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Home My WebLink About2022-01-04 (Regular) Meeting Agenda Packet Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. 1000 Englewood Pkwy – Council Chambers Englewood, CO 80110 AGENDA City Council Regular Meeting Tuesday, January 4, 2022 ♦ 6:15 PM City Offices will be closed on January 3, 2022, for the New Year's Day Holiday. The City Council Meeting will be held on Tuesday, January 4, 2022. To view the meeting, please follow this link to our YouTube live stream link: https://www.youtube.com/watch?v=XMtmbmzitgo 1. Call to Order 2. Pledge of Allegiance 3. Invocation 4. Roll Call 5. Consideration of Minutes of Previous Session a. Minutes of the Regular City Council Meeting of December 13, 2021. 5a 6. Appointments, Communications, Proclamations, and Recognition a. Holiday Decorating Contest Winner Recognition 6a City Council will recognize the Holiday Lighting Contest winners in each of the following categories: Best House, Best Block/Neighborhood, Best Business, and Show Stopper. Staff: Director of Communication Chris Harguth and Neighborhood Resources Coordinator Madeline Hinkfuss 7. Recognition of Scheduled Public Comment The deadline to sign up to speak for Scheduled Public Comment is Wednesday by 5 p.m., prior to the meeting, through the City Clerk’s Office. This is an opportunity for the public to address City Council. There is an expectation that the presentation will be conducted in a respectful manner. Council may ask questions for clarification, but there will not be any dialogue. Please limit your presentation to five minutes. Written materials for presentation to Council may be submitted to the City Clerk. a. Kathleen Bailey, an Englewood resident, will address Council. 8. Recognition of Unscheduled Public Comment If you would like to sign-up to speak for public comment at the upcoming City Council meeting on Monday, July 19th, please visit Page 1 of 136 Englewood City Council Regular Agenda January 4, 2022 Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. https://englewoodco.zoom.us/webinar/register/WN_j1gbIZNLSGKKmsrVuakefw and register, or plan to attend the meeting in person at 1000 Englewood Pkwy, Second Floor Community room. If registering to speak virtually, you will receive a unique and personalized invitation by email to join the meeting. Every speaker who wants to register should sign-up with their own email address. If you do not have an email address or if you have any questions regarding this process, please reach out to the City Clerk's Office at CityClerk@englewoodco.gov or call 303- 762-2430. Citizens may also submit written public comments to the City Clerk's Office at CityClerk@englewoodco.gov until 12 p.m.Tuesday, July 20th. This is an opportunity for the public to address City Council. There is an expectation that the presentation will be conducted in a respectful manner. Council may ask questions for clarification, but there will not be any dialogue. Please limit your presentation to 3 minutes. Council Response to Public Comment. 9. Consent Agenda Items a. Approval of Ordinances on First Reading i. CB 02 - An Intergovernmental Agreement with CDOT for Maintenance of the US-285 & S. Broadway Interchange Reconstruction Project 9ai Staff recommends City Council approve a Bill for an Ordinance for an intergovernmental agreement outlining maintenance obligations for the City and CDOT within the US-285 & S Broadway project area. Staff: Capital Projects Engineer Jake Warren and Deputy Director of Engineering & Asset Management Tim Hoos b. Approval of Ordinances on Second Reading. c. Resolutions and Motions i. Designation of the Official Posting Place for Legal Notices 9ci Staff recommends City Council approve, by Resolution, the designation of the Official Posting Place for Legal Notices for 2022. Staff: Stephanie Carlile, City Clerk. ii. Change order with Martin and Wood Water Consultants, in the amount of $50,608.25, for water resources engineering support 9cii Staff recommends City Council approve, by Motion, a change order with Martin and Wood Water Consultants in the amount of $50,608.25, for water resources engineering support. Staff: Pieter Van Ry, Utilities and South Platte Renew Director Page 2 of 136 Englewood City Council Regular Agenda January 4, 2022 Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. iii. 2022 Allen Water Treatment Plant bulk chemical purchase of Aluminum Sulfate from Chemtrade Chemicals US, LLC. 9ciii Staff recommends City Council approve, by Resolution, the purchase of Aluminum Sulfate with Chemtrade Chemicals US, LLC., for Aluminum Sulfate in the amount of $190,000. Staff: Utilities Deputy Director of Operations & Maintenance, Angela Goodman. iv. 2022 Allen Water Treatment Plant Bulk Chemical Purchases for Sodium Hypochlorite 10% and Sodium Hydroxide 50% from DPC Industries, Inc. 9civ Staff recommends City Council approve, by Resolution, the purchase of Sodium Hypochlorite and Sodium Hydroxide with DPC Industries, Inc., in the amounts of $225,000 and $112,000 respectively. Staff: Utilities Deputy Director of Operations & Maintenance, Angela Goodman 10. Public Hearing Items 11. Ordinances, Resolutions and Motions a. Approval of Ordinances on First Reading i. CB 01 - Amending the Municipal Code regarding Trespass, Ejectment, and Exclusion from City Property 11ai Staff recommends City Council approve a Bill for an Ordinance amending the City's ejectment, exclusion and trespass procedure. Staff: City Attorney Tamara Niles and Assistant City Attorney Kaitlin Parker ii. CB 03 - An Intergovernmental Agreement with the Mile High Flood District for the Design, Right-of-Way Acquisition, and Construction of Drainage and Flood Control Facilities in the South Englewood Basin 11aii Staff recommends City Council approve a Bill for an Ordinance regarding an Intergovernmental Agreement between Mile High Flood District (MHFD) and the City of Englewood. Staff: Carrie Evenson, Stormwater Program Manager, Public Works Department b. Approval of Ordinances on Second Reading i. CB 53 - Amending the Municipal Code regarding Authorized Public Consumption Areas 11bi Staff recommends City Council approve an Ordinance for public consumption areas in the City of Englewood. Staff: City Attorney Tamara Niles c. Resolutions and Motions 12. General Discussion Page 3 of 136 Englewood City Council Regular Agenda January 4, 2022 Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. a. Mayor's Choice b. Council Members' Choice 13. City Manager’s Report 14. Adjournment Page 4 of 136 MINUTES City Council Regular Meeting Monday, December 13, 2021 1000 Englewood Parkway - 2nd Floor Community Room 7:00 PM 1 Call to Order The regular meeting of the Englewood City Council was called to order by Mayor Sierra at 7:04 p.m. 2 Pledge of Allegiance The Pledge of Allegiance was led by Mayor Sierra. 3 Roll Call COUNCIL PRESENT: Mayor Othoniel Sierra Mayor Pro Tem Steven Ward Council Member Joe Anderson Council Member Chelsea Nunnenkamp Council Member Rita Russell Council Member Cheryl Wink, participated virtually Council Member Jim Woodward COUNCIL ABSENT: None STAFF PRESENT: City Manager Lewis City Attorney Niles Assistant City Manager Dodd City Clerk Carlile Deputy City Clerk McKinnon Director of Community Development Power Director of Information Technology King Director of Public Works D'Andrea Director of Utilities and South Platte Renew Van Ry Redevelopment Manager Poremba, Community Development Court Administrator Julien, Municipal Court Stormwater Program Manager Evenson, Public Works Operations Manager Creager, Information Technology Network Administrator Hunnicutt, Information Technology Officer Smith, Police Department Page 1 of 10 Draft Page 5 of 136 City Council Regular December 13, 2021 4 Study Session Topic No Study Session was scheduled. 5 Consideration of Minutes of Previous Session a) Minutes of the Regular City Council Meeting of December 6, 2021. Moved by Council Member Jim Woodward Seconded by Council Member Joe Anderson APPROVAL OF THE MINUTES OF THE REGULAR CITY COUNCIL MEETING OF DECEMBER 6, 2021 For Against Abstained Othoniel Sierra x Steven Ward x Joe Anderson (Seconded By) x Chelsea Nunnenkamp x Rita Russell x Cheryl Wink x Jim Woodward (Moved By) x 7 0 0 Motion CARRIED. 6 Appointments, Communications, Proclamations, and Recognition There were no Appointments, Communications, Proclamations, or Recognition. 7 Recognition of Scheduled Public Comment There were no citizens signed up for scheduled public comment. 8 Recognition of Unscheduled Public Comment There were no citizens signed up for unscheduled public comment. 9 Consent Agenda Items Mayor Pro Tem Ward removed Agenda Item 9(c)(i) from Consent Agenda. Council Member Russell removed Agenda Items 9(c)(ii-iii) from Consent Agenda. a) Approval of Ordinances on First Reading Page 2 of 10 Draft Page 6 of 136 City Council Regular December 13, 2021 There were no additional Ordinances on First Reading. (See Agenda Item 11 (a)(i).) b) Approval of Ordinances on Second Reading. There were no Ordinances on Second Reading. c) Resolutions and Motions i) A Resolution establishing the annual salary for the presiding Municipal Court Judge of the City of Englewood, Colorado. [Clerks note: This agenda item was removed from the Consent Agenda motion and considered independently.] Moved by Council Member Joe Anderson Seconded by Council Member Jim Woodward Motion to approve agenda item 9 (c) (i). Discussion ensued. Moved by Council Member Steven Ward Seconded by Council Member Joe Anderson Motion to add the Judge's current salary, in the amount of $153,323.00 and the new salary of $158,689.93 to the Resolution. For Against Abstained Steven Ward (Moved By) x Joe Anderson (Seconded By) x Othoniel Sierra x Chelsea Nunnenkamp x Rita Russell x Cheryl Wink x Jim Woodward x 7 0 0 Motion CARRIED. Moved by Council Member Joe Anderson Seconded by Council Member Jim Woodward RESOLUTION NO. 44, SERIES OF 2021 Page 3 of 10 Draft Page 7 of 136 City Council Regular December 13, 2021 A RESOLUTION ESTABLISHING THE ANNUAL SALARY FOR THE MUNICIPAL COURT JUDGE OF THE CITY OF ENGLEWOOD, COLORADO AS AMENDED. For Against Abstained Othoniel Sierra x Steven Ward x Joe Anderson (Moved By) x Chelsea Nunnenkamp x Rita Russell x Cheryl Wink x Jim Woodward (Seconded By) x 7 0 0 Motion CARRIED. ii) The Information Technology department is renewing the Microsoft Enterprise Licensing agreement. This is a 3 year agreement totaling $883,123.47 which is $294,374.49 annually. [Clerks note: This agenda item was removed from the Consent Agenda motion and considered independently.] Moved by Council Member Rita Russell Seconded by Council Member Cheryl Wink RESOLUTION NO. 45, SERIES OF 2021 A RESOLUTION AWARDING A CONTRACT FOR THE RENEWAL OF A MICROSOFT LICENSE FROM INSIGHT PUBLIC SECTOR, INC TO MAINTAIN THE CURRENT OPERATING SYSTEM FOR THE CITY OF ENGLEWOOD’S NETWORK, UNDER THE TERMS OF A STATE OF COLORADO COOPERATIVE PURCHASING AGREEMENT. For Against Abstained Othoniel Sierra x Steven Ward x Joe Anderson x Chelsea Nunnenkamp x Rita Russell (Moved By) x Cheryl Wink (Seconded By) x Jim Woodward x 7 0 0 Motion CARRIED. iii) 2022 outside legal services for items related to CityCenter Page 4 of 10 Draft Page 8 of 136 City Council Regular December 13, 2021 [Clerks note: This agenda item was removed from the Consent Agenda motion and considered independently.] Moved by Council Member Jim Woodward Seconded by Council Member Chelsea Nunnenkamp Approval of the 2022 Professional Services Agreement Renewal Extension with Kaplan Kirsch & Rockwell LLP (KKR) from January 1 through June 30, 2022. For Against Abstained Othoniel Sierra x Steven Ward x Joe Anderson x Chelsea Nunnenkamp (Seconded By) x Rita Russell x Cheryl Wink x Jim Woodward (Moved By) x 7 0 0 Motion CARRIED. 10 Public Hearing Items No public hearing was scheduled before Council. 11 Ordinances, Resolutions and Motions a) Approval of Ordinances on First Reading i) CB 53 - After temporarily extending Covid-related public consumption areas, City Council requested presentation of an Ordinance to amend Municipal Code to permanently provide for authorized public areas for public consumption of alcohol Moved by Council Member Joe Anderson Seconded by Council Member Jim Woodward Motion to approve agenda item 11 (a)(i), Council Bill No. 53. Discussion ensued. Moved by Council Member Jim Woodward Seconded by Council Member Joe Anderson Page 5 of 10 Draft Page 9 of 136 City Council Regular December 13, 2021 Motion to amend Council Bill No. 53 to allow alcohol in the City Paseos between the hours of noon to 1 a.m. For Against Abstained Joe Anderson (Seconded By) x Jim Woodward (Moved By) x Othoniel Sierra x Steven Ward x Chelsea Nunnenkamp x Rita Russell x Cheryl Wink x 1 6 0 Motion DEFEATED. Moved by Council Member Chelsea Nunnenkamp Seconded by Council Member Joe Anderson Motion to amend Council Bill No. 53 to remove all times from the Ordinance. For Against Abstained Joe Anderson (Seconded By) x Chelsea Nunnenkamp (Moved By) x Othoniel Sierra x Steven Ward x Rita Russell x Cheryl Wink x Jim Woodward x 6 1 0 Motion CARRIED. Moved by Council Member Joe Anderson Seconded by Council Member Steven Ward Motion to amend Council Bill No. 53 to only allow consumption of alcohol purchased from licensed to-go establishments. For Against Abstained Steven Ward (Seconded By) x Joe Anderson (Moved By) x Othoniel Sierra x Chelsea Nunnenkamp x Page 6 of 10 Draft Page 10 of 136 City Council Regular December 13, 2021 Rita Russell x Cheryl Wink x Jim Woodward x 5 2 0 Motion CARRIED. Moved by Council Member Joe Anderson Seconded by Council Member Jim Woodward COUNCIL BILL NO. 53, INTRODUCED BY COUNCIL MEMBER ANDERSON A BILL FOR AN ORDINANCE AMENDING TITLE 5, CHAPTER 3, SECTION 5-3C-3 OF ENGLEWOOD MUNICIPAL CODE AND REPEALING PROVISIONS OF ORDINANCE NO. 30 SERIES OF 2021 REGARDING POSSESSION OF OPEN CONTAINERS OF INTOXICATING LIQUOR IN PUBLIC WITHIN THE CITY OF ENGLEWOOD, COLORADO AS AMENDED WITH OPTION A. For Against Abstained Joe Anderson (Moved By) x Jim Woodward (Seconded By) x Othoniel Sierra x Steven Ward x Chelsea Nunnenkamp x Rita Russell x Cheryl Wink x 6 1 0 Motion CARRIED. b) Approval of Ordinances on Second Reading There were no Ordinances on Second Reading. c) Resolutions and Motions i) Resolution authorizing submittal of a grant application in the amount of $22,750,000 to the Federal Emergency Management Agency (FEMA) for funding of the South Englewood Flood Reduction Project (Stormwater Master Plan Projects S1 and S2). Moved by Council Member Jim Woodward Seconded by Council Member Chelsea Nunnenkamp Page 7 of 10 Draft Page 11 of 136 City Council Regular December 13, 2021 RESOLUTION NO. 46, SERIES OF 2021 A RESOLUTION AUTHORIZING THE CITY OF ENGLEWOOD, COLORADO, TO FILE AN APPLICATION WITH THE UNITED STATES FEDERAL EMERGENCY MANAGEMENT AGENCY, FOR FUNDING OF SOUTH ENGLEWOOD FLOOD REDUCTION PROJECT (STORMWATER MASTER PLAN PROJECTS S1 AND S2). For Against Abstained Othoniel Sierra x Steven Ward x Joe Anderson x Chelsea Nunnenkamp (Seconded By) x Rita Russell x Cheryl Wink x Jim Woodward (Moved By) x 7 0 0 Motion CARRIED. ii) In July of 2020, the City Council adopted a strategic plan which is set to expire in December, 2022. In December, 2021, staff will provide Council with an update on strategic plan implementation and propose (1) a new structure for the strategic plan; (2) a public engagement process to set priorities in the strategic plan; and (3) a January, 2022 Council Retreat focused on the strategic plan Moved by Council Member Chelsea Nunnenkamp Seconded by Council Member Jim Woodward Motion to approve agenda item 11(c)(ii). Discussion ensued. Moved by Council Member Steven Ward Seconded by Council Member Joe Anderson Motion to amend to remove the use of red-light cameras and photo enforced speed vans from the plan. For Against Abstained Steven Ward (Moved By) x Joe Anderson (Seconded By) x Othoniel Sierra x Chelsea Nunnenkamp x Rita Russell x Page 8 of 10 Draft Page 12 of 136 City Council Regular December 13, 2021 Cheryl Wink x Jim Woodward x 5 2 0 Motion CARRIED. Moved by Council Member Steven Ward Seconded by Council Member Cheryl Wink Motion to amend to remove the percent diversity across the workforce from the plan. For Against Abstained Steven Ward (Moved By) x Cheryl Wink (Seconded By) x Othoniel Sierra x Joe Anderson x Chelsea Nunnenkamp x Rita Russell x Jim Woodward x 6 1 0 Motion CARRIED. Moved by Council Member Chelsea Nunnenkamp Seconded by Council Member Steven Ward Approval of revisions to the structure of the Englewood Strategic Plan as amended. For Against Abstained Othoniel Sierra x Steven Ward (Seconded By) x Joe Anderson x Chelsea Nunnenkamp (Moved By) x Rita Russell x Cheryl Wink x Jim Woodward x 7 0 0 Motion CARRIED. iii) Creation of City Charter Advisory Committee Moved by Council Member Jim Woodward Page 9 of 10 Draft Page 13 of 136 City Council Regular December 13, 2021 Seconded by Council Member Othoniel Sierra A RESOLUTION ESTABLISHING A CITY CHARTER ADVISORY COMMITTEE FOR THE CITY OF ENGLEWOOD. For Against Abstained Othoniel Sierra (Seconded By) x Steven Ward x Joe Anderson x Chelsea Nunnenkamp x Rita Russell x Cheryl Wink x Jim Woodward (Moved By) x 2 5 0 Motion DEFEATED. 12 General Discussion a) Mayor's Choice b) Council Members' Choice 13 City Manager’s Report 14 Adjournment MAYOR SIERRA MOVED TO ADJOURN. The meeting adjourned at 9:14 p.m. City Clerk Page 10 of 10 Draft Page 14 of 136 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Madeline Hinkfuss DEPARTMENT: Communications DATE: January 4, 2022 SUBJECT: Holiday Decorating Contest Winner Recognition DESCRIPTION: City Council will recognize the Annual Holiday Decorating Contest winners in each of the following categories: Best House, Best Block/Neighborhood, Best Business and Show Stopper RECOMMENDATION: City Council will recognize the winners of the 2021 Annual Holiday Decorating Contest. SUMMARY: The Neighborhood Resources Program invited Englewood residents and businesses to participate in the Annual Holiday Decorating Contest. This year we had 25 submissions. Below you will find the winners. Best House: Ronald Nelson 4500 S Lipan St. Best Block/Neighborhood: Nancy Foster and Gabby Torres 3301 W Tufts Ave. and 3300 W Tufts Ave. Best Business: Kitschy Witch Vintage 3494 S Broadway Show Stopper: Robert Jones and Ronald Kloewer 5080 S Elati St. and 5041 S Elati St. Page 15 of 136 _. I "'’ ESTHouéls 4500 S Lipan St.Page 16 of 136 BESTNEIGHBORHOOD 3301 W Tufts Ave.and 3300 W Tufts Ave.Page 17 of 136 Page 18 of 136 Page 19 of 136 5041 S Elati St.Page 20 of 136 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Jacob Warren DEPARTMENT: Public Works DATE: January 4, 2022 SUBJECT: CB 02 - Bill for an ordinance approving an Intergovernmental Agreement with CDOT for Maintenance of the US-285 & S. Broadway Interchange Reconstruction Project DESCRIPTION: CB 02 - This is an intergovernmental agreement that stipulates maintenance obligations for the City and CDOT within the US-285 & S Broadway project area. US-285 falls under the jurisdiction of CDOT, while S. Broadway is under the jurisdiction of the City, therefore, it is necessary to come to an agreement on which entity will maintain the infrastructure built as part of the project. RECOMMENDATION: Staff recommends approval of a bill for an ordinance regarding the proposed maintenance IGA between the city and the Colorado Department of Transportation (CDOT). PREVIOUS COUNCIL ACTION: The city signed a letter of support, dated February 19, 2019, committing $1.1M for the local match of the total $9.5M anticipated project cost. City Council passed Council Bill No. 18 (Ordinance No. 20, Series of 2020) to approve the associated Intergovernmental Agreement between the City and CDOT which defines the terms for utilizing the federal funds awarded for this project. City Council approved the award of a contract to Atkins North America, Inc. to design the US- 285 & S Broadway Interchange Reconstruction Project on October 19, 2020. On July 26, 2021, City Council provided staff with direction on certain aesthetic characteristics of the project. SUMMARY: The US-285 & S. Broadway Interchange Reconstruction project will construct infrastructure within both the city and CDOT's rights of way. Furthermore, US-285 is under the jurisdictional control of CDOT, while S. Broadway is under the jurisdictional control of the city. Therefore, it is necessary to stipulate which agency will own, operate, and maintain the infrastructure built by the project. In general, the City will maintain features on and directly associated with S. Broadway, while CDOT will maintain features on US-285 and the interchange ramps. Page 21 of 136 ANALYSIS: In general, maintenance obligations in this agreement are similar to the maintenance operations currently performed by each agency. The city will maintain features on and directly associated with S. Broadway, while CDOT will maintain features on US-285 and the interchange ramps. A key exception to this is that the city will own and maintain the proposed storm sewer system and street lighting on US-285. This is dictated by Colorado Revised Statute 43-2-135. Division of authority over streets, which states that "The city, city and county, or incorporated town at its own expense shall provide street illumination and shall clean all such streets, including storm sewer inlets and catch basins." While this document stipulates the city as the responsible party for street lighting on US-285, the street lighting on US-285 will continue to be owned and operated by Xcel Energy through the city's franchise agreement with Xcel Energy. CDOT will own and maintain the structural elements of the S. Broadway bridge over US-285. The city will own and maintain the tiered retaining walls, the decorative bridge columns, and the landscaped areas within the interchange. The city will be responsible for the asphalt overlay on the bridge, as well as the streetscape elements on the bridge such as the sidewalk, pedestrian railing, and pedestrian lights. CONCLUSION: The city and CDOT will both benefit from a maintenance agreement which clearly dictates which agency will be responsible for the maintenance and operation of the infrastructure built by the US-285 & S. Broadway Interchange Reconstruction Project. This formalized agreement will allow both agencies to accurately budget and plan maintenance activities around the interchange. FINANCIAL IMPLICATIONS: This agreement does not include financial commitments. Given the similarity to existing maintenance responsibilities, the agreement is not anticipated to increase the city's financial burden associated with maintaining the interchange. CONNECTION TO STRATEGIC PLAN: Sustainability - Maintain the current built environment and maximize the lifecycle of newer high-profile buildings (police station, schools) Establishing clearly defined maintenance obligations for this multi-jurisdictional interchange is key to minimizing future reconstruction costs and maximizing the lifecycle of the associated infrastructure. OUTREACH/COMMUNICATIONS: Staff and the design consultant, Atkins North America, hosted three public information meetings: one in February 2021, one in May of 2021, and one in October 2021. Staff has utilized the City website as well as the recently launched Englewood Engaged platform to keep residents informed. Interested parties can find information on the project as well as recordings of the public meetings on the Englewood Engaged project webpage. ATTACHMENTS: Council Bill #02 Maintenance IGA for US-285 & S. Broadway Interchange CRS 43-2-135 Division of Authority Over Streets. Page 22 of 136 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 02 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER ________________ A BILL FOR AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE COLORADO DEPARTMENT OF TRANSPORTATION (CDOT) AND THE CITY OF ENGLEWOOD FOR MAINTENANCE AND OPERATIONS OF THE BROADWAY/US 285 INTERCHANGE PROJECT #STU 2854-145 (23553) WHEREAS, the City Council passed Council Bill No. 18 (Ordinance No. 20, Series of 2020) to approve the Intergovernmental Agreement between the City and Colorado Department of Transportation (“CDOT”), which sets the terms for utilizing $7,600,000.00 in Federal funds, $800,000 in State funds, and $1,100,000.00 in local matching funds for the reconstruction of the US 285 and Broadway Reconstruction Project (hereinafter, the “Project”); and WHEREAS, jurisdiction for the Project is divided between CDOT and the City as US-285 falls under the jurisdiction of CDOT, and S. Broadway falls under the jurisdiction of the City; and WHEREAS, CDOT and the City recognize the importance and benefit to their respective systems to stipulate which agency will own, operate, and maintain the infrastructure built as part of the Project; and WHEREAS, CDOT and the City desire to enter into an Intergovernmental Agreement upon the division of responsibility for their respective maintenance and operation obligations on the Project; and WHEREAS, Article XIV, Section 18(2)(a) of the Constitution of the State of Colorado, and Part 2, Article 1, Title 29, C.R.S. encourages and authorizes intergovernmental agreements; and WHEREAS, Sections 29-1-203 and 29-1-203.5, C.R.S. authorize governments to cooperate and contract with one another to provide any function, service, or facility lawfully authorized to each; and WHEREAS, the passage of this Ordinance will stipulate the maintenance obligations for the City and CDOT within the US-285 & S Broadway project area. Page 23 of 136 2 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The City Council of the City of Englewood, Colorado hereby authorizes the Intergovernmental Agreement entitled Maintenance and Operations of the Broadway/US 285 Interchange Project #STU 2854-145 (23553), between the Colorado Department of Transportation and the City of Englewood, a copy of which is marked as “Exhibit A” and attached hereto. Section 2. The Mayor and the City Clerk are hereby authorized to sign and attest said Intergovernmental Agreement on behalf of the City of Englewood, Colorado. Introduced, read in full, and passed on first reading on the 4th day of January, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 6th day of January, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 5th day of January, 2022 for thirty (30) days. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Bill for Ordinance introduced, read in full, and passed on first reading on the 4th day of January, 2022. Stephanie Carlile Page 24 of 136 Page 1 of 8 Maintenance and Operations Routing #: 22-HA1-XC-00249 US 285 & Broadway Interchange Reconstruction Project OLA #: 331002667 City of Englewood Project# : STU2854-145 (23553) Region 1 (vjm) CONTRACT THIS CONTRACT, executed this _____ day of __________________, 2021, by and between the State of Colorado for the use and benefit of the COLORADO DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the “State” or “CDOT”, and the CITY ENGLEWOOD, 1000 Englewood Parkway, Englewood, Colorado 80110, CDOT Vendor #: 2000021, hereinafter referred to as the “City” or the “Local Agency”; CDOT and the Local Agency individually shall be referred to as “Party”, and together shall be referred to as the “Parties.” RECITALS CDOT has designed and constructed improvements for the US 285 and Broadway Interchange Reconstruction Project in the City of Englewood, Colorado, hereinafter referred to as the "Project”; and The Parties recognize the importance and benefit to their respective systems by the City’s operation and maintenance of a portion of the Project; and The Parties desire to agree upon the division of responsibility for their respective maintenance and operation obligations on the Project (the “Work”) as shown in Exhibit A; and The City is adequately staffed and suitably equipped to undertake and satisfactorily carry out its operations and maintenance responsibilities under this contract; and Required approval, clearance and coordination has been accomplished from and with appropriate agencies; and This contract is executed by the State under authority of Sections 43-1-106, 43-1-110, 43-1-201, et seq., 43-2-102 and 43-2-144 C.R.S., as amended; and The Local Agency agrees by its execution hereof that it is duly authorized to enter into this contract. NOW, THEREFORE, it is hereby agreed that: I. PROJECT DESCRIPTION The "Work" under this contract shall consist of the maintenance and operations of and for the US 285 and Broadway Interchange in the City of Englewood, Colorado. Page 25 of 136 Page 2 of 8 II. CDOT COMMITMENTS A. The State will provide liaison with the City through the State's Region Transportation Director, CDOT Region 1, 2829 West Howard Place, Denver, CO 80204, (303) 757- 9011. Said Director will also be responsible for coordinating the State's activities under this contract. State liaison will also be provided through: William McCartt, EIT II, Property Manager CDOT Region 1 2829 West Howard Place Denver, Colorado 80204 303-757-9780 William.mccartt@state.co.us B. Upon the execution of this contract, CDOT shall accept maintenance responsibility for the portions of the Work identified as CDOT’s area of responsibility for the Work shown in Exhibit A. C. By approving said agreement, CDOT grants the City access to enter CDOT ROW to perform maintenance duties. Though a separate access permit will not be required, notification to CDOT of a City approved and CDOT accepted Method of Handling Traffic (MHT) shall be required for work impacting traffic. III. CITY COMMITMENTS A. The City will provide liaison with the State through: Jake Warren, Capital Projects Engineer City of Englewood 1000 Englewood Parkway Englewood, Colorado 80110 303-762-2517 jwarren@englewoodco.gov B. Upon the execution of this contract, the City shall accept maintenance responsibility for the portions of the Work identified as the City’s area of responsibility for the Work shown in Exhibit A. C. The Local Agency shall, at its own cost and expense, maintain, operate, replace, and make ample provision each year for the maintenance of those portions of the Work identified as the City’s area of responsibility, as shown in Exhibit A. Such maintenance and operations shall be in accordance with all applicable federal and state statutes and ordinances, and regulations promulgated thereunder, which define the Local Agency’s obligations to maintain such improvements. D. Maintenance services to be performed by the City at its sole expense under this contract shall include the services shown in Exhibit A. By approving said agreement the City grants CDOT access to enter City ROW to perform maintenance duties. E. The City shall perform the maintenance services in a satisfactory manner, and in accordance with the terms of this contract, and in accord with CRS §43-2-135, incorporated herein by reference. If the City fails to perform the required maintenance and CDOT performs the maintenance, CDOT will charge the Local Agency for the actual costs of its performance of the work. Page 26 of 136 Page 3 of 8 IV. GENERAL PROVISIONS A. This contract is subject to such modifications as may be required by changes in federal or State law, or their implementing regulations. Any such required modification shall automatically be incorporated into and be part of this contract on the effective date of such change as if fully set forth herein. Except as provided above, no modification of this contract shall be effective unless agreed to in writing by both Parties in an amendment to this contract that is properly executed and approved in accordance with applicable law. B. To the extent that this contract may be executed and performance of the obligations of the Parties may be accomplished within the intent of the contract, the terms of this contract are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof. The waiver of any breach of a term hereof shall not be construed as a waiver of any other term, or the same term upon subsequent breach. C. This contract is intended as the complete integration of all understandings between the Parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or affect whatsoever, unless embodied herein by writing. No subsequent novation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a written contract executed and approved pursuant to the State Fiscal Rules. D. Except as herein otherwise provided, this contract shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. E. The term of this contract shall begin the date first above written and shall extend for the useful life of the improvements, unless earlier modified or terminated by written agreement of the Parties hereto. F. It is expressly understood and agreed that the enforcement of the terms and conditions of this contract, and all rights of action relating to such enforcement, shall be strictly reserved to the Parties hereto, and nothing contained in this contract shall give or allow any such claim or right of action by any other or third person on such contract. It is the express intention of the Parties that any person or entity other than the Parties receiving services or benefits under this contract be deemed to be an incidental beneficiary only. G. The City assures and guarantees that it possesses the legal authority to enter into this contract. The City warrants that it has taken all actions required by its procedures, by- laws, and/or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory(ies) to execute this contract and to bind the City to its terms. The person(s) executing this contract on behalf of the City warrants that they have full authorization to execute this contract. H. Article X, Section 20/TABOR. The Parties understand and acknowledge that the City is subject to Article X, § 20 of the Colorado Constitution ("TABOR"). The Parties do not intend to violate the terms and requirements of TABOR by the execution of the Contract. It is understood and agreed that this Contract does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Contract to the contrary, any and all future payment obligations of the City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the City’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the City payable after the current fiscal year are Page 27 of 136 Page 4 of 8 contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of City of Englewood and other applicable law. I. Local Government Budget Law. The Parties understand and acknowledge that the City is subject to the Local Government Budget Law of Colorado. Any contract or agreement, whether verbal or written, purporting to bind the City to a fiscal obligation in violation of such law is void and of no effect, by operation of law. J. Governmental Immunity. The City, its officers, agents and employees, are relying on, and do not waive or intend to waive by any provision of this Contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the City and its officers and employees. V. – COLORADO SPECIAL PROVISIONS COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) These Special Provisions apply to all contracts except where noted in italics. A. STATUTORY APPROVAL. §24-30-202(1), C.R.S. This Contract shall not be valid until it has been approved by the Colorado State Controller or designee. If this Contract is for a Major Information Technology Project, as defined in §24-37.5-102(2.6), then this Contract shall not be valid until it has been approved by the State’s Chief Information Officer or designee. B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S. Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. C. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property arising from the negligence of the State, its departments, boards, commissions, committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq. C.R.S. No term or condition of this Contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes. D. INDEPENDENT CONTRACTOR Page 28 of 136 Page 5 of 8 Local Agency shall perform its duties hereunder as an independent contractor and not as an employee. Neither Local Agency nor any agent or employee of Local Agency shall be deemed to be an agent or employee of the State. 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. 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 Local Agency or any of its agents or employees. Local Agency shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Contract. Local Agency shall (i) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible for its acts and those of its employees and agents. E. COMPLIANCE WITH LAW. Local Agency shall 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. F. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Contract. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Contract shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. G. PROHIBITED TERMS. Any term included in this Contract that requires the State to indemnify or hold Local Agency harmless; requires the State to agree to binding arbitration; limits Local Agency’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Contract shall be construed as a waiver of any provision of §24-106-109 C.R.S. H. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Local Agency hereby certifies and warrants that, during the term of this Contract and any extensions, 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 Local Agency is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Contract, Page 29 of 136 Page 6 of 8 including, without limitation, immediate termination of this Contract and any remedy consistent with federal copyright laws or applicable licensing restrictions. I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S. 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 Contract. Local Agency has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Local Agency’s services and Local Agency shall not employ any person having such known interests. J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30- 202.4, C.R.S. [Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (i) unpaid child support debts or child support arrearages; (ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and (v) other unpaid debts owing to the State as a result of final agency determination or judicial action. The State may also recover, at the State’s discretion, payments made to Local Agency in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Local Agency by deduction from subsequent payments under this Contract, deduction from any payment due under any other contracts, grants or agreements between the State and Local Agency, or by any other appropriate method for collecting debts owed to the State. K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S. [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 information technology services or products and services] Local Agency certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Contract, through participation in the E-Verify Program or the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Local Agency shall not knowingly employ or contract with an illegal alien to perform work under this Contract or enter into a contract with a Subcontractor that fails to certify to Local Agency that the Subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract. Local Agency (i) shall not use E-Verify Program or the program procedures of the Colorado Department of Labor and Employment (“Department Program”) to undertake pre-employment screening of job applicants while this Contract is being performed, (ii) Page 30 of 136 Page 7 of 8 shall notify the Subcontractor and the contracting State agency or institution of higher education within 3 days if Local Agency has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under this Contract, (iii) shall terminate the subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within 3 days of receiving the notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to §8- 17.5-102(5), C.R.S., by the Colorado Department of Labor and Employment. If Local Agency participates in the Department program, Local Agency shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that Local Agency has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If Local Agency fails to comply with any requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State agency, institution of higher education or political subdivision may terminate this Contract for breach and, if so terminated, Local Agency shall be liable for damages. L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S. Local Agency, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that Local Agency (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of §§24-76.5-101, et seq., C.R.S., and (iii) has produced one form of identification required by §24-76.5-103, C.R.S. prior to the Effective Date of this Contract. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK Page 31 of 136 Page 8 of 8 SIGNATURE PAGE Agreement Routing Number: 22-HA1-XC-00249 OLA #: 331002667 THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT * Persons signing for the Local Agency hereby swear and affirm 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 CITY OF ENGLEWOOD Name: Othoniel Sierra Title: Mayor ____________________________________________ *Signature Date: __________________________ STATE OF COLORADO Jared S. Polis, GOVERNOR Colorado Department of Transportation Shoshana M. Lew, Executive Director _____________________________________________ By: Stephen Harelson, P.E., Chief Engineer Date: __________________________ 2nd Local Agency Signature if needed Name: Stephanie Carlile Title: City Clerk ____________________________________________ *Signature Date: __________________________ LEGAL REVIEW Phil Weiser, Attorney General By:__________________________________________ Signature - Assistant Attorney General Date: _________________________ Page 32 of 136 EXHIBIT A - Scope of Work Maintenance of the infrastructure built as part of the US-285 & S. Broadway Interchange Reconstruction project will be performed by the City and CDOT. CDOT will keep maintenance responsibilities of the roadway infrastructure from curb to curb on US-285 and the interchange ramps. This will include the Type 9 Barricade used along US-285 through the underpass as well as any standard signage along US-285. CDOT will maintain the Broadway bridge over US-285, excluding the overlay and streetscape features such as lighting, signs, and pedestrian rail. CDOT will not maintain the decorative columns. CDOT will not maintain the drainage infrastructure or lighting infrastructure built by this project. The City will maintain the infrastructure on and associated with S. Broadway. This includes the overlay on the bridge over US-285, the streetscape features on the bridge, the tiered infield retaining walls, and the decorative columns adjacent to the bridge. The City will also maintain all drainage infrastructure and lighting infrastructure built as part of this project. The City will maintain all of the landscaping within the project limits including median landscaping on US- 285 and landscaping in the ramp infield areas. Maintenance and operation of traffic signals will be performed according to a separate agreement currently in place between the City and CDOT. Exhibit A - Page 1 of 8 Page 33 of 136 US-285 Maintenance Roadway Feature/Maintenance Activity Agency Responsible Pavement CDOT Curb & Gutter CDOT Medians CDOT Signs CDOT Pavement Markings CDOT Street Sweeping CDOT Snow Plowing CDOT Barrier Wall CDOT Sidewalks/Multi-Use Paths City of Englewood Drainage Feature/Maintenance Activity Agency Responsible Curb & Gutter CDOT Street Sweeping CDOT Storm Sewer Structures and Pipe City of Englewood Hydrodynamic Separator Repair/Replacement City of Englewood Hydrodynamic Separator Cleaning City of Englewood Structures Feature/Maintenance Activity Agency Responsible S Broadway Bridge over US-285 (Structure # F-17-BAA) (Foundations, Pier, Slope Walls, Abutments, Wingwalls, Bearing Pads, Beams, Deck, Approach Slabs, Expansion Joints, Water-proofing Membrane) CDOT S Broadway Bridge over US-285 Deck Wearing Surface City of Englewood Bridge Painting (If included in final design) City of Englewood Retaining Walls City of Englewood Guardrail CDOT Barrier Walls CDOT Decorative Columns City of Englewood Utilities Feature/Maintenance Activity Agency Responsible Water Mains City of Englewood Sanitary Sewer City of Englewood Private Utilities Other Lighting Feature/Maintenance Activity Agency Responsible Street Lighting City of Englewood Pedestrian Lighting City of Englewood Exhibit A - Page 2 of 8 Page 34 of 136 US-285 Maintenance Traffic Signal Feature/Maintenance Activity Agency Responsible Traffic Signal Equipment & Operations Refer to existing Traffic Signal Maintenance Agreement (Agreement Routing Number 16-HAA-XC-00023) Exhibit A - Page 3 of 8 Page 35 of 136 S. Broadway Maintenance Roadway Feature/Maintenance Activity Agency Responsible Pavement City of Englewood Curb & Gutter City of Englewood Medians City of Englewood Signs City of Englewood Pavement Markings City of Englewood Street Sweeping City of Englewood Snow Plowing City of Englewood Barrier Wall City of Englewood Sidewalks/Multi-Use Paths City of Englewood Guardrail City of Englewood Bollards City of Englewood Planters City of Englewood Drainage Feature/Maintenance Activity Agency Responsible Curb & Gutter City of Englewood Street Sweeping City of Englewood Storm Sewer Structures and Pipe City of Englewood Hydrodynamic Separator Repair/Replacement City of Englewood Hydrodynamic Separator Cleaning City of Englewood Structures Feature/Maintenance Activity Agency Responsible S Broadway Bridge over US-285 (Structure # F-17-BAA) (Foundations, Pier, Slope Walls, Abutments, Wingwalls, Bearing Pads, Beams, Deck, Approach Slabs, Expansion Joints, Water-proofing Membrane) CDOT Retaining Walls City of Englewood Bridge Painting (If included in final design) City of Englewood S Broadway Bridge over US-285 Deck Wearing Surface City of Englewood Decorative Columns City of Englewood Bridge Sidewalk City of Englewood Bridge Pedestrian Rail City of Englewood Bridge Guard Rail City of Englewood Bridge Bollards City of Englewood Bridge Planters City of Englewood Bridge Pedestrian Lighting City of Englewood Bridge Street Lighting City of Englewood Traffic Signal Wires, Cables, Ducts, Conduit City of Englewood Water Main on Bridge City of Englewood Private Utility Infrastructure on Bridge Others Utilities Feature/Maintenance Activity Agency Responsible Water Mains City of Englewood Exhibit A - Page 4 of 8 Page 36 of 136 S. Broadway Maintenance Sanitary Sewer City of Englewood Private Utilities Others Lighting Feature/Maintenance Activity Agency Responsible Street Lights City of Englewood Pedestrian Lights City of Englewood Traffic Signal Feature/Maintenance Activity Agency Responsible Traffic Signal Equipment & Operations Refer to existing Traffic Signal Maintenance Agreement (Agreement Routing Number 16-HAA-XC-00023) Exhibit A - Page 5 of 8 Page 37 of 136 Ramp Maintenance Roadway Feature/Maintenance Activity Agency Responsible Pavement CDOT Curb & Gutter CDOT Signs CDOT Pavement Markings CDOT Street Sweeping CDOT Snow Plowing CDOT Sidewalks/Multi-Use Paths City of Englewood Drainage Feature/Maintenance Activity Agency Responsible Curb & Gutter CDOT Street Sweeping CDOT Storm Sewer Structures and Pipe City of Englewood Hydrodynamic Separator Repair/Replacement City of Englewood Hydrodynamic Separator Cleaning City of Englewood Utilities Feature/Maintenance Activity Agency Responsible Water Mains City of Englewood Sanitary Sewer City of Englewood Private Utilities Others Lighting Feature/Maintenance Activity Agency Responsible Street Lights City of Englewood Pedestrian Lights City of Englewood Exhibit A - Page 6 of 8 Page 38 of 136 Miscellaneous Maintenance Landscaping Feature/Maintenance Activity Agency Responsible General Landscaping City of Englewood Irrigation System(s) City of Englewood Exhibit A - Page 7 of 8 Page 39 of 136 Exhibit A - Page 8 of 8Exhibit A - Page 8 of 8Page 40 of 136 Search - 1 Result - 43-2-135. Division of authority over streets http://web.lexisnexis.com/...ocnum=1&_fmtstr=FULL&_startdoc=1&wchp=dGLzVzk-zSkAA&_md5=13afc03c054c894191600b9b6e1ca8df[3/12/2014 9:17:54 AM] C.R.S. 43-2-135 COLORADO REVISED STATUTES *** This document reflects changes current through all laws passed at the First Regular Session of the Sixty-Ninth General Assembly of the State of Colorado (2013) *** TITLE 43. TRANSPORTATION HIGHWAYS AND HIGHWAY SYSTEMS ARTICLE 2.STATE, COUNTY, AND MUNICIPAL HIGHWAYS PART 1. STATE, COUNTY, AND CITY HIGHWAYSYSTEMS C.R.S. 43-2-135 (2013) 43-2-135. Division of authority over streets (1) The jurisdiction, control, and duty of the state, cities, cities and counties, and incorporated towns with respect to streets which are a part of the state highway system is as follows: (a) The city, city and county, and incorporated town shall exercise full responsibility for and control over any such street beyond and including the curbs and, if no curb is installed, beyond the traveled way, its contiguous shoulders, and appurtenances; except that the regulation and control of driveways shall be subject to the provisions of section 43-2-147. (b) The department of transportation has authority to prohibit the suspension of signs, banners, or decorations above the portion of such streets between the curbs or portion used for highway purposes up to a vertical height of twenty feet above the surface of the roadway. (c) The city, city and county, or incorporated town at its own expense shall maintain all underground facilities in such streets and has the right to construct such underground facilities as may be necessary in such streets. (d) The city, city and county, or incorporated town has the right to grant the privilege to open the surface of any such street, but all damages occasioned thereby shall promptly be repaired either by the city, city and county, or incorporated town itself or at its direction. (e) The city, city and county, or incorporated town at its own expense shall provide street illumination and shall clean all such streets, including storm sewer inlets and catch basins. (f) The department of transportation has the right to utilize all storm sewers on such highways without cost; and if new storm sewer facilities are necessary in construction of streets by the department of transportation, the cost of such facilities shall be borne by the state and municipality as may be mutually agreed upon between the department of transportation and the local governing body of the city, city and county, or incorporated town. (g) Cities, cities and counties, and incorporated towns shall regulate and enforce all traffic and parking restrictions on streets which are state highways, but all regulations adopted after December 31, 1979, shall be approved in writing by the department of transportation before becoming effective on such streets; except that such regulations shall become effective on such streets sixty days after receipt for review by the department of transportation if not disapproved in writing by said department during that sixty-day period. (h) The department of transportation shall erect, control, and maintain at state expense all route markers and directional signs, except street signs on those streets. (i) The department of transportation shall install, operate, maintain, and control at state expense all traffic control signals, signs, and traffic control devices on state highways in cities, the city and county of Denver, the city and county of Broomfield, and incorporated towns. No local authority shall erect or maintain any stop sign or traffic control signal at any location so as to require the traffic on any state highway to stop before entering or crossing any intersecting highway unless approval in writing has first been obtained from the department of transportation. For the purpose of this paragraph (i), striping, lane-marking, and channelization are considered Page 41 of 136 Search - 1 Result - 43-2-135. Division of authority over streets http://web.lexisnexis.com/...ocnum=1&_fmtstr=FULL&_startdoc=1&wchp=dGLzVzk-zSkAA&_md5=13afc03c054c894191600b9b6e1ca8df[3/12/2014 9:17:54 AM] traffic control devices. (j) Rights-of-way for such street shall be acquired by either the city, city and county, or incorporated town or by the state as is mutually agreed upon. Costs of acquiring such rights-of-way may be at the sole expense of the state or the city, city and county, or incorporated town, or both, as may be mutually agreed. Title to all rights- of-way so acquired shall vest in the city, city and county, or incorporated town, or the state, according to the agreement under which said rights-of-way were secured. (k) The department of transportation is authorized to acquire rights-of-way by purchase, gift, or condemnation for any such streets, highways, and bridges. Any such condemnation proceeding shall be exercised in the manner provided by law for condemnation proceedings to acquire lands required for state highways. Nothing in this section shall be construed as abrogating the rights of home rule cities to acquire lands for state purposes in the manner set forth in the charter of said cities. HISTORY: Source: L. 53: p. 526, § 35.CRS 53: § 120-13-35. C.R.S. 1963: § 120-13-35.L. 71: p. 202, § 10.L. 74: (1)(i) amended, p. 358, § 1, effective July 1.L. 79: (1)(g) amended, p. 1598, § 2, effective May 18.L. 80: (1)(a) amended, p. 798, § 66, effective June 5.L. 91: (1)(b), (1)(f) to (1)(i), and (1) (k) amended, p. 1105, § 147, effective July 1.L. 2001: (1)(i) amended, p. 273, § 27, effective November 15. ANNOTATION Municipal regulations relating to traffic and parking on highway-streets subject to approval by highway department. This section declares that cities, cities and counties, and incorporated towns shall regulate and enforce traffic and parking restrictions on all highway-streets within the municipal boundaries, but provides that all regulations shall be subject to approval of the department of highways before becoming effective. This section also purports to divide authority over streets which are part of the state highway system. It defines in detail the obligations of cities, cities and counties, and incorporated towns with respect to streets which are a part of the state highway system. City County of Denver v. Pike, 140 Colo. 17, 342 P.2d 688 (1959). Where state has recognized right to regulate, no prior approval required. Where the right of a city to regulate speed on a freeway bisecting a city has been recognized by the state, allowing the city to post the highway and enforce its ordinances, it is not necessary for the city to obtain prior approval of its regulations before they could become effective. City County of Denver v. Pike, 140 Colo. 17, 342 P.2d 688 (1959). This section authorizes resort to agreement concerning the acquisition of property; however, it is only an optional method and is permissible as a substitute for proceedings in condemnation. Town of Greenwood Vill. v. District Court, 138 Colo. 283, 332 P.2d 210 (1958). Considering paragraphs (j) and (k) of subsection (1) together, paragraph (j) is permissive only and does not make consent of a town a prerequisite to condemnation of private property within its corporate limits, or to condemnation of public property already in use for street purposes, the fee title to which lies in a town. Town of Greenwood Vill. v. District Court, 138 Colo. 283, 332 P.2d 210 (1958). The department of highways can lawfully condemn public or private property within a municipality for the purpose of continuing state highways into or through cities or towns. The principle is identical as far as acquisition of park lands by the state is concerned. Welch v. City County of Denver, 141 Colo. 587, 349 P.2d 352 (1960). State not compelled to condemn where city and state have agreement. Where agreement was reached between the state and the city where the city granted the state the right to construct a highway on park land, the state was not compelled to institute condemnation proceedings. By enacting the ordinances authorizing the use of park lands for highway purposes, all was accomplished by agreement that would otherwise have had to be accomplished by condemnation proceedings. Welch v. City County of Denver, 141 Colo. 587, 349 P.2d 352 (1960). Page 42 of 136 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Stephanie Carlile DEPARTMENT: City Clerk's Office DATE: January 4, 2022 SUBJECT: Designation of the Official Posting Place for Legal Notices DESCRIPTION: Designation of the Official Posting Place for Legal Notices RECOMMENDATION: Staff recommends City Council approve, by Resolution, the designation of the Official Posting Place for Legal Notices for 2022. PREVIOUS COUNCIL ACTION: On January 4, 2021 City Council designated the City's website as the official posting place for all legal notices of the City of Englewood for 2021. SUMMARY: Legislation amending Colorado Revised Statutes, § 24-6-402 (2)(c) became effective July 1, 2019. House Bill 19-1087 requires a local government to post notices of public meetings required by the state open meetings law on the local government's website. The notices are accessible to the public at no charge. The notices shall be searchable, if feasible, by type of meeting, date and time of meeting, and agenda contents. Colorado Revised Statutes, § 24-6-402(2)(c) also provides that the local public body shall be deemed to have given full and timely notice of a public meeting if the local public body posts the notice, with specific agenda information if available, no less than twenty-four hours prior to the holding of the meeting. The Open Meetings Law, State Statute § 24-6-402(2)(c) requires that the public place or places for posting legal notices shall be designated annually at the local public body’s first regular meeting of each calendar year. In addition to the City website, legal notices will be posted to the bulletin boards located at the Civic Center, all in conformance with C.R.S. § 24-6-402(2)(c). FINANCIAL IMPLICATIONS: None ATTACHMENTS: Resolution Page 43 of 136 1 RESOLUTION NO. SERIES OF 2022 A RESOLUTION DESIGNATING THE OFFICIAL POSTING PLACE FOR ALL LEGAL NOTICES OF THE CITY OF ENGLEWOOD FOR 2022. WHEREAS, Colorado Revised Statutes, § 24-6-402(2)(c) provides that “A local public body shall be deemed to have given full and timely notice of a public meeting if the local public body posts the notice, with specific agenda information if available, no less than twenty-four hours prior to the holding of the meeting on a public website of the local public body.” WHEREAS, C.R.S. § 24-6-402(2)(c) also provides that the public place or places for posting legal notices shall be designated annually at the local public body’s first regular meeting of each calendar year. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The official posting place for all legal notices of the City of Englewood for the year 2022, shall be the City of Englewood’s website, all in conformance with C.R.S. § 24-6-402(2)(c). If the City is unable to post to the website due to exigent or emergency circumstances, the City of Englewood will post a physical notice at the bulletin board on the north side of the second floor of the Englewood Civic Center. Section 2. This Resolution does not in any way of itself create a requirement for notice. ADOPTED AND APPROVED this 4th day of January, 2022. ATTEST: Othoniel Sierra, Mayor __________________________________ Stephanie Carlile, City Clerk Page 44 of 136 2 I, Stephanie Carlile, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution No. , Series of 2022. ______________________________ Stephanie Carlile Page 45 of 136 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Pieter Van Ry DEPARTMENT: Utilities DATE: January 4, 2022 SUBJECT: Martin and Wood Water Consultants Change Order DESCRIPTION: Staff is seeking Council approval, by Motion, to execute a change order with Martin and Wood Water Consultants, in the amount of $50,608.25, for water resources engineering support. RECOMMENDATION: Staff recommends City Council approve, by Motion, a Change Order with Martin and Wood Water Consultants in the amount of $50,608.25, for the July 2020 to June 2021 contracting period. The Water and Sewer Board recommended council approve, by motion, the change order at its December 14, 2021 meeting. PREVIOUS COUNCIL ACTION: • July 19, 2021 – City Council approved the renewal of the Professional Services Agreement (PSA) with Martin and Wood for water resources engineering in the amount of $350,000.00. • July 6, 2020 – City Council approved the renewal of the PSA with Martin and Wood for water resources engineering in the amount of $300,000.00. • May 6, 2019 – City Council approved a PSA with Martin and Wood for water resources engineering in the amount of $400,000.00. SUMMARY: The City has engaged Martin and Wood for water resources engineering support since the 1990’s. Historically, Martin and Wood focused on protection of existing rights through monitoring and responding to water court applications and diligence cases on an as-needed basis. In May 2019, City Council approved execution of the first PSA with Martin and Wood, in the amount of $400,000.00, to formalize the scope and fee for this work. This approval covered the contracting period between January 1, 2019, through December 31, 2019. In July 2020, City Council approved the renewal of the PSA for the contracting period of July 2020 through June 2021, in the amount of $300,000.00. The reduced contract amount of $300,000.00 more accurately reflected the historic annual contract spend. As new Utilities leadership became more familiar with the City’s water resources portfolio over the second half of 2020, it became evident that a more proactive approach to managing these important resources was necessary. This resulted in expanding the scope of Martin and Wood’s engineering support services. Additional services focused on a proactive and forward-looking Page 46 of 136 water resources management approach. These tasks included improving service to our customers through water quality improvements, maximizing water resources yield, accurately and equitably recovering revenues from water sales and operations, and planning for the City’s future water supply needs. Expanded task items performed by Martin and Wood for the 2020 contract renewal include: • Analysis of water rights decrees for improved water quality operations • Reappraisal of water sales to Centennial Water Sanitation District • Development of a data-driven and scenario-based demand analysis and yield model • Development of a prioritized capital improvement plan to meet future goals • Institutional knowledge transition to City staff through workshops • Engineering support for a new contract user and tap on City Ditch • Defense of the City’s contractual allotment with Denver Water • Researching and defending City interests for illicit water use off City Ditch After the execution of the PSA renewal in July 2020, new Utilities staff discovered that the Purchase Order (PO) created for the 2019 initial agreement was inadvertently expired at the end of calendar year 2019. This resulted in the inability to pay invoices over the first half of 2020. The new PO issued as part of the PSA renewal was used to retroactively pay these outstanding invoices. ANALYSIS: A change order in the amount of $50,608.25 is required to cover the expanded services discussed in the previous section. This change order will increase the contract amount from $300,000.00 to $350,608.25 for the July 2020 to June 2021 contracting period. Utilities staff has implemented the following improvements to the external contracts associated with water resources management to minimize the likelihood of change orders moving forward. 1. Adding a water resources engineer dedicated to managing the Martin and Wood contract. Duties of this role include monitoring and prioritizing Martin and Wood’s workload and spend rate to ensure that work is being performed efficiently and within the available annual budget. 2. Utilities staff will request a 6-month renewal at the conclusion of the 2021/2022 contracting period in June 2022. This will align the contract period to the calendar year and avoid the situation that occurred in 2020, where an active PO expired at the end of the prior calendar year. 3. A contingency line item will be included in future contract renewals to account for unforeseen circumstances that may result in increased services from Martin and Wood. CONCLUSION: Staff recommends Council approve a change order for 2020/2021 PSA/20-37 with Martin and Wood Water Consultants in the amount of $50,608.25, for a total contract amount of $350,608.25 for the July 2020 to June 2021 contracting period. Page 47 of 136 FINANCIAL IMPLICATIONS: Funding for this change order is available in the Utilities 2021 budget. Source of Funds Line Item Description Line Item Amount YTD Line Item Expensed Purchase Amount 40–1609–54201 Water Fund, Engineering, Professional Services $1,275,000.00 $470,454.05 $50,608.25 CONNECTION TO STRATEGIC PLAN: Sustainability: • Invest in water infrastructure ATTACHMENTS: Change Order Form PowerPoint Page 48 of 136 Ei??lewood- PROCUREMENT DIVISION CHANGE ORDER Date:11/19/2021 change order it:No.1 water Engineering Consultant Project Name:services Contract :3:PSA 20- 37 ($300, 000) Department:utilities PC at:2021- 00000221 ($120,278) steve sirnon —Deputy Director — Project Manager:Engineering original Agreement Date:07/13/ 2020MartinandwoodWater Contractor:Consultants Location:utilities D e p ar t m e nt CHANG one Select th bet desc tion of ti chnge Ordr Chec one): X Standard Change Order Emergency (Authorization attached) Unforeseen Slte Conditions (Justification attached)X Substantial (Authorization attached) °'-‘L .., '' Original Contract Amount:$300,000.00 Original completion date:07/12/2020 Previous Change Order(s):5 (L00 Previous change In time:(0)Days Contract Amount Prior to Completion Date Prior to this Change Order:5 300,000.00 this Change Order: Amount ofthls Change __. Order:5 50,603.25 Change in contract time.(O)Davs New Contract Amount:$35o’6og_25 New Completion Date 07/12/ 2021vq...,-.- The following changes are hereby made to the contract documents: change in c h a n g e in Ref 88 Summary Description contract Price Ti m eFirstChangeOrderrequestedonPO8#2021—DO00022£l.for PSA 20-37,Steve”°‘1 increasing PO to $170,886.25 and PSA 20-37 to $350,608.25.$5°'5°8‘25 °D3“Slmon 5 Days 1000 Englewood Parkway.Englewooci,Colorado 80110-2373 (303)762-2300 www.englewDodgov.OI‘9 Page 49 of 136 95>omuoo;¢_m:w.;;soomww?.8223.9Sm%_...o_oo.u8;w_9_m.$5.a"_uooswacm82co.=wuSno239:30vmmouoi..§o&._m>oanm2:6026m._:_uQ3._wEo$955m5mm.mmm.v~m5.6m_.35$.5593¢E:aEmm5:.965%_m_..:_.mmm:m_235m5._om__:ou_mc_m_.o9:.3P685._\..9w_:55omcmguuz:oE:oEmme::.Ema5:303uw>oaa<M.uwEmuo<.;Eom..Eoonum.w8<3_\“Ema1.N\N.XZ“Ema._$:_m:m_33>e.a<Am?oE9$2m<_s__m_.o.“com?tmq9:F25‘um._mEwEmEwm:wm>om::oo_mc_m_._o9:homE._m.9:wmcmso._ovcmecmScwwou.590«E20£5.5:mm._mmucm_..E£m_m_o::$23ashE20muz<_._uIIno>.:uI.IPage 50 of 136 Martin and WoodChange Order City Council, Regular Session Pieter Van Ry, Director January 4, 2022 Page 51 of 136 Martin and Wood Water Consultants •Water rights engineering support for City since 1990’s •Strong local presence •Regional and statewide water resources expertise •Extensive institutional knowledge of City’s portfolio Page 52 of 136 Contracting History •First PSA approved by Council in May 2019 •January to December 2019 contract term •$400,000 contract amount •New Utility leadership in Spring 2020 •Discovered no active contract first half 2020 •Contract renewal •July 2020: $300,000 amount (Change Order) •July 2021: $350,000 contract amount 1990s and 2000s 2019 2020 2021 2022 1Q 2Q 3Q 4Q 1Q 2Q 3Q 4Q 1Q 2Q 3Q 4Q 1Q 2Q 3Q 4Q No contract PSA (original)No contract PSA Renewal #1 PSA Renewal #2 6-month extension Page 53 of 136 Expanded Scope for 2020 Renewal •Historic scope of services •Protection of existing rights •Assistance with diligence cases and litigation •Expanded scope of services •Future planning and portfolio optimization •Change in management philosophy with new leadership •Water resources master plan •Portfolio optimization •Scenario planning and yield models •Reappraisal of water leases •Prevent illicit water use Page 54 of 136 Change Order Contract Amount Contract Term PSA Renewal #1 $300,000 July 2020 to June 2021PSA change order $50,608.25 Total contract amount $350,608.25 Page 55 of 136 Moving Forward •Full-time staff dedicated to contract management •Align contracting term with calendar year •Additional contingencies in contract amount Page 56 of 136 Questions?Page 57 of 136 Thank you Page 58 of 136 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Angela Goodman DEPARTMENT: Utilities DATE: January 4, 2022 SUBJECT: 2022 Allen Water Treatment Plant bulk chemical purchase of Aluminum Sulfate from Chemtrade Chemicals US, LLC. DESCRIPTION: The Allen Water Treatment Plant (AWTP) uses Aluminum Sulfate as a primary coagulant to remove sediment from its drinking water supply. RECOMMENDATION: Utilities staff recommends City Council approve, by Resolution, the 2022 bulk chemical purchase for Aluminum Sulfate in the amount of $190,000 from Chemtrade Chemicals US, LLC. The Water and Sewer Board recommended council approve, by Resolution, the purchase of 2022 bulk chemicals at its December 14, 2021 meeting. PREVIOUS COUNCIL ACTION: • October 18, 2021 – City Council approval of the 2022 Utilities Department Budget. • April 5, 2021 – City Council approval of 2021 AWTP Bulk Chemical purchases. SUMMARY: The AWTP uses aluminum sulfate, or alum, as a primary coagulant to remove sediment from the drinking water supply. ANALYSIS: Utilities staff purchases aluminum sulfate from Chemtrade Chemicals US, LLC. through a cooperative bid. In February 2021, staff joined Colorado’s Multiple Assembly of Procurement Officials (MAPO) program. This membership guarantees competitive pricing for the procurement of bulk chemicals. The cost for purchasing aluminum sulfate in 2022 is $190,000, as provided in the attached Chemtrade Pricing Communication. Staff has estimated 2022 quantities for aluminum sulfate based on 2021 actual usage. CONCLUSION: Staff recommends Council approve a Resolution for the 2022 bulk chemical purchase of aluminum sulfate from Chemtrade Chemicals US, LLC., in the amount of $190,000. FINANCIAL IMPLICATIONS: Bulk Chemical purchases are included in the Utilities 2022 budget of $751,000. Staff estimates the total bulk chemical purchase of aluminum sulfate is $190,000, based on actual usage in 2021 of this chemical. Page 59 of 136 Source of Funds Line Item Description Line Item Amount YTD Line Item Expensed Purchase Amount 40–1605–52301 Water Fund, O&M, Bulk Chemicals $751,000 $0 $190,000 CONNECTION TO STRATEGIC PLAN: This purchase connects to the City’s Strategic Plan goal of sustainability by providing its customers with safe drinking water. ATTACHMENTS: Resolution Chemtrade Pricing Communication for 2022 PowerPoint Presentation Page 60 of 136 1/2 RESOLUTION NO. __ SERIES OF 2022 A RESOLUTION AWARDING A CONTRACT FOR THE PURCHASE OF ALUMINUM SULFATE FROM CHEMTRADE CHEMICALS US LLC, UNDER THE TERMS OF THE COLORADO OPTIMAL SOURCE REQUIREMENTS. WHEREAS, Section 116(b) of the Englewood Home Rule Charter, allow contracts for public works or improvements associated with capital improvements to be negotiated, provided that contracts for which no competitive bids have been requested are approved and accepted by Resolution setting forth the reason for the exception to the competitive bidding requirement; and WHEREAS, Section 4-1-3-1 of the Englewood Municipal Code 2000 allows for the purchase of materials, equipment, machinery or devices without competitive bids where the standardization of such materials and equipment is necessary to ensure the proper functioning of existing equipment, machinery or devices and/or to prevent the duplication of existing equipment; and WHEREAS, the Allen Water Treatment Plant utilizes aluminum sulfate as a primary coagulant to remove sediment from its drinking water supply; and WHEREAS, the City, as a municipality is using the Colorado Multiple Assembly of Procurement Officials (MAPO) which allows the City to take advantage of competitively bid and negotiated pricing for chemical purchases; and WHEREAS, Chemtrade Chemicals US LLC is providing the City with the pricing as set forth in the cooperative bid; and WHEREAS, the funds for the purchase of this chemical comes from the Utilities budget under line item 40-1605-52301, Bulk Chemicals; and WHEREAS, the cost of purchasing this chemical for the remainder of 2022 should not exceed $190,000.00. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The Englewood City Council hereby authorizes the purchase of Aluminum Sulfate for the Allen Water Treatment Plant from Chemtrade Chemicals US LLC, in lieu of the internal competitive bid process, in the amount of $190,000.00. Page 61 of 136 2/2 ADOPTED AND APPROVED this 4th day of January, 2022. Othoniel Sierra, Mayor ATTEST: __________________________________ Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution No. , Series of 2022. ______________________________ Stephanie Carlile Page 62 of 136 From:Brian Baladad To:Brenda Varner Subject:Re: Chemtrade 2022 Alum Pricing Letter (MAPO) Date:Monday, December 13, 2021 5:44:08 PM Attachments:image001.png Just forwarded his email but I can ask for an official letter. Get Outlook for iOS From: Brenda Varner <BVarner@Englewoodco.gov> Sent: Monday, December 13, 2021 4:40:40 PM To: Brian Baladad <BBaladad@englewoodco.gov> Subject: RE: Chemtrade 2022 Alum Pricing Letter (MAPO) Hmmmmmm….. we could use this for Alum. Do you have anything from DPC? Brenda J. Varner Business Support Specialist City of Englewood | Utilities Department englewoodco.gov | o: 303.762.2634 c: 303.598.3861 From: Brian Baladad Sent: Monday, December 13, 2021 4:23 PM To: Brenda Varner <BVarner@Englewoodco.gov> Subject: Fwd: Chemtrade 2022 Alum Pricing Letter (MAPO) Hey I thought I had sent this to Sierra but maybe not? Get Outlook for iOS From: Hire, Shawn <shire@chemtradelogistics.com> Sent: Tuesday, December 7, 2021 8:50:18 AM To: Brian Baladad <BBaladad@englewoodco.gov> Subject: RE: Chemtrade 2022 Alum Pricing Letter (MAPO) USE CAUTION: This email originated from outside of the organization. DO NOT CLICK LINKS or OPEN ATTACHMENTS unless you have verified the sender and know that the content is legitimate. Reviewing LAS pricing this week. Will get back to you ASAP. From: Brian Baladad [mailto:BBaladad@englewoodco.gov] Sent: Tuesday, December 7, 2021 9:44 AM To: Hire, Shawn <shire@chemtradelogistics.com> Subject: RE: Chemtrade 2022 Alum Pricing Letter (MAPO) Page 63 of 136 CAUTION: This email is from outside of Chemtrade. Do not click links or open attachments unless you recognize the sender's email address. For guidance on what to look for click here. Shawn Perfect. This should be enough info for me to get a PO going for next year. Would you happen to have any updates for LAS pricing? I have an older email but wanted to double- check on the pricing for that. Brian Baladad Allen Water Treatment Plant Supervisor City of Englewood | Utilities 1500 W. Layton Ave Englewood, CO 80110 englewoodco.gov | o: 303.783.6832 c: 303.947.4498 From: Hire, Shawn <shire@chemtradelogistics.com> Sent: Tuesday, December 7, 2021 8:25 AM To: Brian Baladad <BBaladad@englewoodco.gov>; Michelle Ratcliff (mratcliff@auroragov.org) <mratcliff@auroragov.org> Subject: RE: Chemtrade 2022 Alum Pricing Letter (MAPO) USE CAUTION: This email originated from outside of the organization. DO NOT CLICK LINKS or OPEN ATTACHMENTS unless you have verified the sender and know that the content is legitimate. Brian, Here is calculation based on 48.5% alum and lbs/gal of 11.25. These will vary slightly load to load. Current price is $396.67/dry ton, increasing $24.33.dry ton to $421/dry ton. $/dry ton / 2000lbs/ton = $/dry lb $/dry lb * 0.485 % alum = $/wet lb $/wet lb * 11.25lbs/gal = $/gal $396.67/2000*0.485*11.25= $1.08/gal $421/2000*0.485*11.25 = $1.145/gal Page 64 of 136 Let me know if you have any questions. Shawn From: Brian Baladad [mailto:BBaladad@englewoodco.gov] Sent: Tuesday, December 7, 2021 7:45 AM To: Hire, Shawn <shire@chemtradelogistics.com>; Michelle Ratcliff (mratcliff@auroragov.org) <mratcliff@auroragov.org> Subject: RE: Chemtrade 2022 Alum Pricing Letter (MAPO) CAUTION: This email is from outside of Chemtrade. Do not click links or open attachments unless you recognize the sender's email address. For guidance on what to look for click here. Shawn, Thanks for the numbers. My last invoice says I am paying $1.07790/ gal. I am trying to forecast my PO $$ amount. Can you translate how your increase would affect my price per gal? It looks like a healthy jump but I can not figure it out. Brian Baladad Allen Water Treatment Plant Supervisor City of Englewood | Utilities 1500 W. Layton Ave Englewood, CO 80110 englewoodco.gov | o: 303.783.6832 c: 303.947.4498 From: Hire, Shawn <shire@chemtradelogistics.com> Sent: Monday, November 29, 2021 10:46 AM To: Brian Baladad <BBaladad@englewoodco.gov>; Michelle Ratcliff (mratcliff@auroragov.org) <mratcliff@auroragov.org> Subject: Chemtrade 2022 Alum Pricing Letter (MAPO) USE CAUTION: This email originated from outside of the organization. DO NOT CLICK LINKS or OPEN ATTACHMENTS unless you have verified the sender and know that the content is legitimate. Brian, Please see attached 2022 Alum Pricing Letter and Raw Material Forecast PowerPoint explaining current market conditions. Call me with any questions. Page 65 of 136 Hope all is well. Best, Shawn Hire Senior Account Manager ChemTrade Logistics 816-518-2877 This e-mail (including any attachments) is for the sole use of the intended recipient and may contain confidential information which may be protected by privilege. If you are not the intended recipient, please notify the sender immediately, delete this e-mail and destroy any copies. E-mail transmission cannot be guaranteed to be secure or error-free and the sender cannot accept responsibility for any errors or omissions resulting from such transmission. Thank you. This e-mail (including any attachments) is for the sole use of the intended recipient and may contain confidential information which may be protected by privilege. If you are not the intended recipient, please notify the sender immediately, delete this e-mail and destroy any copies. E-mail transmission cannot be guaranteed to be secure or error-free and the sender cannot accept responsibility for any errors or omissions resulting from such transmission. Thank you. Page 66 of 136 Allen Water Treatment Plant2022 Bulk Chemical Purchases City Council, Regular Session Angela Goodman January 4, 2022 Page 67 of 136 AWTP 2022 Bulk Chemical Purchases Chemical (common name) Vendor Use Proposed 2022 PO Amount Sodium Hypochlorite (bleach) DPC Industries Disinfection $225,000 Sodium Hydroxide (caustic soda) DPC Industries pH adjustment $112,000 Aluminum Sulfate (alum) Chemtrade Chemicals Sediment removal $190,000 Page 68 of 136 Questions?Page 69 of 136 Thank you Page 70 of 136 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Angela Goodman DEPARTMENT: Utilities DATE: January 4, 2022 SUBJECT: 2022 Allen Water Treatment Plant Bulk Chemical Purchases for Sodium Hypochlorite 10% and Sodium Hydroxide 50% from DPC Industries, Inc. DESCRIPTION: The Allen Water Treatment Plant (AWTP) utilizes sodium hypochlorite for disinfection in the water treatment process, as mandated by the Colorado Department of Public Health and Environment (CDPHE) to process drinking water for public consumption. RECOMMENDATION: Utilities staff recommends City Council approve, by Resolution, the 2022 bulk chemical purchases for Sodium Hypochlorite 10% in the amount of $225,000 and Sodium Hydroxide 50% in the amount of $112,000 from DPC Industries, Inc. The Water and Sewer Board recommended council approve, by Resolution, the purchase of 2022 bulk chemicals at its December 14, 2021 meeting. PREVIOUS COUNCIL ACTION: • October 18, 2021 – City Council approval of the 2022 Utilities Department Budget. • April 5, 2021 – City Council approval of 2021 AWTP Bulk Chemical purchases. SUMMARY: The AWTP uses sodium hypochlorite 10%, or bleach, for disinfection in the water treatment process, as mandated by the CDPHE to produce drinking water for public consumption. The AWTP utilizes sodium hydroxide 50%, or caustic soda, to adjust the pH levels of the water ensuring it remains safe within the distribution system by mitigating harmful constituents, such as lead and copper, from leaching into the drinking water supply. ANALYSIS: Utilities staff purchases sodium hypochlorite 10% and sodium hydroxide 50% in bulk from DPC Industries, Inc. through a cooperative bid. In February 2021, Utilities staff joined Colorado’s Multiple Assembly of Procurement Officials (MAPO) program. This membership guarantees competitive pricing for the procurement of bulk chemicals. The cost for purchasing sodium hypochlorite 10% is $225,000, and the cost of purchasing sodium hydroxide 50% is $112,000, for a total cost of $337,000, as provided in the attached DPC Pricing Communication. Staff estimated 2022 quantities for these bulk chemical purchases based on 2021 actual usage. Page 71 of 136 CONCLUSION: Staff recommends Council approve a Resolution for 2022 bulk chemical purchases of sodium hypochlorite 10% and sodium hydroxide 50% from DPC Industries, Inc. for a total of $337,000. FINANCIAL IMPLICATIONS: Bulk Chemical purchases are included in the Utilities 2022 budget of $751,000. Staff estimates the total bulk chemical purchase for sodium hypochlorite and sodium hydroxide is $337,000, based on actual usage in 2021 of these two chemicals. Source of Funds Line Item Description Line Item Amount YTD Line Item Expensed Purchase Amount 40–1605–52301 Water Fund, O&M, Bulk Chemicals $751,000 $0 $337,000 CONNECTION TO STRATEGIC PLAN: This purchase connects to the City’s Strategic Plan goal of sustainability by providing its customers with safe drinking water. ATTACHMENTS: Resolution DPC Pricing Communication for 2022 PowerPoint Presentation Page 72 of 136 1/2 RESOLUTION NO. __ SERIES OF 2022 A RESOLUTION AWARDING AN OPTIMAL SOURCE CONTRACT TO DPC INDUSTRIES, INC. FOR THE PURCHASE OF SODIUM HYPOCHLORITE AND SODIUM HYDROXIDE WHEREAS, Section 116(b) of the Englewood Home Rule Charter, allow contracts for public works or improvements associated with capital improvements to be negotiated, provided that contracts for which no competitive bids have been requested are approved and accepted by Resolution setting forth the reason for the exception to the competitive bidding requirement; and WHEREAS, Section 4-1-3-1 of the Englewood Municipal Code 2000 allows for the purchase of materials, equipment, machinery or devices without competitive bids where the standardization of such materials and equipment is necessary to ensure the proper functioning of existing equipment, machinery or devices and/or to prevent the duplication of existing equipment; and WHEREAS, the Allen Water Treatment Plant utilizes Sodium Hypochlorite as a primary water disinfectant during the water treatment process, and acts as an oxidizing agent for organics, and its use is mandated by the Colorado Department of Public Health and Environment; and WHEREAS, the Allen Water Treatment Plant utilizes Sodium Hydroxide, to adjust the pH levels of treated water to maintain the pH which in turn assists in ensuring that drinking water remain safe within the distribution system by mitigating harmful constituents, such as lead and copper, from leaching into the drinking water supply; and WHEREAS, the City, as a municipality is using the Colorado Multiple Assembly of Procurement Officials (MAPO) which allows the City to take advantage of competitively bid and negotiated pricing for chemical purchases; and WHEREAS, DPC Industries, Inc. is providing the City with the pricing as set forth in the cooperative bid; and WHEREAS, the cost for purchasing Sodium Hypochlorite is $225,000.00 and the cost for purchasing Sodium Hydroxide is $112,000.00, for a total cost of $337,000.00; and WHEREAS, the funds for the purchase of these chemicals come from the Utilities budget under line item 40-1605-52301, Bulk Chemicals; and WHEREAS, the cost of purchasing these chemicals for the remainder of 2022 should not exceed $337,000.00. Page 73 of 136 2/2 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The Englewood City Council hereby authorizes the purchase of Sodium Hypochlorite and Sodium Hydroxide for the Allen Water Treatment Plant from DPC Industries, Inc, in lieu of the internal competitive bid process, in an amount of $337,000.00. ADOPTED AND APPROVED this 4th day of January, 2022. Othoniel Sierra, Mayor ATTEST: __________________________________ Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution No. Series of 2022. ______________________________ Stephanie Carlile Page 74 of 136 From:Brian Baladad To:Brenda Varner Subject:Fwd: [EXTERNAL] Pricing for next year Date:Monday, December 13, 2021 5:29:22 PM Attachments:image001.png Get Outlook for iOS From: Galyon, Tony <tgalyon@dxgroup.com> Sent: Thursday, December 9, 2021 9:37:37 AM To: Brian Baladad <BBaladad@englewoodco.gov> Subject: RE: [EXTERNAL] Pricing for next year USE CAUTION: This email originated from outside of the organization. DO NOT CLICK LINKS or OPEN ATTACHMENTS unless you have verified the sender and know that the content is legitimate. Brian, 10% bulk sodium hypochlorite, $1.81 per gallon Effective January 1, 2022 thru March 31, 2022 50% bulk sodium hydroxide, $3.37 per gallon Effective November 1, 2021 thru January 31, 2022 Updated caustic pricing should come first week in January. Call me if you have any questions. Happy Holidays! From: Brian Baladad <BBaladad@englewoodco.gov> Sent: Thursday, December 2, 2021 11:13 AM To: Galyon, Tony <tgalyon@dxgroup.com> Subject: [EXTERNAL] Pricing for next year [Be careful this message is not coming from the DX email servers] Tony, Sir I am getting PO memos set for next year. I did see the email about the price increase for bleach for next year. Can you shoot me some numbers for bleach and caustic if you have them for next year? I really want my PO’s set as early as possible. Thanks Tony. Page 75 of 136 Brian Baladad Allen Water Treatment Plant Supervisor City of Englewood | Utilities 1500 W. Layton Ave Englewood, CO 80110 englewoodco.gov | o: 303.783.6832 c: 303.947.4498 Page 76 of 136 Allen Water Treatment Plant2022 Bulk Chemical Purchases City Council, Regular Session Angela Goodman January 4, 2022 Page 77 of 136 AWTP 2022 Bulk Chemical Purchases Chemical (common name) Vendor Use Proposed 2022 PO Amount Sodium Hypochlorite (bleach) DPC Industries Disinfection $225,000 Sodium Hydroxide (caustic soda) DPC Industries pH adjustment $112,000 Aluminum Sulfate (alum) Chemtrade Chemicals Sediment removal $190,000 Page 78 of 136 Questions?Page 79 of 136 Thank you Page 80 of 136 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: January 4, 2022 SUBJECT: CB 01 - Approve a Bill for an Ordinance amending Municipal Code regarding Trespass, Ejectment, and Exclusion from City Property DESCRIPTION: CB 01 - Recent case law has called into question the enforceability of the City's former practice in removing persons from City property for rules violations, safety concerns, and legal violations. The proposed bill for an ordinance was carefully drafted to modify municipal code to provide a legally-sound, enforceable method to remove and exclude people from City property, while still protecting their due process rights. RECOMMENDATION: Approve a bill for an ordinance amending the City's ejectment, exclusion and trespass procedures. PREVIOUS COUNCIL ACTION: In 1985, City Council adopted the Trespass and Park Ejectment Municipal Code Sections 7-6F- 2 and 11-4-3, and they have not been revised since, according to the legislative history contained within MuniCode. SUMMARY: A recent trend in case law in the Nation, analyzing the constitutionality of municipal ordinances in other cities and towns on ejectment, exclusion and trespass, has indicated the need for revision of Englewood's Trespass and Park Ejectment Municipal Code Sections 7-6F-2 and 11- 4-3. The proposed ordinance has been carefully drafted based on extensive legal research, analysis, and input provided from City staff to provide for a legally-sound method to remove and exclude people from City property, including but not limited to City parks, for rule violations and legal violations, while also providing a robust appeals procedure protective of due process rights. ANALYSIS: The proposed ordinance provides for several potential responses for people committing rule violations or legal violations, including verbal warnings, ejectment from City property for 24 hours, or exclusion from City property for limited lengths of time. The proposed ordinance also provides a comprehensive appeals procedure, in addition to permitting requests for modification of exclusions if no appeal is pending and facts or circumstances change, to ensure thorough protection of due process rights and address potential issues raised in recent court decisions. CONCLUSION: Page 81 of 136 A revision of Englewood's current Trespass and Park Ejectment Municipal Code Sections 7-6F- 2 and 11-4-3 is warranted based on recent case law analyzing similar ordinances in other municipalities. The proposed ordinances have been carefully drafted based on extensive legal research and analysis to ensure the safety of the public and City employees through a legally- sound, enforceable method, while correspondingly protecting due process rights of persons subject to the responses permitted in the ordinance. FINANCIAL IMPLICATIONS: Should someone ejected or excluded from City property appeal the decision, the City will be required to pay for the services of an administrative hearing officer to consider the propriety of the City's action. CONNECTION TO STRATEGIC PLAN: Safety: this agenda item is intended to ensure the safety of the public and City employees. OUTREACH/COMMUNICATIONS: The City Attorney's Office met with stakeholders, including the City Prosecutor, library employees, and public safety staff to ensure the proposed legislation meets their goals while remaining legally enforceable. ATTACHMENTS: Council Bill #01 Powerpoint Page 82 of 136 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 01 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER _________________ A BILL FOR AN ORDINANCE AMENDING TITLE 7, CHAPTER 6, ARTICLE F, SECTION 7-6F-2 AND TITLE 11, CHAPTER 4, SECTION 11-4-3 OF ENGLEWOOD MUNICIPAL CODE REGARDING TRESPASS, EJECTION, AND EXCLUSION FROM CITY PROPERTY, TO ENSURE COMPLIANCE WITH APPLICABLE LAW. WHEREAS, to provide for a safe environment and to ensure compliance with rules and regulations governing behavior, conduct, or activities, Ejections and Exclusions from City Property are authorized by Englewood Municipal Code (“EMC”); and WHEREAS, EMC Section 11-4-3 applies to violations of rules and regulations regarding City property; and WHEREAS, EMC Section 11-4-3 currently authorizes removal of a person from City property under certain circumstances; and WHEREAS, EMC Section 7-6F-2 applies to the criminal conduct of unlawfully trespassing onto another’s property; and WHEREAS, violation of EMC Section 11-4-3 can form the basis for a trespass prosecution under EMC Section 7-6F-2; and WHEREAS, in order to ensure due process rights, protect the safety and welfare of Englewood citizens and employees while on City property, and provide a basis for a lawful prosecution under EMC Section 11-4-3, the City desires to amend these EMC sections to provide clear and legally-compliant procedures to lawfully remove persons from City property, yet still provide them with an avenue to challenge the removal. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Amendment of Englewood Municipal Code Title 7, Chapter 6, Article F, Section 7-6F-2 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 7-6F-2: - Trespass. A. A person commits the crime of trespass if such person: 1. Unlawfully enters or remains in or upon the premises of another which are enclosed in a manner designed to exclude intruders or are fenced; or Page 83 of 136 2 2. Knowingly and unlawfully enters or remains in or upon the common areas of a hotel, motel, condominium, or apartment building; or 3. Knowingly and unlawfully enters or remains in a motor vehicle of another; or 4. It shall be unlawful for any person to enter or remain upon the lands or property of another Unlawfully enters or remains in or upon premises of another, including common areas, knowing the consent to enter or remain is absent, denied or withdrawn by the owner, occupant, or person having lawful control possession thereof., or any agent of such owner or possessor; provided, that this Section shall not apply to any reasonable entry seeking information or emergency shelter. B. It shall be unlawful for any person to enter or remain upon the lands, property or vehicle parking areas owned, operated or controlled by any other person, business or merchant when the activity thereat is closed, not operating, nor serving the public and consent to enter or remain upon such lands, property or vehicle parking areas has been denied or withdrawn by a person having authority to do so. B. “Premises” means real property, buildings and other improvements thereon, City Property as defined by Englewood Municipal Code (EMC) Section 11-4-3(B)(2), and the stream banks and beds of any non-navigable fresh water streams flowing through such real property. C. The following shall constitute prima facie evidence that consent to enter or remain is absent, has been denied or withdrawn: 1. Notice posted in the window of the businesses', merchant's or person's building or otherwise upon the property is prima facie evidence that consent to enter or remain is absent and has been denied or withdrawn; or 2. When a person fails or refuses to remove himself or herself from said premises when requested to leave by the owner, occupant, or person having lawful control thereof; or 3. Issuance of an Ejection or Exclusion under EMC Section 11-4-3. Section 2. Amendment of Englewood Municipal Code The title of Chapter 4 of Title 11, Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): Chapter 4 – Parks and City-Owned Property Page 84 of 136 3 Section 3. Amendment of Englewood Municipal Code Title 11, Chapter 4, Section 11-4-3 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 11-4-3: - Violation of Rules and Regulations, Ejection and Exclusion from City Property. A. It shall be unlawful for any person to commit a Rule Violation, violate any provision of an Ejection or Exclusion, or fail or refuse to obey any other lawful order or rules, and regulations, of an Authorized Official the City Manager, or designee or the instructions of any sign posted by him on City Property, unless otherwise directed by a police officer. B. Should any person fail to observe and obey any such rules or regulations of the City, the City Manager, or designee, may immediately remove any such person and may ban such person from the use of any park and its facilities for such period of time as may be necessary to secure compliance with such rules, regulations and posted signs. C. Any person removed or banned from use of the park or recreation facilities may, within five (5) days from the date of the City Manager's or designee's action, appeal the City Manager's or designee's actions to the City Council by filing with the City Clerk an appeal in writing, setting forth the basis of such appeal. The City Council shall, at the next regularly scheduled Council meeting, or as soon as is reasonably possible thereafter, sustain or overrule the City Manager's or designee's actions, which decision shall be final. The following definitions apply to this Section: 1. Authorized Official: The City Manager or their designee(s); any staff supervisor, staff manager, or department director for the City, or their designee(s); and any Englewood Police Officer or Park Ranger. 2. City Property: any location in any outdoor or indoor area and/or structure (or any portion thereof) owned, controlled, or otherwise operated by the City of Englewood, including City-owned or operated parks, open spaces, recreation facilities, real property, and libraries. 3. Ejection: an order directing a person to immediately leave City Property where the Rule Violation occurred and not to return thereto for 24 hours. 4. Exclusion: an order prohibiting a person from entering or remaining on City Property where the Rule Violation occurred for a specified period of time. 5. Rule: federal, state, or local law; or any ordinance, resolution, rule, regulation, signage, code of conduct, or standard of behavior issued by City Council, the City Manager, or authorized designees, applicable to City Property and the users thereof. 6. Rule Violation: behavior, conduct, or activity that occurs within or is related to the use of City Property and that violates a Rule. C. An Authorized Official may issue an Ejection and/or Exclusion to any person if it is more likely than not that the person committed a Rule Violation based upon credible evidence, including but not limited to, a witness observation. Pursuant to administrative guidelines issued Page 85 of 136 4 by the City Manager or their designee(s), the Authorized Official shall utilize discretion in determining whether to issue an Ejection and/or Exclusion, as required to provide for a safe environment and to ensure compliance with a Rule. D. Oral Warning. 1. An Authorized Official shall attempt to issue an oral warning providing a reasonable opportunity to cease a Rule Violation prior to issuance of an Ejection and/or Exclusion, unless the Rule Violation is: a. A felony or misdemeanor offense under federal, Colorado or municipal law; or b. Dangerous or threatening behavior, such that a reasonable person could believe they are in imminent danger of physical harm even absent actual resulting bodily injury. 2. Failure to receive and/or understand an oral warning is not a basis to challenge an Ejection or Exclusion. E. Issuance of Ejection. An Ejection may be verbal or in writing, and is effective immediately for 24 consecutive hours at the location where the Rule Violation was committed. F. Issuance of Exclusion. An Exclusion must be in writing, and is effective four (4) days after issuance, unless notice of appeal is timely filed. The Exclusion shall be signed by an Authorized Official, valid even if service is refused, and include: 1. The date of issuance; 2. The term, not exceeding ninety (90) days, to secure compliance with the applicable Rule(s), except if the person received a prior Exclusion from any City Property for any reason: a. Within three (3) years, then the term shall be up to one hundred twenty (120) days; or b. On two (2) or more occasions within three (3) years, then the term shall be up to one hundred eighty (180) days. c. For purposes of determining whether a prior Exclusion was received, if the person is issued an Exclusion while a previous Exclusion is stayed pending appeal, the stayed Exclusion shall be counted as a prior Exclusion unless the appealed Exclusion is reversed. 3. The location of the Exclusion (where the Rule Violation occurred, except the person may enter as necessary to conduct legitimate City business); 4. Identification of the specific Rule violated; 5. A brief statement of credible evidence of the Rule Violation; 6. Notification of the right and process to appeal the Exclusion; and 7. The consequences for failure to comply with the Exclusion. G. Appeal from Exclusion. Any person issued an Exclusion may file a written notice of appeal with the City Clerk within four (4) days from the date of issuance, unless an extension is granted for good cause by the City Manager prior to the filing deadline. The Exclusion shall be stayed until resolution of the appeal. Page 86 of 136 5 1. The notice of appeal shall be invalid if not timely filed or fails to contain a valid method for appellant’s receipt of the notice of hearing and Hearing Officer’s final decision (such as a valid mailing address, email address, and/or that appellant will obtain the documents in person at the City Clerk’s Office). 2. If notice of appeal is valid, the City Manager shall designate a Hearing Officer within three (3) days to preside over a hearing on appeal. a. The Hearing Officer shall schedule a hearing on the notice of appeal within ten (10) days thereafter. b. No later than three (3) days after scheduling, notice of the hearing shall be available for pick-up at the City Clerk’s Office and sent to the appellant, if an address was provided on the notice of appeal. c. The appellant shall be deemed to have received the notice of hearing as of the date of mailing or availability at the City Clerk’s Office, regardless of whether the notice was actually received. 3. Continuances. The Hearing Officer may continue the hearing for good cause, for up to ten (10) days from the date of the hearing, upon request of either the appellant or the City. a. Requests for a continuance may be made in writing and delivered to the City Clerk prior to the scheduled hearing date, or verbally at the beginning of the hearing. b. The Hearing Officer has sole discretion to grant or deny a request for continuance. 4. Hearing Procedure. The Hearing Officer may conduct an informal hearing and shall not be bound by judicial rules of evidence or procedure, except that all testimony shall be under oath or solemn statement administered by the Hearing Officer. a. Both parties may present evidence, call witnesses, and cross-examine witnesses called by the other party. b. The Hearing Officer shall have authority to determine admissibility of evidence and testimony based on credibility, relevance, and probative value regarding the issues involved. c. The City has the burden of proof to show, by a preponderance of the evidence, that the person issued the Exclusion committed the Rule Violation, and that the issuance, duration, and conditions of the Exclusion are lawful. d. The hearing shall be recorded, and transcripts may be made at the expense of the requestor. e. Should the appellant fail to appear for the hearing, either in person or through legal counsel, the Exclusion shall be affirmed based on failure to prosecute the appeal. f. Within three (3) days after conclusion of the hearing, the Hearing Officer shall issue a written decision affirming, modifying, or reversing the Exclusion, and the grounds supporting this decision. i. The Hearing Officer shall affirm the Exclusion if the preponderance of evidence shows the appellant more likely than not committed the Rule Violation, and that the Exclusion complies with applicable law. ii. If the Hearing Officer modifies the Exclusion, the decision shall specify any changes or conditions to the Exclusion. Page 87 of 136 6 iii. The City Clerk shall promptly send copies of the Hearing Officer’s written decision to the appellant and to the City Manager, and make a copy available for pick-up in person at the City Clerk’s Office by the appellant. iv. The Hearing Officer’s written decision shall be effective upon sending a copy to the appellant at the address within the notice of appeal (if any) and making a copy available for in-person. If affirmed, the full length of Exclusion shall be effective on this date. v. If multiple Exclusions issued to a single person are simultaneously stayed pending appeal, the effective periods of those which are affirmed (or partially affirmed) shall run consecutively, not concurrently. 5. The Hearing Officer’s written decision shall be considered a final, binding decision, which shall be subject to judicial review and appeal. a. The Hearing Officer’s written decision, and any resulting Exclusion, shall not be automatically stayed by filing a judicial appeal. 6. All evidence presented at the hearing shall be preserved for the longer of: lapse of any applicable appeal period or resolution of a judicial appeal. H. Modification of Exclusion. If no appeal is pending, and facts or circumstances change such that the person issued an Exclusion is unlikely to violate a Rule or pose a safety threat on City Property, the person may file a written request to modify the Exclusion with the City Clerk. 1. The written request to modify must specify good reason for the modification to establish a Rule Violation during the Exclusion period is unlikely, and identify the modification desired. 2. The City Manager or designee shall consider the seriousness of the Rule Violation, prior Rule Violations, the nature and scope of disruption to City operations due to the Rule Violations, the person’s need to access the place of exclusion, likelihood of additional Rule Violations during the Exclusion period, safety concerns to affected employees and the public should the Exclusion be modified, and any other criteria the City Manager or designee determines to be relevant to the request for modification. 3. The City Manager or designee has the sole discretion to grant or deny a request for modification of an Exclusion, in whole or in part. Nothing herein requires granting a request for modification. 4. Within seven (7) days of filing the request for modification, the City Manager or designee shall issue a written decision on the request. The City Clerk shall mail the written decision to the requestor at the address on the request (if any), and make the decision available for in-person pickup at the City Clerk’s Office. I. In addition to the penalties provided above and under other applicable law, and unless otherwise directed by a police officer, failure or refusal to obey the provisions of a Rule, Exclusion, Ejection, or Hearing Officer written decision shall subject that person to the penalties provided in Englewood Municipal Code Section 1-4-1. Page 88 of 136 7 J. Nothing in this Section shall be construed to authorize Ejection or Exclusion of a person lawfully exercising their rights protected by the Colorado or United States Constitutions, unless that person commits an act that is not protected. Section 4. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. Introduced, read in full, and passed on first reading on the 4th day of January, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 6th day of January, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 5th day of January, 2022 for thirty (30) days. Othoniel Sierra, Mayor Page 89 of 136 8 ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Bill for an Ordinance introduced, read in full, and passed on first reading on the 4th day of January, 2022. Stephanie Carlile Page 90 of 136 Proposed Ordinance Amending The City’s Trespass, Ejectment, and Exclusion Procedures from City Property Tamara Niles City Attorney Kaitlin Parker Assistant City AttorneyPage 91 of 136 In 1985, City Council adopted the Trespass and Park Ejectment Municipal Code Sections 7-6F-2 and 11-4-3, and they have not been revised since, according to the legislative history contained within MuniCode. Recent persuasive case law has called into question the enforceability of the City's former practice for removing persons from City property for rule violations, safety concerns, and legal violations. Specifically, recent court decisions in the Nation, analyzing the constitutionality of municipal ordinances in other cities and towns on ejectment, exclusion and trespass, has indicated the need for revision of Englewood's Trespass and Park Ejectment Municipal Code Sections 7-6F-2 and 11-4-3.See, e.g., The City and County of Denver v. Troy Daniel Holm, No. 2017CV31066 (District Court, City and County of Denver, Oct. 25, 2017) & Yeakle v. City of Portland, 322 F.Supp.2d 1119 (D. Or. 2004). Background Page 92 of 136 The proposed ordinance has been carefully drafted based on extensive legal research, analysis, and input provided from City staff to ensure the safety of the public and City employees through a legally-sound, enforceable method to remove and exclude people from City property for rule violations and legal violations, while providing a robust appeals procedure protective of due process rights. The proposed ordinance would provide due process rights, protect the safety and welfare of Englewood citizens and employees while on City property, and provide a basis for a lawful prosecution under Section 7-6F-2, by amending Sections 11-4-3 and 7-6F-2 to provide clear and legally-compliant procedures to lawfully remove persons from City property while providing them with an avenue to challenge the removal. Proposed Ordinance Page 93 of 136 Englewood Municipal Code Section 7-6F-2 applies to the criminal conduct of unlawfully trespassing onto another’s property. The proposed amendment of Section 7-6F-2 would expressly indicate that violation of Section 11-4-3 can form the basis for a trespass prosecution under Section 7-6F-2. Proposed Amendment of Section 7-6F-2 Page 94 of 136 Englewood Municipal Code Section 11-4-3 applies to violations of rules and regulations, and currently authorizes removal of a person from City property under certain circumstances. The proposed amended Englewood Municipal Code Section 11-4-3 would provide that: -a person who commits a rule violation or legal violation may receive a verbal warning, ejectment from City property for 24 hours, and/or exclusion from City property for a limited length of time; and, -pursuant to administrative guidelines, Authorized Officials shall utilize discretion in determining whether to issue an Ejection and/or Exclusion. Proposed Amendment of Section 11-4-3 Page 95 of 136 The proposed amended Englewood Municipal Code Section 11-4-3 would provide for a comprehensive appeals procedure protective of due process rights, including by: -providing for an Exclusion from City Property to go into effect 4 days after issuance, unless timely and properly appealed; -providing for an Exclusion from City Property to be stayed, if timely and properly appealed, until resolution of the appeal; and, -permitting a person issued an Exclusion to file a written request to modify the Exclusion if no appeal is pending and facts or circumstances change. Proposed Amendment of Section 11-4-3 –Continued:Page 96 of 136 QUESTIONS?Page 97 of 136 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Carrie Evenson DEPARTMENT: Public Works DATE: January 4, 2022 SUBJECT: CB 03 – Approval of a Council Bill regarding an Intergovernmental Agreement with the Mile High Flood District for the Design, Right- of-Way Acquisition, and Construction of Drainage and Flood Control Facilities in the South Englewood Basin DESCRIPTION: CB 03 - Council approval of a Council Bill regarding an Intergovernmental Agreement between Mile High Flood District (MHFD) and the City of Englewood for the design, right-of-way acquisition, and construction of drainage and flood control facilities in the South Englewood Basin in the amount of $825,000.00 to access matching funds in the amount of $825,000.00 provided by MHFD. RECOMMENDATION: Staff recommends City Council approve an Intergovernmental Agreement (IGA) between the Mile High Flood District (MHFD) and the City of Englewood for the design, right-of-way acquisition, and construction of drainage and flood control facilities in the South Englewood Basin in the amount of $825,000.00 to access matching funds in the amount of $825,000.00 provided by MHFD. PREVIOUS COUNCIL ACTION: CB #20 (June 1, 2020) - City Council approved an IGA with MHFD to update the City’s Major Drainageway Plan (MDP) citywide. The results of the updated MDP study will be used by MHFD and the city to prioritize future stormwater project phasing in the South Englewood Basin and elsewhere throughout all drainage basins within the city. SUMMARY: The proposed IGA between MHFD and the City of Englewood is for the design and construction of drainage and flood control facilities in the South Englewood Basin. A specific project location has not yet been selected. Final project selection will be based on the results of the City’s MDP once it has been completed. The planning, design and construction of this work will be managed by MHFD on Englewood's behalf if a project not already being managed by the City of Englewood is selected. City staff will provide project oversight and guidance. ANALYSIS: MHFD and the City are currently in the process of completing a citywide MDP & Flood Hazard Area Delineation (FHAD) for all local drainage basins that originate within city limits. The Citywide MDP is the drainageway master plan document that MHFD uses to prioritize and allocate funding for storm drainage improvement projects to the City of Englewood. Having an updated document not only provides more detailed information and prioritization of future storm Page 98 of 136 drainage projects but also makes the City of Englewood eligible for MHFD funding for the improvements recommended in the report. The South Englewood Basin has been identified as the highest priority basin in the Stormwater Master Plan and other studies undertaken by the City of Englewood. While the South Englewood Flood Reduction Project (also known as S1 and S2) and the South Acoma Drainage Improvement Project (also known as S3 and S4) are currently underway in varying phases of design and/or construction, other improvements may also be needed to address flooding in this area. The Citywide MDP will allow the City to make informed decisions regarding future drainage improvements in the South Englewood Basin, and this IGA will allow the City of Englewood and MHFD to share costs for drainage and flood control improvements in the South Englewood Basin at a reduced cost to the City and at a much faster rate than otherwise anticipated. This funding can be used for any project recommended by the Citywide MDP in the South Englewood Basin. If an appropriate project is not identified in the South Englewood Basin or does not require the entire allocated amount, these funds can be reallocated to another drainage improvement project in another drainage basin within the City of Englewood. CONCLUSION: Staff recommends City Council approve an Ordinance for the IGA with MHFD to obtain $825,000.00 in matching funds for design, right-of-way acquisition, and construction of drainage and flood control facilities in the South Englewood Basin. FINANCIAL IMPLICATIONS: The total project funding is $1,650,000.00 for design and construction of the drainage and flood control improvements. Funding Source: Contribution: Mile High Flood District (MHFD) $825,000.00 City of Englewood $825,000.00 The City of Englewood portion of the cost is proposed to be funded from the Storm Drainage Fund, Fund 42, G/L Account Number 42-1607-61201, Other Improvements, which has sufficient budget to pay for the City’s share of the cost as shown on the attached Contract Approval Summary document. CONNECTION TO STRATEGIC PLAN: Strategic Outcome: Safety A city that protects its people, infrastructure and built environment. • Build, maintain, replace, and fund a quality storm drainage system • Provide community resiliency against human-made and natural disasters Strategic Outcome: Sustainability A city that protects its natural environment • Stormwater quality • Consider long-term sustainability in infrastructure Page 99 of 136 OUTREACH/COMMUNICATIONS: MHFD and the City will jointly conduct public outreach as necessary during design and construction of the selected project. ATTACHMENTS: Council Bill #03 Intergovernmental Agreement Contract Approval Summary Page 100 of 136 1 BY AUTHORITY ORDINANCE NO. __ COUNCIL BILL NO. 03 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER _______________ A BILL FOR AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT (IGA) REGARDING FINAL DESIGN, RIGHT-OF- WAY ACQUISITION, AND CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR SOUTH ENGLEWOOD BASIN BETWEEN THE URBAN DRAINAGE AND FLOOD CONTROL DISTRICT AND THE CITY OF ENGLEWOOD. WHEREAS, Urban Drainage and Flood Control District d/b/a Mile High Flood District (“District”) expressed an intent to assist public bodies which have heretofore enacted floodplain zoning measures in Resolution No. 14, Series of 1970, and Resolution 11, Series 1973; WHEREAS, District and the City (collectively the “Parties”) are cooperating in the ongoing preparation of “City of Englewood Major Drainage Plan” by Dewberry Engineers (“Plan”); WHEREAS, the Parties now desire to proceed with the design, right-of-way acquisition, and construction of drainage and flood control improvement for South Englewood Basin, City of Englewood (“Project”); WHEREAS, District has adopted at a public hearing a Five-Year Capital Improvement Program (Resolution No. 67, Series of 2020) for drainage and flood control facilities in which the Project was included in the 2021 calendar year; WHEREAS, District has heretofore adopted a Special Revenue Fund Budget for calendar year 2021 subsequent to public hearing (Resolution No. 64, Series of 2020) which includes funds for the Project; and WHEREAS, District’s Board of Directors has authorized District financial participation for the Project (Resolution No.69, Series of 2021 and Resolution No. 97 Series of 2021); WHEREAS, the cost of the Project is not to exceed $1,650,000 dollars with each Parties’ share being $825,000 dollars; WHEREAS, the City Council of the City of Englewood and the Board of Directors of the District have authorized by appropriation or resolution, all of Project costs of the respective Parties. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Page 101 of 136 2 Section 1. The City Council of Englewood, Colorado, hereby approves the Intergovernmental Agreement Regarding Final Design, Right-of-Way Acquisition, and Construction of Drainage and Flood Control Improvements for South Englewood Basin, City of Englewood – Agreement No. 21-10-08, Project No. 108702, between the Urban Drainage and Flood Control District and the City of Englewood, a copy of which is attached hereto as Exhibit 1. Section 2. The Mayor and City Clerk are hereby authorized to sign and attest, the Intergovernmental Agreement Regarding Final Design, Right-of-Way Acquisition, and Construction of Drainage and Flood Control Improvements for South Englewood Basin, City of Englewood, for and on behalf of the City Council of the City of Englewood, Colorado. Introduced, read in full, and passed on first reading on the 4th day of January, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 6th day of January, 2022 Published as a Bill for an Ordinance on the City’s official website beginning on the 5th day of January, 2022 for thirty (30) days. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of a Bill for an Ordinance, introduced, read in full, and passed on first reading on the 4th day of January, 2022. Stephanie Carlile Page 102 of 136 06/21 21-10.08 1 AGREEMENT REGARDING FINAL DESIGN, RIGHT-OF-WAY ACQUISITION, AND CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR SOUTH ENGLEWOOD BASIN CITY OF ENGLEWOOD Agreement No. 21-10-08 Project No. 108702 THIS AGREEMENT, by and between URBAN DRAINAGE AND FLOOD CONTROL DISTRICT D/B/A MILE HIGH FLOOD DISTRICT (hereinafter called "DISTRICT") and CITY OF ENGLEWOOD (hereinafter called "CITY") and collectively known as "PARTIES"; WITNESSETH: WHEREAS, DISTRICT, in a policy statement previously adopted (Resolution No. 14, Series of 1970 and Resolution No. 11, Series of 1973) expressed an intent to assist public bodies which have heretofore enacted floodplain regulation measures; and WHEREAS, PARTIES are cooperating in the ongoing preparation of "City of Englewood Major Drainageway Plan " by Dewberry Engineers (hereinafter called "PLAN"); and WHEREAS, PARTIES now desire to proceed with the design, right-of-way acquisition and construction of drainage and flood control improvements for South Englewood Basin, City of Englewood (hereinafter called "PROJECT"); and WHEREAS, DISTRICT has adopted at a public hearing a Five-Year Capital Improvement Program (Resolution No. 67, Series of 2020) for drainage and flood control facilities in which PROJECT was included in the 2021 calendar year; and WHEREAS, DISTRICT has heretofore adopted a Special Revenue Fund Budget for calendar year 2021 subsequent to public hearing (Resolution No. 64, Series of 2020) which includes funds for PROJECT; and WHEREAS, DISTRICT's Board of Directors has authorized DISTRICT financial participation for PROJECT (Resolution No.69, Series of 2021 and Resolution No. 97, Series of 2021); and WHEREAS, the City Council of CITY and the Board of Directors of DISTRICT have authorized, by appropriation or resolution, all of PROJECT costs of the respective PARTIES. NOW, THEREFORE, in consideration of the mutual promises contained herein, PARTIES hereto agree as follows: 1. SCOPE OF THIS AGREEMENT This Agreement defines the responsibilities and financial commitments of PARTIES with respect to PROJECT. 2. SCOPE OF PROJECT A. Final Design. PROJECT shall include the final design of improvements in accordance with the recommendations defined in PLAN. Specifically, the final design of facilities shall extend at the South Englewood Basin from approximately Santa Fe Road to Clarkson, as shown on Exhibit A. Page 103 of 136 06/21 21-10.08 2 B. Right-of-Way Delineation and Acquisition. Right-of-way for the improvements as set forth in the final design and an estimate of costs for acquisition shall be determined. Maps, parcel descriptions, and parcel plats shall also be prepared. C. Construction. PROJECT shall include construction by DISTRICT of the drainage and flood control improvements as set forth in the final design and vegetation establishment. 3. PUBLIC NECESSITY PARTIES agree that the work performed pursuant to this Agreement is necessary for the health, safety, comfort, convenience, and welfare of all the people of the State, and is of particular benefit to the inhabitants of PARTIES and to their property therein. 4. PROJECT COSTS AND ALLOCATION OF COSTS A. PARTIES agree that for the purposes of this Agreement PROJECT costs shall consist of and be limited to the following: 1. Final design services; 2. Delineation, description and acquisition of required rights-of-way/easements; 3. Construction of improvements; 4. Contingencies mutually agreeable to PARTIES. B. It is understood that PROJECT costs as defined above are not to exceed $1,650,000 without amendment to this Agreement. PROJECT costs for the various elements of the effort are estimated as follows: ITEM AMOUNT 1. Final Design $ 200,000 2. Right-of-way $ -0- 3. Construction $ 1,450,000 4. Contingency $ -0- Grand Total $ 1,650,000 This breakdown of costs is for estimating purposes only. Costs may vary between the various elements of the effort without amendment to this Agreement provided the total expenditures do not exceed the maximum contribution by all PARTIES plus accrued interest, if applicable. C. Based on total PROJECT costs, the maximum percent and dollar contribution by each party shall be: Percentage Maximum Share Contribution DISTRICT 50% $ 825,000 CITY 50% $ 825,000 TOTAL 100.00% $1,650,000 Page 104 of 136 06/21 21-10.08 3 5. MANAGEMENT OF FINANCES As set forth in DISTRICT policy (Resolution No. 11, Series of 1973, Resolution No. 49, Series of 1977, and Resolution No. 37, Series of 2009), the funding of a local body's one-half share may come from its own revenue sources or from funds received from state, federal, or other sources of funding without limitation and without prior DISTRICT approval. Payment of each party's full share (CITY - $825,000; DISTRICT - $825,000) shall be made to DISTRICT subsequent to execution of this Agreement and within 30 days of request for payment by DISTRICT. The payments by PARTIES shall be held by DISTRICT in a special fund to pay for increments of PROJECT as authorized by PARTIES, and as defined herein. DISTRICT shall provide a periodic accounting of PROJECT funds as well as a periodic notification to CITY of any unpaid obligations. Any interest earned by the monies contributed by PARTIES shall be accrued to the special fund established by DISTRICT for PROJECT and such interest shall be used only for PROJECT upon approval by the contracting officers (Paragraph 13). Within one year of completion of PROJECT if there are monies including interest earned remaining which are not committed, obligated, or disbursed, each party shall receive a share of such monies, which shares shall be computed as were the original shares; or, at CITY request, CITY share of remaining monies shall be transferred to another special fund held by DISTRICT. 6. FINAL DESIGN The contracting officers for PARTIES, as defined under Paragraph 13 of this Agreement, shall select an engineer mutually agreeable to both PARTIES. DISTRICT shall contract with selected engineer and shall supervise and coordinate the final design including right-of-way delineation subject to approval of the contracting officer for CITY. Payment for final design services shall be made by DISTRICT as the work progresses from the PROJECT fund established as set forth above. Final design services shall consist of, but not be limited to, the following: A. Preparation of a work plan schedule identifying the timing of major elements in the design; B. Delineation of required right-of-way/easements; C. Preparation of detailed construction plans and specifications; D. Preparation of an estimate of probable construction costs of the work covered by the plans and specifications; E. Preparation of an appropriate construction schedule. DISTRICT shall provide any written work product by the engineer to CITY. 7. RIGHT-OF-WAY CITY, with DISTRICT assistance, shall be responsible for acquiring, subject to approval of DISTRICT, such land or interests in land needed to implement construction of the drainage and flood control improvements as defined herein. The cost to be shared by PARTIES for right-of-way acquisition may include relocation costs of existing occupants. Appraisal costs and costs associated with condemnation (including outside legal costs) will also be considered a PROJECT Page 105 of 136 06/21 21-10.08 4 cost. Right-of-way acquisition by negotiation and / or the exercise of eminent domain shall be in full compliance with the laws of the State of Colorado. In addition, the right-of-way acquired shall be in the name of CITY and the conveyancing document shall be promptly recorded in the records of the Clerk and Recorder of CITY. DISTRICT shall serve as the paying agency. A. Coordination of Right-of-Way Acquisition. Cost sharing by PARTIES will be based on supporting documentation such as formal appraisals, reasonable relocation cost settlements, legal description of the property, and other information deemed appropriate to the acquisition. Furthermore, cost sharing will be only for the properties, or portions thereof, approved by PARTIES to be needed for the drainage and flood control portions of PROJECT. Request for such approval shall include appraisals of property, legal description of the property, and other information deemed appropriate to the acquisition by PARTIES to this Agreement. CITY shall purchase the right-of-way only after receiving prior approval of DISTRICT, and such purchases shall be made with PROJECT funds. B. Payment for Right-of-Way Acquisition. Following purchase or receipt of executed memorandum of agreement between CITY and property owner for the needed right-of-way that commits the property owner to sell property to CITY at a price certain and on a date certain, CITY shall so advise DISTRICT and request payment as provided above. DISTRICT shall make payment within 30 days of receipt of request accompanied by the information set forth above. C. Ownership of Property and Limitation of Use. PARTIES acknowledge that CITY owns the property on which PROJECT is constructed either in fee or non-revocable easement and shall be responsible for same. It is specifically understood that the right-of-way is being used for drainage and flood control purposes. The properties upon which PROJECT is constructed shall not be used for any purpose that shall diminish or preclude its use for drainage and flood control purposes. CITY may not dispose of or change the use of the properties to diminish or preclude its use for drainage and flood control purposes without approval of DISTRICT, which shall not be unreasonably withheld. If, in the future, CITY disposes of any portion of or all of the properties acquired upon which PROJECT is constructed pursuant to this Agreement; changes the use to diminish or preclude its use for drainage and flood control purposes of any portion or all of the properties upon which PROJECT is constructed pursuant to this Agreement; or modifies any of the improvements located on any portion of the properties upon which PROJECT is constructed to diminish or preclude its use for drainage and flood control purposes pursuant to this Agreement; and CITY has not obtained the written approval of DISTRICT prior to such action, CITY shall take any and all action necessary within their legal authority to reverse said unauthorized activity and return the properties and improvements thereon, acquired and constructed pursuant to this Agreement, to the ownership and condition they were in immediately prior to the unauthorized activity at no expense to DISTRICT. Page 106 of 136 06/21 21-10.08 5 However, CITY shall not be responsible for the actions of third parties that would violate the provisions of this Paragraph who may have legal rights in the property as long as CITY has taken reasonable action to stop those actions. In the event CITY breaches the terms and provisions of this Paragraph 7 and does not voluntarily cure as set forth above, DISTRICT shall have the right to pursue a claim against CITY for specific performance of this portion of the Agreement. DISTRICT may, subsequent to the recording by CITY of any document transferring title or another interest to property acquired pursuant to this Agreement to CITY, record a memorandum of this Agreement (Exhibit B), specifically a verbatim transcript of Paragraph 7.C. Ownership of Property and Limitation of Use except for this sub-paragraph which shall not be contained in the memorandum. The memorandum shall reference by legal description the property being acquired by CITY and shall be recorded in the records of the Clerk and Recorder of Arapahoe County immediately following the recording of the document transferring title or another interest to CITY. CITY authorizes the recording of that memorandum and acknowledges that the same is meant to encumber the property with its restrictions. 8. MANAGEMENT OF CONSTRUCTION A. Costs. Construction costs shall consist of those costs as incurred by the most qualified contractor(s) including detour costs, licenses and permits, utility relocations, and construction related engineering services as defined in Paragraph 4 of this Agreement. B. Construction Management and Payment 1. DISTRICT, with the concurrence of CITY, shall administer and coordinate the construction-related work as provided herein. 2. DISTRICT, with concurrence of CITY, shall select and award construction contract(s). 3. DISTRICT shall require the contractor to provide adequate liability insurance that includes CITY. The contractor shall be required to indemnify CITY. Copies of the insurance coverage shall be provided to CITY upon request. 4. DISTRICT, with assistance of CITY, shall coordinate field surveying; staking; inspection; testing; acquisition of right-of-way; and engineering as required to construct PROJECT. DISTRICT, with assistance of CITY, shall assure that construction is performed in accordance with the construction contract documents including approved plans and specifications and shall accurately record the quantities and costs relative thereto. Copies of all inspection reports shall be furnished to CITY on a weekly basis upon request. DISTRICT shall retain an engineer to perform all or a part of these duties. 5. DISTRICT, with concurrence of CITY, shall contract with and provide the services of the design engineer for basic engineering construction services to include addendum Page 107 of 136 06/21 21-10.08 6 preparation; survey control points; explanatory sketches; revisions of contract plans; shop drawing review; as-built plans; weekly inspection of work; and final inspection. 6. PARTIES shall have access to the site during construction at all times to observe the progress of work and conformance to construction contract documents including plans and specifications. 7. DISTRICT shall review and approve contractor billings. DISTRICT shall remit payment to contractor based on billings. 8. DISTRICT, with concurrence of CITY, shall prepare and issue all written change or work orders to the contract documents. 9. PARTIES shall jointly conduct a final inspection and accept or reject the completed PROJECT in accordance with the contract documents. 10. DISTRICT shall provide CITY a set of reproducible "as-built" plans. C. Construction Change Orders. In the event that it becomes necessary and advisable to change the scope or detail of the work to be performed under the contract(s), such changes shall be rejected or approved in writing by the contracting officers. No change orders shall be approved that increase the costs beyond the funds available in the PROJECT fund, including interest earned on those funds, unless and until the additional funds needed to pay for the added costs are committed by all PARTIES. 9. MAINTENANCE PARTIES agree that CITY shall own and be responsible for maintenance of the completed and accepted PROJECT. PARTIES further agree that DISTRICT, at CITY's request, shall assist CITY with the maintenance of all facilities constructed or modified by virtue of this Agreement to the extent possible depending on availability of DISTRICT funds. Such maintenance assistance shall be limited to drainage and flood control features of PROJECT. Maintenance assistance may include activities such as keeping flow areas free and clear of debris and silt, keeping culverts free of debris and sediment, repairing drainage and flood control structures such as drop structures and energy dissipaters, and clean-up measures after periods of heavy runoff. The specific nature of the maintenance assistance shall be set forth in a memorandum of understanding from DISTRICT to CITY, upon acceptance of DISTRICT's annual Maintenance Work Program. DISTRICT shall have right-of-access to right-of-way and storm drainage improvements at all times for observation of flood control facility conditions and for maintenance when funds are available. 10. FLOODPLAIN REGULATION CITY agrees to regulate and control the floodplain of South Englewood Basin within CITY in the manner prescribed by the National Flood Insurance Program and prescribed regulations thereto as a minimum. PARTIES understand and agree, however, that CITY cannot obligate itself by contract to exercise its police powers. If CITY fails to regulate the floodplain of South Englewood Basin within CITY Page 108 of 136 06/21 21-10.08 7 in the manner prescribed by the National Flood Insurance Program and prescribed regulations thereto as a minimum, DISTRICT may exercise its power to do so and CITY shall cooperate fully. 11. TERM OF AGREEMENT The term of this Agreement shall commence upon the earlier of the date of final execution by all PARTIES and shall terminate three (3) years after the final payment is made to the construction contractor and the final accounting of funds on deposit at DISTRICT is provided to all PARTIES pursuant to Paragraph 5 herein, except for Paragraph 10. FLOODPLAIN REGULATION, Paragraph 7.C. Ownership of Property and Limitation of Use, and Paragraph 9. MAINTENANCE, which shall run in perpetuity. 12. LIABILITY Each party hereto shall be responsible for any suits, demands, costs or actions at law resulting from its own acts or omissions and may insure against such possibilities as appropriate. 13. CONTRACTING OFFICERS A. The contracting officer for CITY shall be Capitol Projects Administrator, 1000 Englewood Parkway, Englewood, Colorado 80110. B. The contracting officer for DISTRICT shall be the Executive Director, 2480 West 26th Avenue, Suite 156B, Denver, Colorado, 80211. C. The contracting officers for PARTIES each agree to designate and assign a PROJECT representative to act on the behalf of said PARTIES in all matters related to PROJECT undertaken pursuant to this Agreement. Each representative shall coordinate all PROJECT-related issues between PARTIES, shall attend all progress meetings, and shall be responsible for providing all available PROJECT-related file information to the engineer upon request by DISTRICT or CITY. Said representatives shall have the authority for all approvals, authorizations, notices or concurrences required under this Agreement. However, in regard to any amendments or addenda to this Agreement, said representative shall be responsible to promptly obtain the approval of the proper authority. 14. RESPONSIBILITIES OF PARTIES DISTRICT shall be responsible for coordinating with CITY the information developed by the various consultants hired by DISTRICT and for obtaining all concurrences from CITY needed to complete PROJECT in a timely manner. CITY agrees to review all concept plans, preliminary design plans, and final plans and specifications; and to provide comments within 21 calendar days after the drafts have been provided by DISTRICT to CITY. 15. AMENDMENTS This Agreement contains all of the terms agreed upon by and among PARTIES. Any amendments to this Agreement shall be in writing and executed by PARTIES hereto to be valid and binding. 16. SEVERABILITY If any clause or provision herein contained shall be adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, such invalid or unenforceable Page 109 of 136 06/21 21-10.08 8 clause or provision shall not affect the validity of the Agreement as a whole and all other clauses or provisions shall be given full force and effect. 17. APPLICABLE LAWS This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Jurisdiction for any and all legal actions regarding this Agreement shall be in the State of Colorado and venue for the same shall lie in the CITY where PROJECT is located. 18. ASSIGNABILITY No party to this Agreement shall assign or transfer any of its rights or obligations hereunder without the prior written consent of the nonassigning party or parties to this Agreement. 19. BINDING EFFECT The provisions of this Agreement shall bind and shall inure to the benefit of PARTIES hereto and to their respective successors and permitted assigns. 20. ENFORCEABILITY PARTIES hereto agree and acknowledge that this Agreement may be enforced in law or in equity, by decree of specific performance or damages, or such other legal or equitable relief as may be available subject to the provisions of the laws of the State of Colorado. 21. TERMINATION OF AGREEMENT This Agreement may be terminated upon thirty (30) days’ written notice by any party to this Agreement, but only if there are no contingent, outstanding contracts. If there are contingent, outstanding contracts, this Agreement may only be terminated upon the cancellation of all contingent, outstanding contracts. All costs associated with the cancellation of the contingent contracts shall be shared between PARTIES in the same ratio(s) as were their contributions. 22. PUBLIC RELATIONS It shall be at CITY's sole discretion to initiate and to carry out any public relations program to inform the residents in PROJECT area as to the purpose of PROJECT and what impact it may have on them. Technical information shall be presented to the public by the selected engineer. In any event DISTRICT shall have no responsibility for a public relations program, but shall assist CITY as needed and appropriate. 23. NO DISCRIMINATION IN EMPLOYMENT In connection with the performance of work under this Agreement, PARTIES agree not to refuse to hire, discharge, promote or demote, or to discriminate in matters of compensation against any person otherwise qualified because of race, color, ancestry, creed, religion, national origin, gender, age, military status, sexual orientation, gender identity, marital status, or physical or mental disability and further agree to insert the foregoing provision in all subcontracts hereunder. 24. APPROPRIATIONS Notwithstanding any other term, condition, or provision herein, each and every obligation of CITY and/or DISTRICT stated in this Agreement is subject to the requirement of a prior appropriation of funds therefore by the appropriate governing body of CITY and/or DISTRICT. Page 110 of 136 06/21 21-10.08 9 25. NO THIRD PARTY BENEFICIARIES It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to PARTIES, and nothing contained in this Agreement shall give or allow any such claim or right of action by any other or third person on such Agreement. It is the express intention of PARTIES that any person or party other than any one of PARTIES receiving services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. 26. WORKER WITHOUT AUTHORIZATION PARTIES agree that any public contract for services executed as a result of this intergovernmental agreement shall prohibit the employment of worker without authorizations in compliance with §8- 17.5-101 C.R.S. et seq. The following language shall be included in any contract for public services: A. At the time of execution of this Agreement, CONTRACTOR does not knowingly employ or contract with a worker without authorization who will perform work under this Agreement. B. CONTRACTOR shall participate in the E-Verify Program, as defined in § 8 17.5-101(3.7), C.R.S., to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement. C. CONTRACTOR shall not knowingly employ or contract with a worker without authorization to perform work under this Agreement. D. CONTRACTOR shall not enter into a contractor with a subconsultant or subcontractor that fails to certify to CONTRACTOR that it shall not knowingly employ or contact with a worker without authorization to perform work under this Agreement. E. CONTRACTOR shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement through participation in the E- Verify Program. F. CONTRACTOR is prohibited from using the E-Verify Program procedures to undertake pre-employment screening of job applicants while performing its obligation under this Agreement, and that otherwise requires CONTRACTOR to comply with any and all federal requirements related to use of the E-Verify Program including, by way of example, all program requirements related to employee notification and preservation of employee rights. G. If CONTRACTOR obtains actual knowledge that a subconsultant or subcontractor performing work under this Agreement knowingly employs or contract with a worker without authorization, it will notify such subconsultant or subcontractor and PARTIES within three (3) days. CONTRACTOR shall also then terminate such subconsultant or subcontractor if within three (3) days after such notice the subconsultant or subcontractor does not stop employing or contracting with the worker without authorization, unless during such three (3) day period the subconsultant or subcontractor provides information to Page 111 of 136 06/21 21-10.08 10 establish that the subconsultant or subcontractor has not knowingly employed or contracted with a worker without authorization. H. CONTRACTOR shall comply with any reasonable request made in the course of an investigation by the Colorado Department of Labor and Employment under authority of § 8- 17.5-102(5), C.R.S. I. CONTRACTOR shall, within twenty days after hiring an employee who is newly hired for employment to perform work under this Agreement, affirms that it has examined the legal work status of such employees, retained file copies of the documents required by 8 U.S.C. Section 1324a, and not altered or falsified the identification documents for such employees. CONTRACTOR shall provide a written, notarized copy of the affirmation to PARTIES. 27. GOVERNMENTAL IMMUNITIES PARTIES hereto intend that nothing herein shall be deemed or construed as a waiver by any party of any rights, limitations, or protections afforded to them under the Colorado Governmental Immunity Act (§ 24-10-101, et seq., C.R.S.) as now or hereafter amended or otherwise available at law or equity. 28. INTENT OF AGREEMENT Except as otherwise stated herein, this Agreement is intended to describe the rights and responsibilities of and between PARTIES and is not intended to and shall not be deemed to confer rights upon any person or entities not named as PARTIES, nor to limit in any way the powers and responsibilities of the CITY, the DISTRICT or any other entity not a party hereto. 29. EXECUTION IN COUNTERPARTS – ELECTRONIC SIGNATURES This Agreement, and all subsequent documents requiring the signatures of PARTIES to this Agreement, may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. PARTIES approve the use of electronic signatures for execution of this Agreement, and all subsequent documents requiring the signatures of PARTIES to this Agreement. Only the following two forms of electronic signatures shall be permitted to bind PARTIES to this Agreement, and all subsequent documents requiring the signatures of PARTIES to this Agreement. A. Electronic or facsimile delivery of a fully executed copy of a signature page; or B. The image of the signature of an authorized signer inserted onto PDF format documents. Documents requiring notarization may also be notarized by electronic signature, as provided above. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, CRS §§ 24-71.3-101 to -121. WHEREFORE, PARTIES hereto have caused this instrument to be executed by properly authorized signatories as of the date and year written below. Page 112 of 136 06/21 21-10.08 11 URBAN DRAINAGE AND FLOOD CONTROL DISTRICT D/B/A MILE HIGH FLOOD DISTRICT By ___________ Name Ken A. MacKenzie Checked By Title Executive Director Date CITY OF ENGLEWOOD By Name Title Date Page 113 of 136 AGREEMENT REGARDING FINAL DESIGN, RIGHT-OF-WAY ACQUISITION, AND CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR SOUTH ENGLEWOOD BASIN CITY OF ENGLEWOOD Agreement No. 21-10-08 Exhibit A Page 114 of 136 Page 115 of 136 Contract Approval Summary March 2019 Update Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: Authorizing Resolution/Ordinance: Recording Information: City Contact Information Staff Contact Person: Carrie Evenson Phone: (303) 762-2510 Title: Stormwater Program Manager Email: cevenson@englewoodco.gov Vendor Contact Information Vendor Name: Mile High Flood District (MHFD) Vendor Contact: Jon Villines Vendor Address: 2480 W. 26th Ave, Suite 156-B Vendor Phone: (303) 455-6277 City: Denver Vendor Email: jvillines@mhfd.org State: CO Zip Code: 80211 Contract Type Contract Type:Intergovernmental Agreement Description of ‘Other’ Contract Type: Description of Contract Work/Services: Attachments: ☒Contract -- ☐Original ☒Copy ☐Addendum(s) ☐Exhibit(s) ☐Certificate of Insurance Summary of Terms: Start Date: TBD End Date: TBD Total Years of Term: N/A Total Amount of Contract for term (or estimated amount if based on item pricing): $825,000.00 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Payment terms (please describe terms or attach schedule if based on deliverables): MHFD will be reimbursed at end of project for work completed at 50% of the cost-share up to a total of $825,000.00. Attachments: ☐Copy of original Contract if this is an Amendment The City of Englewood and the Mile High Flood District (MHFD) will enter into an Intergovernmental Agreement to fund and construct drainage and flood control facilities in the South Englewood Basin as recommended in the Citywide Master Drainageway Plan. Both parties shall contribute $825,000.00 for a total project cost not to exceed $1,625,000.00. The MHFD will assume the role of leading this project’s design and construction. Page 116 of 136 Contract Approval Summary March 2019 Update Page | 2 ☒Copies of related Contracts/Conveyances/Documents Source of Funds (Insert Excel Document Image): Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor (Check Box): ☐Bid: ☐ Bid Evaluation Summary attached ☐ Bid Response of Proposed Awardee ☐RFP: ☐ RFP Evaluation Summary Attached ☐ RFP Response of Proposed Awardee ☐Quotes: Copy of Quotes attached ☒Optimal Source: Provide Detailed Explanation: ☒ Sole Source (Use as much space as necessary for detailed explanation): The MHFD has matching funds available for each city in their District to use to design and construct drainage and flood control facilities. Representatives of the City of Englewood met with a representative from the MHFD in 2021 to discuss the potential for funding the design and construction of additional drainage and flood control improvements in the South Englewood Basin based on the recommendations to be provided by the Citywide Master Drainageway Plan currently under development. The MHFD voted on a resolution to approve a match of $825,000.00 after budget discussions with the City of Englewood’s Public Works Department for these improvements. ☐ Qualification Based Selection / Best Value* (Continue on Next Page): Page 117 of 136 Contract Approval Summary March 2019 Update Page | 3 *Note: Qualifications Based Selection / Best Value Justification detailed explanation may include the following information, but is not limited to: 1.) Product and provider reliability 2.) Product and project understanding 3.) Product availability / Low risk solution 4.) Ability to connect to with current City of Englewood IT systems 5.) Familiarization with the City of Englewood Page 118 of 136 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: January 4, 2022 SUBJECT: CB 53 - Ordinance Amending Municipal Code regarding Authorized Public Consumption Areas DESCRIPTION: CB 53 - After temporarily extending Covid-related public consumption areas, City Council requested presentation of an Ordinance to amend Municipal Code to permanently provide for authorized public areas for public consumption of alcohol RECOMMENDATION: City Council should adopt an ordinance amending its currently-authorized public consumption areas, to comply with now-applicable state law that prohibits alcohol consumption on public rights of way (such as streets, alleys, and sidewalks). If City Council desires to continue authorized open public consumption, we recommend it be continued only at the City paseos at this time, as it is a clearly-defined area, the parameters of public consumption can be identified through signage, and the paseos are located near Englewood Grand, which is the only City business currently licensed for takeout cocktails. This area is described as Option A in Council Bill 53. (Option B in CB 53 provides for the current open consumption area excluding the Duck Pond and rights of way; Option C in CB 53 provides for the current open consumption area excluding rights of way.) PREVIOUS COUNCIL ACTION: On March 10, 2020 Jared Polis, the Governor of the State of Colorado, declared a statewide emergency in response to coronavirus (COVID-19); and on March 18, 2020 the City Council of the City of Englewood in response to coronavirus (COVID-19) passed Ordinance No. 10, Series of 2020 declaring a public health emergency as authorized by Englewood Municipal Charter §41. That ordinance granted to the City Manager full power and authority to take certain actions and issue certain orders to protect the public health, safety, and welfare in the face of the coronavirus (COVID-19) and thereafter, the City Manager issued two emergency orders authorizing expanded outdoor consumption of alcohol to allow patrons of alcohol-related businesses to continue to frequent those businesses but still socially distance. On the 19th day of July, 2021, City Council adopted Ordinance No. 30, Series of 2021, repealing Emergency Ordinance No. 10, Series of 2020, but continuing authorization for expanded outdoor consumption. After a study session presentation on this issue, City Council directed staff to prepare an Ordinance permanently implementing expanded public consumption areas but removing public rights of way as required by now-applicable state law (which was stayed during Covid under a Governor emergency order). Upon consideration of the proposed ordinance on November 15, City Council tabled this matter and directed staff to contact business owners within the proposed public consumption areas to gauge public support for continued public consumption. Englewood Downtown Development Page 119 of 136 Authority and the City Communications department created and submitted a survey for business owners, and the results of that survey were not yet received by the time of agenda publication. This information will be presented during the meeting. SUMMARY: Pursuant to direction of Council at prior meetings, the proposed Ordinance amends Englewood Municipal Code Section 5-5C-3 to permanently provide for an exception to the City's prohibition on public possession of open containers of intoxicating liquor by authorizing possession within a defined area of downtown Englewood. The proposed Ordinance presents several options for continued public consumption areas, and it also proposes set hours for open public consumption of noon to 1 a.m. ANALYSIS: As presented, the Ordinance codifies the City's extension of authorized public consumption of alcohol in a defined section of downtown Englewood, but not on public rights of way to reflect state law's prohibition of alcohol consumption on public rights of ways. The potential defined areas, shown on the attached map, include the City Duck Pond/Little Dry Creek Plaza, which recently has been the site of a significant number of criminal incidents but is preparing to undergo significant changes through a redevelopment construction project. This project is still in the design phase, and we anticipate it will be approximately 12 months before completion. The Ordinance also makes slight revisions to style and format of the affected section of EMC. There is some concern regarding notification to the public, to ensure they do not inadvertently violate the law by consuming alcohol in public rights of way. In order to respond to this concern, City Council could consider designating only the City paseos for public consumption and providing signage to that effect in the paseos. (The paseos also are preparing to undergo improvement, through a $150,000 Colorado Department of Transportation (CDOT) grant recently awarded to the Englewood Downtown Development Authority (EDDA)). CONCLUSION: City Council should adopt an Ordinance regarding authorized public consumption, to ensure the City-authorized areas do not conflict with state law prohibiting alcohol consumption on public rights of way. Where, or if, City Council chooses to continue permanent authorization of public consumption is a policy decision for Council. FINANCIAL IMPLICATIONS: No financial implications to City government. CONNECTION TO STRATEGIC PLAN: Safety, Local Economy OUTREACH/COMMUNICATIONS: The City Attorney met with the owner of Englewood Grand to discuss this matter, as Englewood Grand is the only business currently licensed in the City for take-out cocktails. EDDA and the City Communications department contacted other alcohol-licensed businesses within the area previously authorized for open public consumption. ATTACHMENTS: Page 120 of 136 Council Bill #53 Public Consumption 2nd reading 1-4-22 Page 121 of 136 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 53 SERIES OF 2021 INTRODUCED BY COUNCIL MEMBER ANDERSON AN ORDINANCE AMENDING TITLE 5, CHAPTER 3, SECTION 5-3C-3 OF ENGLEWOOD MUNICIPAL CODE AND REPEALING PROVISIONS OF ORDINANCE NO. 30 SERIES OF 2021 REGARDING POSSESSION OF OPEN CONTAINERS OF INTOXICATING LIQUOR IN PUBLIC WITHIN THE CITY OF ENGLEWOOD, COLORADO. WHEREAS, on March 10, 2020 Jared Polis, the Governor of the State of Colorado, declared a statewide emergency in response to coronavirus (COVID-19); and WHEREAS, on March 18, 2020 the City Council of the City of Englewood in response to coronavirus (COVID-19) passed Ordinance No. 10, Series of 2020 declaring a public health emergency as authorized by Englewood Municipal Charter §41; and WHEREAS, Ordinance No. 10, Series 2020 granted to the City Manager full power and authority to take certain actions and issue certain orders to protect the public health, safety, and welfare in the face of the coronavirus (COVID-19); and WHEREAS, the City Manager issued two emergency orders authorizing expanded outdoor consumption of alcohol to allow patrons of alcohol-related businesses to continue to frequent those businesses but still socially distance; and WHEREAS, on the 19th day of July, 2021, City Council adopted Ordinance No. 30, Series of 2021, repealing Emergency Ordinance No. 10, Series of 2020, but continuing authorization for expanded outdoor consumption; and WHEREAS, continued authorization for expanded outdoor consumption of intoxicating liquor supports the patronage of businesses permitted for takeout alcoholic drinks located near the expanded areas; and WHEREAS, in order to permanently expand and authorize continued outdoor consumption of intoxicating liquor, the City must amend Englewood Municipal Code Section 5- 3C-3. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Amendment of Englewood Municipal Code Title 5, Chapter 3, Section 5-3C-3 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 5-3C-3: - Unlawful to Possess Open Container of Intoxicating Liquor in Public. A. It shall be unlawful for any person to have in their his possession or under their his control in any public place any intoxicating liquor in any container of any kind or description which is not sealed or on which the seal is broken, Page 122 of 136 2 notwithstanding any provision of C.R.S. § 44-3-423 to the contrary, a licensee described in subsection 2 may permit a customer of the licensee to reseal and remove from the licensed premises one (1) opened container of partially consumed vinous liquor purchased on the premises so long as the originally sealed container did not contain more than seven hundred fifty (750) milliliters of vinous liquor. B1. Exceptions. (1) The following licensees may permit a customer of the licensee to reseal and remove from the licensed premises one (1) opened container of partially consumed vinous liquor purchased on the premises so long as the originally sealed container did not contain more than seven hundred fifty (750) milliliters of vinous liquor: The provisions of this section shall apply to a licensee: (a) That is duly licensed as A manufacturer's licensee under Colorado Revised Statutes § 44-3-402, a limited winery licensee under § 44-3-403, a beer and wine licensee under C.R.S. § 44-3-411, a hotel and restaurant licensee under C.R.S. § 44-3-413, a tavern licensee under C.R.S. § 44-3- 414, a brew pub licensee under C.R.S. § 44-3-417, or a vintner's restaurant licensee under C.R.S. § 44-3-422; and (b) A licensee that serves has meals, as defined in C.R.S. § 44-3-103(31), available for consumption on the licensed premises. (2) The Englewood Liquor Licensing Authority may grant a special event permit or festival permit under the procedures set forth in the liquor code. (3) The prohibition in section (A) shall not apply to alcoholic beverages purchased from an On-Premises Licensee authorized by law to sell such beverages for takeout and delivery, and consumed within the following areas: The two City paseos located within the middle of the 3400 Block of both the East and West sides of S. Broadway, specifically: Lot 37 & Court 14.6 Ft Wide Blk 1 Enwood Add and Beg 50 Ft E & 275.2 Ft N of S 1/4 Cor Sec 34-4-68 Th E 125 Ft Th N 57.5 Ft Th W 125 Ft Th S 57.5 Ft to Beg Except S 18.9 Ft of Sec 34-4-68 less and except any public rights of way. CB. It shall be unlawful for any person to have in their his possession or under their his control any intoxicating liquor in any container of any kind or description which is not sealed or on which the seal is broken, in any vehicle in those areas accessible to the driver and passengers of said vehicle when such vehicle is in a public place. This subsection shall apply to possession of intoxicating liquor in a vehicle, in areas of the vehicle accessible to the driver or passengers, when such vehicle is in a public place. Page 123 of 136 3 C. Exemptions: The Englewood Liquor Licensing Authority may grant a special events permit under the procedures set forth in the liquor code. D. Concerning alcoholic beverages in motor vehicles: 1. Except as otherwise permitted in subsection (D)(2) Paragraph 3, a person while in the passenger area of a motor vehicle that is on a public highway of this State or the right-of-way of a public highway of this State may not knowingly: (a) Drink an alcoholic beverage; or (b) Have in his or her possession an open alcoholic beverage container. 2. The provisions of this subsection (D) shall not apply to: (a) Passengers, other than the driver or a front seat passenger, located in the passenger area of a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation; (b) The possession by a passenger, other than the driver or front seat passenger, of an open alcoholic beverage container in the living quarters of a house coach, house trailer, motor home, as defined in C.R.S. § 42-1-102(57), or trailer coach, as defined in C.R.S. § 42-1-102(106)(a); (c) The possession of an open alcoholic beverage container in the area behind the last upright seat of a motor vehicle that is not equipped with a trunk; or (d) The possession of an open alcoholic beverage container in an area not normally occupied by the driver or a passenger in a motor vehicle that is not equipped with a trunk. 3. A person who violates the provisions of this subsection (D) commits a traffic violation and shall be punished pursuant to the Englewood Municipal Code. E. Definitions. For purposes of this section: Alcoholic Beverage: Means a beverage as defined in 23 CFR 1270.3(a). Container: Includes, but is not limited to, any decanter, bottle, can, jar, thermos bottle or jug. Motor Vehicle: Means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public highways but does not include a vehicle operated exclusively on a rail or rails. Open Alcoholic Beverage Container: Means a bottle, can or other receptacle that contains any amount of alcoholic beverage and: Page 124 of 136 4 (a) That is open or has a broken seal; or (b) The contents of which are partially removed. Passenger Area: Means the area designed to seat the driver and passengers while a motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in his or her seating position, including, but not limited to, the glove compartment. Public Place: Property either owned or controlled by a governmental entity, and shall include any place open to the general public, either free or by payment of an entrance fee, any sidewalk, street, alley, parking lot, park, poolroom, field house, stadium or ball park. Seal: Includes the regular and original tax seal applied by order of the United States government over the cap of each and every container of intoxicating beverages. Section 2. Repeal Section 3(D) of Ordinance No. 30, Series of 2021, which temporarily extended certain Public Consumption Areas within the City, is hereby repealed. Any temporary extensions authorizing a stay on the application of EMC 5-3C-3 to any area shall be null and void as of the effective date of this Ordinance. Section 3. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. Page 125 of 136 5 D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. Introduced, read in full, and passed on first reading on the 13th day of December, 2021. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 16th day of December, 2021. Published as a Bill for an Ordinance on the City’s official website beginning on the 15th day of December, 2021 for thirty (30) days. Read by Title and passed on final reading on the 4th day of January, 2022. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2021, on the 6th day of January, 2022. Published by title on the City’s official website beginning on the 5th day of January, 2022 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. ___, Series of 2022. Stephanie Carlile Page 126 of 136 Public Consumption Areas2ndReading of CB 53 Tamara Niles City Attorney Page 127 of 136 •As part of Covid-19 City response, City authorized public consumption of alcohol on certain areas of Broadway to allow for social distancing, capacity restrictions •This authorization was continued in 2021, but then stay on state law prohibiting consumption on public right of way was revoked •This required City to reconsider where it would allow public consumption, at a minimum to comply with the state right-of-way prohibition Background Recap Page 128 of 136 •City Council notified of two comments from businesses within the public consumption areas, recommending public consumption on paseos when purchased from a business licensed to sell takeout cocktails within a specific timeframe •City Council passed Council Bill 53 on first reading, with the following provisions: •Public consumption authorized on City Paseos in 3400 block of S. Broadway •Consumption only authorized for alcoholic beverages purchased from a business licensed to sell takeout cocktails •Hours of public consumption are unregulated December 13, 2021 Action Page 129 of 136 •The following factors supported the Council’s authorization in City paseos: •Paseos are a defined area, with structures on 2 of 4 sides •Signage could be posted on both sides of Paseos, notifying public of limitations regarding public consumption (i.e. where alcohol must be purchased, and where consumption is authorized) •The only licensee that can currently legally sell takeout cocktails is located near the Paseos Consumption in Paseos Page 130 of 136 •On December 14—the day after City Council adopted CB 53—the City Attorney’s Office received additional survey responses on this issue. •Responses received both from businesses within public consumption areas currently authorized, and members of the public. •Many respondents seem to advocate for continued consumption on public right-of-way, including streets, alleys and sidewalks, but this is prohibited by state law •Most respondents were in favor of continued public consumption Additional Survey Responses Page 131 of 136 •58 responses, cross-section of business owners in and outside of the downtown district and residents •10 responses from businesses within the 3200 and 3400 blocks of S. Broadway (where public consumption was previously authorized); 3 of the 10 responses were from businesses previously reported to Council •76 percent support continued public consumption in areas currently designated •Additional 8.62 percent support it if exclude Little Dry Creek and/or limit to areas near businesses permitted for takeout of cocktails Additional comments range from both extremes: that the City should prohibit public consumption altogether, and expand it to include additional areas Survey results Page 132 of 136 •Survey respondents generally like the idea of public consumption, to support local restaurants and bars, and enliven Downtown. •Many respondents are concerned about including the Little Dry Creek area. There are some concerns about enabling nuisance behavior Downtown. •Affected businesses have good suggestions about restrictions to manage the policy. •If the ordinance passes, there will be a need for public education for both businesses and consumers. •It appears there are some efforts at the state level to remove the state prohibition against consumption in public right-of-way, which would allow the City more discretion. EDDA Analysis of Survey Results Page 133 of 136 •Adopt CB53 in the same form as adopted on first reading, limiting consumption to paseos •Amend CB53 to expand the areas of public consumption, to include the West side of the 3200 Block of S. Broadway, previously authorized for public consumption •City only has authority to authorize consumption on non-right of way public property •This area contains no public property affected by CB53, other than right of way Council Options Page 134 of 136 3200 Blk S. Broadway: no public area Page 135 of 136 QUESTIONS?Page 136 of 136