then a program specific audit shall be performed . This audit will examine the "financial" procedures and processes for this program area . 111. Expenditure exceeding than $500,000-Multiple Funding Sources If the Local Agency expends more than $500,000 in Federal funds, and the Federal funds are from multiple sources (FTA, HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the entire organization/entity. iv. Independent CPA Single Audit shall only be conducted by an independent CPA, not by an auditor on staff. An audit is an allowable direct or indirect cost. Exhibit C -Page 2 of 2 "~ I ~ ... , ~ City of • ?WlieatRl__dge ITEMNO:JL DATE: May 13, 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION TO APPROVE THE POINT TO POINT NETWORK AND INTERNET CONNECTIONS AGREEMENT WITH CENTURY LINK, IN A FORM APPROVED BY THE CITY ATTORNEY 0 PUBLIC HEARING ~ BIDS /MOTIONS 0 RESOLUTIONS QUASI-JUDICIAL: ISSUE: 0 ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2N° READING 0 YES The Century Link Agreement that provides for the point to point network and Internet connections for the City of Wheat Ridge expired in April of 2013 at the end of a three-year term. The five City sites included in the Agreement are as follows: City Hall/PD , Anderson Complex (which consist of the Anderson Gym , Parks , Forestry & Open Space Offices and the Parks Shops), Recreation Center, Active Adult Center and Public Works Operations. PRIOR ACTION: No prior action as it was previously signed and managed by IT Manager . FINANCIAL IMPACT: $76 ,824 budgeted for point to point and Internet connections in the 2013 IT Budget. BACKGROUND: Century Link (formerly Qwest) has been the City 's point to point network and Internet connection provider for the past decade. The reliability and quality of their business services has been very good. Since the contract was up for renewal , IT staff engaged quotes from Century Council Action Form May 13 ,2013 Page2 Link , Com cast and TW Telecom . The quotes included 100% increase in speeds for all services. In the final analysis the Century Link bid offered the best value to the City. The City currently pays Century Link $6 ,402 per month for all point to point and Internet connections. The new 60 month negotiated agreement is for $3 ,245 per month for all point to point and Internet connections with a 1 00% increase in speed for all services. This amounts to a saving of $3 ,157 per month for twice the speed and capacity that we currently have. The increase in bandwidth will provide for faster downloads of data, faster backups of remote sites , faster internet responses and the ability to add bandwidth capacity in the future without reengineering our infrastructure. In addition , Century Link will add fiber connectivity to three locations that do not have fiber: Public Works Operations , Active Adult Center and the Anderson Complex at no additional cost. Comcast is worth noting because they had the lowest per month price of$2950. However, there would be an additional reengineering cost of $10 ,000 to implement the Comcast solution, as well as downtime of email and interruption of other vital systems . The net difference over a 60- month period would be $7 ,700 . Therefore, staff determined that the cost saving of $7 ,700 ($129 per month) would not offset the risk in changing from Century Link to Comcast. RECOMMENDATIONS: Staff recommends approval of the point to point network and Internet connections Agreement to Century Link , in a form approved by the City Attorney. The attached contract is in draft form. The City Attorney anticipates a final contract by Monday. RECOMMENDED MOTION: "I move to approve the point to point network and Internet connections Agreement with Century Link , in a form approved by the City Attorney. Or, "I move to deny approval of the point to point network and Internet connections Agreement with Century Link , in a form appro ved by the City Attorney, for the following reason(s) " REPORT PREPARED AND REVIEWED BY: Michael Steinke, IT Manager Heather Geyer, Administrative Services Director Jennifer Nellis , Purchasing Agent Patrick Goff, City Manager ATTACHMENTS: I. Century Link Loyal Advantage Agreement 2. MOE Cost Comparision.xlsx P2P and lnet Connection Ranking Curent Contract .Jl Century Link 3 COWR Century COWR Link Century Link H State Location H Current Speed Current Price ~Proposed Spe~ City Haii/PD P2P: 7500 W . 29th Ave . 40 MBps $916 1--SO MBps INTERNET 20 MBps $2,394 .,_ SO MBps Public Works Operations P2P: 11220 W 45th Ave. ! 10M Bps $755 20 MBps I Active Adult Center P2P: 6363 W . 35th Ave . 10M Bps $7SS 20 MBps Recreation Center P2P: 4005 Kip ling St 20M Bps $827 30 MBps Anderson Complex Anderson Building P2P: 4355 Field Street 10M Bps $7SS 20 MBps Parks Forestry & Open Space 9110 W . 44th Ave . Parks Shops 4350 Garrison St Monthly Total $6,402 Annual Total : $76,824 60 Month Total $384,120 60 Month Savings over Current $0 60 Month Comparision Comcast versus Century Link Reengineering cost to migrate From Century Link to Comcast Net Benefit Cost over 60 Months ---- City of Wheat Ri dge Confidential Page 1 of 1 Century Link 1 l 2 --,U 1 State f--I Century FINAL Century FINAL ~ Camcast Fiber Propos~ Price : J I-Propos~ Speed Pro~ Price ~ Proposed Spe~ -$748 100 MBps $700 100 MBps - $1,S17 SO MBps $84S '- SO MBps r- r- $619 20MBps $400 I- 20 MBps ~ I- I- $619 20MBps $400 20 MBps I- I- I- $662 30MBps $SOO I- 30 MBps I- I- I- $619 20MBps $400 I- 20 MBps I- I- I- I- - - - $4,784 $3,245 - - $57,408 $38,940 - t-I- $287,040 ... $194,700 1-- $97,080 $189,420 More expensive -$17,700 Less Expense than Comcast than Century Link $10,000 More expensive Less Expensive than Comcast -----$7,7QQ c!h!ll_fentury Link S/8/2013 u Comcast Fiber TWTelecom -t ~ Proposed Price -t Proposed Sp~ ~ $0 100 MBps - $1,250 50 MBps - - - $400 20 MBps - - - $400 20 MBps - - - $500 30 MBps - - - - $400 20 MBps - - - - - - - - $2,950 - - $3S,400 - - $177,000 - $207,120 $17,700 -$10,000 $7,700 4 Comparison TWTelecom Proposed Price $1 ,SOO $1 ,694 $1,000 $1,000 $1 ,000 $1,000 $7,194 $86,328 $431,640 -$47,520 """ ~ c • E &. u "' ~ Pa ge 1 CENTURYLIN~ LOYAL ADVANTAGE® AGREEMENT This Centurylink Loyal Advantage™ Agreement ("Agreement") is between Centurylink Sales Solutions, Inc. as contracting agent on behalf of the applicable Centurylink company providing the Services under this Agreement ("Centurylink") and City of Wheat Ridge ("Customer") and is effective on the date the last party signs it ("Effective Date"). The name of the Centurylink operating company providing Services to Customer is listed in the Agreement, each acting separately and individually responsible for all of its own obligations. Centurylink reserves the right to withdraw this offer if Customer does not execute and deliver the Agreement to Centurylink before [insert date]. Using Centurylink's electronic signature process for the Agreement is acceptable. CITY OF WHEAT RIDGE Authorized Signature Jerry DiTullio Name Typed or Printed Mayor, City of Wheat Ridge Title CENTURYLINK SALES SOLUTIONS, INC. Authorized Signature Name Typed or Printed Title Date Date Customer's address for notices: City of Wheat Ridge, Attn : IT Division, 7500 W. 291h Ave., Wheat Ridge, CO 80033-8001 Customer's facsimile number: 303-235-2824 Person designated for notices: Michael Steinke; msteinke@ci.wheatridge.co.us 1. Services. Customer may purchase the products and services ("Services") in the service exhibits ("Service Exhibits") attached to the Agreement. The parties agree that any notation to the "Centurylink Total Advantage"' Agreement" on the Service Exhibits will be disregarded and such exhibits will be governed by the Agreement. The Service Exhibits attached to the Agreement as of the Effective Date and incorporated by this reference are shown below. Qwest Communications Company, LLC d/b/a Centurylink QCC Services: • QCC Domestic iQ Networking Service Exhibit • QCC Local Access Service Exhibit Qwest Corporation d/b/a Centurylink QC Services (Centurylink ac Services are available only in Centurylink's local service areas in the following states: Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington , and Wyoming. ) • QC Intrastate Metro Ethernet Service Exhibit 2. Filing Concurrence. Centurylink ac may be required to submit this Agreement, Service Exhibits, Pricing Attachments, and any subsequent addenda for Service to certain regulatory agencies for approval because the Rates or certain other terms are being offered on an individual case basis ("ICB"). Although the general terms and conditions of this Agreement are effective on the Agreement Effective Date, those service-specific Rates and/or terms, and conditions that require filing with or approval by regulatory agencies ("ICB Terms") will not become effective for a given jurisdiction until the filing and approval requirements for that jurisdiction are fulfilled . Service will be offered in accordance with the applicable Tariff until the ICB terms become effective. If Customer receives reduced pricing under a Pricing Attachment and a regulatory agency later invalidates the ICB Terms after they became effective, Customer will pay Centurylink ac any difference in the amounts listed in the applicable Tariff for the Service and the amounts Customer was charged for the Service. When approved by the regulatory agencies, Customer may add additional quantities of Services under the same terms and conditions with no further filing required . In the event a regulatory agency does not approve the ICB Terms, the parties will enter into good faith negotiations to mutually resolve the failure to receive the necessary approval. The subject Service Exhibit, Pricing Attachment, and subsequent addenda containing the ICB Terms will remain in effect in all other jurisdictions. Each Service Exhibit or subsequent addenda will explain which Rates or terms are ICB. 3. Term. Customer selects the following "Initial Term" of the Agreement: five years ("Initial Term"), 600055 code (aLAGESZ). The Initial Term begins on the Effective Date. At the end of the Initial Term , the Agreement will automatically renew for consecutive renewal periods equal to the Initial Term (a "Renewal Term") if not terminated earlier in accordance with the Agreement. The Initial Term and each Renewal Term are referred to as the "Term." 4. Rates. Unless specified otherwise in a Service Exhibit, Centurylink ace Services will receive the applicable rates specified in a Service Exhibit, valid Order Form, or Centurylink-approved quote form, for the duration of the Term . Notwithstanding the preceding sentence, Centurylink reserves the right to modify rates and charges due to Regulatory Activity and will provide as much prior written notice as practicable but not less than 14 calendar days' notice If Regulatory Activity causes an increase in the rates for Customer's ordered Centurylink ace Services that materially and adversely affects Customer, then Customer may terminate the affected Centurylink ace Service upon 30 days' prior written notice to Centurylink ace without liability for Cancellation Charges for the affected Service, provided, however that Customer: (e) provides such notice within 30 days after the increase occurs ; and (f) provides Centurylink ace 30 days to cure such increase . If Customer does not provide Centurylink ace such notice during the time permitted in this Section , Customer will have waived its right to terminate the affected Service under this Section . The parties agree that the rates set forth in the Service Exhibit are in lieu of all other rates, discounts, or promotions. The rates for any Centurylink ac Service OMR #N55137 (aLAGESZ) Attachment 2 Page 1 of 23 © Centurylink , Inc. All Rights Reserved . CONFIDENTIAL v1.030113 CENTURYLIN~ LOYAL ADVANTAGE411 AGREEMENT provided will be those in effect at the time the Service is installed and Centurylink QC Services will renew at the rate and for the term specified in the applicable Tariff, RSS , or Service Exhibit. 5. Payment. Centurylink may begin invoicing for specific Services as specified in the applicable Service Exhibit. Customer must pay Centurylink all charges within 30 days after the invoice date or by the due date on the invoice if specified . Any amount not paid when due is subject to late interest at the lesser of 1.5% per month or the maximum rate allowed by law . In addition to payment of charges for Services , Customer must also pay Centurylink any applicable Taxes assessed in connection with Services . Taxes may vary and are subject to change . If Customer is exempt from any Tax , it must provide Centurylink with an appropriately completed and valid Tax exemption certificate or other ev idence acceptable to Centurylink. Centurylink is not required to issue any exemption, credit or refund of any Tax payment for usage before Customer's submission of valid evidence of exemption. Customer may access its invoices and choose paperless invoices online through Centurylink Control Center located at controlcenter.centurylink .com . If Customer does not choose paperless invoices through Control Center , Centurylink may in its discretion assess a $15 MRC for each full paper invoice provided to Customer or a $2 MRC for each summary/remit only (where available) paper invoice provided to Customer . Those charges will not apply to an invoice that is not available through Control Center. Customer's payments to Centurylink must be in the form of electronic funds transfer (v ia wire transfer or ACH), cash payments (via previously-approved Centurylink processes only}, or paper check. Centurylink reserves the right to charge administrative fees when Customer's payment preferences deviate from Centurylink's standard practices. 6. Confidentiality. Except to the extent required by an open records act or similar law , neither Centurylink nor Customer will , without the prior written consent of the other party: (a) disclose any of the terms of the Agreement ; or (b) disclose or use (except as expressly permitted by , or requ ired to ach ieve the purposes of, the Agreement) the Confident ial Information of the other party . Each party will use reasonable efforts to protect the other's Confidential Information , and will use at least the same efforts to protect such Confidential Information as the party would use to protect its own . Centurylink's consent may only be given by its Legal Department. A party may disclose Confidential Information if requ ired to do so by a governmental agency , by operation of law , or if necessary in any proceeding to establish rights or obligations under the Agreement. 7. CPNI. Centurylink is requ ired by law to treat CPNI confidentially . Customer agrees that Centurylink may share CPNI within its business operations (e .g ., wireless , local , long distance , and broadband services divisions), and with businesses act ing on Centurylink's beha lf, to determ ine if Customer could benefit from the wide variety of Centurylink products and services , and in its marketing and sales activities . Customer may withdraw its authorization at any time by informing Centurylink in writing . Customer's decision regarding Centurylink's use of CPNI will not affect the quality of service Centurylink provides Customer. 8. Use of Name and Marks. Ne ither party will use the name or marks of the other party or any of its Affiliates for any purpose without the other party 's prior written consent. Centurylink's consent may only be given by its Legal Department. 9. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT , ALL SERVICES AND PRODUCTS ARE PROVIDED "AS IS ." CENTURYLINK DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES , INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY , FITNESS FOR A PARTICULAR PURPOSE , AND NON-INFRINGEMENT . 10. Limitations of Liability. The remedies and limitations of liability for any claims arising between the parties are set forth below. 10.1 Consequential Damages. NO PARTY OR THEIR AFFILIATES , AGENTS , OR CONTRACTORS IS LIABLE FOR ANY CONSEQUENTIAL , INCIDENTAL , INDIRECT, SPECIAL , OR PUNITIVE DAMAGES OR FOR ANY LOST PROFITS , LOST REVENUES, LOST DATA , LOST BUSINESS OPPORTUNITY , OR COSTS OF COVER. THESE LIMITATIONS APPLY REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED AND REGARDLESS OF FORESEEABILITY. 10 .2 Claims Related to Services. For Customer's claims related to Service deficiencies or interruptions , Customer's exclusive remedies are limited to : (a) those remedies set forth in the SLA or applicable Tariff for the affected Service or (b) the total MRCs or usage charges paid by Customer for the affected Service in the one month immediately preceding the event giving rise to the claim if an SLA or applicable Tariff does not exist for the affected Service . 10.3 Personal Injury; Death; Property Damages. For claims arising out of personal injury or death to a party's employee , or damage to a party 's real or personal property , that are caused by the other party 's negligence or willful misconduct in the performance of the Agreement , each party's liability , to the extent permitted by law , is limited to proven direct damages. 10.4 Other Direct Damages. For all other claims arising out of the Agreement , the maximum liability for Customer and Centurylink will not exceed in the aggregate the total MRCs and usage charges paid by Customer to Centurylink under the Agreement in the three months immediately preceding the event giving rise to the claim ("Damage Cap "). The Damage Cap will not apply to a party 's obl igations under the Responsibilities Section below or Customer's payment obligations under the Agreement. 11. Responsibilities. To the extent permitted under law , each party agrees to be responsible to the other, their Affiliates , agents , and contractors against all third party claims for damages , liab ilities , or expenses , including reasonable attorneys ' fees , arising directly from performance of the Agreement and related to personal injury or death , or damage to personal tangible property that is alleged to have been caused by the negl igence or willful misconduct of the responsible party unless otherwise stated in a Centurylink QC Serv ice Exhibit or Tariff. To the extent permitted under law , Customer also agrees to be responsible for all th ird party claims for damages , OMR #N55137 (QLAGESZ) Page 2 of23 CONFIDENTIAL © Centurylink, Inc . All Rights Reserved . v1 .030113 CENTURYLIN~ LOYAL ADVANTAGE® AGREEMENT liabilities , or expenses , including reasonable attorneys ' fees against Centurylink, its Affiliates , and contractors , related to the modification or resale of the Services by Customer or End Users , or any AUP violation . 12. Termination. 12.1 Service . Either party may terminate an individual Service or a Service Exhibit: (a) in accordance with the individual Service Exhibit's term requirements with 60 days ' prior written notice to the other party, or (b) for Cause. If Service or a Service Exhibit is terminated by Customer for Convenience or by Centurylink for Cause , then Customer will pay Cancellation Charges . 12.2 Agreement. Either party may terminate the Agreement and all Services by : (a) providing written notice to the other party of its intention not to renew the Agreement at least 60 days prior to the expiration of the then current Term or (b) for Cause . Cause to terminate an individual Service Exhibit will not constitute Cause to terminate the Agreement ; rather, Cause to terminate the entire Agreement for Service-related claims will exist only if Customer has Cause to terminate all or substantially all of the Services under the applicable SLA , Service Exhibit , RSS or Tariff. If the Agreement is terminated by Customer for Convenience or by Centurylink for Cause prior to the conclusion of the Term , then Customer will pay: (c) for Centurylink ace Services the higher of the Early Termination Charge or the sum of all Centurylink ace Cancellation Charges that apply for terminating all Centurylink ace Services at the time the Agreement is terminated ; and (d) for Centurylink ac Services, the Centurylink ac termination charges as set forth in the Tariff or the applicable Service Exhibit(s). 12.3 Unpaid Charges. Customer will remain liable for charges accrued but unpaid as of the termination date. 13 . Non-Appropriations. Customer intends to continue this Agreement for its entire Term and to satisfy its obligations hereunder. For each fiscal period for Customer: (a) Customer agrees to include in its budget request appropriations sufficient to cover Customer's obligations under this Agreement ; (b) Customer agrees to use all reasonable and lawful means to secure these appropriations, including but not limited to applying for Universal Service Fund Discounts as described in the Federal Communications Commission Docket No . 96-45 ; (c) Customer agrees it will not use non-appropriations as a means of terminating this Agreement in order to acquire functionally equ ivalent products or services from a third party . Customer reasonably believes that sufficient funds to discharge its obligations can and will lawfully be appropriated and made available for this purpose. In the event that Customer is appropriated insufficient funds, by appropriation , appropriation limitation or grant, to continue payments under this Agreement and has no other funding source lawfully available to it for such purpose (as evidenced by notarized documents provided by Customer and agreed to by Centurylink), Customer may terminate this Agreement without incurring an Early Termination Charge or Centurylink ace Cancellation Charges by giving Centurylink not less than 30 days ' prior written notice. Upon termination and to the extent of lawfully available funds , Customer will remit all amounts due and all costs reasonably incurred by Centurylink through the date of termination . 14. Miscellaneous. 14.1 General. The Agreement's benefits do not extend to any third party (e.g ., an End User). If any term of the Agreement is held unenforceable , the remaining terms will remain in effect. Except for time requirements as specifically stated in a Service Exhibit or SLA , neither party's failure to exerc ise any right or to insist upon strict performance of any provision of the Agreement is a waiver of any right under the Agreement. The terms and conditions of the Agreement regarding confidentiality , the Responsibilities Section , limitation of liability , warranties , payment , dispute resolution, and all other terms of the Agreement that should by their nature survive the termination of the Agreement will survive . Each party is not responsible for any delay or other failure to perform due to a Force Majeure Event. 14.2 Conflicts Provision. If a conflict exists among provisions within the Agreement , the following order of precedence will apply in descending order of control : Service Exhibit , the Agreement, Order Form, Centurylink ac records , and if applicable , Centurylink ac Tech Pubs . If Services are provided pursuant to a Tariff, RSS , or ISS as described in the applicable Service Exhibits , the order of precedence will apply in the following descending order of control : Tariff, Service Exhibit, the Agreement , RSS, ISS, Order Form Centurylink ac records , and if applicable, CenturyLink ac Tech Pubs . 14.3 Independent Contractor. Centurylink provides the Services as an independent contractor . The Agreement will not create an employer-employee relationship , association , joint venture , partnership , or other form of legal entity or business enterprise between the parties , the ir agents , employees or affiliates. 14.4 ARRA. Customer will not pay for the Services with funds obtained through the American Recovery and Reinvestment Act or other similar stimulus grants or loans that would obligate Centurylink to provide certain information or perform certain functions unless each of those obligations are explicitly identified and agreed to by the parties in the Agreement or in an amendment to the Agreement. 14.5 HIPAA. Centurylink does not require or intend to access Customer data in its performance hereunder, including but not limited to any confidential health related information of Customer's clients , which may include group health plans , that constitutes Protected Health Information ("PHI "), as defined in 45 C.F. R. §160 .103 under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA Rules "). Any exposure to PHI will be random , infrequent and incidental to Centurylink's provision of Service and is not meant for the purpose of accessing , managing the PHI or creating or manipulating the PHI. Such exposure is allowable under 45 CFR 164 .502(a )(1 )(iii). As such , if Customer is a Covered Entity or Health Care Provider under the HIPAA Rules or supports the health care industry , Centurylink and Customer agree that Centurylink is not a "Business Associate " or "Covered Entity" under the HIPAA Rules for the purposes of the Agreement. OMR #N55137 (aLAGESZ) Page 3 of23 CONFIDENTIAL © Centurylink , Inc . All Rights Reserved . v1 .030113 CENTURYLIN~ LOYAL ADVANTAGE® AGREEMENT 14.6 Installation, Maintenance and Repair (a) Provision of Services is subject to availability of adequate capacity and Centurylink's acceptance of a complete Order Form . (b) Customer will reasonably cooperate with Centurylink or its agents to install , maintain , and repair Services . Customer will provide or secure at Customer's expense appropriate space and power; and rights or licenses if Centurylink must access the building of Customer's premises to install , operate , or maintain Service or associated Centurylink equipment. Centurylink may refuse to install , maintain , or repair Services if any condition on Customer's premises is unsafe or likely to cause injury. (c) Customer is responsible for any facility or equipment repairs on Customer's side of the demarcation point. Customer may request a technician dispatch for Service problems . Before dispatching a technician, Centurylink will notify Customer of the dispatch fee. Centurylink will assess a dispatch fee if it determines the problem is on Customer's side of the demarcation point or was not caused by Centurylink's facilities or equipment on Centurylink's side of the demarcation point. 14.7 Governing Law; Dispute Resolution. (a) Billing Disputes. If Customer disputes a charge in good faith, Customer may withhold payment of that charge if Customer makes timely payment of all undisputed charges when due and provides Centurylink with a written explanation of the reasons for Customer's dispute of the charge within 90 days after the invoice date of such amount. If Centurylink determines , in its good faith , that the disputed charge is valid , Centurylink will notify Customer and within five business days after Centurylink's notification , Customer must pay the charge and accrued interest. (b) Governing Law; Forum. The Agreement will be governed by the laws of the State in which the Customer's principal office is located without regard to its choice of law principles . Any legal proceeding relating to the Agreement will be brought in a U.S . District Court , or absent federal jurisdiction , in a state court of competent jurisdiction , in Denver, Colorado . This provision is not intended to deprive a small claims court or state agency of lawful jurisdiction that would otherwise exist over a claim or controversy between the parties. (c) Waiver of Jury Trial and Class Action. Each party , to the extent permitted by law , knowingly , voluntarily , and intentionally waives its right to a jury trial and any right to pursue any claim or action relating to the Agreement on a class or consolidated basis or in a representative capacity. If for any reason the jury trial waiver is held to be unenforceable , the parties agree to binding arbitration for any dispute relating to the Agreement under the Federal Arbitration Act , 9 U.S .C. § 1, et. seq . The arbitration will be conducted in accordance with the JAMS Comprehensive Arbitration Rules . Judgment upon the arbitration award may be entered in any court having jurisdiction. (d) Limitations Period. Any claim relating to the Agreement must be brought within two years after the claim arises other than Customer disputing an amount in an invoice , which must be done by Customer within 90 days after the invoice date of the disputed amount. 14.8 No Resale; Compliance. Customer represents that it is not a reseller of any telecommunication services provided under this Agreement as described in the Telecommunications Act of 1996 , as amended , or applicable state law and acknowledges it is not entitled to any reseller discounts under any laws. Customer's use of Services must comply with all applicable laws . 14.9 Assignment. Either party may assign the Agreement without the other party's prior written consent: (a) in connection with the sale of all or substantially all of its assets ; (b) to the surviving entity in any merger or consolidation ; or (c) to an Affiliate provided such party gives the other party 30 days' prior written notice . Any assignee of the Customer must have a financial standing and creditworthiness equal to or better than Customer's , as reasonably determined by Centurylink , through a generally accepted , third party credit rating index (i.e . D&B , S&P , etc .). Any other assignment will require the prior written consent of the other party . But Customer may not assign this Agreement or any Service to a reseller or a telecommunications carrier under any circumstances . 14.10 Amendments; Changes. The Agreement may be amended only in a writing signed by both parties' authorized representatives . However, any change in rates , charges, or regulations mandated by the legally constituted authorities will act as a modification of any contract to that extent without further notice. Each party may , at any time, reject any handwritten change or other alteration to the Agreement. Centurylink may change features or functions of its Services ; for material changes that are adverse to Customer, Centurylink will provide 30 days' prior written notice, but may provide a shorter notice period if the change is based on Regulatory Activity or Tariff provisions. Centurylink may amend , change, or withdraw the Tariffs, RSS , ISS or AUP, with such updated Tariffs , RSS , ISS or AUP effective upon posting or upon fulfillment of any necessary regulatory requirements. 14.11 Websites. References to websites in the Agreement include any successor websites designated by Centurylink. 14.12 Required Notices. Unless provided otherwise in the Agreement , all required notices to Centurylink must be in writing , sent to 1801 California St., #900, Denver, CO 80202; Fax : 888-778-0054; Attn .: Legal Dept., and to Customer as provided above . All notices are effective : (a) when delivered via overnight courier mail or in person to the recipient named above; (b) three business days after mailed via regular U.S. Mail ; or (c) when delivered by fax if duplicate notice is also sent by regular U.S . Mail. 14.13 Service Termination Notices . Customer's notice of termination for Centurylink QCC Services must be sent via mail , facsimile or e-mail to: Centurylink , Attn.: Dublin Service Center, GBM Disconnects , 4650 Lakehurst , 2"d Floor Disconnect Center, Dublin , OH 43017 , Fax: 866 .887.6633 , e-mail : GBMdisconnects@Centurvlink.com . Such termination is effective 30 days after Centurylink's OMR #N55137 (QLAGESZ) Page 4 of23 CONFIDENTIAL © Centurylink , Inc . All Rights Reserved . v1.030113 CENTURYLIN~ LOYAL ADVANTAGE® AGREEMENT receipt of the notice, unless a longer period is otherwise required. For Services under the Select Advantage Service Exhibit or for Centurylink QC Services, Customer must call the customer care number specified on Customer's invoice to provide notice of termination. 14.14 Entire Agreement. The Agreement (including any applicable Service Exhibit, Centurylink accepted Order Forms, and all referenced documents) constitutes the entire agreement between the parties and supersedes all prior oral or written agreements or understandings relating to the same service, ports, or circuits at the same locations as covered under the Agreement. 15. Clauses for Centurylink QC RSS No. 1 Services. The clauses in this section apply only to the Centurylink QC Service Exhibits stating that service is offered out of Centurylink QC RSS No. 1. 15.1 Jurisdiction. Customer understands that Service is an interstate telecommunications service, as defined by Federal Communications Commission regulations and represents that during the Term, more than 10% of its usage will be interstate usage. 15.2 Construction and Funding Approval. Centurylink QC may assess separate Construction charges if facilities are not available to meet an order for Service and Centurylink QC constructs facilities under one or more of the following circumstances: (a) if the amount of Customer's expected payments over the term of the Agreement does not exceed Centurylink QC's calculated cost of providing the Service plus its expected rate of return; (b) Customer requests that Service be furnished using a type of facility, or via a route that Centurylink QC would not normally utilize in providing the requested Service; (c) more facilities are requested than would normally be required to satisfy an order; and (d) Customer requests that Construction be expedited, resulting in added cost to Centurylink QC. Service provided under this Agreement is subject to Funding approval and that approval will be evidenced in the Funding Concurrence block on the Pricing Attachment. That approval will be granted at the sole discretion of Centurylink QC. In the event contract documents are signed, under which Customer is ordering Service for which Funding is not approved, Centurylink QC will cooperate with Customer in good faith to develop an alternative service solution if Funding cannot be achieved on the contracted solution and Centurylink QC may immediately terminate, without penalty, the Pricing Attachment under which Customer ordered the Service, when Funding of the contracted and alternate Service solutions is determined to not be possible. 15.3 Expedite. Any Customer requests for Centurylink QC to Expedite the delivery of Service before the standard or negotiated Service Due Date will be deemed an expedited order and Expedite charges will apply. Upon Centurylink QC's receipt of an Expedite request from Customer, Customer and Centurylink QC will mutually agree to a new Service Due Date . 15.4 Service Changes. Customer may add, move, or upgrade each Service in a Pricing Attachment via an Amendment to this Agreement. New Service and any addition, move, or upgrade to existing Service is subject to the terms of the RSS in effect when the Amendment to add, move, or upgrade existing Service is executed or for new Service when the new Service is installed. Existing terms and conditions will continue to apply to existing Service. But if an RSS change results in a conflict with the terms and conditions applicable to the Service, then Customer must agree to an amendment modifying the terms and conditions before Centurylink QC will provision the new Service or the additions, moves, or upgrades to existing Service. 15.5 Service Interruptions. Service interruption means a total disruption of the Service subject to restrictions and exclusions outlined in an SLA or in the RSS. Services with a Service-specific SLA are subject to the credit for service interruptions contained in the applicable SLA and described in the RSS posted at qwest.centurylink.com/legal. Services without a Service-specific SLA are subject to the credit for service interruptions contained in the RSS. The credits outlined in the SLAs or RSS are Customer's sole and exclusive remedy for interruptions of any kind to the Service . Centurylink QC may, from time to time, suspend Service for routine maintenance or rearrangement of facilities or equipment. Centurylink QC will give advance notification of any such suspension of Service . Such suspension of Service is not considered an out-of-service condition unless Service is not restored by the end of the period specified in the notification . 15.6 Additional Payment Language. (a) Rates, including Rates for optional features or functions, are set forth in each Pricing Attachment applicable to the Service. The Rates shown on each Pricing Attachment are for informational purposes. Customer will receive the Rates in effect in the RSS on the Service Acceptance Date. Centurylink QC will keep an archive of the RSS Web pages listing Rates, including dates of Rate changes. Customer agrees that Centurylink QC's archive is conclusive evidence in the event of a dispute. (b) If Customer requests items from the RSS for which charges do not appear in a Pricing Attachment, Centurylink QC will inform Customer of the charges at the time of the request, giving Customer the opportunity to cancel the request, rather than incurring the charges. Those items may include, but are not limited to: (a) Expedites, including third-party charges incurred by Centurylink QC in connection with the Expedite; (b) CPE; (c) Construction; (d) Termination Charges; (e) charges for labor, testing, or design changes: (f) inside wiring; and (g) additional administrative charges that may be applied for services not described on Pricing Attachments or for requests to provision Services in a manner inconsistent with Centurylink QC's then-current practices. Customer will pay such charges regardless of whether Customer cancels Service or Centurylink QC fails to deliver on the requested Expedite date, unless such failure was caused by Centurylink QC. (c) Centurylink QC will require Customer to accept Service by the end of the Grace Period, in which case Centurylink QC will commence with regular monthly billing for the Service and Customer agrees to pay for the billed Service. If Customer has not accepted the Service by the end of the Grace Period, then Centurylink QC may terminate the Service subject to the Termination section of this Agreement. OMR #N55137 (QLAGESZ) Page 5 of23 CONFIDENTIAL © Centurylink, Inc. All Rights Reserved . v1.030113 CENTURYLIN~ LOYAL ADVANTAGE® AGREEMENT 15.7 Customer Responsibilities. Customer is responsible for the following : (a) Access. Customer will provide prompt access to its premises to Centurylink QC authorized personnel and other authorized parties , responding to Service restoration , equipment failure , maintenance , or other relevant situations . (b) On-Site Operations. All Customer operations concerning Service at Customer's premises will be performed at Customer's expense, and Customer will be required to conform to all applicable specifications that Centurylink QC may adopt as necessary to maintain Service . Any special structural work required for supporting telecommunications facilities needed to provide Service on Customer's premises will be provided only at Customer's expense . (c) Customer will properly use the Service . Customer will not itself or permit others to use the Service in ways it is not intended or alter, tamper with, adjust , or repair the Service . 15.8 QC RSS No. 1 Service Termination. (a) Service; Service Exhibit Before Service Due Date. If Customer cancels an order for Service before the Service Due Date or does not accept the Service by the conclusion of the Grace Period, and Centurylink QC terminates the Service at the end of the Grace Period , Termination Charges will apply , including the full NRCs that would have otherwise applied and any non-reusable and non-recoverable portions of expenditures or liabilities, such as Construction charges incurred exclusively on behalf of the Customer by Centurylink QC and not fully reimbursed by NRCs . (b) Service; Service Exhibit After Service Acceptance Date. Either party may terminate an individual Service ordered under a Service Exhibit after the Service Acceptance Date under the terms of the applicable Service Exhibit. Centurylink QC will waive the Termination Charge in excess of the Minimum Service Period if Customer terminates due to a move or upgrade of all or a portion of Service and all of the following conditions are met ("Waiver Policy"): (i) Customer must have satisfied the Minimum Service Period for the existing Service or be subject to the Termination Charge applicable to the unexpired portion of the Minimum Service Period ; (ii) Customer must agree to a new service term and Minimum Service Period for the new service ; (iii) The total value of the new Service must be equal to or greater than 115% of the remaining value of the Service being terminated. NRCs and Construction charges will not contribute toward the 115% calculation ; (iv) The request to disconnect the existing Service and the request for the new service are received by Centurylink QC at the same time and both requests must reference this Waiver Policy; (v) For ATM , FR , and Metro Ethernet , the new Service installation due date must be within 30 days of the due date of the disconnection of the existing Service, unless the installation is delayed by Centurylink QC ; for SHNS , SST , GeoMax, and HDTV-NET the new Service installation due date must be on or before the due date of the disconnection of the existing Service, unless the installation is delayed by Centurylink QC; (vi) Customer agrees to pay all outstanding MRCs and NRCs for existing Service ; (vii) The NRCs in effect at the time the Service is moved or upgraded will apply to the move or upgrade ; and (viii) This Waiver Policy only applies to moves or upgrades to other Centurylink QC services that are subject to a Centurylink QC Tariff or the QC RSS . 15.9 Centurylink QC RSS No. 1 Service Definitions. "Construction " means when Service may not be available due to facilities limitations and it is necessary for Centurylink QC to construct facilities . "Demarcation Point" means the Centurylink QC designated: (a) physical interface between the Centurylink QC Domestic Network and Customer's telecommunications equipment ; or (b) physical interface between a third-party carrier connecting the Centurylink QC Domestic Network to Customer's telecommunications equipment. "Centurylink QC Domestic Network " means the Centurylink QC operated facilities located within Centurylink QC 's 14-state local service area (those states are listed in the opening paragraph of this Agreement) and which consists of transport POPs , physical media , switches , circuits and/or ports that are operated solely by Centurylink QC . "Expedite " means Customer's request to Centurylink QC to provision a Service more quickly than the Centurylink QC standard or negotiated interval for which an additional Expedite charge will apply . OMR #N55137 (QLAGESZ) Page 6 of23 CONFIDENTIAL © Centurylink, Inc. All Rights Reserved . v1 .030113 CENTURYLIN~ LOYAL ADVANTAGE ® AGREEMENT "Funding " means Customer charges over the term of a Service contract that covers Centurylink QC 's calculated costs for providing Service and it's expected rate of return when network infrastructure is not available to provide Service to Customer. "Grace Period " means a period of 30 business days from the later of the Service Due Date or the date when Service is made available to the Customer, and during which the applicable Service will be held available for Customer upon Customer's request. "Minimum Service Period " means 12 months following the Service Acceptance Date, as evidenced by Centurylink QC records . In the case of Frame Relay , this means 6 months following the Service Acceptance Date. "Pricing Attachment" means each document containing Service Rates , Term, and location-specific information , all of which are incorporated by this reference and made a part of each Service Exhibit. "Rates" means the MRCs and NRCs for the Service . "Service Acceptance Date " means the date Customer accepts the Service and billing commences , as evidenced by Centurylink QC records. "Service Due Date" means the date Centurylink QC makes the Service available to Customer for testing . "SONET" means Synchronous Optical Network . "Termination Charge" means the termination charges detailed in the Service Exhibits . 16. Definitions. "Affiliate " means any entity controlled by , controlling , or under common control with a party. "AUP " means the Acceptable Use Policy incorporated by this reference and posted at gwest.centurvlink .com/leqal/. "Cancellation Charge" means cancellation or termination charges that apply when Customer cancels Service without Cause : (a) as described in a Service Exhibit (or in the Tariff for applicable Centurylink QC Services); and (b) when charges are incurred by Centurylink QCC from a third party provider as a result of an early termination. "Cause " means the failure of a party to perform a material obligation under the Agreement , which failure is not remedied : (a) for payment defaults by Customer, within five days of separate written notice from Centurylink of such default; or (b) for any other material breach, within 30 days after written notice . "Confidential Information" means any information that is not generally available to the public , whether of a technical , business , or other nature, (including CPNI), and that: (a) the receiving party knows or has reason to know is confidential , proprietary, or trade secret information of the disclosing party; or (b) is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect the information from disclosure . Confidential Information will not include information that is in the public domain through no breach of the Agreement by the receiving party or is already known or is independently developed by the receiving party. "Convenience" means any reason other than for Cause . "CPE " means any customer equipment , software, and/or other materials of Customer used in connection with the Service . "CPNI" means Customer Proprietary Network Information, which includes confidential account , usage, and billing-related information about the quantity , technical configuration, type , destination, location, and amount of use of a customer's telecommunications services . CPNI reflects the telecommunications products , services , and features that a customer subscribes to and the usage of such services , including call detail information appearing in a bill. CPNI does not include a customer's name, address, or telephone number. "Early Termination Charge" means an amount equal to 35% of the average monthly charges billed under this Agreement through the date of termination multiplied by the number of months remaining in the Term . "End User" means Customer's members, end users , customers , or any other third parties who use or access the Services or the Centurylink network via the Services . "Force Majeure Event" means an unforeseeable event beyond the reasonable control of that party , including without limitation: act of God , fire, explosion, lightning, hurricane , labor dispute , cable cuts by third parties , acts of terror, material shortages or unavailability , government laws or regulations , war or civil disorder, or failures of suppliers of goods and services . "ISS " means Centurylink's Information Services Schedule incorporated by this reference and posted at: http ://www.centurvlink .com/tariffs/qcc info services .pdf. "MRC " means monthly recurring charge . "NRC" means nonrecurring charge . "Order Form " includes both order request forms and quotes issued by Centurylink . If a Centurylink service requires a quote to validate the Order Form pricing , the quote will take precedence over the order request form , but not over the Service Exhibit. "Regulatory Activity" is a regulation or ruling by any regulatory agency , legislative body or court of competent jurisdiction. "RSS " means as applicable Centurylink QCC's Rates and Services Schedules incorporated by this reference and posted at http ://www.centurvlink .com/tariffs/fcc gee ixc rss no 2.pdf for Centurylink QCC's International RSS and at OMR #N55137 (QLAGESZ) Page 7 of23 CONFIDENTIAL © Centurylink , Inc . All Rights Reserved . v1 .030113 CENTURYLIN~ LOYAL ADVANTAGE® AGREEMENT http ://www.centurvlink.com/tariffs/fcc gee ixc rss no 3.pdf for Centurylink QCC 's Interstate RSS , and at http ://www.centurvlink.com/tariffs/fcc gc ace rss no 1.pdf for Centurylink QC 's Interstate RSS. "SLA" means the service level agreement applicable to a Service as described in a Service Exhibit. "State " means one of the 50 states of the Un ited States or the District of Columbia . "Tariff' includes as app licable : Centurylink QCC or Centurylink QC FCC #1state tariffs , price lists , price schedules , administrative guidelines , catalogs, and rate and term schedules incorporated by this reference and posted at http://www.centurylink.com/tariffs . "Tax " or "Taxes" means foreign , federal , state , and local excise , gross receipts , sales, use , privilege , or other tax (other than net income) now or in the future imposed by any governmental entity (whether such Taxes are assessed by a governmental authority directly upon Centurylink or the Customer) attributable or measured by the sale price or transaction amount , or surcharges , fees , and other sim ilar charges that are required or permitted to be assessed on the Customer. These charges may include state and federal Carrier Universal Service Charges , as well as charges related to E911 , and Telephone Relay Service . "Tech Pub " means the technical publication specific to each Centurylink QC service , all of which are located at http://www .qwest.com/techpub/. Each Centurylink QC Service Exhibit stipulates the Tech Pub that applies to that service , if any. OMR #N55137 (QLAGESZ) Page 8 of23 CONFIDENTIAL © Centurylink , Inc . All Rights Reserved. v1 .030113 CENTURYLIN~ LOYAL ADVANTAGE® AGREEMENT QCC DOMESTIC CENTURYLINK IQ® NETWORKING SERVICE EXHIBIT 1. General. Centurylink QCC will provide Domestic Centurylink IQ® Networking Service ("Service") under the terms of the Agreement and this Service Exhibit. 2. Service. 2.1 Description. Service is a data, IP, and a network management solution that is designed for connectivity between Customer's sites or public Internet connectivity. Service includes ports ("Ports"), features, and network management capabilities. The rate of data transmission and features vary based on the type of Port ordered . Service does not include local access or customer premises equipment ("CPE"), which may be separately purchased from Centurylink. 2.2 Ports. Centurylink offers Service in a variety of speeds and in the following three Port types : (a) Internet Port. Internet Ports provide public Internet connectivity. If Customer uses frame relay local access to an Internet Port, Customer can burst beyond the applicable committed information rate to full Port speed based upon bandwidth availability. (b) Private Port. Private Ports provide WAN connectivity between Customer sites. Customer may allocate Private Port traffic up to 1 0 different closed user groups. Customer may request more than 10 point-to-point closed user groups for an additional charge. Quality of service ("QoS") traffic prioritization can be used with Private Ports . Ethernet Private Ports with real-time traffic that require QoS are subject to local access limitations. (c) Enhanced Port. Enhanced Ports provide the functionality of both an Internet Port and a Private Port in a consolidated solution. 2.3 Network Management Service. Centurylink Network Management Service ("NMS") is a feature for all Ports. The feature, available as Select Management or Comprehensive Management, provides performance reporting, change management, configuration management, fault monitoring, management and notification of CPE and network related issues. Centurylink will provide Select Management with each Port unless (a) Customer notifies its Centurylink sales representative that Customer opts out of Select Management for that Port or (b) Customer chooses Comprehensive Management for that Port. Customer may also request NMS management features for devices not associated with a Centurylink IQ Networking Port with Centurylink's prior approval. The NMS management types are set forth in more detail below: (a) Select Management. Select Management includes: 24x7x365 remote performance monitoring, reporting, and ticketing via an NMS online portal for devices supported by Centurylink. Select Management also includes complete fault monitoring, management, and notification (detection, isolation, diagnosis, escalation and remote repair when possible), change management supported by Centurylink (up to 12 changes per year), asset management (device inventory), and configuration management (inventory of customer physical and logical configuration). Customer must make change management requests via Control Center at https://controlcenter.centurylink.com. Select Management only supports basic routing functions. NMS does not include new CPE initial configuration, lab testing, lab modeling, or on-site work of CPE. The NMS supported device list and a standard change management list are available on request and are subject to change without notice. {b) Comprehensive Management. Comprehensive Management includes all of the Select Management features as well as total customer agency and change management (up to 24 configuration changes per year) of complex routing functions within routers, switches, and firewall modules . This includes configuration and management of complex routing, switching, device NIC cards , firewall module configurations , and basic router internal firewall functions . Centurylink acts as the Customer's single point of contact in managing the resolution of all service, device, and transport faults covered by Comprehensive Management and will work with any third party hardware and/or transport providers the Customer has under contract until all network issues are successfully resolved. With Internet security protocol ("IPSec"), Centurylink can configure full mesh, partial mesh, or hub-and-spoke topologies with secure tunnels for remote communication between Customer locations. IPSec is only available on approved Cisco and Adtran devices. IPSec opportunities greater than 25 devices or with other manufacturer's devices require Centurylink approval before submitting an order. (c) Monitor and Notification. Monitor and Notification is an optional NMS feature that can be used for Customer owned devices that do not support SNMP and are not connected to any Centurylink IQ Networking Ports. Centurylink will monitor the Customer devices 24x7x365 for up/down status and notify Customer of faults. Customer is responsible for any trouble shooting and repair of Customer owned devices. This feature does not include any of the Select Management or Comprehensive Management features. {d) Centurylink Responsibilities. For NMS , Centurylink will provide Customer with a nonexclusive service engineer team, which will maintain a Customer profile for the portion of the Customer's network where the devices covered by NMS reside. Centurylink will work with Customer to facilitate resolution of service affecting issues with Select Management or Comprehensive Management. (e) Customer Responsibilities. (i) Customer must provide all information and perform all actions reasonably requested by Centurylink in order to facilitate installation of NMS . If Customer limits or restricts Centurylink's read/write access to a device, Centurylink cannot support configuration backups. Customer is responsible for supporting Centurylink in access, troubleshooting, and configuration requests made in accordance with normal troubleshooting and repair support activities. For Out-of-Band management related to fault OMR #N55137 (QLAGESZ) Page 9 CONFIDENTIAL © Centurylink , Inc . All Rights Reserved . v1.022013 CENTURYUNI(i> LOYAL ADVANTAGE® AGREEMENT QCC DOMESTIC CENTURYLINK IQ® NETWORKING SERVICE EXHIBIT isolation /reso lution , Customer will provide and maintain a POTS line for each managed device . "Out-of-Band " means a connection between two devices that relies on a non-standard network connection , such as an analog dial modem , which must be a Centurylink certified 56k external modem . Add itionally , Customer will provide a dedicated modem for each managed device. It is not mandatory that Customer have a POTS line but Customer must understand that Centurylink will not be able to troubleshoot issues if the device covered by NMS cannot be reached. Service related outages requ iring access to the device for troubleshooting and repair purposes will impact the eligibility of any associated SLA cred its . (ii) For Comprehensive Management , Customer must execute the attached Letter of Agency (Attachment 2) to authorize Centurylink to act as Customer's agent solely for the purpose of accessing Customer's transport services. (iii) Depending on transport type , Customer's managed devices must comply with the following set of access requirements : (A) for NMS delivered via IP connectivity with an Internet Port or other public Internet service , devices must contain an appropriate version of OS capable of establishing IPsec VPNs ; and (B) for NMS delivered with a Private Port , Centurylink will configure a virtual circuit to access Customer's device at no additional charge . Centurylink will add the NMS network operations center to the Customer closed user group to manage the devices with in Customer's network . (iv) Customer must provide a routable valid IP address to establish the NMS connection . Customer's primary technical interface person must be available during the remote installation process to facilitate installation of NMS . All Customer devices managed under NMS must be maintained under a contract from a Centurylink approved onsite CPE maintenance provider . The response times for which Customer contracts with its CPE maintenance provider will affect Centurylink's timing for resolution of problems involving Customer provided devices . The performance of the CPE maintenance provider is Customer's responsibility . 2.4 End-to-End Performance Reporting. End -to-End Performance Reporting is an optional feature for Private Ports and the Private Port functionality of Enhanced Ports , except for Ports with VPLS. If Customer orders the feature , Customer must order it for all of its Private Ports and Enhanced Ports and include Centurylink as a member of each closed user group . The feature includes a report based on data collected from Customer's traffic within its closed user groups and measures ava ilability , j itter, latency , and packet delivery between Customer's edge routers , between Centurylink's routers , and between Customer's edge routers and Centurylink's routers . The data contained in the report is measured differently than the goals contained in the SLA applicable to the Service and is for informational purposes only . Customer is not entitled to SLA credits based on the data in the report . Customer may access the report in the Control Center porta l. 2.5 Multicast. Multicast is an optiona l feature for Private Ports and the Pri vate Port functional ity of Enhanced Ports . The feature enables IP multicast on the Centurylink IP network . Customer must configure its edge devices with Centurylink designated multicast protocol specifications and use the Centurylink designated IP address range for Customer's multicast applications . The standard feature allows up to ten sources of multicast traffic per Customer , but Centurylink may permit a limited number of additional sources . 2.6 Secure IP Gateway. Secure IP Gateway ("SIG ") is an optional feature for Enhanced Ports . SIG adds a network based firewall feature to an Enhanced Port and supports Customer defined network address translation policies and firewall rule sets. 2.7 VPLS. Layer 2 virtual private LAN service ("VPLS ") is optional feature for Private Ports . Private Ports with VPLS are supported on Centurylink-certified Cisco equipment and are limited to the following connection and encapsulation methods : Ethernet 10 Mbps , 100 Mbps , 1000 Mbps with Ethernet encapsulation ; DS1 and DS3 with Frame Relay encapsulation , and OC3 with ATM encapsulation . The following features are not available with Private Ports with VPLS : (a) usage reports ; (b) the Precise Burstable or Data Transfer pricing methodologies ; (c ) the SLA's Reporting Goal ; (d) VPN Extensions and (e) End-to-End Performance Reporting. 2.8 VPN Extensions. A VPN Extens ion is an opt ional feature for layer 3 multi protocol labe l switching ("MPLS ") Private Ports and Enhanced Ports . The feature allows Customer to extend its Layer 3 MPLS closed user groups to Customer locations that are not served by Centurylink's MPLS network ("Remote Location "). Customer can establish a tunnel through the Internet between the Customer's CPE at the Remote Location (separately purchased and managed by Customer) and the Centurylink network device. The Customer provided CPE must support the Centurylink service configurations and be installed as designated by Centurylink or as otherwise agreed upon by the parties. Customer is responsible for the installation , operation, maintenance , use and compatibility of the Remote Location CPE . Customer will cooperate with Centurylink in setting the initial configuration for the Remote Location CPE interface with the VPN Extension Service . Customer must use IP connectivity at the Remote Location that includes a static public IP address . (a) Exclusions. Centurylink will not debug problems on , or configure any internal or external hosts or networks (e .g ., routers , DNS servers, mail servers, www servers , and FTP servers). All communication regarding the VPN Extension must be between Centurylink and a Customer approved site contact that has relevant experience and expertise in Customer's network operations . The following features are not available with VPN Extensions: (i) End-to-end Performance Reporting ; (ii) QoS ; (i ii) VPLS ; and (iv) Multicast. VPN Extensions are not subject to the SLA . 2.9 Backbone Prioritization . Backbone Prioritization is an optional feature ava ilable with indiv idual domestic Private Ports . When th is feature is configured on a Private Port , traffic originating from that Port will be designated at a higher class of service to the Centurylink IP network than traffic orig inating from Private Ports without the feature or Internet Ports . If Customer desires Backbone Prioritization for traffic between two or more Private Ports , the feature must be ordered for each Private Port. The benefit from OMR #N55137 (QLAGESZ) Page 10 CONFIDENTIAL © Centurylink, Inc. All Rights Reserved . v1 .022013 CENTURYLIN~ LOYAL ADVANTAGE ® AGREEMENT QCC DOMESTIC CENTURYLINK IQ ® NETWORKING SERVICE EXHIBIT Backbone Prioritization is realized during periods of high network congestion. Backbone Prioritization may not be available at all locations or with Multicast in certain circumstances. 3. Ordering. For purposes of this Service Exhibit, "Order Form " means an electronic order confirmation process using an architecture confirmation document ("ACD") or other document that Customer and Centurylink mutually agree to prior to submitting a Service order request. Centurylink must approve each Order Form and Customer must send it via e-mail , fax, or other Centurylink- approved electronic process to Centurylink. Subject to availability, Centurylink will assign /29 Internet address space for Customer during the use of a Port . Neither Customer nor any End Users will own or route these addresses . Upon termination of Service, Customer's access to the IP addresses will cease. If Customer requests special sequencing for Port installation, Customer must designate a Key Port. A "Key Port" is a Port that must be available on the network before adding additional Port locations . The installation of the Key Port will determine the timelines for the installation of other domestic Ports. Customer may designate one Key Port within its Centurylink IQ Networking network topology by notifying Centurylink in writing of that request. Unless the parties otherwise agree in writing, Customer has sole responsibility for ordering, securing installation and ensuring proper operation of any and all equipment required to enable Customer to receive the Service . 4. Charges. Customer must pay all applicable MRCs and NRCs set forth in the attached pricing attachment or offer attachment. Charges will commence within five days after the date Centurylink notifies Customer that Service is provisioned and ready for use ("Start of Service Date "). Customer may order multiple Ports with multiple pricing methodologies in accordance with the pricing methodologies set forth below . Customer may change the pricing methodology (e .g., from Flat Rate to Precise Burstable) of a Port if: (a) the Port's new MRC remains the same or greater than the old MRC , and (b) the Port starts a new Service Term that is equal to or greater than the remaining number of months in the old Service Term , subject to a 12 month minimum . Centurylink may change rates after the completion of a Port's Service Term with 60 days' notice. Net rate MRCs are lieu of all other rates , discounts, and promotions . The End to End Performance Reporting, VPN Extension , SIG and Multicast features are provided on a month-to-month basis and either party may cancel a feature with 30 days' prior written notice to the other party. Centurylink may upon 30 days prior written notice to Customer modify those features , including without limitation, their rates . 4.1 Pricing Methodologies. (a) Flat Rate. The Flat Rate pricing methodology bills Customer a specified MRC for a given Port speed regardless of Customer's actual bandwidth utilization . (b) Tiered. The Tiered pricing methodology caps Customer's bandwidth at the tier specified on an Order Form and bills the Customer a fixed MRC based on that bandwidth tier regardless of Customer's actual bandwidth utilization . No more than once per month , Customer may change its specific bandwidth tier (e .g ., 2 Mbps to10 Mbps) within the applicable Port classification (e .g ., Ethernet , Fast Ethernet). Customer may not change its bandwidth from one Port classification to another. (c) Precise Burstable. Usage samples are taken every five minutes throughout the monthly billing cycle. Only one sample is captured for each five-minute period, even though there are actually two samples taken; one for inbound utilization and one for outbound utilization . The higher of these two figures is retained . At the end of the billing period , the samples are ordered from highest to lowest. The top 5% of the samples are discarded . The highest remaining sample is used to calculate the usage level , which is the 95th percentile of peak usage . For each Precise Burstable Port, Customer will pay an MRC calculated by multiplying Customer's 95th percentile of peak usage in a given month by the applicable MRC per Mbps . There is a minimum usage amount within each Prec ise Burstable Port classification ("Precise Burstable Minimum "). Customer will be billed the greater of the Precise Burstable Minimum or the actual charges based upon its 95th percentile of peak usage . (d) Data Transfer. Usage samples are taken every five minutes throughout the Customer's monthly billing cycle . Samp les are taken for both in-bound utilization and out-bound utilization . Customer will be billed for the sum total of both inbound and outbound utilization . Charges are applied using a stepped or "metered " methodology such that Customer's traffic will be billed incrementally at each volume tier. For example, if Customer's total volume on a DS1 circuit is 10GB, the first 7GB of such total would be billed at the 0-7 GB tier, and the remaining 3GB would be billed at the 7.01-17 GB tier. For each Data Transfer Port ordered hereunder, Customer will pay an MRC calculated by multiplying Customer's volume of data transferred in a given month (in GBs) by the applicable MRC per GB . Within each Data Transfer Port classification (e .g ., DS1, DS3), Customer will be subject to the minimum usage amount set forth in the column heading of the applicable Data Transfer pricing table ("Data Transfer Minimum "). Customer will be billed the greater of the Data Transfer Minimum or the actual charges based upon its actual volume of data transferred. Data Transfer pricing is only available if Customer's premises-based router uses HDLC , PPP , or MLPPP line encapsulation . 5. Term; Cancellation. 5.1 Term. The term of an individual Port (and NMS feature , if applicable) begins on the Start of Service Date for that Port and continues for five years ("Service Term"). If Service is installed at multiple Customer locations or with multiple Ports at a Customer location , each separate Port (and associated NMS) will have its own Start of Service Date . Upon expiration of a Service Term , Service (and assoc iated NMS) will remain in effect on a month -to month basis until canceled by either party with 60 days ' notice . 5.2 Cancellation. Upon cancellation of a Service , Customer will remain liable for charges accrued but unpaid as of the cancellation date . If a Port or NMS is canceled by Customer other than for Cause , or by Centurylink for Cause, before the conclusion of its in itia l Service Term or Upgrade Service Term (as described in the "Upgrades" section), Customer will pay a "Cancellation Charge " OMR #N55137 (QLAGESZ) Page 11 CONFIDENTIAL © Centurylink , Inc . All Rights Reserved. v1 .022013 CENTURYLIN~ LOYAL ADVANTAGE® AGREEMENT QCC DOMESTIC CENTURYLINK IQ® NETWORKING SERVICE EXHIBIT equal to: (a) 100% of the balance of the MRCs that otherwise would have become due for the unexpired portion of the first 12 months of the Service Term (or Upgrade Service Term), if any, plus (b) 35% of the balance of the MRCs that otherwise would have become due for the unexpired portion , if any, of the Service Term (or Upgrade Service Term) beyond the first 12 months , plus (c) the amount of any NRCs discounted or waived if the Port has not remained installed for at least 12 months . 5.3 Waiver of Cancellation Charges. (a) Upgrades. Centurylink will waive the Cancellation Charges if Customer: (i) upgrades the Port to a higher bandwidth (e.g., from a DS1 to a DS3) within the same pricing methodology; or (ii) upgrades the Port type to a higher Port type (e.g ., from an Internet Port to a Private Port or an Enhanced Port) within the same pricing methodology . All upgraded Ports must have a Service Term equal to or greater than the replaced Port's remaining Service Term, subject to a 12 month minimum ("Upgrade Service Term").lf Customer cancels the upgraded Port before the completion of the Upgrade Service Term , Customer will pay the Cancellation Charges set forth in the Cancellation section above . In some cases an upgrade to a Port may trigger a Local Access charge under the Local Access Service Exhibit. (b) Migration to Other CenturyLink Services . Centurylink will waive the Cancellation Charges if Customer migrates the Port to new Analog VoiP Service , Integrated Access Packages, Managed VoiP Bundle, or Data Bundle Solutions (a "New Service ") as long as : (i) the New Service 's MRC is equal to or greater than the combined MRCs of the Port and the associated Local Access Service being terminated ; (ii) the New Service 's minimum service term is at least as long as the then remaining Service Term of the Port being terminated ; and (iii) the New Service is available . 6. Additional Disclaimer of Warranty. In addition to any other disclaimers of warranty stated in the Agreement , Centurylink makes no warranty , guarantee, or representation, express or implied, that all security threats and vulnerab ilities will be detected or that the performance of the Services will render Customer's systems invulnerable to security breaches. Customer is responsible for Customer's own network security policy (including applicable firewall and NAT policies) and security response procedures . 7. E-mail Notification. Customer acknowledges and agrees that Centurylink may contact Customer via e-mail at the e-mail address provided to CenturyLink when Customer ordered the Service for any reason relating to the Service , including for purposes of providing Customer any notices required under the Agreement. Customer agrees to provide Centurylink with any change to its e mail address . 8. AUP. All use of the Services must comply with the AUP located at qwest.centurylink .com /l egal /, which is subject to change . Centurylink may reasonably change the AUP to ensure compliance with applicable laws and regulations and to protect Centurylink's network and customers . Any changes to the AUP will be consistent with the purpose of the AUP to encourage responsible use of Centurylink's networks, systems , services, Web sites, and products . 9 . SLA. Service is subject to the Centurylink IQ Network ing service level agreement ("SLA"), and the NMS feature is subject to the NMS SLA each located at qwest.centurylink.com/legal/, which are subject to change. For Customer's claims related to Service or NMS feature deficiencies , interruptions or failures, Customer's exclusive remedies are limited to those remedies set forth in the applicable SLA. OMR #N55137 (QLAGESZ) Page 12 CONFIDENTIAL © Centurylink , Inc . All Rights Reserved. v1.022013 CENTURYLIN~ LOYAL ADVANTAGE® AGREEMENT QCC DOMESTIC CENTURYLINK IQ® NETWORKING SERVICE EXHIBIT PRICING ATTACHMENT 1. Pricing. 1.1 Network Management Service MRCs. (a) NMS for devices associated with a Centurylink IQ Networking Port. The following MRC is in addition to the Port MRC. Description Promo Code NRC NMS for devices associated with a MRC Centurylink IQ Networking Port. Select Management IQMANAGED $45.00 per device* N/A Comprehensive ManaQement IQMANAGED $75.00 per device N/A *Centurylink will provide Select Management with domestic Centurylink IQ Networking Service unless Customer elects to opt out. (b) NMS for devices not associated with a Centurylink IQ Networking Port. The following MRC is in addition to the Port MRC . Description NMS for devices not associated with a Centurylink IQ MRC NRC Networking Port (including VPN Extensions). Select ManaQement $60.00 per device N/A Comprehensive Manaqement $100.00 per device N/A Monitor and Notify $35.00 per device N/A 1.2 Centurylink IQ Networking Features. (a) End to End Performance Reporting. The following MRC is in addition to each Private Port or Enhanced Port's MRC. MRC $25.00 per Port (b) Secure IP Gateway. NRC Activation Fee $200.00 per each Enhanced Port (c) VPN Extensions. MRC NRC $25.00 er IPsec tunnel $50.00 per IPsec tunnel (d) Backbone Prioritization. Backbone prioritization charges are in addition to the applicable Private Port MRCs. Description Backbone Prioritization OMR #N55137 (QLAGESZ) Increased MRC Centurylink will apply a 20% uplift charge to the MRC of each Private Port confiQured with Backbone Prioritization. Page 13 CONFIDENTIAL © Centurylink, Inc. All Rights Reserved. v1 .022013 CENTURYLIN~ LOYAL ADVANTAGE® AGREEMENT QCC DOMESTIC CENTURYLINK IQ® NETWORKING SERVICE EXHIBIT 1.3 Port Pricing Tables. Pricing for Internet Ports is affected if access to the Port is over frame relay ("FR Access"). Pricing for Private Port and Enhanced Ports does not change depending on which type of access to the Port is used . Some Port types or Port speeds may not be available in all areas or with certain types of access . If Customer wishes to order domestic Centurylink IQ Networking Service with a different bandwidth or pricing methodology than those contained in the below pricing tables, Customer must enter into a separate written amendment to this Agreement. (a) Tiered Pricing. Internet Port Tiered Fast Ethernet FR Access Other Access (100 Mbps) NRC* MRC MRC* 50 Mbps $1,500.00 N/A $595 .00 .. *NOTE: The pncmg outlmed m the above table ts avatlable for Customer's extsfmg servtce-if has been installed under this Customer's Account for a period of six years and is being renewed for an additional five years. *NRC Waiver. Centurylink NRCs specified above are waived so long as such Service ordered hereunder and subject to this waiver remains installed and used by Customer for at least twelve (12) consecutive months ("Minimum Waiver Term"). If this Agreement or any Service subject to this waiver is terminated or cancelled prior to the conclusion of the Minimum Waiver Term for reasons other than a default by Centurylink, Customer shall be required, within thirty (30) days of such termination to repay (in addition to any applicable early termination fees set forth in the Agreement) the amount of the applicable Centurylink NRC(s) waived pursuant to this section. OMR #N55137 (QLAGESZ) Page 14 CONFIDENTIAL © Centurylink , Inc. All Rights Reserved . v1.022013 CENTURYLIN~ LOYAL ADVANTAGE® AGREEMENT ace DOMESTIC CENTURYLINK Ia® NETWORKING SERVICE EXHIBIT ATTACHMENT 2 COMPREHENSIVE MANAGEMENT LIMITED LETIER OF AGENCY between City of Wheat Ridge ("Customer") and awest Communications Company, LLC d/b/a Centurylink ace ("Centurylink") This limited letter of agency ("LOA") hereby authorizes Centurylink to act as the Customer's Agent for the limited purpose of contacting Customer's designated Local Exchange Carrier ("LEC"), lnterexchange Carrier ("IXC"), Internet Service Provider {"ISP"), or customer premises equipment ("CPE ") Maintenance Provider in conjunction with Centurylink Network Management ("Service. Network Management Service activities will consist of working with Customer's LEC, IXC, ISP, and/or CPE maintenance provider for the purpose of: (a) extracting information concerning transmission data elements carried over Customer's network connection; {b) identifying Customer's links or data link connection identifiers ("DLCis"); (c) opening, tracking, and closing trouble tickets with the LEC, IXC, ISP , or CPE Maintenance Provider on Customer's transport links or CPE when an alarm or fault has been detected; (d) dispatching CPE Maintenance repair personnel on behalf of Customer to CPE for which a fault has been detected; and (e) discussing fault information with the LEC, IXC or CPE Maintenance Provider on behalf of Customer to facilitate resolution of the problem. Centurylink does not assume any of Customer's liabilities associated with any of the services the Customer may use. The term of this LOA will commence on the date of execution below and will continue in full force and effect until terminated with 30 days written notice by one party to the other or until the expiration or termination of the Network Management Service . A copy of this LOA will, upon presentation to LEC , IXC, ISP, and/or CPE maintenance provider, as applicable, be deemed authorization for Centurylink to proceed on Customer's behalf. CITY OF WHEAT RIDGE Customer Company Name Authorized Signature of Customer Print or Type Name Title Date OMR #N55137 (QLAGESZ) Page 15 CONFIDENTIAL © Centurylink, Inc. All Rights Reserved. v1.022013 CENTURYLINK LOYAL ADVANTAGE™ AGREEMENT QCC LOCAL ACCESS SERVICE EXHIBIT 1. General. Centurylink QCC will provide Local Access Service ("Service") under the terms of this Service Exhibit , the Agreement and the RSS . 2. Service Description and Availability. 2.1 Description. Service provides the physical connection between the Service Address and the Centurylink Domestic Network . Service includes any entrance cable or drop wire to, and equipment maintained by Centurylink at the Demarcation Point, but does not include CPE, Extended Wiring, inside wiring, or other equipment not maintained by Centurylink . Customer is responsible for any additional terminations beyond the Demarcation Point. All equipment owned by Centurylink remains property of Centurylink. Customer disclaims any interest in any equipment, property or licenses used by Centurylink to provide Service. Centurylink will not provide Service to a residential location , even if business is conducted at that location . Service is not a standalone service and Customer must purchase the Service in connection with another Centurylink service for which a local loop is required. 2.2 Types of Service Technologies. Centurylink uses the following different technologies to provide Service. Some technologies or speeds may not be available in all areas or with certain types of Service . (a) Special Access. "Special Access " means Service using digital signal bandwidths DSO, DS1 and DS3 or Optical Carrier signal bandwidths OC3, OC12 , OC48 and OC192 . (b) Ethernet Local Access ("ELA"). ELA is available at bandwidths varying from 1 Mbps to 1,000 Mbps (1G) and 10G (Cross- Connect Access only}. ELA is available in the following options : Native Basic , Native Premier Identical, Native Premier Alignment, ELA over SONET, or Ethernet Virtual Access ("EVA"). "Native Basic" is a layer 2, switched , native service using a standard Ethernet offering from the local access provider . Native Basic is not recommended for use with real time traffic. "Native Premier Identical " is a layer 2, switched, native service using the highest grade metro Ethernet offerin~ from the local access provider. Native Premier Identical is only available with the following Centurylink services: Centurylink IQ M Network ing Private Port or Enhanced Port with Secure Internet Gateway, E-Line , Optical Wavelength Service ("OWS"), or Ethernet Private Line ("EPL "). Native Premier Identical circuit speed must match the maximum Centurylink IQ Network ing port, E-Line , OWS or EPL bandwidth. "Native Premier Alignment" is a layer 2, switched, native service closely aligning the Centurylink IQ Networking QoS and the metro Ethernet class of service offering from the local access provider and is only available with Centurylink IQ Networking Pr ivate Port or Enhanced Port with Secure Internet Gateway. Native Premier Identical or Alignment may be used to support QoS for real time traffic . "E LA over SONET" is a layer 1, SONET-based service . EVA is a layer 2, Ethernet-based service that provides customers with a premium non-oversubscribed connection with Fast E and Gig E connection types . Customer may experience delayed installation intervals due to construction requirements and available bandwidths may be limited due to distance and available Ethernet-supported facilities from the local access provider . (c) Wavelength Local Access . "Wavelength Local Access " means Service using wave division multiplexing technology. Wavelength Local Access is available at bandwidths of 1 GbE , 10 GbE LAN PHY , 2.5 G (OC48), 10 GbE WAN PHY (OC192), 40G , OTU1, OTU2 , OTU3, 1G , 2G , 4G and 10G . (d) Frame Local Access . "Frame Local Access" means Leased Access using frame relay technology . Frame Local Access is available at bandwidths varying from 56 kbps to 44,736 kbps . When providing Frame Local Access , Customer has the option to have Centurylink monitor Service for performance and up/down stats via a management permanent virtual circuit. By ordering Frame Local Access with monitoring , Customer agrees to provide Centurylink with access to the serial interface of its customer premises equipment to allow Centurylink to monitor the availability of Frame Local Access . By ordering Frame Local Access without monitoring , Customer understands that Centurylink will not monitor the availability of Frame Local Access . (e) ATM Local Access. "ATM Local Access " means Leased Access using ATM technology. ATM Local Access is available at bandwidths of OS 1, DS3 , OC3 , and OC12. (f) DSL Local Access. "DSL Local Access" means Leased Access using digital subscriber line ("DSL ") technology. DSL Local Access is available at bandwidths varying from 128 kbps/64 kbps to 15000 Mbps/1 000 Mbps. Customer may experience delayed installation intervals due to Construction requirements and available bandwidths may be limited due to distance and available DSL- supported facilities from the local access provider. 2.3 Types of Service. Centurylink offers the following three types of Service : Centurylink Provided Access, Customer Provided Access or Cross-Connect Access. 2.3 .1 Centurylink Provided Access . "Centurylink Provided Access " or "CLPA" means either On-Net Access or Leased Access . (a) On-Net Access . For On-Net Access, Customer must be located in a Centurylink designated building in which On-Net Access is generally available. On-Net Access is generally available as Special Access (except at the DSO bandwidth}, ELA , and Wavelength Local Access . Depending on the Service Address , On-Net Access may be provided through an existing CPOP, newly built CPOP, existing intra-building local loop facilities or connections to a third party provider where Centurylink coordinates the connectivity between Centurylink facilities and facilities of a service provider with whom Centurylink is interconnected . On-Net Access is subject to the On-Net Service Level Agreement located at http://qwest.centurylink.com/legal/, which is subject to change . OMR #N55137 (QLAGESZ) Page 16 of23 CONFIDENTIAL © Centurylink , Inc. All Rights Reserved . v1 .030513 CENTURYLINK LOYAL ADVANTAGE™ AGREEMENT QCC LOCAL ACCESS SERVICE EXHIBIT (b) Leased Access. Leased Access is generally available as Special Access, ELA, Wavelength Local Access , ATM Local Access , Frame Local Access, and DSL Local Access at the bandwidths described in this Service Exhibit for those access types. Customer may request a specific local access provider for Leased Access from a list of available providers with whom Centurylink has interconnect agreements . Centurylink will attempt to use the Customer requested provider, but both final routing and the provider actually used will be chosen by Centurylink. Where available for Special Access , ELA and Wavelength Local Access , Customer may request Centurylink to provide a separate fiber facility path for a protection system between the local access provider's serving wire center and the Service Address ("Protect Route"). Protect Route uses backup electronics and two physically separate facility paths in the provisioning of Service. If the working facility or electronics fail , or the Service performance becomes impaired, the facility is designed to automatically switch to the Service protect path in order to maintain a near-continuous flow of information between locations. Special Access and ELA are also generally available as a central office meet point at a local access provider central office to which Customer has a dedicated connection. 2.3.2 Customer Provided Access. "Customer Provided Access" or "CPA" means a local loop that Customer orders from a local access provider to connect the Customer premises to the Centurylink Domestic Network at a connection point specified by Centurylink . Centurylink will provide Customer with a limited letter of agency ("LOA"), which is incorporated by this reference , authorizing Customer to act as Centurylink's agent so that Customer's local access provider will connect Customer's premises to the Centurylink Domestic Network . Customer will also need to execute a CPA-DAR Addendum for CPA POP with ELA or Wavelength Local Access . Customer will pay a CPA charge to Centurylink when Customer uses the following : (a) Special Access CPA dedicated facilities or ELA CPA virtual local area network ("VLAN"), both of which are dedicated entrance facilities Centurylink leases from a local access provider and that carry traffic only from Centurylink; or (b) ELA CPA POP , which requires Centurylink to provide space and power for the local access provider to install Ethernet equipment; or (c) Wavelength Local Access . Customer will pay a CPA charge to Centurylink when Customer uses Special Access CPA non-dedicated facilities owned by local access providers and that carry traffic from multiple carriers , including Centurylink , if the provider charges Centurylink for those facilities . CPA ELA VLAN is an access type where Centurylink will provision and assign an Ethernet virtual circuit from a Centurylink POP to a Customer designated Ethernet facility leased from a common Ethernet service provider. This access will be used to connect to a Centurylink VLAN assignment on a Centurylink IQ Networking Internet or Private Port or E-Line . Centurylink will not bill customer a CPA charge for an IP layer 3 expansion site because Customer , not Centurylink, is responsible for ordering a cross-connect from the IP layer 3 expansion site manager to meet Centurylink in the IP layer 3 expansion site's meet-me-room. CPA is the responsibility of Customer and Centurylink will not pay for or troubleshoot components of CPA. 2.3.3 Cross-Connect Access. "Cross-Connect Access" or "XCA" means : (a) an intra-POP connection between certain Customer facilities with direct access to the Centurylink Domestic Network and the Centurylink backbone access point (either (i) located within Centurylink's transport area where Centurylink allows Customer to bring its own fiber directly to the Centurylink fiber under an executed Direct Connect Agreement ("Direct Connect") or (ii) in an area where Customer has leased space in a CPOP, a remote collocation site, or a collocation hotel under a Telecommunications Collocation License Agreement or (b) a connection between a Sawis data center and a Centurylink IQ Networking Port, OWS, or E-Line ("Sawis Access") under an executed Sawis Service Exhibit with a Centurylink IQ Networking , OWS or E-Line Service Exhibit. Sawis Access is available in bandwidths of 100 Mbps, 1G, and 10G (Centurylink IQ Networking and OWS only}. Direct Connect requires splicing of Customer and Centurylink fibers and cross- connection of individual circuits. 2.4 RSS. Customer understands that Service is an interstate telecommunications service, as defined by Federal Communications Commission regulations and represents while using the Service, more than 10% of its usage will be interstate usage. 3. Ordering. Upon acceptance of an order for a Service , Centurylink will notify Customer of Centurylink's target date for the delivery of that Service ("Estimated Availability Date"). Once Centurylink notifies Customer of the Estimated Availability Date for a Service , cancellation fees or Cancellation Charges set forth in the Cancellation section below will apply to any cancellation of that order. Centurylink will use commercially reasonable efforts to install each such Service on or before the Estimated Availability Date , but the inability of Centurylink to deliver Service by such date is not a default under the Agreement or this Service Exhibit. 4. Charges. Customer will pay the net rates set forth in the attached pricing attachment or a quote for Service issued by Centurylink if the rates for Service at particular Service Address are not included in the pricing attachment , including all applicable ancillary service charges . CenturyLink invoices MRCs in advance and NRCs in arrears. If the Start of Service Date for any Service falls on any day other than the first day of the month, the first invoice to Customer will consist of: (a) the pro-rata portion of the applicable MRC covering the period from the Start of Service Date to the first day of the subsequent month; and (b) the MRC for the following month. Charges for Service will not be used to calculate Contributory Charges. Customer will receive the rates for Service as shown on the pricing attachment regardless of whether an NPA/NXX split or overlay occurs. 4.1 Ancillary Charges. Ancillary charges applicable to Service include but are not limited to those ancillary services set forth in this section . If an ancillary charge applies in connection with provisioning a particular Service, Centurylink will notify Customer of the ancillary charge to be billed to Customer . Customer may either approve or disapprove Centurylink providing the ancillary service . (a) Expedite. A local loop expedite charge applies to orders where Customer requests the delivery of Service one or more days before the Est imated Availability Date . Customer may only request to expedite Centurylink Provided Access of Special Access and ELA orders (where underlying local access provider allows Centurylink QCC to order an expedited service .) OMR #N55137 (QLAGESZ) Page 17 of23 CONFIDENTIAL © Centurylink, Inc. All Rights Reserved . v1.030513 CENTURYLINK LOYAL ADVANTAGETM AGREEMENT QCC LOCAL ACCESS SERVICE EXHIBIT (b) Extended Wiring. "Extended Wiring " means additional wiring required for orders where the Customer requested termination point for Service is not located in the same location as the Demarcation Point. The Demarcation Point is typically located at a suitable location in the basement or on the first floor of a Service Address where provision is made for termination of Centurylink's outside distribution network facilities. Customer may only request Extended Wiring for (i) Special Access ordered as Leased Access and (ii) DSL Local Access . (c) Construction. Construction charges apply if special construction is required to extend Service to a Demarcation Point not covered by Extended Wiring or other activities that may cause Centurylink to incur expenses for provisioning the Service (e.g., special arrangements of LEC facilities or equipment required to activate the Service) ("Construction "). If Customer does not approve of the Construction charges after Centurylink notifies Customer of the charges, the Service ordered will be deemed cancelled. (d) Multiplexing. Customer may request multiplexing for Special Access where available . Centurylink will multiplex lower level local loop into a higher local loop , or vice-versa , for an additional charge. Centurylink offers multiplexing at a CPOP, at an On-Net Access building or at an ILEC/CLEC facility providing the Leased Access. For multiplexing at a Centurylink On-Net Access building, Centurylink provides multiplexed circuit handoffs to Customer at the same On-Net Access Service Address. For multiplexing at ILEC/CLEC facility, Centurylink facilitates the delivery of multiplexed circuit handoffs to Customer at a single Service Address or at multiple Service Addresses per Customer's request. Multiplexing is generally available at DS1 and OCn circuit levels. Pricing for multiplexing at an ILEC/CLEC facility is on an individual case basis. (e) Changes. Ancillary change charge applies where Customer requests Centurylink to change a local loop to a different Service Address that is within the same Customer serving wire center as the existing local loop , but a Cancellation Charge does not apply. 5. Term ; Cancellation. 5.1 Term. The term of an individual Service begins on the Start of Service Date for that Service and continues for the number of months specified in the attached pricing attachment for a particular Service Address or a quote for Service issued by Centurylink if the rates for Service at particular Service Address are not included in the pricing attachment ("Initial Service Term "). Excluding voice loops and Sawis Access with a month-to-month Initial Service Term, the Initial Service Term will not be less than 12 months . Upon expiration of the Initial Service Term , Service will automatically renew for a period equal to the Initial Service Term length ("Renewal Service Term "). Centurylink may change rates at any time after the Initial Service Term, but will not change rates more than once during a Renewal Service Term. 5.2 Cancellation. Upon cancellation of a Service , Customer will remain liable for (a) charges accrued but unpaid as of the cancellation date (including MRCs, NRCs and Construction charges and other ancillary charges), (b) the amount of any NRCs that Centurylink discounted or waived , if canceled during the first 12 months of the Initial Service Term and (c) any applicable cancellation fees and Cancellation Charges as set forth below. (a) Leased Access and On-Net Access-Cancellation Before the Start of Service Date . If Customer cancels a Leased Access or On-Net Access order before the Start of Service Date for which no Construction is necessary , Customer will pay the cancellation fee identified in the below table based on the bandwidth of the canceled Service . If before the Start of Service Date, Customer cancels a Leased Access or On-Net Access order for which Customer approved a Construction charge, Customer will pay : (i) the cancellation fee identified in the table below based on the bandwidth of the canceled Service and (ii) the unpaid Construction charges . But if Centurylink notifies Customer that Construction is required to provision a Service order and Customer cancels that order before the Start of Service Date because Customer disapproves of the Construction charge , the cancellation fee does not apply. Leased Access and On-Net Access Service Bandwidtht Before Start of Service Date Cancellation Fee DSO (Leased Access only), DS 1, DSL Local Access speeds up to $150 NRC 1536 Kbps/1.024 Mbps, Frame Local Access speeds up to 1.5 Mbps DS3 , OCn , DSL Local Access speeds greater than 1536 Kbps/1 .024 Mbps, Frame Local Access speeds greater than 1.5 Mbps ; all ELA $500 NRC speeds, all Wavelength Local Access speeds tlncludes all types of Servrce Technology unless otherwrse noted. (b) All Service Types-Cancellation After the Start of Service Date. If a Service is canceled by Customer other than for Cause , or by Centurylink for Cause, before the conclusion of its Initial Service Term , Customer will pay a "Cancellation Charge" equal to : (i) 100% of the balance of the MRCs that otherwise would have become due for the unexpired portion of the first 12 months of the Initial Service Term , if any, plus (ii) 35% of the balance of the MRCs that otherwise would have become due for the unexpired portion, if any , of the Initial Service Term beyond the first 12 months . (c) Moves. When Customer requests that Centurylink move a local loop to a different Service Address that is not within the same Customer serving wire center as the existing local loop such move will be deemed a disconnect of the current local loop to which a Cancellation Charge applies and a new install of a new local loop . (d) Waiver of Cancellation Charges. Centurylink will waive the Cancellation Charge for a cancelled Service: OMR #N55137 (QLAGESZ) Page 18 of23 CONFIDENTIAL © Centurylink, Inc . All Rights Reserved . v1 .030513 CENTURYLINK LOYAL ADVANTAGE™ AGREEMENT QCC LOCAL ACCESS SERVICE EXHIBIT (i) When Customer cancels a Special Access ordered as Leased Access if it is (A) DS3 or less, (B) is not part of a bundle or package offering that required Customer to order the local loop with other service components and (C) the local loop's Start of Service Date was at least 12 months prior to the requested date of cancellation. (ii) When Customer upgrades existing Special Access , Native Basic, Native Premier, ELA over SONET, or Wavelength Local Access ("Existing CLPA Service ") with new Service within the same specific type of Service technology at a higher Service speed (e .g ., Special Access DS1 to Special Access DS3 or Native Basic Fast E to Native Basic Gig E) and with the same local access provider ("Upgraded CLPA Service"). The Upgraded CLPA Service will have a new Service Term beginning on its Start of Service Date . If the type of Service technology changes when Customer upgrades Existing CLPA Service, Customer must pay Cancellation Charges . (e) Customer Provided Access-Cancellation of Connectivity after Start of Service Date. To cancel CPA, Customer must provide Centurylink with a written disconnect firm order confirmation ("DFOC ") notice from Customer's CPA provider along with notice to cancel the CPA. If Customer fails to provide Centurylink with the DFOC notice within 30 calendar days after Centurylink's receipt of the notice to cancel the CPA , or if Centurylink disconnects CPA for Cause, then Centurylink may disconnect the CPA or require the CPA provider to do so. Customer will remain liable for charges for the connectivity to CPA (even if Customer cannot use the CPA) until: (i) Customer furnishes the required DFOC to Centurylink; or (ii) either party cancels the associated CPA with the CPA provider. 6. Grooming. If Centurylink plans to groom a circuit on which Service is provided, Centurylink will provide a grooming notice to Customer. For CPA dedicated facilities grooming, Customer will provide a signed LOA to Centurylink so that Centurylink can order the necessary changes. Within 20 calendar days after receipt of that notice, Customer will : (a) notify Centurylink of its approval, which may not be unreasonably withheld; (b) state its reason for refusing ; or (c) request that Centurylink provide Customer with an LOA so Customer can order the necessary changes. Customer's failure to respond within the 20-day period will constitute approval of the groom. If the groom results in Customer incurring additional NRCs from its local access provider and Customer provides sufficient proof of the local access provider charge, Centurylink will issue a credit to Customer equal to the local access provider NRC for each groomed circuit. If Customer refuses the groom for On-Net Access, Centurylink will, upon 20 calendar days' prior written notice, cancel the Service on that circuit and assess a Cancellation Charge . When Customer does not respond to a CPA dedicated facilities grooming notice or refuses a CPA dedicated facilities groom, Customer must either: (a) provide Centurylink with a LOAICFA so that Centurylink can have the local access provider cancel the circuit; or (b) work directly with the local access provider to cancel the circuit. If Customer does neither of these things, Centurylink will pass through to Customer any costs incurred by Centurylink from the local access provider as a result of the circuit remaining in place . "CFA" means circuit facility assignment of the Centurylink facility, as identified by Centurylink, to which Customer must order a local loop for connection to the Centurylink Domestic Network . 7. Definitions. Capitalized terms not defined in this Service Exhibit are defined in the Agreement. "Centurylink Domestic Network" means the Centurylink network located within the contiguous U.S. states and Hawaii, which is comprised only of physical media, including switches, circuits, and ports that are operated by Centurylink. "CPOP" means a Centurylink-owned physical point of presence that lies directly on the Centurylink Domestic Network where direct interconnection between the Centurylink Domestic Network and a local access provider's network is possible . "Demarcation Point" means: (a) the physical interface between the Centurylink Domestic Network and Customer's telecommunications equipment or (b) the physical interface between a local access provider connecting the Centurylink Domestic Network to Customer's telecommunications equipment. "Leased Access" means local backbone access circuits ordered and leased by Centurylink from a local access provider chosen by Centurylink . "On-Net Access" means local backbone access circuits provided solely on Centurylink owned and operated facilities . "Service Address" means the business building where Customer receives the Service. "Start of Service Date" for each circuit is the date Customer accepts the circuit, following notification by Centurylink that the local loop is ready. The ready notification will be via phone call or e-mail. Customer has five days from Centurylink's ready notification in which to inform Centurylink if the circuit fails to operate error-free. Within the five-day timeframe, if Customer neither informs Centurylink about errors nor accepts the circuit, the circuit will be considered to have been accepted and the Start of Service Date to have commenced on the fifth day following Centurylink's ready notification, regardless of whether Customer placed traffic over the circuit. If Customer informs Centurylink of circuit errors within the five-day timeframe, Centurylink will promptly take necessary, reasonable action to correct the errors , and upon correction, notify Customer that the circuit is ready . OMR #N55137 (QLAGESZ) Page 19 of23 CONFIDENTIAL © Centurylink, Inc . All Rights Reserved. v1 .030513 CENTURYLINK LOYAL ADVANTAGE™ AGREEMENT QCC LOCAL ACCESS SERVICE EXHIBIT PRICING ATTACHMENT Except as set forth in this Pricing Attachment , capitalized tenns will have the definitions assigned to them in the Agreement or the Local Access Exhibit. 1. Customer will pay the MRCs and Install NRCs for the Local Access Service selected . In addition, Customer will pay all MRCs or NRCs for any ancillary services provided as described in the Local Access Service Exhibit, including without limitation Construction charges. 2. Customer's MRC for the particular existing Service ordered prior to the effective date of this Pricing Attachment for an NPAINXX or CLLI and/or Service Address listed will be changed to the MRC set forth in the below table . The rate change for existing Service will become effective at Centurylink's earliest opportunity, but in no event later than the second full billing cycle following the effective date of this Pricing Attachment. All MRCs and NRCs set forth in the below table apply per circuit and not per Service Address. Any modifications to the NPAINXX or CLLI or Service Address listed below will render the pricing below void, and Customer MRC for existing Service will not be changed . The pricing contained in this Pricing Attachment represents pricing for the local access provider and route selected by Centurylink. Customer requests for a specific local access provider or route may be subject to different pricing. ETHERNET LOCAL ACCESS· Minimum Type of Service Term Local Loop Local in months Quantity Access Net Install NPA/NXX Tracking 10 Service Address Access (per Service) Circuit Speed Limit Rate MRC* NRC 7500 w. 29 "' Fast Ethernet 303/235 130409626572 WheatridQe , CO 80033 Leased 60 months 50 Mbps 1 $250 .00 $0.00 0 0 *NOTE: The pncmg outlmed m the above table 1s ava1lable for the locat1on outlmed above only as 11 1s an ex1stmg serv1ce and has been installed under this Customer's Account for a period of six years and is being renewed for an additional five years. 3. Prior to ordering additional Local Access Services which are not specified above for a specific NPAINXX and/or Service Address, Customer and Centurylink must execute a separate amendment to this Agreement. OMR #N55137 (QLAGESZ) Page 20 of23 CONFIDENTIAL © Centurylink, Inc . All Rights Reserved . v1.030513 CENTURYLINK LOYAL ADVANTAGE™ AGREEMENT QC INTRASTATE METRO ETHERNET SERVICE EXHIBIT 1. General; Definitions. Capitalized terms not defined in this Service Exhibit are defined in the Agreement. Centurylink QC will provide Intrastate Metro Ethernet Service ("Service" or "Metro Ethernet") under the terms of the Agreement , Tariff, and this Service Exhibit. Service is subject to technical publication 77411 located at http ://qwest.centurvlink .com/techpub/ ("Tech Pub "). "Minimum Service Period" means 12 months following the date service is made available to Customer, as evidenced by Centurylink records. "Pricing Attachment" means the document containing Rates, Term, and other location-specific information, which is incorporated by reference and made a part of this Service Exhibit. "Rates" means the MRCs and NRCs for the Service . "Term " means the term length for the Service established on a Pricing Attachment and which commences on the Start of Service . "SLA" means the service level agreement specific to the Service, located at http://www.qwest.centurylink.com/legal/, which is controlled by the Tariff and Tech Pub, which are subject to change. The SLA provides Customer's sole and exclusive remedy for service interruptions or service deficiencies of any kind whatsoever for Service. "Start of Service" means the effective bill date of the service order to add Service to Customer's account, as evidenced by Centurylink records. 2. Service. 2.1 Description. Customer orders Service as indicated on a Pricing Attachment. Service is a flexible transport service that uses established Ethernet transport technology. The Service provides connections between multiple Customer locations within a metropolitan area using native Ethernet protocol. The transmission speed depends on the Ethernet port ("Port") selected and the amount of bandwidth ordered over the Port ("Bandwidth Profile"). Service extends to the Demarcation Point. "Demarcation Point" means the Centurylink-designated physical interface between the Centurylink-owned network and Customer's telecommunications equipment. Service is available over three designs: (a) Customer Premises, supporting transmission speeds as low as 5 Mbps in all markets (3 Mbps and 7Mbps are available in select markets) and up to 1 Gbps in increments of 10 Mbps from 10 to 100 Mbps, and in increments of 100 Mbps from 100 to 1 ,000 Mbps; (b) Central Office, supporting transmission speeds of 100 Mbps, 600 Mbps and 1 ,000 Mbps; and (c) Ethernet with Extended Transport (DS3 required), supporting transmission speeds as low as 5 Mbps and up to 40 Mbps . Service is subject to technical publication 77411 located at http://www.gwest.com/techpub/ ("Tech Pub "). "SLA" means the service level agreement specific to the Service, located at http://www.gwest.centurvlink.com/legal/, which is controlled by the Tariff and Tech Pub, which are subject to change . The SLA provides Customer's sole and exclusive remedy for service interruptions or service deficiencies of any kind whatsoever for Service. Customer understands that Service is an intrastate telecommunications service, as defined by Federal Communications Commission regulations and represents that during the Term, 10% or less of its usage will be interstate usage. If more than 10% of Customer's usage is interstate , then Customer will notify Centurylink so the appropriate service agreement can be used, allowing Centurylink to bill Customer out of the appropriate Tariff. 2.2 Installation; Provisioning of Service. Centurylink will notify Customer of the date Service is available for use. In the event Customer informs Centurylink that it is unable or unwilling to accept Service at such time, the subject Service will be held available for Customer for a period not to exceed 30 business days from such date ("Grace Period"). If after the Grace Period, Customer still has not accepted Service, Centurylink may either: (a) commence with regular monthly billing for the subject Service; or (b) cancel the subject Service. If Customer cancels an order for Service prior to the date the Service is available for use, or is unable to accept the Service during the Grace Period and Centurylink cancels the Service at the end of the Grace Period, the Tariff cancellation charges may apply. Centurylink will provide the Service at the locations specified in the Pricing Attachment. At Customer's request, mutual testing may be performed in accordance to the service parameters outlined in the Tariff. 2.3 Changes to Service. Customer may add or change Service via a Pricing Attachment. Subsequent Pricing Attachments adding new Service port(s) will be coterminous with the original Term, provided the individual Service Minimum Service Period can be met. All Service ports ordered under this Service Exhibit will expire on the same date regardless of when they are ordered (e.g., if the original Service is in month 10 of a 60-month Term when Customer orders a new Service port for a 60-month fixed period rate plan, the new Service port will be billed at the 60-month rate for the next 50-months). In the event the Minimum Service Period cannot be met , an amendment adding a new Pricing Attachment containing a new ilink Contract Number must be signed. A subsequent Pricing Attachment to change or add a Service port during the Term will be assessed an NRC. A subsequent Pricing Attachment to change Service Bandwidth during the Term will not be assessed the NRC, however, the MRC will be changed to the new Service bandwidth profile charge. Customer may be assessed an early Termination Charge for any decrease in bandwidth during the Term . Customer request for a physical move of Service to a new location will be treated as a termination of service at the original location. NRC's will apply and Term requirements must be met in the new location . In the event the Minimum Service Period cannot be met, an amendment adding a new Pricing Attachment with a new ilink Contract Number will be required . Customer request for a physical move of Service to a location within the same building as the existing Service will be charged a fee equal to one half the applicable NRC charge . There will be no changes to the Minimum Service Period . OMR #N55137 (QLAGESZ) Page 21 of23 CONFIDENTIAL © Centurylink, Inc. All Rights Reserved . v1 .030513 3. Term; Termination. CENTURYLINK LOYAL ADVANTAGE™ AGREEMENT QC INTRASTATE METRO ETHERNET SERVICE EXHIBIT 3.1 Term. This Service Exhibit will begin on the Effective Date of the Agreement (or an amendment to the Agreement if Customer adds this Service Exhibit after the Effective Date of the Agreement) and will continue until the expiration or cancellation of the last to expire (or cancel) Service . The Term for the Service will be indicated on a Pricing Attachment. Each Service ordered will have its own Minimum Service Period . At the conclusion of the Term, the Rates will revert to the month-to-month Rates in the Tariff, unless Service is renewed for a new Term on a Pricing Attachment or unless a party notifies the other party in writing of its desire not to renew Service at least 60 calendar days , and no more than 120 calendar days, prior to the end of the Term . 3.2 Termination . Either party may terminate Service and/or this Service Exhibit in accordance with the applicable Tariff or for Cause. "Cause" means the failure of a party to perform a material obligation under this Service Exhibit , which failure is not remedied: (a) for payment defaults by Customer, within five days of separate written notice from Centurylink of such default (unless a different notice period is specified in the Tariff); or (b) for any other material breach, within 30 days of written notice (unless a different notice period is specified in the Tariff or this Service Exhibit). Customer will remain liable for charges accrued but unpaid as of the termination date. If, prior to the conclusion of the Term, Service and/or this Service Exhibit is terminated either by Centurylink for Cause or by Customer for any reason other than Cause , then Customer will also be liable for any termination charges ("Termination Charge"). Prior to the conclusion of the Term, if Service and/or this Service Exhibit are terminated or bandwidth is decreased below the original contracted level ("decreased bandwidth "), either by Centurylink for Cause or by Customer for any reason other than Cause , then Customer will also be liable for and pay Centurylink the following Termination Charge : (a) all accrued and unpaid charges for the terminated Service or decreased bandwidth provided through the effective date of such termination or decrease; plus (b) a termination charge of 100% of the balance of the MRCs for the unexpired portion of the Minimum Service Period for the terminated Service and/or a charge of 100% of the difference between the original bandwidth MRC and the decreased bandwidth MRC ; plus (c) 40% of the balance of the MRCs due for the unexpired portion of the Term in excess of the Minimum Service Period for the terminated Service and/or 40% of the difference between the original bandwidth MRC and the decreased bandwidth MRC ; plus (d) any and all third party costs and expenses incurred by Centurylink in so terminating such Service or decreasing bandwidth and all applicable non-recurring charges that may have been waived . 4. Charges. Charges for Service , including Metro Ethernet optional features, are set forth in the Pricing Attachment. The actual charges for Service will be those in effect in the Tariff on the date the first Service element ordered under the original Pricing Attachment is installed, as evidenced by Centurylink records. If Service is renewed for a new Term on a Pricing Attachment, the rates will be those in effect at the time the Service is renewed , as evidenced by Centurylink's records . Centurylink will inform Customer of its then-current rates for Service upon written request. Renewed Service is subject to a new Minimum Service Period . OMR #N55137 (QLAGESZ) Page 22 of23 CONFIDENTIAL © Centurylink , Inc . All Rights Reserved. v1 .030513 CENTURYLINK LOYAL ADVANTAGE™ AGREEMENT QC INTRASTATE METRO ETHERNET SERVICE EXHIBIT PRICING ATTACHMENT CITY OF WHEAT RIDGE ilink Contract Number Service expires 60 months from the Start of Service ("Term"). Port EwET DS3 Total Band-Speed Cus-Chan Term width NRC to mer & Transport Location MRC per per COCC MRC Interface Mileage (Address, City, State) Bandwidth Profile each* Port Speed each MRC NRC MRC MRC NRC 1000 Mbps 11220 W 45th Ave 20 Mbps (upgrade from Wheatridge CO (upgrade from 10 Mbps) $400.00 copper to fiber) $0 .00 N/A N/A N/A N/A N/A 1000 Mbps 6363 W. 35th Ave 20 Mbps (upgrade from Wheatridqe CO (upgrade from 10 Mbps) $400 .00 copper to fiber) $0 .00 N/A N/A N/A N/A N/A 4005 Kipling St 30 Mbps Wheatridqe CO (upgrade from 20 Mbps) $500 .00 10/100 Mbps $0.00 N/A N/A N/A N/A N/A 1000 Mbps 4355 Field St. 20 Mbps (upgrade from Wheatridge CO (upgrade from 10 Mbps) $400.00 copper to fiber) $0.00 N/A N/A N/A N/A N/A 7500 W. 29th Ave 100 Mbps Wheatridqe CO (upgrade from 40 Mbps) $700 .00 1000 Mbps $0.00 N/A N/A N/A N/A N/A .. *NOTE: The pncmg outlmed m the above table ts available for the locattons outlmed above only as they are extstmg services and have been installed under this Customer's Account for a period of six years and are being renewed for an additional five years and all 3 of the 20 Mbps circuits being upgraded are in the same wire center at ARVDCOMA -all 3 uplinks will go to the ARVDCOMA core switch. OMR #N55137 (QLAGESZ) Page 23 of23 CONFIDENTIAL © Centurylink , Inc . All Rights Reserved . v1.030513 ~~A4' .. ~ r-City of _ ?WheatRi_dge ITEM NO: } e.. DATE: May 13 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION TO APPOINT DEBRA ROSENTHAL AS THE JEFFERSON COUNTY LIBRARY BOARD LIAISON, AT- LARGE D PUBLIC HEARING [8J BIDS/MOTIONS 0 RESOLUTIONS D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2N° READING QUASI-JUDICIAL: D YES ty Clerk City Manager ISSUE: There currently is a vacancy for the Jefferson County Library Board Liaison ; this is an at-large position. FINANCIAL IMPACT: None BACKGROUND: T his new position was created at the end of 2011 at the request of several Council Members. Monica Duran was originally appointed to the position in March, 2012 but resigned shortly thereafter due to time constraints. The City Clerk 's Office received an application from Debra Rosenthal , 3395 Nelson Street, seeking to fill this position. RECOMMENDED MOTION: "I move to appoint Debra Rosenthal as the Jefferson County Library Board Liaison , term to expire 3/02114." Or, Council Action Form May 13, 2013 Page2 "I move to deny the appointment ofDebra Rosenthal as the Jefferson County Library Board Liaison for the following reason(s) " REPORT PREPARED BY: Bruce Roome , Deputy City Clerk ATTACHMENTS: 1. Debra Rosenthal Application Board & Commission Application City of Wheat Ridge :"') 1 PLEASE APPLY ONLY FOR ONE BOARD OR COMMISSION ' I APPLICATION FOR APPOINTMENT TO THE : , U ~!TeL SDA-Cov."-fot L:hlt:Vv~ J1oAf~ L~a.::s o,;__ ~ (BOARDJCOMMISSIONYCOMMITIEE) DATE: p<zt , 13 -J ..S DISTRICT---..77L~'------ HOW LONG HAVE YOU BEEN A RESIDENT OF WHEAT RIDGE :~~ ARE YOU A REGISTERED VOTER?_,tf-+-£..-~--- WHY ARE YOU SEEKING THIS APPOINTMENT? f k> v ..... / ,t.. I;~<-+-c h h Je... ,.._ ~/'""'-A t:.-A--, ./a::_ J-1!./ c... • "' ~ tJ qq...;~ .....,....·+tf HAVE YOU EVER SERVED, OR ARE YOU CURRENTLY ON A _ BOARD/COMMISSION/COMMITTEE AND IF SO , WHICH ONE? HOW LONG?~ ';/~ b....),·::, b. t:o«ur" v.. .c..i 'J t.,.,.,f-..r;r=/ 1-CL. ~ 4-n-yO Co&~«~ • #e..- ARE THERE ANY CONFLICTS WHICH WOULD INTERFERE WITH REGULAR ATTENDANCE OR DUTIES?_-_______________ _ SIGNAT ~~ zC ~ PLEASE PRINT OR TYPE NAME : ~hot-L. Ko 'S~ .... / r ADDRESS : J>31~ ,ak/4 c.).-..s -r tJiz<~ r-:e e~J (' . eu J'v<::> :1.1 HOME PHONE: ,{D.S, ..2o2. -G c0.Z f BUSINESS PHONE: 3 D3 · 6' ~o · ~J I 7 E-MAIL ADDRESS : .Q-61'>-Ko..s£._ IS <!Q>~ +-~ ,..c:f- ? APPLICATION WILL BE KEPT ON FILE FOR ONE YEAR Attachment 1 EDUCATION: 1Je6ra £. 1tosentna( 3396 Nelson Street Wheat Ridge, Colorado 80033 .:ebraRose13®comcast.net 303-650-4117 Cometl Un,versity Law School -Juris Doctor Degree 1988 Phi Alpha Delta , International law Society , Women's Law Coalition , American Bar Association , Intramural Giant Slalom Ski Team Concentrations: Environmental, Corporate , Oil & Gas and Commercial law Stanford University-Bachelor of Arts With Distinction in Journalism 1983 Concentrations: Print & Broadcast Journalism , Corporate Organizational Communications, The Stanford Daily -World News Wire Editor Schaeffer Memorial Journalism Award Stanford-in-Britain Cliveden , England Colorado College-Colorado Springs, Colorado 1978 -1980 Dean's List , Alpha Lambda Delta Honor Society, C. C. Critique: A Uterary Review Courses: Anthropology, Computer Science , Genetics, History , Political Science EMPLOYMENT: Managing Partner-ZDB, limited , 4291 lowell Blvd, Denver, Colorado 1998 -present. Manage all aspects of a medical office building in North Denver. Draft leases , supervise tenants, monitor building maintenance and supplies . collect monthly rents. process bookkeeping, prepare all accounting and tax documents, contract with vendors. Director Medical Records Department-North Denver Internal Medicine & Sports Clinic, 4301 Lowell Boulevard, Denver. Colorado 1998-2011 Managed the computerization and maintenance of all patient medical records utilizing the Touchworks by Allscripts electronic medical records system . Interacted with physicians. patients, insurance companies, law firms and HEOIS review entities. Transcribed physicians progress notes, processed all medical records data entry, updated EMR flowsheets , coordinated attending physician statements, notarized legal and medical documents, assisted front desk staff. Notary Public State of Colorado -1998 -Current Notarize official legal and medical documents. Director J Bar Doubt• C Ranch Camp-Elbert, Colorado 1990-1994 Managed all aspects of a 427 acre summer camp and retreat center owned and operated by the Denver Jewish Community Center. Drafted and monitored a $400,000+ budget. Responsible for the recruitment and supervision of over 300 campers, 65 staff members and over 500 retreat guests per year. Supervised maintenance of 22 buildings , kitchen . outdoor pool , fresh water well, climbing wall , ropes course, stables and corral for 50 horses. Designed and edited all brochures and publicity materials for advertising purposes. Organized recruitment fairs and reunions . Computerized the entire department. LEGAL Associate Holland & Hart-555 Seventeenth Street, Denver, Colorado EMPLOYMENT: Practice Areas : litigation, construction , oil & gas, labor, commercial , domestic and environmental law . 1987 -1990. Assistant City Attorney -Participated in Holland & Hart's attorney exchange program with the Denver City Attorney's Office. Prosecuted 21 jury trials. 1989 Summer Legal Associate-Cogswell & Wehrle , 1700 Lincoln Street, Denver Drafted motions and memoranda of law for the litigation, oil & gas , commercial and business planning, real estate and securities divisions. Summer 1986 Private Investigator -LaCroix , Achziger &. Multz, P.C., Grand Junction Investigated criminal and civil cases . interviewed clients and potential witnesses, follow -up police reports , researched legal issues, prepared case reports and witness profiles, assisted the attorneys in court. 1982-1984 OTHER Editor -University Personnel Services , Cornell University , New York EMPLOYMENT: Edited personnel related publications generated by the University, coordinated the employee newsletter Networking in the Come// Chronicle and supervised the updating and distribution of the Personnel Manual. 1984 -1985 COMPUTER SKILLS: ACTIVITIES: OTHER SKILLS: Wrangl r -J Bar Double C Ranch , Elbert. Colorado Supervised 11 wranglers, maintained 52 horses and tack on a 427 acre ranch , and instructed over 300 youths in trail riding skills and western pleasure horsemanship. Summers 1961 , 1984 & 1966. Outdoor Survival Instructor -Program sponsored by the Denver Jewish Community Center. led small groups into the Colorado Roct<ies for two-week excursions. Coordinated and supervised activities Including white water rafting , technical rock climbing , rappelling , mountain climbing and basic outdoor survival skills . Summers 1960 and 1963 Clerk I Secretary -l. Cook Sporting Goods , Grand Junction , Colorado Summers and holidays 1975 -1976. Retail sales, inventory management, bookkeeping , window and showcase display , gift wrapping . Ticket Sales I Batgirl -Grand Junction Eagles Semi-Pro BasebaU T earn Summers 1976 -1976 Typing speed 75+ words per minute. Touchworks by Allscripts electronic medical records system , Macintosh and Microsoft computer software. Downhill and cross-country skiing , golf, tennis , horseback riding , fly fishing , water skiing , trap shooting , scuba diving and hiking. Catch, gut and fry a fish ; load and shoot a 12 gauge shotgun ; backwash and maintain a swimming pool ; saddle and ride a horse; drive a waterski boat; back up a traile r; juggle: translate doctor's handwriting ; professionally organize any space: and communicate with teenagers . ~~A~ .... ~ City of • JP'WheatRi_dge ITEM NO: __j£_ DATE: May 13 ,2013 REQUEST FOR CITY COUNCIL ACTION TITLE: CORRECTION TO COUNCIL MINUTES FOR APRIL 8, 2013 D PUBLIC HEARING ~ BIDS/MOTIONS 0 RESOLUTIONS QUASI-JUDICIAL: City Attorney ISSUE: D ORDINANCES FOR 1ST READING (mm/dd/yyyy) 0 ORDINANCES FOR 2 N° READING (mm/dd/yyyy) D YES ~ NO City Manager Staff requests that Council correct the minutes of the April 8, 2013 Council meeting to reflect the actual intent of the staff and Council concerning a condition of subdivision approval. PRIOR ACTION: Council approved Resolution 13-2013 on April 8, 2013. The Resolution approved a major subdivision with conditions. FINANCIAL IMPACT: None BACKGROUND: At the City Council public hearing on April 8, Council adopted a motion to approve Case No. WS-12-01 which was a request for a major subdivision at 11885 W. 38th Avenue. There were several conditions attached to the request which had been negotiated with the developer. Condition number 5 related to the required parkland dedication and was included as follows in the CAF recommended motion and reflected in the minutes: "The property to be assessed for fees in lieu of parkland dedication based on the appraised value ofthe land after land entitlements have been approv ed. Said fee to be paid prior to recordation of the subdivision plat." V:\Forms\CAFtemplate Council Action Form May 13 , 2013 Page2 This was incorrect. The condition should have read as follows: "The property to be assessed for fees in lieu of parkland dedication based on the appraised value of the land after land entitlements have been approved. Said fee to be paid prior to the first building permit." This condition was negotiated with the developer and described in the staff report during the hearing. Only the reference in the minutes is incorrect. RECOMMENDATIONS: Staff recommends approval of the correction. RECOMMENDED MOTION: "I move to correct the minutes of the Council meeting for April 8, 2013 to reflect the following condition of approval for Case No. WS-12-01: The property to be assessed for fees in lieu of parkland dedication based on the appraised value of the land after land entitlements have been approved. Said fee to be paid prior to the first building permit." REPORT PREPARED BY Gerald Dahl , City Attorney ATTACHMENTS 1. Excerpt from April 8, 2013 City Council meeting From City Council Minutes April 8, 2013 Motion by Councilmember Stites to approve Resolution No. 13-2013, a resolution approving a fifty-three lot subdivision plat with right-of-way dedications for property zoned Planned Residential Development (PRO) located at 11885 W . 38th Avenue, for the following reasons: 1. City Council has conducted a proper public hearing, meeting all public notice requirements as required by Section 26-109 and 26-407 of the Code of Laws. 2. The requested subdivision has been reviewed by the Planning Commission, which has forwarded its recommendation. 3 . The Subdivision plat has been found in compliance with Article IV of Chapter 26 of the Code of Laws. With the following conditions: 1. Property addresses be added to Sheet 3 of the plat document prior to recordation 2. The HOA covenants be provided for staff review prior to plat recordation 3. The developer continue working with Jefferson County Open Space and the City regarding protection of the Ute Ladies' Tresses orchid populations and procurement of the temporary and permanent easements in the open space area 4. Prior to plat recording, adequate assurance must be in place with Westridge Sanitation District on their ability to serve the property 5 . The property be assessed for fees in lieu of parkland dedication based on the appraised value of the land after land entitlements have been approved . Sa id fees to be paid prior to recordation of the subdivision plat 6. The developer enter into a City standard subdivision improvement agreement with required security prior to recordation of the subdivision plat; Seconded by Councilmember Reinhart; carried 8-0. Attachment 1 ~~j~ ... , r-City of • JP'Wheat~dge ITEM NO:~ DATE: May 13 ,2013 REQUEST FOR CITY COUNCIL ACTION TITLE: COUNCIL BILL NO. 08-2013 AN ORDINANCE AMENDING THE PENALTIES FOR VIOLATING SECTIONS 1203 AND 1208 OF THE MODEL TRAFFIC CODE FOR COLORADO, AS ADOPTED BY THE CITY, CONCERNING THE P~NG OF MAJOR VEHICLES AND P~NG PRIVILEGES FOR PERSONS WITH DISABILITIES, RESPECTIVELY, AND MAKING CONFORMING AMENDMENTS TO SECTION 13-2 OF THE WHEAT RIDGE CODE OF LAWS D PUBLIC HEARING D BIDS/MOTIONS D RESOLUTIONS 12] ORDINANCES FOR 1ST READING (5 /13 /2013) 0 ORDINANCES FOR 2ND READING (6/1 0/2013) QUASI-JUDICIAL: D YES chief ofOiice ISSUE: In August of2012, the City Council adopted the 2010 edition of the Model Traffic Code ("MTC") for Colorado by reference and made certain local amendments to the MTC. Among the local amendments made by the City were tiered fine schedules for violations of two MTC sections: MTC Section 1203, Major Motor Vehicles; and 1208 , Parking Privileged for Persons with Disabilities. This Ordinance eliminates the tiered fine schedules for violations ofMTC Sections 1203 and 1208 and imposes a single uniform fine instead. PRIOR ACTION: No prior formal action . The City Council discussed this item at its April 22 , 2013 meeting. Council Action Form May 13 ,2013 Page2 FINANCIAL IMPACT: There will be little financial impact to the Police Department and the Municipal Court as the procedures for summons of this nature are currently in place and operational. BACKGROUND: After several months of attempting to implement the new tiered fine schedules imposed by the City under the 2010 MTC , City staff in the Police Department and the Municipal Court noted several operational obstacles. Practically speaking, a parking citation must be issued to a named individual (as opposed to an identified vehicle) to hold that individual responsible for the fine. When fines are increased based on the number of prior convictions a violator has, verification of the named individual's parking ticket history is also necessary. Finally, the fine amount must be indicated on the face of the parking ticket to permit the violator to pay the fine in lieu of coming to court. All of this means that a parking ticket for violating MTC Sections 1203 and 1208 currently requires an officer to identify the individual who parked the vehicle, verify that individual's parking ticket history and , based on that infonnation , determine the appropriate fine amount to be assessed and indicate that amount on the ticket. The primary operational obstacle identified by staff is that there is no method of checking an individual's parking ticket conviction history 24 hours a day , seven days a week. Under the City's current record-keeping practices , an individual's parking ticket history can only be retrieved by Municipal Court staff; police officers have no way of remotely accessing this information from their cars . Municipal Court staff is present and available Monday through Friday, from 8:00a.m. to 5:00p.m. Officers are therefore unable to retrieve the information necessary to calculate the appropriate fine amounts for tickets issued outside of those regular business hours . Additionally, Municipal Court staff may be unable to immediately respond to an officer's request during regular business hours. All of these factors lead to difficulty in enforcing the tiered fine schedules. Staff conducted research concerning fines imposed for parking violations by 18 other Colorado municipalities and Jefferson County. Of those surveyed jurisdictions, two had experience with imposing a tiered parking fine schedule: The City of Thornton previously employed a tiered parking fine schedule, but abandoned this approach recently due to the costs incurred by the City in implementing the fine schedule. The City of Arvada reported that it has a tiered fine schedule in place, but that they do not use or enforce it. Arvada staff indicated that officers routinely issue parking tickets with the "first offender" fine amount and that the Municipal Court does not amend the fine even if the defendant has multiple parking violations. Finally, Staff researched the history of repeat parking offenders in Wheat Ridge during calendar years 2011 and 2012. That research revealed that no individuals were cited for violating MTC Section 1203 (Parking of Major Vehicles) more than once; one individual was cited for violating MTC Section 1208 (Parking Privileged for Persons with Disabilities) more than once (two times total). Council Action Form May 13 ,2013 Page 3 RECOMMENDATIONS: Staff recommends approval of the ordinance. RECOMMENDED MOTION: "I move to approve Council Bill No . 08-2013, an ordinance amending the penalties for violating sections 1203 and 1208 ofthe Model Traffic Code for Colorado, as adopted by the City, concerning the parking of major vehicles and parking privileges for persons with disabilities, respectively, and making conforming amendments to Section 13-2 of the Wheat Ridge Code of Laws, on first reading, order it published, public hearing set for Monday, June I 0 , 2013, at 7 p.m. in the City Hall Council Chambers, and that it takes effect 15 days after final publication." Or, "I move to postpone indefinitely Council Bill No. 08-2013 , an ordinance amending the penalties for violating sections 1203 and 1208 of the Model Traffic Code for Colorado, as adopted by the City, concerning the parking of major vehicles and parking privileges for persons with disabilities, respectively, and making conforming amendments to Section 13-2 of the Wheat Ridge Code of Laws for the following reason(s) ," REPORT PREPARED/REVIEWED BY: Joseph Cassa, Division Chief Daniel Brennan , Chief of Police Carmen Beery, City Attorney's Office Patrick Goff, City Manager ATTACHMENTS: I. Council Bill No. 08-2013 2. February 26 Memorandum from Court Administrator 3. Aprill5 Memorandum from Police Department and City Attorney's Office CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER------ Council Bill No. 08 Ordinance No. ___ _ Series of 2013 TITLE: AN ORDINANCE AMENDING THE PENAL TIES FOR VIOLATING SECTIONS 1203 AND 1208 OF THE MODEL TRAFFIC CODE FOR COLORADO, AS ADOPTED BY THE CITY, CONCERNING THE PARKING OF MAJOR VEHICLES AND PARKING PRIVILEGES FOR PERSONS WITH DISABILITIES, RESPECTIVELY, AND MAKING CONFORMING AMENDMENTS TO SECTION 13-2 OF THE WHEAT RIDGE CODE OF LAWS WHEREAS, the City of Wheat Ridge, Colorado (the "City"), is a Colorado home rule municipality, duly organized and existing pursuant to Section 6 of Article XX of the Colorado Constitution; and WHEREAS, pursuant to its home rule authority and C.R.S. § 31-15-702(1 )(a), the City possesses the authority to regulate the use and occupation of public rights-of-way and property for vehicular travel and parking purposes; and WHEREAS, pursuant to this authority, the City Council (the "Council") previously adopted the 2010 edition of the Model Traffic Code for Colorado ("MTC"), and certain amendments thereto, codified as Section 13-2 of the Wheat Ridge Municipal Code ("Code"); and WHEREAS, as part of the local amendments to the 2010 MTC, the Council approved a tiered fine schedule for repeated violations of MTC sections 1203, concerning the parking of major vehicles, and 1208, concerning parking privileges for persons with disabilities; and WHEREAS, after due and proper consideration of the matter, the Council now desires to eliminate said tiered fine schedule and to adopt a uniform mandatory fine for violations of MTC sections 1203 and 1208, and to amend Code Section 13-2 accordingly. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO, THAT: Section 1. MTC Subsection 1203(4), concerning the enforcement of requirements concerning the parking of major vehicles, as adopted and amended by the City under Paragraph 13- 2(b )(9) of the Wheat Ridge Code of Laws, is hereby amended as follows: (4) Enforcement. Notwithstanding any other provisions of this Model Traffic Code or of the Wheat Ridge City Code, any major vehicle as defined herein which is parked or stored in violation of the provisions of section 1203 of this code shall be subject to being towed and stored, at the owner's sole expense, by a towing contractor selected by the chief of police of the City of Wheat Ridge. The towing of illegally parked vehicles is necessary to ensure traffic and pedestrian safety by removing the view impediment created by the illegally parked major vehicles. In addition to the right to tow said illegally parked major vehicles, authority is granted to impose administrative charges upon the owner or operator of said illegally parked vehicle, or the owner of property allowing or permitting such illegal parking, subject to the following requirements: Attachment 1 (a) To defray the cost of enforcement of this provision , a charge of ONE HUNDRED FIFTY DOLLARS ($150 .00) fifty dollars ($50 .00) shall be imposed for the first offense , one hundred dollars ($100 .00) for the second offense, two hundred dollars ($200.00) for the third offense, and three hundred dollars ($JOO.OO) for the fourth or subsequent offenses ; (b) Any person subjected to said administrative charges who objects thereto shall be entitled to either: 1. Request a hearing before the municipal court referee appointed pursuant to Section 14-10 of the Wheat Ridge Code of Laws, which hearing shall be held no less than seventy-two (72) hours after the making of said request; or 2. Have a summons and complaint issued directing such person to appear in the Wheat Ridge Municipal Court to answer charges of violating section 1203 of this code. If found guilty in the Wheat Ridge Municipal Court of such charges or if a guilty plea is entered , the court shall impose A fines as specified in subsection 1203(4)(a) herein. (c) No vehicle shall be released from storage after towing unless and until all towing and storage charges have been paid, and all administrative charges specified in this section 1203 have been paid, or evidence is presented by the Wheat Ridge Police Department in the municipal court that the rights granted under section 1203(4)(b)(2) of this code have been invoked . In the event any towing is found to be improper all costs for towing and storage shall be reimbursed by the city to the owner. Section 2. MTC Subsections 1208(6) and (7), establishing penalties for violations of requirements concerning parking privileges for persons with disabilities, as adopted and amended by the City under Paragraph 13-2(b )( 11) of the Wheat Ridge Code of Laws, is hereby amended as follows : (6) (a) A person who does not have a disability and who exercises the privilege defined in subsection (2) of this section or who violates subsection (5) or (1 0) of this section commits a class B traffic infraction punishable by a FINE OF ONE HUNDRED FIFTY DOLLARS ($150 .00) minimum fino of three hundred fifty dollars, not to exceed one thousand dollars, for the first offense and a minimum fine of six hundred dollars, not to exceed one thousand dollars, for a second offense or subsequent offenses. (b) A person who violates this subsection (6) by parking a vehicle owned by a commercial carrier, as defined in section 42-1-102 ( 17), shall be subject to a fine of up to twice the penalty imposed in paragraph (a) of this subsection (6), not to exceed one thousand dollars . (7) A person who does not have a disability and who uses an identifying license plate or placard in order to receive the benefits or privileges available to a person with a disability under this section commits a misdemeanor punishable by a FINE OF ONE HUNDRED FIFTY DOLLARS ($150 .00) minimum fine of 2 three hundred fifty dollars, not to exceed one thousand dollars, for the first offense and a minimum fine of six hundred dollars, not to exceed one thousand dollars for a second offense or subsequent offenses. Section 3. Safety Clause. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Wheat Ridge, 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 attained. Section 4. Severability; Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 5. Effective Date . This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of to on this 13TH day of May, 2013, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing and consideration on final passage set for --------- 2013 , at 7:00 o'clock p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading , after public hearing , by a vote of to , this day of , 2013 . SIGNED by the Mayor on this ___ day of _________ , 2013. ATTEST: Janelle Shaver, City Clerk First Publication : Second Publication : Wheat Ridge Transcript Effective Date: Jerry DiTullio , Mayor Approved As To Form Gerald E. Dahl, City Attorney 3 ~~-·,. .. # r City of • fP!r WheatR!._dge ~MUNICIPAL COURT TO: THROUGH: FROM: DATE: SUBJECT: Memorandum Joseph Cassa, Division Chief Christopher D. Randall , Presiding Judge Kersten Armstrong, Court Administrator February 26 , 2013 Model Traffic Code Revisions: Parking Privileges for Person with Disabilities BACKGROUND FROM THE POLICE DEPARTMENT On August 13 ,2012 , the City Council adopted an ordinance concerning the 2010 edition ofthe Model Traffic Code (MTC) for Colorado. The ordinance adopted certain portions of the MTC by reference while adopting amendments as well. There are two amendments which have resulted in operational issues for the police department and the municipal court. The amendments include parking privileges for person with disabilities and the second involves major vehicle parking violations. The operational issues were first discovered when the police department was preparing the "traffic cheat sheet" in October and November, 2012 . RESEARCH CONDUCTED BY THE MUNICIPAL COURT Upon adoption of the 2010 edition of the MTC , the Police Department began the process of revising the parking tickets. The previous parking tickets had the fine schedule directly on the face of the summons, which prevented the increase in parking fines until such time as new tickets were implemented. Municipal Court Staff conducted a parking fine survey (Attachment A). Judge Randall reviewed this fine schedule and increased the parking violation fines pursuant to Wheat Ridge Parking Fines dated October 29 , 2012 (Attachment B). As you will note, the assessed fine for Section 1208 , Handicap parking and Section 13-2 (further specified as Section 1203) Major Motor Vehicle refers to the ordinance adopted by City Council which identifies the tiered-fine amounts for these violations. During the discussion regarding revision of the parking tickets , further challenges presented themselves with the tiered-fine schedule adopted in Ordinance No. 1517 regarding the adoption ofthe 2010 Edition of the Model Traffic Code. For example, ofthe eighteen (18) municipal courts participating in our parking survey, there was one court that had a process in place that did a tiered-fine approach on all parking violations. The City ofThomton 's process consisted of the officers issuing parking tickets without a fine amount. The Thornton Municipal Court staff would conduct research and mail a fine card. As noted on the fine survey, their process was under review and a proposal was in process to remove the tiered-fine approach and implement a flat fee. Attachment 2 Model Traffic Code Revisions: Parking Privileges for Person with Disabilities Page 2 This proposal was approved and the City of Thornton is no longer utilizing a tiered-fine approach. The reasons provided for changing their process were a) the staff time involved in researching past violations , b) the staff time involved in preparing a fine notice , and c) the mailing costs . The Municipal Court is staffed Monday through Friday, 8:00a.m.-5:00p.m. The Municipal Court Department is not available to verify for an officer on the street whether a violator had been "convicted" of a prior violation of either Section 1208 or Section 1203 on a twenty-four hour, seven-day-a-week basis. Therefore, implementation of a tiered-fine approach would require a review by Court Staff and an issuance of a fine notice. Currently, the Municipal Court does not have a process in place for fine card issuance. As reference information only, research for Wheat Ridge Municipal Court was conducted on violations issued for Section 1208 Parking Privileges for Persons with Disabilities for a two year period from January 1, 2011 through December 31 ,2012. There was one defendant that was issued a second summons for the same violation. Twenty-five percent (25%) of the parking summons issued for this violation , during the specified period , resulted in a dismissal since the defendant provided proof that he/she possessed a handicap placard. As reference information only, research for Wheat Ridge Municipal Court was conducted for the violation of 1203 Major Vehicle Violation during the same time frame ofJanuary 1, 2011 through December 31 , 2012. There were no duplicate defendants noted over this two year period. The research conducted reflected that these types of violations are usually issued to the "vehicle" and the "vehicle" is typically registered to a trucking company. Although I found three that had similar trucking companies as the registered owner and , thereby, as the violator, further research reflected that the violations were issued to three different trucks per the license plate number identified on the summons. Based on the inability of the Municipal Court to verify multiple offenses for violations of Section 1208 and Section 1203 for the officers on a twenty-four hour/seven-day-a-week basis , the limited number of second or third violations that research reflected , City Council may wish to take this infonnation under advisement that was not initially available to them upon the implementation of the tiered-fine approach. One of the factors for consideration by City Council is whether the staff time that would be utilized to implement a tiered-fine approach will meet the end result(s) and the benefit(s) that City Council foresaw in implementing a tiered-fine approach for the noted violations. You may contact me if you need any further infonnation, research , or clarification . I hope City Council finds this information beneficial if a determination is made to review the implementation of a tiered-fine approach . lkna Attachment A: Parking Fine Survey Attachment B: Wheat Ridge Parking Fines , October 29 , 2012 ~~·~ .... ~ ~ City of • .. ~Wheat&_dge ~OllCE DEPARTMENT Memorandum TO: Mayor DiTullio and City Council THROUGH: Patrick Goff, City Manager Daniel Brennan, Chief of Police FROM: Joseph Cassa, Support Services Division Chief Carmen Beery, City Attorney's Office DATE: April15, 2013 SUBJECT: Staff Report-Tiered Fine Schedule for Model Traffic Code Violations: Parking Privileges for Persons with Disabilities BACKGROUND: This staff report swnmarizes operational issues encountered by City staff in implementing a tiered fine schedule for certain parking violations. RELEVANT CODE PROVISIONS On August 13,2012, City Council adopted Ordinance No. 1517. This Ordinance adopted the 2010 edition of the Model Traffic Code (MTC) for Colorado by reference, and made certain local amendments to the MTC. Among the local amendments made by the City, was a tiered fine schedule for violations of two MTC sections: MTC Section 1203, Major Motor Vehicles; and 1208, Parking Privileges for Persons with Disabilities. MTC Section 1203 generally prohibits the parking or storing of "major vehicles" on public and private roadways, and within public easement and parks. Ordinance No. 1517 further adopts a mandatory tiered fine schedule for violations of MTC Section 1203 as follows: "To defray the cost of enforcement ofthis provision, a charge of fifty dollars ($50.00) shall be imposed for the first offense, one hundred dollars ($1 00.00) for the second offense, two hundred dollars ($200.00) for the third offense, and three hundred dollars ($300.00) for the fourth or subsequent offense." MTC Section 1208 generally prohibits the parking of a vehicle by someone who is not disabled in a parking space reserved for persons with disabilities, and the misuse of a parking placard or license plate issued to a disabled person. Ordinance No. 1517 provides the following mandatory tiered fine schedule for violations ofMTC Section 1208: "A person who does not have a disability and who parks in or blocks a reserved parking space or adjacent curb ramp or loading zone, commits a Class B traffic infraction punishable by a minimum fine of three hundred fifty dollars, not to exceed one thousand dollars, for the first offense; and a minimum fine of six hundred dollars, not to exceed Attachment 3 Staff Report-Tiered Fine Schedule for MTC Violations: Parking for Persons with Disabilities May13,2013 Page 2 one thousand dollars , for a second offense or subsequent offenses." "A person who violates the above, by parking a vehicle owned by a commercial carrier, shall be subject to a fine of up to twice the penalty imposed , as above, not to exceed one thousand dollars." A person who does not have a disability and who uses an identifying license plate or placard in order to receive the benefits or privileges available to a person with a disability under this section , commits a misdemeanor punishable by a minimum fine of three hundred and fifty dollars , not to exceed one thousand dollars , for the first offense and a minimum fine of six hundred dollars , not to exceed one thousand dollars , for a second offense or subsequent offenses." IDENTIFIED OPERATIONAL ISSUES IN IMPLEMENTING THE CODE PROVISIONS City staff in the Police Department and the Municipal Court have identified operational obstacles in implementing the above fine schedules. The fine amount is indicated on the face of a parking ticket when it is issued. This allows the violator to pay the fine in lieu of coming to Court. If a defendant does not pay a parking ticket within the indicated timeframe, the ticket acts as a summons and complaint (requiring the violator to appear in Court). To be legally effective as a summons and complaint, a ticket must be issued to a named individual (rather than simply "issued" to a parked vehicle). Identification of a named individual on the ticket is also necessary to determine whether the defendant has previously been convicted of violating these parking requirements and , therefore, subject to a higher fine . The primary operational obstacle identified by staff in implementing a tiered fine schedule for parking violations , is that there is no method of checking an individual's parking ticket conviction history twenty-four (24) hours a day, seven (7) days a week; to determine the appropriate fine amount to include on a parking ticket. An officer must be able to accurately determine whether the defendant has previously been convicted of violating either MTC Section 1203 or 1208 ; and , if so , how many times. Under the City's current record-keeping practices , this information can be retrieved only through a records search performed by Municipal Court staff; there is no electronic database that an officer could remotely access from their patrol vehicle. Municipal Court staff is present and available only Monday through Friday, from 8:00 a.m . to 5:00p.m. Officers are therefore unable to retrieve the information necessary to calculate the appropriate fine amounts for tickets issued outside of those regular business hours. Additionally, Municipal Court staff may be unable to immediately respond to an officer 's request during regular business hours , depending on the activities and demands of the Court. RESEARCH CONCERNING OTHER JURISDICTIONS Staff conducted research concerning the fines imposed for parking violations by eighteen (18) other Colorado municipalities and Jefferson County. The results of that research are fully set forth in the attached memorandum from Court Administrator Kersten Armstrong and Police Department Records Team Supervisor Deri Patt. To summarize the results of that research , two (2) jurisdictions had experience with a tiered parking fine schedule: • The City of Thornton previously employed a tiered parking fine schedule. To address the operational issues identified above , the parking ticket was issued without a fine amount. Subsequent to the issuance of the ticket , Court staff would conduct research Staff Report-Tiered Fine Schedule for MTC Violations: Parking for Persons with Disabilities May 13,2013 Page 3 and mail a fine card to the violator. The City recently abandoned this tiered fine approach , in favor of a flat fine schedule, citing the expense incurred by the City in administering the tiered-fine system. • The City of Arvada has a tiered fine schedule in place, but City staff reports that they do not use or enforce it. Staff indicated that officers routinely issue parking tickets with the "first offender" fine amount. The Arvada Municipal Court does not amend the fine , even if the defendant has multiple parking violations. RESEARCH CONCERNING REPEAT PARKING OFFENDERS IN THE CITY Court staff researched the history of repeat parking offenders in the City during the two-year period from January 1, 2011 through December 31 , 2012 , and found the following: • For violations ofMTC Section 1203 (Parking of Major Vehicles), there were no repeat offenders . • For violations of MTC Section 1208 (Parking Privileges for Persons with Disabilities), one (1) defendant was issued a second swnmons for the same violation. OPTIONS IN RESPONSE TO THE OPERATIONAL ISSUES The net result of the operational issues identified above is that the goal of the tiered fine schedule adopted by Ordinance No. 1517 -to punish more heavily, and perhaps deter, chronic parking violators -is not being effectively met. In light of all of the above, Staff presents the following options for your consideration and recommendation : 1. Amend the Code to remove the tiered fine schedule for parking violations, and return to a single fine for all violators. 2. Maintain the tiered fine schedule, and adopt the approach previously employed by the City of Thornton (Court staff conducts research and sends a follow-up fine card to defendants). The estimated cost of staff time and expense to implement such a program is $3.00 per ticket. This estimated cost includes Court staff time to research , prepare and mail a notice to defendants , plus the estimated printing costs of necessary fine cards , forms , envelopes , etc. 3. Direct City staff to perform additional research , including a cost analysis , of other options to make parking ticket histories available to officers around the clock (e.g., the purchase or development of software that could perform this function). 4. Maintain the tiered fine schedule and the current practice, knowing that tickets may be issued without the appropriate fine amount. JC/DB/ck ATTACHMENTS: 1. Memo regarding parking for disabled 2. Excerpt from Sec. 1208 regarding parking for disabled Council Action Form May 13 ,2013 Page2 This was incorrect. The condition should have read as follows: "The property to be assessed for fees in lieu of parkland dedication based on the appraised value of the land after land entitlements have been approved. Said fee to be paid prior to the frrst building permit." This condition was negotiated with the developer and described in the staff report during the hearing. Only the reference in the minutes is incorrect. RECOMMENDATIONS: Staff recommends approval of the correction. RECOMMENDED MOTION: "I move to correct the minutes of the Council meeting for April 8 , 2013 to reflect the following condition of approval for Case No. WS-12-01: The property to be assessed for fees in lieu of parkland dedication based on the appraised value of the land after land entitlements have been approved . Said fee to be paid prior to the first building permit." REPORT PREPARED BY Gerald Dahl , City Attorney ATTACHMENTS 1. Excerpt from April 8 , 2013 City Council meeting