•Both parties must first try to come to an agreement through mediation.
• If the case still cannot be resolved, both parties will present their documentation to a panel of three (3) arbitrators (Professional Excavator, Facility Owner and and representative from Colorado811) for resolution.
•Under Colorado Law, the issue of liability and amount of damages may be decided by the arbitration panel. However, the ADR program does not change the basis for civil liability for damages.
I. Legal Authority
Colorado statutes, § 9-1.5-101, et seq., establish a comprehensive scheme governing how owners of underground utilities and excavators are to avoid injuries and damages resulting from accidents from damage to underground facilities. The statutory scheme envisions the creation of an alternative dispute resolution process, as set forth more particularly at § 9-1.5-104.3, to be administered by the Utility Notification Center of Colorado ("UNCC"). These Rules of Procedure ("Rules") are established by UNCC, consistent with the foregoing statutory authority.
II. Exclusive Venue for the Resolution of Covered Disputes
A. Disputes Covered. The Rules provide an arbitration mechanism consistent with statutory authority which is the exclusive avenue for the resolution of disputes which fall within the following jurisdictional amounts and which are otherwise covered by this Rule involving entities signatory to an Arbitration Agreement. These provisions cover disputes arising from damages to underground facilities, including, but not limited to, any cost of damage incurred by the owner or operator or excavator as the result of any delay in the excavation project while the underground facility is restored, repaired, or replaced, exclusive of civil penalties that arise in Colorado and are related to Colorado facilities which are reasonably deemed to exceed $350.00, but are less than, or equal to, $5,000.00. Claims of this type involving entities or persons who are signatory to an agreement committing to arbitration of such claims or to a specific arbitration agreement covering a specific claim shall be subject to these Rules. These Rules do not apply and arbitration is not required where:
1. A claim, otherwise covered by these Rules, is required to be filed as a counter or cross-claim in a court of law; or
2. Any party allegedly responsible for loss or damage or subject to a claim under these Rules has not agreed to arbitration of these types of disputes, or
3. The utility owner has not agreed to binding arbitration under these Rules.
B. Negotiation Required. Any party making a claim and seeking redress pursuant to these Rules must, as a condition precedent to arbitration or mediation, engage in a good faith consultation and negotiation process with the other party(ies) in an effort to resolve the claim or dispute.
C. Notice of Violation. If any party covered by these Rules is sued by another signatory, and the party being sued feels that the claims fall within the above-stated jurisdictional amount, that party shall notify the claiming party in writing that the suit is in violation of the commitment to arbitrate. This written notification must be served within seven (7) days of the issue coming to the attention of the defendant. In the event the violation is not corrected within thirty (30) days, the party that filed a court claim in breach of these Rules shall be responsible to all other parties for their reasonable costs and attorneys' fees expended in having such claim dismissed in court and brought within the purview of these Rules.
III. Liability of UNCC
Directors, officers, staff, agents, and employees of UNCC and the arbitration panelists shall not be liable to any party for any negligence, act or omission concerning the processing, administration or hearing of any dispute conducted under these Rules.
IV. Effect of Decisions
Disputes and complaints processed under these Rules may be resolved either by arbitration or mediation, as more specifically set forth herein. Decisions in arbitration cases are binding only for the case submitted and are not considered precedent in any future instance or situation. Arbitration decisions are enforceable as arbitration awards as otherwise provided by law. Where the parties utilize a process of mediation to resolve the dispute, the mediation resolution will constitute a binding agreement between the parties, enforceable as a contract between the parties. Any mediation decision will not serve as a precedent in any other dispute, whether in arbitration or mediation. but may be used as evidence as the law may allow.
V. Panel of Arbitrators
UNCC will establish a panel of arbitrators, comprised of employees of utility owners, excavators, the UNCC or closely related companies within the industry. Potential arbitrators will be nominated by excavators and utility owners in accordance with the forms and procedures established by UNCC. The selection of arbitrators will be made by UNCC based on its determination of those best suited to serve as an arbitrator by training, experience and temperament. In any event, UNCC shall be the final determiner of qualifications for panel members.
A. Arbitrators for specific disputes will be selected by UNCC from among the panel of qualified arbitrators. No individual may serve as an arbitrator in a dispute involving the company or entity which employs that individual.
B. UNCC will not compensate arbitrators for their services. It is expected that the arbitrator's employer will treat his/her UNCC arbitration services as part of his/her regular job duties. UNCC may provide support to the arbitrators for the arbitration, including, for example, lunches, secretarial support, copying and the like.
VI. Claims, Responses and Counterclaims
A. Claims. Claims are initiated by a claimant filing a claim on a form provided by UNCC and which shall be accompanied by a filing fee set by UNCC from time to time. The claim form shall include at least the following items of information:
1. Name of claimant;
2. Address of claimant and contact information;
3. Local representative of the claimant and address or contact information;
4. All parties against whom claims are made (who shall thereafter be referred to as "respondents");
5. Identification of representatives of all parties where known;
6. A statement of the circumstances giving rise to the claim(s), specifying the place where the claim occurred, the date, and time of the occurrence;
7. The amount claimed;
8. A list of all items of evidence related to the claim;
9. A list of all persons with knowledge of the claim who may testify regarding such knowledge;
10. Dates of settlement discussions between the parties and names of the individuals involved on behalf of each party;
11. Signature on behalf of the claimant, which signature shall certify that all information contained in the claim is true and accurate to the best of his/her knowledge;
12. A certificate of mailing or delivery that a complete copy of all the entire claim (including attached documents) has been or will be provided within the proscribed time period, to all named respondents via US First Class Mail, Federal Express or delivery service
B. Responses. Within thirty (30) days of service of the claim, a respondent shall submit a response with a filing fee of not more than $350.00 to be determined by UNCC, which contains the following information:
1. Name of respondent;
2. Address of respondent and contact information;
3. Local representative of the respondent and address or contact information;
4. Respondent's answer to the claims;
5. Any objections to jurisdiction or procedure under these Rules;
6. Any counterclaims against the claimant arising from the same circumstances raised by the claimant;
7. A list of all items of evidence related to the claim;
8. A list of all persons with knowledge of the claim who may testify regarding such knowledge;
9. Dates of settlement discussions between the parties and names of the individuals involved on behalf of each party;
10. Signature on behalf of the respondent, which signature shall certify that all information contained in the response is true and accurate to the best of his/her knowledge;
11. A certificate of mailing or delivery that a complete copy of all the entire response (including attached documents) has been or will be provided within the proscribed time period, to all named respondents via US First Class Mail, Federal Express or delivery service.
C. Counterclaims. Counterclaims may be filed by any respondent who is named in a claim by the filing of a counterclaim against the claimant, following the information and procedural format as specified in section VI.A., above. Counterclaims submitted shall be accompanied with a filing fee as set from time to time by UNCC., within thirty (30) days of service of the claim.
Once UNCC has received a claim and a response (and counterclaim(s)), if applicable, the matter will be deemed ready for hearing and a hearing will be set in an expeditious manner.
A. Hearing Administration and Notice. Hearings will be administered by UNCC. UNCC will set the hearing date and notify the parties in writing by mail, fax, or email, at least fourteen (14) days prior to the hearing of the date and time of the hearing, including the anticipated duration of the hearing, and location. UNCC will select three (3) arbitrators from the panel it maintains, with no more than two (2) arbitrators employed by like or similar entities. In no event will UNCC select an individual to hear a claim involving his/her employer. The three (3) arbitrators will select from among them one (1) arbitrator to serve as chairperson.
B. Rules of Evidence. The Colorado Rules of Evidence applicable in civil court do not apply in these arbitration proceedings. Arbitrators are empowered to receive and consider any and all information deemed helpful in resolving the dispute. Similarly, arbitrators are empowered to exclude evidence deemed to be not helpful or not relevant in resolving the dispute.
C. Arbitrators' Inquiry. Arbitrators are specifically permitted to, but are not required to, ask questions of any witnesses if they find it desirable or efficient to do so in order to understand the case.
D. Adjournment or Recess. The arbitrators are empowered to adjourn or recess hearings as appropriate to the circumstances of the dispute and/or the circumstances of the hearing, if applicable.
E. Deliberations. The deliberations of the arbitrators are private. No party shall be involved in, participate in, or be present when the arbitrators deliberate.
F. Failure to Attend Hearing. The failure of any party to attend an arbitration hearing has no impact on the power or authority of the arbitrators to hear and decide the dispute. Arbitrators may proceed to hear and decide the matter in the absence of a party.
VIII. Arbitrators' Decision
A. All arbitration decisions will be made in writing and provided to all parties and UNCC. Decisions will include a statement of the reason(s) supporting the decision. The decision must be reached by a majority vote of the members designated to hear the dispute.
B. Decisions must be based on the evidence introduced into the record, either in the preliminary submissions of claim and response, or at the hearing. Decisions must be based on matters raised in the claim or response and will be determined in consideration of Colorado law.
C. Claimants must prove claims by a preponderance of the evidence in order to prevail. All decisions of the arbitration panel are final and binding, and not subject to any further appeal, except as may be available under Colorado civil rules of procedure applicable to arbitration decisions.
D. Any party may file a notice of mistake or error in an arbitration decision by filing such a notice with UNCC within ten (10) days of receipt of the arbitration decision. The arbitrators may decide the matters raising in the notice of mistake or error as they see fit; another hearing need not be convened. Arbitration decisions are enforced through civil courts that may have jurisdiction over the dispute.
E. No arbitrator may make an award which exceeds the limit of $5,000.00 as set forth in section II.A., above.
A. Retention. UNCC will retain all records, including all materials and items received in evidence for a period of three (3) years after the arbitration decision is issued. UNCC may, on notice to all parties, require a party to take possession of any bulky or difficult-to-store exhibits. At the conclusion of three (years), UNCC may destroy any files or records regarding the claim as it deems appropriate.
B. Access. Only the parties to a dispute may have access to the records of a given arbitration or mediation proceeding unless otherwise provided by an order of a court of competent jurisdiction.
C. Copies. UNCC will provide a party with copies of any document in its possession in a case file related to a dispute involving that party upon payment of a fee which will be set from time to time by UNCC.
D. Mediation Option. UNCC will schedule periodic training in matters related to the utility notification process and the laws, rules, and practice relating thereto. UNCC will provide a list of private mediators who have completed such training to claimants and respondents who request such a list. Claimants and respondents may select a mediator to assist them in resolving the dispute. The fees and expenses of mediation, including the mediators' fees, will be shared equally by the parties unless they agree to a different distribution. Such mediation shall be considered a private matter between the parties, provided only that the parties shall notify UNCC of the resolution of claims or issues. Arbitration procedures under these Rules may be held in abeyance so long as all parties agree that mediation is scheduled or ongoing and will be completed in a reasonable time.
It is the purpose, intent and agreement of companies, which are now or may hereafter be signatory to this Agreement, to arbitrate or mediate disputes that may arise among signatory companies arising from damages to underground facilities including, but not limited to, any cost of damage incurred by the owner or operator or excavator as the result of any delay in the excavation project while the underground facility is restored, repaired, or replaced, exclusive of civil penalties that arise in Colorado and are related to Colorado facilities which are reasonably deemed to exceed $350.00, but are less than, or equal to, $5,000.00.
Accordingly, the undersigned agrees with each and every one of the signatory companies as follows:
1. The company specified below acknowledges that the Rules of Procedure for Alternative Dispute Resolution adopted by UNCC pursuant to the authority of § 9-1.5-101 of the Colorado Revised Statutes is incorporated into this Agreement by reference in its entirety. This applies as well to any subsequent amendments to the Rules that may be adopted by the Board of Directors of UNCC.
2. As a signatory company, the undersigned agrees to process any dispute or claim regarding a matter within the jurisdiction of the alternative dispute resolution provisions of UNCC, strictly through the arbitration and mediation provisions adopted by UNCC and not to utilize civil courts, except as expressly permitted by the Rules.
3. Signatory company specifically acknowledges that the arbitration provided under UNCC procedures is final and binding and any decision issued may be enforced in a court of law. Claimants must prove claims by a preponderance of the evidence in order to prevail. All decisions of the arbitration panel are final and binding, and not subject to any further appeal, except as may be available under Colorado civil rules of procedure applicable to arbitration decisions.
4. Each signatory company will provide to UNCC an individual experienced in the industry who would be suitable to serve as an arbitrator for inclusion on UNCC's panel of arbitrators in accordance with the Rules of Procedure adopted from time to time by UNCC. The signatory company agrees that the individual so provided will not expect to receive any compensation from UNCC or any of the parties to cases on which the individual serves as an arbitrator for such service. Additionally, such individual must be available for the training that may be required by UNCC from time to time.
5. This agreement may be terminated by the undersigned sixty (60) days after providing written notice by certified mail/return receipt requested to UNCC. Such termination will have no effect on any cases then pending, whether already assigned to an arbitration panel or merely in the administrative process.
The parties to this Agreement are:
The parties are involved in a dispute regarding property damage, loss of revenue, down time, or other related claims arising from damage to an underground facility as defined in C.R.S. § 9-1.5-102, including the failure to properly or timely mark or identify an underground facility as more particularly described as follows:
The parties wish to utilize the voluntary arbitration procedures available through UNCC to resolve their dispute and accordingly hereby submit the above-referenced dispute for final and binding arbitration pursuant the proposed Rules of UNCC. Both parties agree to be fully bound by the decision of the arbitrators and to promptly pay any fees, expenses and award provided by UNCC proposed Rules.
Any arbitration decision rendered pursuant to this Agreement and UNCC proposed Rules shall be fully enforceable as an arbitration decision under Colorado law.