HomeMy WebLinkAbout2010-03-01 (Regular) Meeting Agenda Packet1. Ca ll to O rder.
2. In voca ti on.
Agenda for the
Regular Meeting of the
Englewood City Council
Monday, March 1, 2010
7:30 pm
Englewood Civic Cen ter -Council Chambers
1000 Englewood Parkway
Englewood, CO 80 110
3. Pl ed ge of Allegiance.
4 . Roll Cal l.
5. Considera ti o n of Minutes of Previous Session .
a. Minutes from th e Reg ular Cit\· Council Meeting o f Febr uary 16, 20 10.
6 . Recogniti on of Sc hedul ed Public Comment. (Th is is an opportunity for th e public to address
Council. Counc,I ma y as k questions for clarifica tion, but th ere will not be an , dia logue.
Pl ease limit yo u r presen tation to fi ve m lmnes.)
7. Recognition of Unschedul ed Public Comment. (This is an opportunity for the public to
add ress Council. Coun c il m ay ask qu es ti o ns for clarifi cati on, bu t th ere w ill no t be an y
dialogue. Pl ease limit yo ur prese ntatior. to three m inutes. Tim e fo r unscheduled public
commen t ma y be limited to 45 minut ~. r1nd if limited, shall be con tinu ed to General
Discuss io n.)
8. Commu ni ca ti ons , Proclama ti ons, and Appointm ent s.
a. E-mail fro m Trish Elley announ ci ng her re signa ti on fr om 1he En glewood Pl1bli library
Board .
b. A reso lution Jppoin ting Rand y Kloewer as a yo uth member to th e Park s and Recreation
Commi ss ion .
c. A revised reso luti on appointing Jordan May as an alternate o n th e Boa rd o f Adjustmen t
and Appea ls.
Please no1 e If ~•a u h,we .i dis.1bility ilnd need au,ifiil!) aids or serv ices, ple.1.se notify 1he Cit) 01 (ngle\, ood
f)0J-762-24051 ill le.1st 48 hours in adv.1nc.e of \\hen services .1re needed .
Englewood City Council Age nda
March 1, 20 10
Page 2
9. Consent Agenda Items.
a. Approval of Ordinances on First Reading .
b . Approval of O rdinances on Second Reading .
Co un cil Bill No. 1, accepting a $12,500 gra nt fr om th e Stal e of Co lorad o -
Economic D eve lopm ent Commission to fu nd marketing and administrati on
activ ities for th e Arapahoe County En terpri se Zone.
ii . Coun cil Bill No. 2, approving an Int ergovernmen tal Agreement entitl ed "Cas e
N o. 09SA 133 Common Interes t Agree menr w ith FR ICO/Burlington .
c. Resoluti ons and Motions .
10. Publi c H ea rin g It ems (No Public H ea ring Schedu led).
11 . Ordinance s, Resolut ions and Motions
App rov al of Ordinances on First Readin g.
Coun cil Bill No. 3 -Recomm end ati on fr om th e Littl eto n/Englewood
Wast ewa ter Tr ea tm ent Pl an t Supervis ory Com mittee to adopt a b,11 for an
ordinan ce approving an In tergove rnm ental Agreement with Co lorado Stat e
Unive rsity fo r cooperati ve res earch proje cts on th e land appli cati on of
was tewa ter biosoli ds to dryland w heat fa rmi ng ope rati ons. Th e 20 10 p rogram
cos t is $109 ,295 w hi ch is to be split 50/50 w ith th e City of Littl eton. STAFF
SOURCE : Stewart H. Fonda , Utilities Director and Jim Tallent, Operations
Division Manager.
ii . Coun cil Bill No. 4 -Recomr,1e ndati on from th e Fin ance and Administrati ve
Serv ices Departm ent to approve a b ill fo r an ordinan ce amending O rdin an ce
20, Series of 2009, regarding th e lease-purchase of ce rt ain equipm ent for City
D epa rtm .nts. STAFF SOURCE: Frank Gryglewicz, Director of Finance and
Adminisirative Services.
iii . Co un cil Bill No. 5 -Recommendati on fr om th e Parks and Re creation
D ep ar tm ent to ado pt a bill for an o rdin ance approving an ag ree men t w ith
Bro ken T Partn ers LLC to opera te th e Broken Tee Englewood Indoor Golf
Training Ce nt er. STAFF SOURCE : Jerrell Black, Director of Parks and
Recreation and Bob Spada , Golf Operation s Manager.
b . Approva l of qrdinance s on Seco nd Readi ng.
Please no1e: If yo u ha ve a disability and need awdllary aids or se rvices, please notify the City of Engl ewood
1303-762-2 405 1 al leas! 48 hours in ,1 dvan ce of when se rvices are needed .
Englewood City Council Agenda
Ma rch 1, 2010
Page 3
c. Reso lutions and Motions.
Reco mmendation to approve, by motion, a Pr ofessional Services Agree m ent
with Histori c Preserva tion Consu ltant D ia ne Wray Tomasso to pursue a
nomi nation to have Englewc0cl's downtown Broadway Pos t Office added to
National Regis ter of H is tori c Places. STAFF SOURCE : Michael Flaherty,
Deputy City Manager.
12. Gen eral Dis c ussio n .
a. Mayor's Choi ce.
b . Counci l Members' Choice.
13. City Manager's Rep ort.
14. City Attorn ey's Report.
a. Motion to settl e Tim oth y Sco tt Parks v. Officers Zasada , Saldivo, & O 'Con nor-U.S .
Dis trict Cou rt Case #0BCV0 103 7-GMA·MJW for S 12,500.
15. Adjournmen t
Th e foll owing minutes were transmitted to City Co uncil in February, 2010.
• Board of Adjustm en t and Appeals meeting of December 9, 20oq.
• Firefigh ters Pension Board m ee ting of August 13 , 2009.
• Keep Englewood Beau tiful Commission mee tings of November 10, 2009 and January 12 ,
20 10. • Liquor Li ce nsing Au th ori ty tele ph one polls of January 6 and 20, _o IO and mee tin g of
February 3, 20 10.
• Malley Cen ter Trust Fund mee tin g of October 14 , 2009 .
• Planning and Zoning Commission mee tings of Janu ary 20 and February 2, 20 10.
• Poli ce Onicers Pension Board meeting of Augus t 13 , 200 .
• Transp ortati on Advisory Commin ee meeting of January 14, 20 10.
Please note : If you have a dlsabUlry ,md need aull:illaf) aids or services, please nolii) 1he Cit) of Englewood
1303-762•2 405\ al least 46 hours In advancr f..;.w:ch.:;•n.:c•::•.:.:rv.:.:lc.:;••:..:•:c'°:c".:.:•c:.•d:::•::d:.... _________ __,
PUBLIC COMMENT ROSTER
AGENDA ITEM 7
UNSC HEDULED PUBLIC COMMENT
March 1, 2010
PLEAS f ;_fM IT YOUR PRESENTATION TO FIVE MINUTES
PLEASE PRINT
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fr~m : Tri sh Ell ey \1ell ey2 007@ya hoo.com!
Sent : Sa lUrd ay, Feb rua ry 20, 20 10 4:29 PM
To : Hank Long
s~bject: A me ssage fr om Tri sh Elley
Hi Han k,
I regre t 10 Info rm you di al I will be unabl e 10 continu e to serve on 1he Lib · ·-y Advisory Boa rd du e
lo my new schedu le. I hav e fond memor ies being on 1h e board and I wis h all of you 1h e very bes t
Si ncerely,
Trish Elley
8a
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RESOLUT ION NO .
SE RIES OF 20 10
A RESOLUT ION AP POIN TING RANl)Y KLOE WER AS A YOlfl'H MEMBER
OF THE PARK S AN D RECREATION CO MMI SS ION FOR TH E CITY OF
ENG LEWOOD , COLO RADO.
WH EREAS, th e Englewood Parks and Rec reation Commiss ion was estab li shed to ad vise Cit y
Counc il in all ma tt ers pert aining to rec rea ti on; nnd
WH EREAS, there is a vacancy on th e Englewood Parks and Rec reation Com mi ssio n; and
WHEREAS , Rand y K.l ocw er has applied to serve as a youth memb er of the Englewood Parks
and Rec rea ti on Commi ss ion; and
WH EREAS, the Englewood Cit y Co uncil appl auds th e vo lunteeri sm of th is Englewood youth
and desires 10 appo int Randy Kl oewer to th e Englewood Parks and Recrea ti on Commi ssio n;
NO W, TH ERE;:ORc, BE IT RES OLV ED BY TH E CITY CO NC ILOF THE CIT Y OF
ENGLEWOOD , COLORA DO, THAT :
Secti on I . Rand y Kl oewcr is hereby appo inted as a yo uth member to th e Parks and Recrea ti on
Commi ss ion. Randy Kl ocwe r's tenn wil be effective immed i,11ely and will ex pire July I, 2010 .
ADO PTE D AND AP PR OVED tltl s 1st day of Marc h, 20 10.
ATTEST: James K. Woodward , Mayo r
Loucrish ia A. Ell is, City lcrk
I, Lo ucri shin A. Ellis . ity lerk for the City of Englewood, olonido, hereby cenify the
above is a true co py of Reso lution No. __ , Series of 20 10.
Lou crishi n A. Ell is, Cit y lerk
Bb
• RESOLUTION 0 . __
SERIES OF 2010
A RESOLUTION APPOINTING JORDAN MAY AS AN ALTERNATE VOTL"IG MEMBER
TO THE BOARD OF ADJUSTMENT AND APPEALS FOR THE CITY OF ENGLEWOOD .
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WH EREAS, the Englewood Ci ty Council has appointed Jordan May as alternate member to
the Board of Adjustment and Appeals ; and
WHEREAS , C11y Co1·ncil has requested staff to send this alternate member pockets for the
Board he will be servin! on so that he can maintain an understanding of the cUJ'!'ti,! issues and
rules ; and
WHEREAS, because of the necessity of having a quorum for thi s quasi -judicial board and the
super majority voting requirement when a regular member is absent, the alternate for this Board
may participate in the hearing and vote on the case heard ; and
WHEREAS, while the alt ernate will only vote at the meetings where a regular member is
absent. he is nevertheless requested to attend as many meetings as poss ible to get a feel for th ,
membership and issues; and
WHEREAS, Council wishes to express its gratitude for the volu· J terism .nd service that thi s
individual wishes to bestow upon the Ci ty;
OW , THEREFORE, BE TT RES LVED BY THECn-Y CvuNl'i .L,I· THECTTY OF
ENGLEWOOD, COLORADO , THAT :
Secuon I . The Englewood City Council hereb y appoints Jordan May as an altematc member
of the Englewood Board of Adjusunent and Appeals who may vote if another member of the
Board is absent.
ADOPTED AND APPROVED thi s I" da y ofMa11:h. 2010 .
ATTEST : James K. Woodwa rd , Ma yo r
Loucrishia A. Ellis . City Clerk
I, Louerishi a A. Ellis, City Clerk for the City of Englewood , Colorado , hereby certify the
above is a lfUC cop y of Resolution No . __ , Series of 20 I 0 .
Loucrishia A. Ellis, Ci ty Clerk
Be
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ORDINANCE NO .
SERIES OF 2010
BY AUTHORITY
COUNCil. Bll.L NO. I
INTROD UC ED BY COUN Cil.
MEMB ER JEFFERSON
AN ORDINAN CE AUTHORIZING ACCEPTAN CE OF A GRANT FROM THE ST A TE OF
COLORADO , ECONOMIC DEVELOPMENT COMMISSION FOR MARKETING AND
ADMlNlSTRA TIVE SUPPORT IN THE ENTERPRI % ZONE.
WHEREAS , in 1990 the City of Englewood appli ed to the Colorado Department of Local
Affairs and was granted , Enterprise Zone status for a majority of the industriall y and
commerciall y zoned property in the Cit y of Englewood ; and
WHEREAS , the State Econ omic Development Commissi on has a competiti ve grant program
fo r ma rketing and admini strative support of Ent erpri se Zone s; nod
WHEREAS, the Enterpri se Zone is used in the Cit y to ir,itiate busin es s retention and
community marketin g act ivities; and
WHEREAS, th e Enterprise Zone Marketing Grant encourages bu sines ses 10 take advantage of
Ent erpri se Zone tax credit s and highlights th e Englewood business communit y; and
\VHEREAS , the Colorado St ale Economic Development Commi ssio n require s that the City
provide mat ching fu~d s to meet Grant requirements ; an d
WHEREAS , th e Grant and related Agreement between th e Stat e of Colorad o Eco nomic
Develop me nt Co mmi ss ion and th e Cit y of Englewood pledg es $12 ,500 .00 in loca l mat ching
fund s to meet th is obligati on; and
WHEREA S, matchin g fund s have been all oca ted in Co mmunit y Devel opment ·s bud get ; and
WHEREAS , this Grant and th e mat chin g fund s will be used for a variet y of Enterpri se Zo ne
marketin g and admini strati ve ac ti vi ties in th e Cit y of Englew ood;
OW , TliE VHORE, BE rr ORDAINE D BY Tiffi CITY COU NC IL OF TH E CITY OF
EN GLEWOOD . COLO ',DO, AS FOLLOWS :
Sec ti on I. The Agr=.··1e n1 between th e Stat e of Colorad o, Eco nomi c Devel opm ent
Co mmi ssio n. an d the Ctt ~· of En glewood fo r a Gra nt of $12 .500 .0 0 to be used fo r Enterpri se
Zo ne Marketing and Adm inis trat ive ac tiv it ies. a copy of whi ch is anached hereto as Exhibit I, is
hereby a cc ptcd .
9 bi
Section 2, The Mayor and Ci ty Clerk are authorized 10 sign and at1es1 said
Agreement fo r and on behalf of th e City of Englewood .
Secti on 3. Pursuant 10 Anicle V, Sec tion 40, of the Englewood Home Ru le Charter , the City
Council has determined that Exhibit 1, anached 10 this Ordinance , shall not be published because
of it s size . A copy is availab le in the Offi ce of the Eng lewood Cit y Clerk .
Introduced , read in full , and passed on first reading on the t 6• da y of February, 20 I 0.
Publi shed as a Bill for an Ordinance in the Cit y's offici al new spaper on the 19" day of February ,
20 10.
Published as a Bill for an Ordinance on the City's officia l websit e beginning on the 17th da y of
February, 2010 for 1hiny (30) da ys .
Read by Ii ti e and passed on final reading on the I" da y of March , 20 IO .
Published by title in the City's offi cial new spaper as Ordinance No.__, Seri es vf 2010 , on
the 5" day of March, 20 I 0.
Published by ti tle on the City 's offic ial website beginning OJ • th e,~ day of
March, 20 10 forthiny (30) days.
Jame~ K. Woodward , Mayor
ATTEST:
Lou cri shin A. Ell is, Cit y Clerk
I, Loucri shia A. Elli s, City Clerk of the Cit y of Eng lew ood , ,~olorado , hereby ce ni fy that the
above and fo regoing is a true cop y oflhe Ordinonce pa ss ed on fin al readin g and publi shed by
1i1le as Ordin ance No. __ , Seri es of 20 10 .
Lou cris hia A. Elli s
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STATE OF OLORADO
Agency EDA CMS ff 10825
Fund . 156 Approp : 902 Org : 9020
Encumbrance# EIOE DC804
Office of Eco nomi l' Development and In ternat iona l Trade
Enterp ri se Zone Marketi ng Gra nt Ag re eme nt
with
City of Englewood
TA IJ LE OF ONTENTS
I. PARTI ES .
2. EFFECTIVE DATE AND NOTICE OF NONLIAB ILIT Y ......................... .
J . RECITALS ............................................................................................... ..
4. DEFIN IT IONS .................................................. .
5. TERM AND EARLY TERM INATIO ................................... .
6. STATEMENT OF WORK ............................................................ .
7. PAYMEN TS TO GRANTEE ............ .. ....................... ..
S. REPORTIN G AN D NOTIF ICATION ......................................... .
9. GRANTEE RE CO RDS ........ . ........................... .
10. CON FI DENTI AL IN FORMAT ION AND STATE REC RD
11. CON FLI CTS OF INTE RE T.. ...................................... .
12. REPRESENTAT IONS AND IV A RRANfoi S .............. .
13. I NS URANCE . . ............................. .
14. BREAC H .......... . .............................. .
15. REMED I ES ... .. .. .................... . .............................. .
16. NOT ICES AND REPRESENTATIV ES
17. RIGHTS IN DATA. DOCUMENTS. AND CO MP UTERS FTIVA RE .......... .
IS . GOV ERNM ENTAL IMM UN ITY ............................. .
19. ST ATEW ID E GR ANT MAN AGEMENT SYSTEM .... .
20. GENERAL PR OV ISIONS
21. COLORA DO SP ECIAL PR OV ISIONS ......
22. SIG ATURE PAGE .......................... ..
23 . EXHIB IT A -STATE M ENT OF WORK .....
I. !'ARTIES
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Th is Gra nt Agreement (hereinafter ca ll ed II rant") is c111cred int o by and betwee n City of Englew oo d, I 000
Englewood Pkwy .. Englewood , CO 80110 (here inafte r cul le d" n111 1cc"). and !h e STATE OF COLO RADO
acting by nnd throug li th e Co lorad o Onicc of' l::.conomic Dcvc lop 111c111 1111d l111 crnn 1i ona l Tracie , olo rad o
Econo mic Dc-ve lop mcnl Co mm iss ion. I 625 Brondwn y, ~ uitl' 27 00 . Denver. 0 80202 (hereinafte r ca ll ed the
"State" or "OEDl"I").
2. EFFE CT I VE DATE A 'll 'OTI CE OF NON LI AB ILITY.
Thi s Grant shall not be effec tive or enforceable u111i l it is upp rovcd ancl signed hy the olorndo State Co ntroller
or des ignc c (hcrc inaflcr ca ll ed th e "Effective Dm c·'). The Sta te slrnll 110 1 be liahle to pa y or reim burse Grantee
for any performance hereund er, in cludin g. bu t not lim i1 ccl to cos 1s or expe nses in curred, or bt bound b) nny
provisio n he reof pr ior IO the Effect ivc Du te.
3. R EC ITALS
A. Auth orit)', AJlp ropriu ti on, and Appruvnl
CRS §24-46-101 th rough 24 -46-10 5 estab li shes the Co lorad o Eco nomi c De vcl o1, .. 11 Fund (her einafter
ca!lod "CEDF ''), and is to be administered by the Co lorad o Ofri cc of Eco nomi c D ip men t and
Internati onal Trade. Auth ority to cmc r in to thi s Gram nnd fund s have bee n budge 1... ap propriated and
otherw ise made availab le and H suffi cic,11 unen cumbere d bn lance thereof re mai ns avail able for payment .
Pngc I ur I
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Required approva ls, cleara11cc uml coordination have been acco mpli she d fn.'111 lu 1d with appropriate
agenc ies.
8 . Consid er ati on
The Pan ic s ack n \\1le dge thnt the mut ual promises and co venants co nrni rh·.-n:rc 111 and other good and
vn lllable co nsiderati on ore suffi.:ic nt and adeq uate to support th is rant.
C. Purp ose
T he tatc desire s to pro mote eco nomi c devel opment in Co lorn do hy ass is1iT:~ 1,,-JI co mmunitie s in
expanding their econ omic base. Gran t fund s wil l s uppon mark etin g the loca l area in th e En1erpri sc Zone .
D. R efer e nces
All refe rences in thi s Gra nt to sec ti ons (whe the r spelled out or using th e § sy mbol). subsec ti ons. exhibit s or
other attachments, are refe rences to sec ti ons , sub section s, exhibit s or othe r n11uc hm cnt s co nwincd herei n or
in co rporated as a pan he reo f, unless otherwi se noted.
4. DEF IN ITION
T~e followi ng tenn s as used herein shall be constr ued and i111 crp re1ed as fo ll ows:
,\. Budg et
"Bud get " mea ns the bud get for the Work desc rib ed in Ex hibit A.
B. E\'aluat io n
"Eva luation " mea ns the process of ex amining Gra nte e1s Work and ra1 in g is base d on cri teria e tab lis hed in
§6 nnd Exhibit A.
C. CE DC
11CEDC 1
' mea ns the Co lorad o Economic Devel opment Co mmi ss ion wh o mad e thi s Gra nt available .
D. Ex hibits
The fo ll ow in g ex hibit is att ached heret o and in co rpora ted by refe rence herein : Ex hibit A.
E. Goods ~
"Goods" mea ns ta ng ible material acquired . produced . or delivered by Gran te e either separatel y or in ~ t
conjunction with the Services Grantee rende rs hereund er.
F. G runt or Agree me nt
"Gra nt " or "Agree ment " mea ns thi Gra nt, its terms and co ndi1i ons. nnachcd exhi bit s, docum ent s
inc orporated by reference und er th e term s of th is Gra nt , an d any futur e modifyin g agree ment s, exhibit s,
n11nchmen ts or referen ces in co rporat ed here in pu rsuant to Co lora do State hm't Fi sca l Ru les. and Sla te
Co ntro ller Policie s.
G. Grunt Fnnd s
"Gran t Fu nds" or '·CED F" mea ns fund s available fo r di stributi on by th e CE DC fr om th e Co lora do
Economi c Dev elopm en t Fund pa yab le by the St ate to Gran tee p1Jr~ua nt to th is Gra nt.
H. P url)' or Parti es
"P1111 y" mean s th e tntc or Grant ee an d .. Jlarti e. •· mc nns both th e Sw.tc and Gra na:~.
I. Rev iew
nRcvicw" means exa minin g Grnn 1cc 1 s Work to ens ure 1ha1 i1 is ade quate , accurate. correc t and in
acco rdan ce with th e critcrin es tabli shed in §6 an d Ex hih il A .
. I. Sc n 1ic cs
"Serv ices" mean s th e requ ire d se rvice s to be per for med by Grant ct..: pursuant to tl1 is Gra nt .
K. Sub-g l'llnt cc.•
"Sub-grantcc1
• mea ns third -pa 11i cs , if' nn y, en gage d by Grant ee 10 aid in pcr fo nna ncc of its obli gai ions.
L . Wo rk
"Work " menn s th e tas~s and ac1ivitics Gra ntc.c is re qui red to per fo nr ·n fulfill i1s obliga ti ons un der thi s
Gra nt and Ex hibit A. includin g th e perfo rmanc e of the Service s and deliv ery of th e Goo ds.
M. \.\lork Product
''Work Produ ct" mean s th e tangibl e or int nng.i bl c re s ult s ofGrantcc·s Wor k, in cl ud ing, but not limit ed 10.
software, research , re po rt s, stud ies, dn tn, phot O£raph s, negative s or oth er fini shed or unfini shed d cumcn ts.
drawing s, model s. surveys. map s, material s, or wo rk produ ct of nny type, incl ud in g draft s.
\loge 2 of2
5. TERM AN D EARLY TERMINATION.
• A. Inili al Term an d Work Co mm enc ement
The Parti es respective performan ces unde r this Grant shall co mm ence on the late r of eit her th e Effec ti ve
Date or Janu ary I, 2010. This Grant shall term inate on Decembe r 31, 2010 unless soo ner termi nated or
furth er ext end ed as spec ifi ed el sew here herein .
B. State's Op ti on to Ex tend
The St ate ma y requ ire cont inu ed pe rfo rma nce fo r a peri od of 3 mon th s at th e sa me ra tes and sa me terms
spec ifi ed in th e Gra nt. The to tal duration of th is Gra nt, inclu ding th e exercise of any op tions under thi s
clause, shall not exceed I year and 3 mon th s."
6. STATEMENT OF WORK
A, Co mpl etion
Grant ee shall complete the Work and its oth er obli ga tio ns as desc ri bed he re in and in Ex hibit A on or
befo re Decem ber 31,20 10. The St ate shall not be liab le to co mp ensate Gra ntee for any Work per fo rm ed
pr io r to th e Effe ctive Da te or afte r th e tem1in atio n of thi s Gra nt.
B. Goods and Se rvi ces
Gran t°" shall proc ure Goo ds an d Services ne cessary to co mp lete the Work. uch procurement shall be
acco mp li shed us in g th e Grant Fund s and shall not increase the max imum am oun t paya bl e hereunder by th e
Stat e.
C. Em pl oyees
All pe rso ns empl oyed by Grantee or Su b-gra ntees sha ll be consid ered Gra ntee 's or Su b-grante es'
empl oyee(s) fo r all pu rposes hereund er ana shall 11 01 be employees of th e tate for any purpose as a result
of thi s Grant.
7.PAVME TSTOGRANTEE •
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The Stat e shall , in acco rdan ce wit h the provi sions of thi s §7 , pay Grantee in th e fo ll owin g amo unts and usin g th e
meth ods set forth bel ow:
A. Maximum Amount
The maximum amount payab le under thi s Gra n: to Gra nt ee by the State is $12,500 , as dete rmin ed by the
State fro m av ai la ble fund s. Grant ee agre es to pro vid e an y add itional fu nds requi red for the successful
co mpl et ion of th e Wor k. Pay men ts to Grantee are limited 10 th e un pa id ob li ga ted balance of th e Gra nt as
sr t fo rth in Ex hibit A.
8. Payment
i. Ad,1:rn cc , Int erim and Fi nal Payments
Any adva nce pay ment all owed un der thi s Gra nt or in Ex hibit A sha ll compl y wi th State Fiscal Ru les
and be made in acco rda nce with th e prov isions of thi s Grant or such Ex hib it . Grant ee shall ini tiate an y
payment requests by sub mi ttin g invo ices to th e Slate in th e form and man ner approved by th e State.
ii. Interes t
The State shall fu ll y pay each invoice with in 45 days of rece ipt th ere of if th e am ount in vo ice d
represe nt s perfor mance by Gra nte e prev iously accepted by th e Sta te. Unco ntested amount not pa id by
the St11 te withi n 45 days may, if Gra nt ee so requ ests, bear interes t on th e un paid ba lance beg innin g on
lhc 46 th dn y at n rate not to ex ceed one pe rce nt pe r mont h until pa id in fu ll : :'1·ov idcd 1 however, that
interest sha ll not acc ru e on un paid amo unt s th at arc subjec t to a good fai th d1$p1Jt c. Grn nt.ec ":1a ll
inv oic e the State separate ly fo r accrued in terest on de linquent amoun ts. Th e billing shall refere nce the
de lin quen t payment, the num ber of da y's interest 10 be pa id and the in terest rate.
iii. Ava ilabl e Funds , Co ntin ge ncy and Termination
The State is pro hi bited by law from makin g fi sc nl co mm itm en ts beyond th e ter m of th e Stat e's curre nt
iiscn l year. Th erefore , Grn mcc 's co mpensa ti on is conti ngent upo n th e co nt inu ing avai lab il ity of Sta te
app rop riat ions as prov ided in the Co lorado Spec ial Prov isions, set fo rt h bel ow. If rederal fund s arc
used with th is Gra nt in whole or in r1 art , the Stat e's performance he reun der is co ntin ge nt upon th e
co ntinu ing ava il ab il ity of such fun ds. Pay ment s pu rsuant 10 thi s Gra nt sha ll be made onl y fr om
avail able fu nds encum bered for this Gra m and the tale 's liabi li ty for suc h pay ment s shall be limi ted
to the mn ou111 re maini ng of suc h encu mbere d fun ds . If State or federal fun ds arc not appro priated , or
Poi;c3 of3
r,t1 1erw ise become unavailable to fund thi s Grant, the State may immediately terminat e this Grant in
whole or in part wi th out further liability in accordance with the provisions herein . 4 ~
iv. Erron eo us Pa yments
At the State 's so le discretion , pa yments made to Grantee in error for any reaso n, incl uding1 but not
limited to ove rpayments or imp rope r payments , and unexpended or ex cess fund s received by Grantee ,
may be rec ove red from Grantee by deduction from subseq uent payments under this Grant or ot her
Grants , gra nt s or agree ments between the State and Grantee or by other app ropriate meth ods and
co lle cted •s a debt due to the State . Such funds sha ll not be paid to any party other th an the State.
C. Use of funds
Gra nt Funds shall be used on ly for eligible costs identified herein and/or in the Exh ibit A.
D. Matching Funds
Grantee sha ll provi de matching funds as provided in Exhibi t A.
8. REPORTING AND NOTI.FIC::AT ION
Reports , Eva lu ations, and Reviews required under this §8 shall be in accordan ce with the procedu res of and in
such fonn as prescribed by the State and in accordance with §19 , if applicable .
A. Performanc e, Progress, Personnel , and Funds
Grantee sha ll subm it a report to the S:tate upon expirati on or som:cr termina ti on of this Grant, co ntainin g an
Eva lu ation and Review of Grantee 's performance and the fin al SLltus of Gra nt ee's ob ligations hereunder. In
addi ti on , Grantee shall comp ly wi th all repmt ing requirements , if any, set fo rth in Ex hi bit A.
8 . Litigation Reporting
Within 10 doys after being serve d with any pleading in o lcgnl oc·.ion liled with o co un or adm in istrative
agency, related to thi s Gran t or which may affect Grantee 's ability to perform its ob ligations hereunder ,
Gra ntee shall notify th e State of such action and deliver rop ies of such pleadings to the State's principol
represe ntative as identifi ed herein . If th e tat e's principdl represe nt ative is not th en serving, such noti ce nod
cop ies shall be delivered to the Execu tive Director of'.lED IT.
C. No nco mpliance
Grantee"s failure to provide rcp ortS and notify Lhe Stall' in a tim ely manner in accordan ce with thi s §8 ma y
re su lt in the del ay of payment of funds and/or tcrminati :m as provided u·,1dcr this Grant .
D. Suh-gran ts
Co~ies of an y and all Sub-grants entered into by Grantee 10 perfoc.n its obli ga ti ons hereunde r shall be
subrr,incJ to th e State or it s prin cipal represe nt ative upon reque st by the Stale . Any and all Sub-gra nt s
es:aed into by Gra ntee re lated to it s performance hereunder shall com pl y with all applicable fede ral and
state laws and shall rrovide that such Sub -grants be gove rned by the law s of the State of Co lorado .
9. GRANTEE RECORD S
Grantee shall mak e, keep , maintain !!rid al low in spection nnd mon it oring of the fo ll owi ng records:
A. Ma intenance
Gran tee sha ll make , keep , nvtintnin , and all ow in spection and monitoring by the ta lc of a co mplc 1c file of
all records , do cume nts, communicati ons, notes and other written materials , electronic media files, and
communicat ions, pertnining in an y manner to the Work or the del ive ry of Service s (inc lu din g., but not
lim it ed to the op crntion of prog ram s) or Goods hereunder . Gran tee shall maintain such records (the
"Record Retenti on Period ") until th e la st to occ ur of th e fo ll owin g: (i) n peri od of three years after the dnte
this Grn nt is co mpleted or term inated , or (ii ) final p:1ymcnt is made here under,,. hichevcr is la1cr, or (iii) for
such fu rther pcr :..xt as may be necessary 10 re so lv e an y pending matlers, or (iv) if nn aud it is occ urrin g, or
Gramce has rece iv ed notice that an audit is pending, then until such audit has been comp leti:d 1111d it s
fi ndin gs hnve been re so lved (th e "Reco rd Rele nt ion Period ").
B. In spec ti on
Gran tee shall pennit the State, the federal gov ernment and an y other dul y authorized agent ofu
~o vcrnmental age ncy to audit , inspect , examine, excerpt, copy and /or tra nscr ibe Gran tee's rec ord s related to • t
thi s Grant during th e Record Retenti on Per iod for a peri od of three yea rs foll owi ng terminati on of this •
Grant or final pa yment hereu nd er , whichever is later , to ass ure co mpliance with the tcnn s here of or 10
eva lu ate Grantee's performan ce hereunde r. The State re serve s the right to inspect th e Work at all reaso nabl e
Pnge 4 or 4
time s and plaees durin g the 1enn of this Grant , in cludin g an y extension . If the Work fail s to confo nn to the
re qu irem ent s of th is Grant, the State may require Grantee promptl y 10 bring the Work int o co nfo nnity with
Gra nt requ irements, a1 Grantee's so le expe nse . If the Work cannot be brought i1,•o confonnance by re-
perfo nnance or other corrective measure s, the State may require Grantee to take necessa ry action to en sure
that future pcrfonnance confo nn s to Gra nt requireme nts and exercise the remedies ava ilable under this
Grant, at law or inequity in lieu of or in conju nction wi th suc h co rrecti ve measures.
C. Monitoring
Grantee shall penni1 th e State , the federa l govern ment , and any oth er duly auth orized agent of a
gov ernmental agen cy to mon itor all ac tivities co nduct ed by Gran tee pursuant 10 th e tenn s of thi s Grant
using any reaso nable procedu re, in clu ding, but not limited to: internal evaluati on procedures, exa min ation
of program data , special analyses, on•si te chec kin g, fo rmal audit examination s, or any other proce dures. All
monitorin g controlled by th e tat e sha ll be perfo rm ed in a manne r th at shall not undul y interfere with
Grantee 's performance hereunder .
D. Final Audit Report
If an audit is perfonned on Gra ntee's reco rds for any fi sca l year covering a porti on of the tenn of thi s
Grant, Grantee shall sub mit a co py of the final aud it rep on to th e State or its prin cipal representative at the
addres s specified here in.
10. c o r•,FIDENTIAL INFORMATION A D TATE RECORD S
Gra ntee sha ll co mpl y with th e ,wisio ns on thi s §10 if it becomes pri vy tr, confidential infonnati on in
co nn ecti on with its perfonna•1 u 1zreunder. Co nfid ential informati on , inclLdes , but is not necessarily limited to,
state rec ords , personnel reco rd !. ,11d inform at ion co ncerning individua ls.
A. Confidentiality
Gran tee shall keep all State records and in fo rn1at ion con fidenti al at all time s and to co mpl y with all law s
and re gulati ons co ncern in g confidentiality of infonnat ion. /\n y request or demand by a third party for State
reco rd s and infommtion in the possession of Gra nte e shall be immediate ly fon.va~ded to th e State's
principal repre sentative.
B. No tification
Gramee shall no1i fy it s agent , employees, Sub-grantee s, nnd assigns tha1 ma y co me int o co nta ct with Stat e
record s and co nfid ent ial in fo rm at ion th at each is subject to the confidentia lity requirement s set fo rth herein,
and shall provide each with a wrillen explanati on of such requirement s before th ey arc per mitted 10 access
such records and in format ion.
C. Use , Sec urity, and Retention
Co nfi den ti al in fo rmati on of an y kind shall not be distribut ed or so ld to any third pany or used by Gra nt ee
or it s agen ts in an y way, ex cep t as au th orized by thi s Grant or approved in wri tin g by the tat e. G,ant ee
shall provid e and ma intain a sec ure environm ent that en sures co nfidenti ality of all Staie records and ot her
co nfid ential infonnati on whe rever located . Co nfidential in fo rm at ion shall not be ret ained in any file s or
otherwi se by Gra n1 ee or its agent s, except as permitted in th is Grant or approved in writing by th e State .
0. Di sc los ure and Lia bility
Di sc losu re of Stnt e reco rd s or oth er co nfidential informa 1ion by Gran te e for any reas on ma y be cause for
le gal ac ti on by third partie s agains1 Gra nt ee , th e late or thei r re spective agents. Gra n1 ee shall inde mn ify.
save . and hold harm le ss the-Sta te, iLS emp loyees and agent s, aga in st any and all cla ims, damage s, liability
and co urt award s incl udin g co sts , ex pen ses , and attorney fee s and related costs, in curred as a re sult of any
ac t or omi ss ion by Grantee , or its employees , agents , Sub -gra nt ee s, or ns sii;necs pursua nt 10 this §10.
11. CON FLI CTS OF INT EREST
Gra nt ee sha ll not en gage in any bu siness or perso nal activ iti es or practices or mainta in any rel atio nship s whi ch
co nflicl in any way with th e fu ll per formance of Grantee's ob li gat ions hereunder. Grantee a knowledges that
with respect to thi s Grant , ev en the appearance of a con fli ct of in terest is hannful to th e Sta te's int erests. Ab sent
the State 's prior written approval 1 Gra n1 ee sha ll refrain from any practiccs1 ac tiviti es or re lationshi ps that
rea so nably appear to be in co nni ct with the fu ll perfonna nce of Grant ee's obl igati ons to th e Stat e here un der . !fa
co nflict or appearance exists , or if Gran 1cc is uncertain whether n co nfli ct or the appearance of a co nflict of
int erest exist s, Grantee shall submit 10 the State a discl osure stnt emt:nl se ttin g forth th e relevant detail s for th e
State 's co nsiderati on. Failure to prom ptly subm it a discl osure statement or to fo ll ow 1he St ate's direc tion in
re ga rd 10 th e apparen ~ co nfli ct co nstitu tes a breach Qf th is Gran t. 4 t
12 . REPRESENTAT IO NS AND WARRANT IES
Gran tee mak es 1he fo ll owi ng s pe cifi rep rese ntation s ·md warrantie s, eac h of wh ich was reli ed on by the State in
en terin g int o th is Gra nt.
A. Sta nd ard a nd Mann er of Perform a nce
Grante e shall perform it s ob li ga ti ons hercurJer in acco rdance with the hig he st stand ard s of care , skill and
dilige nce in the in du stry, trade s or profes·~1on and in th e se quen ce and manner set forth in thi s Gra nt.
B. Lega l A uth ori ty -Grantee a nd G rani1.'1.~s Signat ory
Gra ntee wa rra nt Ci that it possesses the legal auth ority to ent er int o thi s Grant amJ 1l it has taken all actio ns
req uired by its pruced ures , by -l aws, an d/o r ap pli ca ble laws to exe rcise th at autt ... ,y, and to lawfully
auth ori ze its un fors igned sign atory to exec ute thi s Grant, or any pan th ereof, and to bind Grantee to its
tem,s. If req uested by th e State , Grant ee sha ll prov ide th e Sta te Y•it h proof of Grantee · s au th ori ty to ent er
int o th is Gran t within 15 days of receivin g such req ue st.
C. Licenscs 1 Pcrmils, Etc.
Gra nt ee re prese nt s and wa rrants th at as of the Effec tive Da te it has , and th at at all times du; ing th e term
he reof it shall have , at its so le expen se, all li cen ses. ce rtifica ti ons, approva ls, insura nce, permit s, and other
auth oriza tion requ ired b~ la w to pcrfonn its obligati ons hereun der . Gran tee wammts Ulat it sha ll mai niain
all ne cessary li cense s, ertificat!on s, app roval s, in su ran ce, perm it s, and oth er authorizatio ns requi red to
pro per ly pe rfo nn this Gran ·., wi th out reimbursement by th e State or oth er adju stment in Gra nt Fund s.
Addit ionali y, all emp loyees and agent of Gra nt ee perfonni ng Services un der th i Gra nt shall hold all
req uired li cen se s or certifi cati ons, if any, to perfo rm their res ponsibi liti es. Grantee, if a fo reign corpora tion
or oth er fo reig n entity transacti ng bu sine ss in th e Stat e of Co lorado , further warra nts that it currentl y has
obtain ed and shall mai nta in any appl ica ble cc nificat e of aut hori ty to tran sact busine ss in the State of
Co lora do and hn s de signat ed a re gistere d age nt in Co lorad o to accept se rvi ce of proce ss. An y revocation ,
withd rawal or non-renew al of li ce nse s. cert ifi cati ons. apprnval s. in suran ce . permit s or an y suc h simi lar
re quire ment s nece ss ary for Gra nt ee to pro perl y pe rfo nu th e term s of thi s Grant shall be dee med to be n
mate rial brea ch by Grant ee and co ns titut e gro und s fo r termi nation of thi s Grn nt.
13. INSU RAN CE
Gran ter and it s Sub-gran tees shnll obtain und muint ai n in suran ce as s pe cifi ed in th is section at all ti mes durin g
the tcnn of th is Gra nt. All poli cie s evid encin g the ins ura nce co verage required he re unde r shall be iss ued b)
in sur,m cc co mpa ni ati sfac tory to Gran tee and the State .
A. Gru nter
i. Public E ntities
If Gra ntee is a "p ub li c ent i1 y" within th e mea ning of the Co lon1do Govern mental Immunity Act, CRS
§24-10-101 , cl seq .. as nmcnclcd (the ''GIA''). then Gra nte e shall mninrn in at nll tim es durin g, th e 1erm
of th is Grant such liabi li ty in s urance . by co mmercia l po li cy or se lf-insurance , as is necessary to meet
it s liab ilitie s under th e GIA. Grn nt ct shall show proof c f such ins ura nce satisfa ctory to the tal c, if
req uested hy 1hc Stntc . ra ntcc shall require eac h Gra nt wi th Sub-grant ees thai arc publi c entities.
provid in g Goods or crvices he re un der , 10 include 1hc in s uran ce requiremc n1 s ne cess ary to 111 cc1 Sub-
grant ees li abiliti es un d r th e GIA.
ii. No n-Pub li c E ntiti,•s
If ,rn ntcc is not n "p ub lic ent ity" wit 11111 th t meanin g or the GIA . Grmucc shall ob1ain and mnint nin
duri ng th e ter m of th is ,ran t in sura n.:c cov c1ngc and po li cies meet ing the sa me req uirem ent s sci fo nh
in §13(8) with respect to Sub-gran tees tha t ore not "'public entiti es·•.
::.. Grant ees and Sub-Gru ntt•cs
Grn ntec sha ll require cnc h Gra nt with Sub -grn n1 ccs , oth er than th ose th at arc publi c enti ti es, provid ing
Gol•ds or Servi ce s in con ne cti on with thi s Gran t, 10 in clude in sura nce requi re ment s uh stantin ll y s imil ar to _. l
th e · bll owing : • ,
l'ngc 6of6
•
•
i. Worker's Compensation
Wor ker's Compensation Insuran ce as requ ired by Sta te statute, and Empl oyer's Liability Insurance
cove rin g all of Grantee and Sub-grantee emp loy ees ac ting within th e course and sco pe of th eir
empl oy ment.
ii. Ge nera l Liability
Com mercial Ge nera l Liability In suranc e wrin en on ISO occ urrence form CG 00 01 10/93 or
equivalent , covering premi ses ope ratio ns, fire dama ge , indepen dent Grnmces, product and cumpleted
opr .. at ions, bl anket Grantual liability, personal inju ry, and adve rti sin g liability with minimum limit s as
fo ll ows: (a)S I ,000 ,000 each occ urrence; (b) $1 ,000 ,000 ge neral agg regate ; (c) $1,000,000 produ cts
and co mpl eted operat ions aggrega te; and (d) $50,000 any one fire .
iii . Automobile Liability
Aut omobile Liab il ity Insurance covering any auto (includ in g owne d, hired and non-own ed autos) with
a minimum limit ofSl,000,000 each acc id ent co mbin ed sin gle limit.
iv. Additional In sured
Grantee and th e State sha ll be named as ad dit io nal insured on the Co mm ercial Ge nera l Liability
(leases and co nstruction Grants require add iti onal in sure d coverage for co mpl eted ope rati ons on
end orse ments CG 2010 11/85 , CG 2037 , or equivalent ).
v, Primacy of Coverage
Coverage required of Gra nt ee and Sub-gra ntees shall be prima ry over any in surance or self-ins uran ce
prog ram ca rried by Gra ntee or th e Sta te.
vi. Ca ncclhttion
The abvve in su rance po li cies sha ll inc lud e pro\1isions preventin g ca ncellati on or non-ren ewal wi1hout
at least 45 da ys pr io r noti ce to th e Gra ntee and the State by certified mail.
vii . Subrogation Waiver
All in surance policies in any way rel ated 10 thi s Grant and sec ured and mai mained by Grantee or iis
Sub-gra nt ees as required herein shall includ e clnu scs sta tin g th a1 eac h ca rrier shall waive all ri ght s of
rec ove ry , un der subroga tion or oth erwise , aga in st Gra n1 ce or th e S1n1 c1 it s age ncies , in stituti ons.
organi za ti ons, offi cers, age nts, emp loyees , and vo lunte ers.
C. Certifi ca tes
Grante e and all uh-gra ntees shall provide cert ifi ca tes showi ng in surance coverage req uir ed hcreu nrier to
the State within seve n bus in ess days of th e Effectiv e Da te of thi s Grant. No laterthan 15 days prio r to the
exp irat ion date of any such cove ra ge 1 Gra mec and each uh-grant ee shall de li ver to the late or GrJni ec
ce rt ifica tes of insurnn ce ev ide nci ng re newals th ereof. In add it io n1 upon req uest by th e Sta te at any other
tim e du ring th e teim of thi s Grant or any sub-grant, Grantee and each Sub-gran tee shnll 1 within IO days of
such requ es t, supply 10 th e State eviden ce sa ti sfactory to the State of comp li ance with the prov isio ns of thi s
§13 .
14. BREAC H
•
A. Defined
In add it ion to nny brea che s specified in ot her sectio ns of thi s Grant, 1he failure of eith er Pnny to pcrfcm11
11 11y of its mtueri nl ob ligntion s hereunder in wh ole or in pan or in 111imely or sa ti sfac tory manner,
constitut es a breac h. The instit uti on of proceed ings und er any bank ru ptcy, in sol vency , reo rgani za ti on or
sim il ar low , by or against Gra ntee , or th e ap pointm ent of a receiver or sim ilar offi cer for Grn nt ec or any of
it s property, whic h is not vac ated or fully stayed within 20 days after the instilln ion or occu rren ce thereof,
shn ll also co nsti tut e a breac h.
n. Notice and Cure Peri od
In th e eve nt of n brca :h, noti ce of such shall be given in wri 1in g by th e agg ri eved Pany to the oth er Party in
the manner provided in §16. lf suc h breac h is not cured wit hin 30 days of rece ipt ofwrincn noti ce , or ifn
cure ca nn ot be co mp leted within 30 days, or if cure of th e breach has not beg un wi thin 30 days and pursued
with due dili ge nce , the State ma y exe rcise any of th e rem ed ies se t fo rt h in §IS . Notwi thsta ndin g anythin g
to th e co ntrary herein , the tme , in it s sol e di sc ret ion, need not prov id e advnnce not ice or a cure period and
may imm ediat ely terminntc thi s Grnlll in whole or in part if rea so nably necessary 10 preserv e publi c safety
or 10 preven t immediate public crisis .
Puge 7 of7
IS . REMEDIES
If Grantee is in breach under any provis,on of thi s Grant , the State shall have all of the remedies listed in thi s
§15 in addi ti on to all other remedie s set forth in other sec ti ons of thi s Grant followi ng the noti ce n11d cure period
set forth in §14 (8 ). The State ma y exercise an y or all of the remedie s availab le to it, in it sole discret ion,
concurren 1ly or consecutive ly.
A. Tcrmimuion fo r Cause und/or Brcnch
If Gran tee fails to perform nny of its obli ga ti ons hereunde r with such diligence as is required to ensure its
co mpletion in accordance with the provi sio ns of thi s Gram and in a timely manner, 1hc tale may notify
Gra ntee of such non-perfonnance in accorda nce with the provis ions herein . If Grantee thereafter fails to
promp tl y cure suc h non-perfom1a nce within the cure pcri c,.i. the tate , at its op ti on, ma y terminate this
entire Grant or such pan of th is Grant as to which there ha s been delay or a fai lur e to properly perfo rm .
Exercise by th e State of this right shall not be deem ed a breach of it s obli gat ions hereunder. Grantee shall
cont inue perfom1ance of thi s Grant to the extent not tennina1ed 1 if nny.
i. Obligations and Ri ghts
To the extent specified in any tennination notice , Grant ee shall not incur further ob ligations or render
further perfonnancc hereunder past th e effective dat e of such nmice , and shall tcm1ina te outstandin g
orders and Sub-grants with third partie s. Howeve r, Grantee shall co mpl ete and deliver to the State all
Work. Serv ices and Goods not ca ncelled by th e terminati on noti ce and may in cur ob li gations as arc
nece ssary to do so within this Grant 's term s. At the so le di sc reti on of th e Sta te, Grantee shall ass ign to
th e talc all of Grantee's right , ti tl e, and interest und er suc h tcmtin ated orders or Sub-grant s. Upon
terminati on, Grantee shall take timely, re aso nab le and ne cessary ac tio n to prot ec t and pre serve
perty in the possess ion of Gra nt ee in which th e State has an interest. A II materials ownc(i by the
_,ate in th e possessic JfGrantee sha ll be immediately ret urned to th e State . All Work Product , at the
option of th e Stat e, sha ll be delivered by Gra nt ee to the lat e and shall become the State 's propert y.
ii. Pa,•mcnts
The Stale shall rei mburse Grantee onl y for accep ted pcrfonrnrnce up to th e date of 1cr minati on. If, nficr
termi nat io n by the Stnie, it is df!lcrmi ncd 1hat Grnntee wa s no1 in brea ch or that Gra ntee's ac 1ion or
inaction was excusable , suc h · 111;nation sha ll be treated as a tenninati on in the publi interest and the
ri ght and ob li ga ti ons of the l .,rties shall be th e same as if thi s Gra nt had been tcnninntcd in the public
int erest, as de scr ibed herein .
iii. Damages a nd \Vithholdin g
at-wi th standing any oth er remedial act ion by the Sta te. Grnn 1cc nl so shal l remain liable to the Stale
for any damages sustained by the S111tc by virtue of any breach un der this Grant by Gra nt ee nnd the
State mny with hold any pay ment to Grantee for the purpose of mitigatin g the Sta te's dama gc.:s, until
such time ns th e exact amo u111 of damages du e to the tnte from Gra nt ee is dc1crmincd . The Stntc may
withhold any amourit tha t ma y be due to ,rantec as the State deems necessary to protect th e Stme ,
incl udin g loss as a resuh of out stand ing lien s or claims of fo rmer li en holders, or to rei mbur se th e
State for the exce ss costs incurred in proc uring similar goods or services . Grnntee shall be liab le for
excess cos ts inc urred by th e Stn te in procuring fr om third parties replacement Wo rk, Services or
substitu te Good as co ve r.
U. E1irl y T e rmination in the Public: Inte res t
The · talc is ent erin g int o thi s Grunt for the purpose of carryin g out the public polic y of the Sla te of
Co lr r11d o, as dctcrmi11cd by it s GO\ crnor, Genera l Assembl). and /or Co urt s. If tlti s ,rnnt ce ases to furtl1er
the publi c policy of the State. the Suuc , in il s so le di sc retion , may tcnninatc thi s rant in wh ole or in part .
Exercise by lhc State of tl11 s right shall nm const i1ut c a breach of the Slate 's ob li gations hereunder. This
subsec ti on sh all nol apply to a terminati on of th !s Gran! by the State for ca use or brea ch by Gran tee, which
shull be gove rned by §1 S(A) or us oth erwise specifi ca ll y provided for herein .
i. Method nnd Content
The Stnte shall not ify Gra nt ee of suc h te rminati on in acco;-dancc with§ 16. The not ice shall specif)' 1he
effec tiv e da te of th e lcrmi nnti on and whether i~ affect s all or n po11ion of thi s Gra nt.
"
ii. ObUgatlons and Rights
Upon receipt of a termination notice, Grantee shal l be subject to and comply with th e same ob ligati ons
and rights set forth in §IS(A)(I).
ill. Paymen!J
If this Grant is terminated by the State pursuant to th is §IS(B), Grantee shall be paid an amount which
bears the same ratio to the total reimbursement under this Grant as the Services satisfactorily
performed bear to the total Services covered by thi s Gran~ less payments previously made.
Additionally, if thi s Grant is less than 60% completed, the State may reimburse Grantee for a portio n
of actual ou t-of-pocket expenses (not otherwise reimbursed under thi s Grant) incurred by Grantee
which are directly attributable to the uncompleted portion of Grantee 's obligations hereunder;
provided that the sum of any and all reimbu rse ment shall not exceed the maximum amount payabl e tl
Grantee hereunder.
C. Remedies Not Involving Termination
The State, its sole discretion, rr.,y exercise one or more of the following remedies in addition to other
remedies available to it:
I. Suspend Perfonnance
Suspend Grantee's performance with respect to all or any µorti on of this Grant pending necessary
corrective action as specified by the State without entit lin & Grantee to an adjustment in price/cost or
performance schedule. Grantee shall promptly cease performance and incurring costs in accordance
with the State's directive and the State shall not be liable for costs incurred by Grantee after the
suspensi on of performunce under this provision.
ii. Wltbbold Payment .
Withhold payment to Grantee until corrections in Grantee 's performance are satisfactorily made er !i
cornpleted .
iii. Deny Payment
Deny payment for those obligations not performed , that due to Grantee's actions or inactions , cannot
be performed or, if performed , would be of no value to the State; provided , that any denial of payment
shall be reasonably related to the value to the State of the obligations not performed .
Iv. Removal
Demand removal of any of Grantee's employees, agents, or Sub-grantees whom the State deem s
incompetent, careless, insubordinate , unsuitable , or otherwise unacceptable, or whos e continued
relation to this Grant is deemed to be contrary to the public interest or not in the State 's best interest.
v. Intellectual Property
If Grantee infringes on a patent, copyright, trademark, trade 1;ecret or other intellectual property right
while performing its obligations under thi s Grant, Grantee shall, at the State's option (a) obtain for the
State or Grantee the right to use such products and services; (b) replace any Goods, Services , or other
product involved witlt nor.-infringing products or modify them so that they become non-infringing ; or,
(c) if neither of the forep,oing alternatives arc reaso nabl y availabl e, remove any infringing Goods,
Services, or products and refund the price paid therefore to the State .
16. NOTICES AND REPRESENTATIVES
Each individual identified below is the principal rep resentative of the designotir.g Party. All notices required to
be given hereunder shall be hand delivered with receipt required or sent by certified or registered mail to such
Party 's princ ipal representative at the address se t forth below . In additi on to, but not in lieu ofa hard -copy
notice, notice also may be sent by e-mail to the e-mail addresses, if any, set forth below . Ei ther Party may from
tim e to time designate by written notice substitute addresses or persons to whom s11ch noti ces shall be sent.
Unless otherwise provided herein , all notices shall be effective upon receipt.
A. Statt:
Kevin Tilson
Colorado Office of Economic Development and Internation al Trade
1625 Broadwav. Suite 2700
Denver, CO 80202
kevin .tilson(tilstate.co .1· _, ----------------~
Page 9 of9
8 . Gra nt ee:
Nan cy Fe nton
Citv of Englewood
IOOO Enclewood Pkwv.
Enclewood , CO 80 I I 0
nfent on(tv,e ne lewoodgov .o re.
17. RIGHT IN DATA , DOCU MENTS , AND COMPUTE R SOFTWARE
An y software. research , reports, st udie s, data, photographs, negat ives or other documents , drawing , models.
materi nls, or Work Prod uct of nny ty pe, in cluding drafts , prepared by Grantee in th e per forma nc e of it s
obligati ons under th is Grant sh all be th e nonex clu sive property of the tate and, all Work Produ ct shall be
delivered to the State by Grantee upon completi on or tenninatio n here of. The StaIe 1s exclusive righ ts in such
Work Prod uct sltnll inc lud e, but not be lim ited to, the right to co py, publi sh, display, transfe r, and prepare
derivative works .
18. GOVERNME 'TAL IMMUNITY
01with standing an} oth er pro vi sion to th e co ntrary , nothin g he rein shall co nsti tut e a wai ver, ex prts:, or implied,
of an y of the unmunities, ri ghts , benefits , protecti on, or other pro vi sions of th e Co lorad o Go vernm enta l
Immunity Ac~ CRS §24-10-10 1, ct seq., as nmended . Liability for claim s for injuries to perso ns or pro pert y
arising from 1;,e neg I igcnce of th e Sta te of Co lorado, its departm ents, in sti tuti ons, age ncies, boa rd s, officials ,
an d ernpl oy<>:s is co ntrolled and li mited by the prov isio ns of th e Gove rnmental Immun ity Act and th e risk
managcmenr statu tes, CR §24 -30-1501. et seq., ns amended .
19 . STA -F':~·!"l·•E GRANT MANAGEMENT SYSTEM
lf tlte max .num am oun t paynb le to Grant ee underthi s Gra nt is $1 00 ,000 or grenter, either on th e Effectiv e Date
or nt anytime thereaft er, thi s §19 np pli cs.
Gra nte e agrees to be gov erned , and u .• bide , by the provis ions of CRS §24-102-20 5. §24-102-2 06 , §2 4-I 03-60 1,
§24-103.5-1 0 1 and §24 -105 -1 02 conce rnin g the monit orm g of vend or per fo rma nce on state Gra nts and in clusion
of Grant pcrforria ncc infomrn tion in a statew ide Gram :nanagcmc nt system .
Grantee 's per formance shall be subjec t to Eval uati on and Revi ew in accordance with th e te rm s and co nditi ons of
lhi s Gran t, Stntc law , incl udin g CR §24-10 3.5 -1 0:, and State r.:scal Rules, Policie s and Guida nce. Eva luati on
and Rev ie w of Gra nt ee 's performan ce shall be pdrt of the normal Gra nt admini s1raIion process and Gra nte e's
performance wi ll be sys 1cma ti cally reco rded ir. th e statewide Grant Management System. Aren s of Eval umi on
and Rev iew shall include . but shall not be limit ed to quality, cost and time li ne ss . oll cctio n of in formM ion
relevant to Ih c pcrformm,ce of Gra nte e's obli gati ons un der thi s Grant sha ll be deIem1ined by the specifi c
requircmc 111s of such obl iga ti ons and shttll include fac tors ta il ored to mat ch th e requirements of Gra nte e's
ob li gatio ns. uch performanc e informati on shall be entered in to th e statew ide Gran t Mana ge mc111 ys tcm at
in tervals establi shed herein and a finn l Evalua ti on. Review and Ratin g shall be rendered within 30 days of the
end of the Gra nt term . Gra nt ee shall be no1ifi cd fi I lowing eac h pe rfo rman ce Eva lu ati on and Review , and sha ll
address or correct any ide nti fied problem in a timely mann er nnd mai ntain work prog ress .
Should th e final performa nce Evaluation and Review determin e 1hat Gran1 ee demon smllcd a gross f:ti lurc 10
mee I the performance mea sures established hcrcu nd.:r, the Exec ut ive Director of th e Co lorad o Depa11 ment of
Perso nne l nnd Adm ini stration (faecuti ve i)ircc tor). upon req uest by th e OE DIT, und showi ng of g0od cause.
ma y de bnr ramcc and prohibit Grantee from bidding on fu ture Grnn ts. Grantee may co ntest th e final
E.va lu ai io n, Rev iew and Ratin g by : (:1) filing rebuttal statem en ts, wh ich may result in ci tlu.:r rem oval or
ccrrcc tion of the evaluation (C RS §24-105-102(6)), or (b) und er CRS §24-105-10 2(6). · ,crci sing the debnrrnent
protest and appeal right s provided in CRS §§24 -109-106, 10 7,201 or 202 , 11hi ch may res i:lt in til e reve rsa l of
the deba rment and re i11 .;1a tcm cnt of Gra nt ee , by Ill e Execu ti ve D:rec Ior, upon showi ng of good cause.
20. GENERAL PROV ISIO N
A. Assig nm ent and Sub -gra nt s
Gran tee's ri ght s and ob ligations hcrei;nder nrl' personal and may not be tra nsfe rred, assig ucd or sub-gra nted
without the prio r, writlen co nsent of the tale . Any attcmp l at ass ignme nt , or to transfer , or sub-grant
with out such conse nt sha ll be void. All assignmen ts, Sub-gra nt s, or Sub-grantees approved by Grant ee or
th e State arc subjec t to all oft he prov isions here of. Grantee sha ll be so lely re spo nsib le fo r all aspects of
sub-granting arrangemen ts and performnnce .
8. Binding Effect
Except as oth erwise provided in §20(A ), all provi sio ns herei n con tained , includi ng th e benefit s and
burdens , sha ll extend to and be bindi ng upon th e Pa ni cs ' re spe ctive hei rs , le ga l representa tive s, successo rs,
and assigns .
C. Capti ons
Th e captio ns and headings in thi s Gra nt are for conven ience of refe ren ce onl y, and shall not be used to
interpret, defin e, or limit its provis ions.
D. Counterparts
This G:-ant ma y be exe cuted in multip le ide nti cal origin al cou 111crparts , all of whi ch sha ll co nst itut e one
agreement.
E. Entire Und ers tandin g
Thi s Gra nt repre se nts ihe co mpl ete inte gra tion ofn ll understandings between th e Parties and all pri or
rep resentati ons and un de rstandings , oral or written , nre merged he rei n. Pri or or co nt em porn neou s additions .
delet ions, or other changes hereto shall not have any fc:-ce or affect whatsoever , unless embodied herein .
F. Indemnificati on-Ge neral
Grante e shall indemnify , save. and hold harmless th e tatc, it s em pl oyees and agents , again st any and all
clai ms, damages , liability and co un award s in cl udi ng costs, expe nses , and atto rney fee s and relate d costs,
incurred as a result of any act or omi ssio n by Grantee , or it s employee s, agents, Sub-g rant ee s, or assignees
p11rsuant to th e term s of th is Grant; however, the pro vi sion s here of shall not be con strued or in terpreted as a
waiver, expre ss or implie d, of an y of the immun ities , rig hts, benefits, protectio n, or other provi sio ns, of th e
Co loro do Gove rnme nt al Immun ity Act. CRS §24-10-10 I ct seq., or th e Federa l To rt Clai ms Act, 28 U.S.C .
2671 ct seq., as app li cab le , as now or hcrcn flcr amended.
G. ,Juri sdi cti on and Ve nu e
All suit . actio ns, or pro cee din gs related to thi s Gran t shall be held in th e State of Co lorado and ex clu sive
venue shall be in the Ci ty and Co unt y of Denver .
H. Modifica1ion
i. By lhc Pa rties
Excep t as spc ifi call y provided in thi s Gra nt. modific ati nns of thi s Grant shall not be effec tive unl ess
agreed to in wri tin g by both panics in nn amendment 10 thi!<i Grn 111, proper ly cxecu 1ed and approved in
11ccordan cc with ap pli cable Co lorad o tat c law , State Fi scn l Rule s, and Office of the tatc Co ntroll er
Poli cies . includin g. but not limit ed to, th e policy e nti tled MOD IFI CAT IONS OF GRANTS -TOOL
AND FORMS .
ii. By 0 1lcn1tion or I Jw
Thi Grn nt is .11JCCI to such morli 'i cmi on:,; as mn y he requ,;cd by changf..'s in Federal or Co lorado
tate law, or ~:r imp lementi ng rc,;ulation s. Any suc h required mod ifi cat ion aut om ati ca ll y shnll be
in co rpora ted int o and be pan ofth1s rant on th e ~fTcc tivc dale of such change , as if full y set fort h
herei n.
I. Order of Pre ce dence
The provisi ons of thi s Grant shall gove rn the relationship of the State and Gran tee . In th e event of co nfli cts
or inconsistenc ies be tween 1hi s Gru nt and it s exhibits and auu chmcnt s in c lu ding, but not lim ited to, those
prov id e by Grnntcc , such conflic ts or inconsiste ncie s shall be res olved by reicrcncc to the doc umen ts in
the foll owi:1g order of pri ori ty:
i. Colorndo pecial Provision~,
ii. The provi sion s of the mai n body of th 1s Grant.
iii. Ex hibit A.
J . Sevcra bility
Provided this Grant can be execut ed and performance of the ob ligations of the Part ies accomplished within ill -
its inten t, Lhe provision s hereof nre severable and any provis ion that is declared invalid or becomes ~
inoperable for any reason shall not affect the validity of any other provis ion he reof.
K. Survival of Certain Grant Terms
Notw ith standing anything herein to the con trary, provisions of this Grant requiring continued performance ,
comp liance , or effect after tennination hereof, shall survive such tennination and shall be enforcea bl e by
the State if Grantee fails to perform or comp ly as required .
L. Taxes
The State is exempt from all federal excise taxes under !RC Chapter 32 (No . 84-730123K) and from all
State and local government sales and use taxes underCRS §§39-26-101 and 201 et seq . Such exe mptions
apply when materials are purchased or services rendered to benefit the State; provided howev er, that certain
political subdivi sions (e .g., City of Denver) may require payment of sa les or use taxes even though th e
product or se rvice is provided to the State . Grantee shall be so lely liable fo r payi ng such taxes as the State
is prohibited from paying fo r or reimbursing Grantee for the m.
M. Third Party Beneficiaries
Enforcement of this Gra nt and all rights and ob ligati ons hereunder are reserved so lely to th e Partie s, and
not to any third party . Any serv ices or benefits which third partie s receive as a re sult of thi s Gra nt are
incidental to the Grant, and do not create any rights for such third panies.
N. Waiver
Waiver of any breach of a term , provi sion, or requ irement of thi s Gra nt, or any right or remedy hereunder ,
whether explicit ly or by lack of enforcement, shall not be construed or deeme d as a waiver of any
subsequent brea ch of such tenn , prov ision or requi rem ent, or of any other tenn, provis ion, or requirement.
THE RE ST OF THJS PAGE INTENTIO ALLY LEIT BLANK
rage 12 ofl2
.;J , COLORA DO PE CIAL PROVI SION
W The Sp ecia l Provisions epply 10 all Gra nts except where noted in itali cs.
•
•
A. I. CONTROLLER' APPROVAL. CRS §24 -30-202 (I ).
Thi s Grant shall not be de emed valid unti l it has been approved by the Co lorad o Sta te Controller or
de ignee .
B. 2. FUND AV AILABIUTY. C RS §24-30-202(5 .5).
Financ ial obligations of the tate payab le after the currcnl fiscal year arc cont in gem up on fund s for that
purpose being appropriated , budgeted , and otherwise made available .
C. 3. GOVERNMENTAL IMMUNITY.
No term or co nditi on of this Grant shall be onstrucd or interpreted as a waiver, expre ss or implied , of an y
of th e imm uni ties, ri ghts , benefits, protection s, or oth er provi sions , of th e Col orad o Governmental
lll'mun ity Ac t, CRS §24-10-101 et seq., or the Federal Ton Claim s Act, 28 U.S.C. §§ 1346(b) and 2671 ct
seq., as applicab le now or hereafter amend ed .
D. 4. INDE PENDE NT CONTRACTOR.
Grantee shall perfo rm its dutie s here und er as an in dependent Gra nt.::c and 1101 as an ~mp loyce. Ne ith er
Grantee nor any age nt or empl oyee of Gran tee shall be dee med to be an agent or employee of the State .
Grantee and its empl oyees and age nts are not entitled to unemp loyme nt in surance or workers co mpen sa ti on
be nefits throu gh the tate and th e Stat e shall not pay for or othe rwise prov ide such co verage fo r Gra ntee or
any of its agents or empl oyees . Cncmpl oyment in surnn cr.! benefits sha ll be ava il able to Grantee and its
empl oyees and age nts onl y if suc h coverage is ma de available by Gra nt ee or a third pnny . Grante e shall puy
when du e all app licabl e employme nt taxes and in co me taxe s :md local head tnxc s incu rred pursuant to this
Gra nt . Grantee shall not have auth oriz.ati o11 1 exp rl!ss or imp lied, to bin d th e Sta te to any Gran t, liability or
understa nding. except as ex pre ssly set fo nh herein . Grantee shall to) prov id e and keep in force worke rs'
co mpensati on a:,d unemployment com pensa ti on insurance in the amo unts rcCJuired by law , (b) prov id e
proof thereof when requ ested by the Stat e, a nd (c) be so lel y responsib le for its acts and those of its
empl oyees and agents .
E. 5. COMPLIAN CE WITH LAW .
Gra nt ee sha ll strictl y co mply with all a ppl icab le federal and Stat e laws, rul es, and regulations in effoct or
hereafter estab li shed , including, without limit at 'I:. laws app li cab le to discri mination nnd unfa ir
employ mem pr" ces .
F. 6. CROI C[ LAW.
Colorado law, and rule s and regulat ion s issurd pu sun nt theret o, shall be applied in the interpretation .
execution. and en fo rcement of thi s grnnt. Any provi sion incl uded or incorp orated he rein hy reference which
co nfli cts wi th said laws , rule s, and rcg ulat i,ms shall be null and void . Any prov ision in corp oraicd herei n by
refere nce wh ich purp orts to nc gn1 e thi s or any other Spec iiil Provi sion in whole or in part shall not be valid
or enforceable or availabl e in any n ti on at law. whether by wn y of complaint. defe nse. or oth erwise . An y
prov ision rende red null and void by the operation of thi s provision shall not invalidutc th e re maind er ofthi~
Grnnt. to the extent capab le of execu tion .
G. 7. lllNDI NG ARBITRAT ION l'R O III BITED.
The State of Col orado does not agree to binding arb itration by any extra-judi cial body or person. Any
provis ion to the contrary in thi s co nt act or in co rpora ted herein by rcfore ncc shall be null and void .
H. H. SOFTWARE PIRA C Y PROlflBITI ON. Gol'c rn or's Excc ulil'l' Order D 002 00 .
tmc or othe r publi c fund s payable und er thi s Grant shall not be used for the ac qui siti on, operati on, or
maintenan ce of computer softw:irc in violati on of federal copyrig ht laws or app li cable licens in g
restrict ions. Grn ntcc hereby certi fi es and warrants that , du ri ng th e term of this Grant and any ext ensions,
Grn n1ce ha s and shall main tain in place appro pria te system s and control s to preve nt such imp roper use of
puh li c fu nd s. lf 1h c State determi nes that Gran te e is in vi olatio n of th is provi sio n, th e talc may exercise
any rem ed y avai labl e n1 law or in eq uit y or un der thi s Grant , includ in g, wi th out limitati on. immedia te
termination of th is Gram nnd any re med y co nsistent with federal copyright lnw s or nppli cab lc lice nsi ng
re strict ions.
I. 9. EMPLOYEE FINA 'CIAL INTEREST. CRS §§24-18-2 01 and 24-50-50 7.
The signa to::es ave r that to their know ledge , no employee of the State has any personal or beneficial
in teres t what soever in the serv ice or propeny de scribed in thi s Grant. Gran tee has no interest and hall not
acqui re any inte rest , direct or indirec t, th at wo uld co nflict in any man ne r or degree with th e perfonnance of
Gra mee 's services and Grante e sha ll not empl oy any person havin g such known in1 crests.
,J. 10. VENDOR OFFSET. CR §§24-30-2 02 (I) and 24-30 -202.4 .
I No t Applicah/e to i111ergm •e rnm e111al agreemelll sl Subject to CR S §24-30-20 2.4 (3.5), the tatc
Con troller may withhold payment un de r 1hc talc 's vendor offset iniercept sys tem for debts owed to State
ag encies fo r: (a) unp aid child supp ort debts or child suppon arrearages ; (b) unpaid ba lances of tax , accrued
intere st, or other charges pecified in CRS §39-21-101, ct se q.; (c) unpaid loan s due to the Stud ent Loan
Di\>is ion of th e Depanm ent of Hi gher Educat ion; (d) amounts req ui red to be paid to th e Unemp loyment
Com pe nsati on Fund ; and (e ) oth er unp aid de bts ow in g to th e late as a re sult of fi nal age ncy detenninati on
or j udi ci al ac ti on.
K.11.PUHLICGRANT FO R SE RVl CE .CRS§8-l 7.S-l01.
[Not Applicable to Agr.!e ment s relating to th e offer, iss uance , or sa le of secu rit ies , inve stm ent advi ory
se rvice s or fund managemen t services , sponsored projec tF, int ergo vernmenta l Agreeme nt s, or info rm ation
tec hnology se rvice s or products and servi ces] Graniee certi fi es , \.\arr~r.:.s, ond agree th at it does not
knowingly empl oy or Grant with an illega l alien wh o shall perfonn wc,k sn eer this Gra 11t and shall co nfirm
the emp loyment eligib ility of all em ployee s who are newly hired ~ r employment in th e United Srn ,csto
perfonn work under thi s Gra nt , throug h pani cipati on in th e E-Verify Program or the Sta te prog ram
established pur sua nt to CR §8-17.5 -102(5 )0, Grant ee shall not knowin gly empl oy or Gra nt with an illega l
alien to perform work under this Grant or en ter int o a Gra nt with a Sub-grantee th at fatl'= :v ':"rtify to
Gra ntee th at th e ub-gra nt ee shall not kn owingl y emp loy or Gran •\; ,1ti an i!lega l ali~, \· · , . • .n work
und er thi s Grant. Gra nt ee (a) shall not use E-Veri fy Prog ram or Sta te program pru. ci uw tu 111,denake pre -
emp loyment screenin g of jo b ap pli ca nts while thi s Gra nt is bein g perfom1 ed , (b) slrnll nu"~) th e Sub-
gra ntee and th e Gra ntin g ,,ate agen cy with in th ree days if Gran te e has actual h.n owlcdge that a Sub-grante e
is emp loy in g or Granting with nn ill ega l alien for work un de r 1h is Grant , (c) shall te rmin ate th e ub-grn nt if
a uh-gra nt ee does not stop employ ing or Grantin g wi th th e i lie gal alien within th ree days of recei vi ng th e
notice, and (d) shall comply with re aso na ble requ ests mnd e in 1he cou rse ofan lnvr.~t igat1 (\r,1 und l•ri -:1'en
pursuant to CR §8-1 7.5 -102(5 ), by the Colorado Depanmcnt of Labo r and 6mpl uy ment. II Grantee
pa rti cipates in th e State prog ram , Gra nt ee shall deliver to th e Gra ntin.5 State nger.cy. ln s1ituti on of Hi gher
Educ atio n or po litical subdiv i:;ion, a writt en, notarized affirmati on, affirming that Gra nt ee has exa mined the
lcµ.nl work status of uc h emp loyee. and shall co mpl y wi th all of th e other requ irement s of th e State
progra m. If Grantee fail s to oomp ly wit h any requireme nt of th is provis ion or "R S §8-17.5 -101 ct seq .. th e
Gra nt in g ta tc agen cy, in stitut io n of high er ed ucatio n or polit ii..:al suhd iv ision may tcrminutc th is Gra nt for
breach and . if so tcnnimn cd , Gra nt ee shall be liab le fo r dama ge s.
L. 12. P llLI C GRANT S WITH NATU RAL l'ER SO S. CR §24-7 6.5-IOI.
Gran tee. if a nat ural perso n cigh 1ecn (18) years of nge or older . hereby swe ars und affirm ~ u11dcr pc 1mlt) of
pe rju ry thm he o:· she (n) is a citize n or otherwise lawfu l!) pre se nt in th e Unit ed Stutes oursuan t to federal
Jaw. (b) sha ll co mpl y with the pro"i sions of R §24-7 6.5-10 1 ct seq ., and (c) has pro, uced one for m of
identifi ca ti on req ui red by R §24-7 6.5-1 03 p, ior to th e cfTccti\>e date of th is Grant.
SP s EfTcctl\'C' I I 109
THE REST OF T HI PAGE INTENTlO1'ALLY LEFT llLANK
•· SIGNATURE PAGE CMS#: 10825
THE PARTT ES HERETO HAVE EXECUTED THI !; GRANT
I • Persons signing ror Gnnt te ht.reby J\o\'Ur and affirm that they ar e auth or ize d to act on Grantee 's behalf and ac kn owledge th at I
the Sta te is rel yi nl? on their r eprese ntations to 1h 11 effect
GRANTEE ST A TE OF COLORADO
Bill Ritter, Jr. GOVERNOR
City of Englewood Colorado Office of Economic Oevcl "pment and Internatio nal
James K. Woodward, Mayor Trade
Don Marostica , Dire ctor
By:_ By :
•signature Alice Kottlik . Deputy Director
Sig natory avers to the State Contro lle r or de legate th at
Date : Grantee has not begun performa nce or th at a Statu tory
Vio lation waiver has bee n req uested under Fiscal Rules
I Date :
LEGAL REVI EW
•·
John W. Suthers , Anomcy Genera l
By:
Signature• Assista nt Attorney General
Dote:
ALL GRANTS REQUIRE APPROVAL BY TH E STA TE CONTROLL ER
I
C RS §24-30-202 requ ires 1h, S1a1< Con<r oll ,r 10 approv, •II S111, Granu. Thi s Grant is not "'lid un1il signtd ,nd d11,d b,low I
by lh e Slate Controller or dele ga lc. Grunter is no1 1 uth orized to beg in pcrrormann unlit s uch time . 1r Gn ntet begins
perfo rming prior thereto, the S111c of Colorad o is no1 oblig ated to p11 y Grant ee for s uch pc rfor rn srn ce or fo r nny goo ds 11 nd/o r
n rv ices prov ided hereunder .
STATE CONTROLLER
David J . McD erm ott, CPA
By :
John W. Rubano
Date :
•
Pl'lgc 15 of 15
---------------------------·· ··-----·
23. EXHfBI T A -TA TEM EN T l'F WORK
CMS#: IP 825
I. GENERA L DE CRIPTION
The purpos e of 1his Gram is 10 provide 1he Granicc with mRtchi ng fund for th e promotion of th e
Enterprise Zo ne nnd economic developm ent in the Arapahoe Cou nty Enil:rprisc Zo ne are a .
2. GRANTEE ' OB LI GAT ION
2.1 Gra nt ee 's \\'ark activ itie s under thi s Grant shall include the promoti o:1 of th e fo ll owin g
eco nomi c deve lopment octi viti es :
2.1.1 markc:i ng the adva 111age!I of loca ting a business in the Gra ntee's Enierprisc Zo u~ area ,
2. l.2 creat in g a posi tive ide nt ity ror th e Enterprise Zo ne area,
2.1.3 pro moti ng busine ss anracti on to th e Entcrpri ~., Zone,
2. 1.4 en co uraging busine ss rete nti on and expan sio n of existing Ent erp ri se Zone busine sses.
2.1.S prom otin g rcdevelopmeni of the En terpr ise Zo ne area,
2. t .6 expanding the re gion's touri sm industry in the Enter pri se Zone area , and
2. t.7 generall J enhanc in g the economi c gro wth of the Enterpri se Zone area.
2.2 Promotiona l materi al shall inc lud e th e words "Created with (o r Supported by) fund s from the
Co lorad o En terprise Zo ne Mark eti ng Grant ".
2.3 The contr ib uti on from the CE DF und er th is Gram shall not exceed the amount of loca l n,ct chin g
fund s expended on thi s Project, or $12.500 , wh ichever is less . Gra ntee may all oca te fun o. ,
one or more Sub•grnntec s involved in prom oti on and economic deve lopment ac ti vitie s in th e
En terpri se Zo ne. Al l Project costs in cxccc s of thi s gra nt am oun t shall be th e resp onsibility of
1h e Grantee .
3. PERSONNE L
3.1 Respo nsible Adm in is trato r
Grant ee's perfo rmance hereunder slmll be under th e direct supervi sion of a nc y Fe nt on, an
emp loy ee or agc n1 of Grant ee , who is hereby de signat ed as th e re sponsible administrat or of th e
Work .
J.2 Rc.,Jace ment
Gra nt ee ,;;ha ll imm cJiatc ly notify OED IT if th e Re sponsibl e Admin istrat or ceases to se rve .
Provided there is a good.faith reason fo r the change. if Gran tee wi sl1 cs 10 replac e th e
Respo nsible Admini st ra tor, it shall notify OED IT and •,eek its approval. Su ch ap proval is at
OED IT's so le di sc retio n, a OEDIT iss ued thi s Grn nt Agree ment in part relian con Gra nt ee's
reprc ~entmi ons rega rdi ng the Responsible Admini strat or. uch nNicc shall specif)' why th e
chan ge is m:ccssn ry. who the proposed replac eme nt is. what th eir qunlificnti ons arc . and wh en
the change woul d take effe ct. An ytime kc) pers onn el ca se to serve , OE DIT , in its so l!!
discret iou, mn y di rect Gra nte e 10 suspe nd th e Wor k un til such time us th eir rcp laccmc ms nn:
a pp ro ved . All noti ces se nt under this subsecti on shall be se nt in acco rdan ce with the Notice s and
Rcprese mative s prov isions of th is Gra nt Agreement.
4. REl'OH TI GA 'D PAYMENT
Pa yme nt s shall be made in ncco rd ancc wilh the provi sio ns set forth in thi s Agreeme nt and Exh ihil A.
OE DIT rllflY transfer Gra 111 Funds in 11dvance of perfo nnan ce onl y if II Fisc al Ruic wai ver ha s been
grn mcd by th e Stale ont ro ll cr for thi s Ag re ement.
4.1 Int erim Reportin g ,ind P~l)'mcnt Requests
Grantee shn \l submit repo rtin g docu ment atio n usin g the fo rm al req u ired and pro vio ;~d by 1he
lilh! and as de sc ribed herein for eac h in1e rim requ est for pn yn1cn t. Th is rcpm1 and f1d) •nc nt
request shall in clu de :
4.1.1 n sta tement of the totnl doll ar am ou nt spent includin g ma tch, and shall be twir e th e
mn ount requ es ted,
4.1.2 a sta tem cn 1 of th e dolla r amo unt bc mg reque st ed from th is Gra nt ,
4.1.3 a statem ent of how th e fund s have been spent ,
4.1.4 signa ture by the Re spo nsible Administrat or as defined in §3.1 here'n, on the request
ce nify in g that receipts and documentation have been checked , are on file with th e
Gra ntee , and shall be su bmin ed to th e State up on request and th at the infonnation
re pre sented in this irHerim repon is true, and
4.1.5 co pie s of all prom oti onal material , advertiseme nt s. and oth er market mg co llateral
rcs:erl with fu nd s from th e Grant.
4.2 Finni ReJJort and Payment Request
Gra nte e shall subm it repo nin g docu mentati on usin g the for mat requi red and prov ide d by the
Stat e and as described herein for th e final repon and fi nal payment reque st. Final payment is to
be mad e upon satisfactory co mpletion of th e Project. This final repon shall includ e:
4.2 .1 the it ems li sted in §4.1 he rei n, for the am ount bei ng reques ted and/or remaining,
4.2.2 a final repon in spreadsheet form , usi ng a for mat required and provid ed by th e Stat e,
itemizing all exp enditures of Grant funds and ma tchi ng fund s for wh ich payment has
been requested for thi s Grant.
5. AD MINI STRA TIVE REQUIREMENTS
5.1 Acco untin g
5.1.1 At all times fro m the Effec tive Dat e of thi s Agreeme nt unt il co mpl etion o t'the Work ,
the Gran tee shall maintain properl y seg re ga ted books of tate Grant fu nd s, matchin g
fund s, and other fund s assoc iated wi th th e Work .
5. t.2 All receipt s and expenditure s associated wi th the Work c-ha ll be documented inn
detailed an d spec ifi c manner, and shall acco rd with the Work Budp.c1 set fo rth herei n.
5.2 Moui torin g
OE DI T shall monitor the Work on an as-needed basi s. OED IT may choo:;e to aud it the activitie s
perfom,ed under thi s Agreement. Such audi t will be requ es ted by OEDIT via clcctroni media.
and nil doc um en tati on shall be mad e ava ilable for audit by OED lT within 30 days of such
request. Gran tee sha ll maint ain a com : ~tc fil e of all record s. doc um ents, commun icatio ns,
notes nnd oth er written mnter inh or ele ctron ic med in , file s or co mmuni cat ions , which perta in in
any mann er to thi s Agreement . Such books and re co rds shall co ntain doc um entati on of the
parti cipan t's pertinent activity under this Agrec mcm in a for m co nsistent with good accounti ng
pract ice.
6. WORK BUDGET
li.l Mat ching F1..11ds
Gra nt ee shall match EDC fun ds used on thi s Project with nt lea st a dolla r-for-dol lar cash mat ch
from local so urces. Lo al match do llars sha ll not be used to meet oth er state co n1 rnc 1u al
mat ching fu nd rcqL1ircm cnt s.
6.2 Adm inis t ra ti ve Costs
Gra ntee mny use 25 perce nt of 1ral\l to pa y for Gra nt ee's Ad min isumive osts a:,soc iatcd with
th i.: Ente rpri se Zo ne. Ad min istrative Costs include: th e sa lary of the lone admini strator,
processing publ ic r\!co rds req ue sts. faxing 0r mail ing cos ts assoc iated with E111erprise Zo ne
cert ifi c11 tio 11 s, and oth er En terprise Zone related Administrative Costs with prior npprc,val.
6.2. l Entcq>risc Zo n(' Meet in g
Gm ntc e may i:,crcas e th eir alloc a1i on for Admini strative Cos ts by $1,000 to be uf<>zd to
Sllpport trnvcl 10 :11t cncl two Enter pr ise Zo ne Admini strat or mcc 1ings or $500 to att end
one Ent erprise Zone Admini stra tor me eti ng. The 10111 1 Gra nt amo,mt fr om th e CE DF
shall not exceed the amo unt set for in §2.3 herein .
6.3 Eli gible Ex penditures
Specific acti vi ti es eli gible for reimbur seme nt fr om thi s grnnt inc lu de :
6.3.1 the pre par, :ion. prod ucti on, and/or di str ibuti on of ma rket researc h, market in g co llat eral ,
direc t mail cam pa igns , Ent erprise Zo ne info rmati onal seminars/ev ent s, on lin e media
ndvc 11is in g, onli11c inforniati onnl serv ice. trnd e show promo 1io ns;
6.3.2 direct bu sinc s prospcc1 vi sit ation , or th e pronlCl ti on ofcve111s tlrnt ntlract tourist s or
eco nomic ac1ivity to the Ent erprise Zone nrca:
6.3.3 other close ly rel ated Enterp rise Zone activities with prior approval by th e State .
6.4 E nterprise Zon e Marketing Gron ! Budget
Local Match
Ent erprise Zone Grant (CE DF)
Optional : 25% of Grant for Admin . Costs (§6.2 herei n).
Optional: $1 ,000 for travel to 2 Admin . Meetings (§6.2.1 herein).
Remai nder : Expenditures listed §6.3 herein.
OTALGRANTEE EXPENDITURES
Ma>:. all oca ti on ; $3,125
Max. alloca ti on : Sl ,0 00
All ocation at least: $8,375
Total CEDF:
THE REST o~· THiS PAGE INTENTIONALLY LEFT BLANK
Page ii i 01 iii
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ORDINANCE NO.
SERIES OF 2010
BY AUTHORITY
COUNCrL BrLL NO. 2
INTRODUCED BY COUNCrL
MEMBER WILSO
AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT ENTITLED
"CASE NO . 09SA!33 COMMO INTEREST AGREEMENT" BETWEE FARMERS
RESERVOJR AND IRRIGATION COMP ANY AND BURLINGTON DITCH , RES ERVOJR
AND LAND COMP ANY; EAST CHERRY CREEK VALLEY WATER AND SANITATION
DISTRJCT; HENRYLYNN IRRIGATION DISTRJCT ; UNITED WATER AND SANITATION
DISTRJCT; CITY OF THORNTON; CITY OF BRJGHTO : CITY AND COUNTY OF
DENVER , ACTING BY AND THROIJG~ ITS 110ARD OF WATER COMMISSIONERS ;
TOWN OF LOCHBUIE ; SOUiB ADAMS COUNTY WATER AND SANTI' AT ION DISTRJCT
AND THE CITY OF E~-''.J LEWOOD, COLORADO.
WHEREAS , in 2002, the Fam,en; Reservoir and Irrigation Company (FRJCO), the Burlington
Ditch Reservrir and Land Co mpan y (B urlingt on), the Henrylyn Irrigation Di strict, the United
Water and Srmiuttion District and East Cherry Creek Water and Sanitation District (applicants)
filed applicat ions 10 cnange the water rights which diven at the Burlington Canal 1. ••dgate, "nd
WHEREAS , th ese ri ght s also fill several re servoirs as well as divening water for immediate
use during the inigation season ; and
WHEREAS , the water rights in question have a hist ory of over-d iversions , which injure
Englewood 's rights ; and
WHEREAS , in sub sequent cases and rulings th e Water Coun has severely cut back the water
right s of th e applicants , to Englewood 's benefit. and a series of appeals ha ve resu lt ed ; and
WHEREAS, one of the Water Coun rulin gs is being di sputed by Englewood , Denver and the
applicants , which prevented the app li cants from pump ing effluent from Metro Sewer int o the
Burlington Canal, causing d,wnstrcam reservo irs to fill slower. and therefore affecting
Englewood's McLellan right s; and
WHEREAS , the pumping from Metro Sewer , which has been used sin ce 1968, benefit s
Englewood ; and
WHEREAS . Eng lew ood, lJcnvcr and the other appli ca nt s are jointly appealing th e rulin g; and
WHEREAS , Eng lewood will con test separately oth er rulin gs which cut back its rights ; and
WHEREAS , the pass age of thi s proposed Ordinance will authorize Eng lewood to enter the
"Case No . 09SA 133 Common Interest Agreement " wi ll enab le Englewood's legal counsel 10
share strategics with Denver and th e other applicants concern in g the appeal of the Metro Pump
ruling , granting pemti ssion for the parties 10 work toge th er for this speci fic litigation to exchange
information and share costs and strategy :
9 b ii
NOW , TiffiREFORE , BE IT ORDAINED BY THE CITY COUNCIL OF 1lffi CITY OF
ENGLEWOOD , COLORADO. AS FOLLOWS :
Scctjon I . The Intergovernment al Agreement entitled "Case No. 09SA 133 Common Interest
Agreement " is hereby accepted and approved by the Englewood City Council and
is attached hereto as "Exhibit A".
Secti on 2. The Da.vid Hill of Berg Hill Greenleaf & Rusciti for the City of Englewood is
authorized to sign said Agreement for and on behalf of the City of Englewood .
Introduced , read in full , and passed on fi rst reading on the 16th day of February, 2010 .
Published as a Bill for an Ordinance in the City's official newspaper on the 19~ day of February,
2010 .
Published as a Bill for an Ordinance on the City's officia l website beginning on the 17th day of
February, 2010 for thiny (30) days .
Read by title and r med on final reading on the I " da y of March, 2010 .
Published by title in the City's official new spa per as Ordinance No._. Series of 2010, on
the S"' da y of March, 20 I 0.
Publi shed by title on the City's official websit e beginnin g on the 3~ day of
March , 2010 for thiny (30) days.
James K. Woodward, Ma yor
ATTEST:
Lou cri shi a A. Ellis , City Clerk
I, Loucri shia A. Ellis , Cit y Clerk of the City of Englewood , Co lorado, here by ce rtify that the
above and fo rego ing is a tru e co py of th e Ordi nance passed on fin al rea din g and publi shed by
titl e as Ordinance No._. Series of 2010 .
Loucrishia A. Ellis
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Cas e No . 09SAl33 Co mmon Interest Agreement
Thi s Common Interest Ag re ement 1s ent ered into by and betwe en the undersigned
coun sel on behalf of their re spe cti ve client s as of thi s 18th da y of Novemb er, 20 09, an d
amended January 15, 2010 to add the Town of Lochbui e as a pany; am end ed January 19,
20 IO to add th e South Adam s Co unty Water and Sanitati on Di strict as a pany; and
amended Febru ary_, 201 0 to add paragraph 8 and th e Cit y of En gle wood as a pany,
subject to the provi sion s of paragraph 8.
WHE REAS, eac h of the undersigned counsel is repre sentin g an Appe llant in Case o.
09S A I 33, whi ch is currentl y pendin g in the Co lorad o Suprem e Co un , and th e
undersigned co unse l and th eir clients beli eve an d anti cipat e that , on th e basi s of currentl y
avnil able infonnati on, the nature of Cas e No. 2009SAl33 and the relat io nshi p am ong th e
clients will present vario us common legal and fa ctual issue s and a mutuality of intere st in
collllection with the Appeal ("th e Appeal "); and
WHEREAS , the undersigned counsel wi sh to continue to pursue th eir separa te but
common interests in the Appeal and to avo id an y sugge stion of waiver of th e
confid entiality or immunity of communications and doc ument s pro tected by the attorne y-
cli ent privilege , th e attorney's work product doctri ne or an y other applicable privilege or
immunity vis-a-vis potenti ally advers e panie s; and
WHEREAS , in order to purs ue the common interes ts effectively, th e und ersign ed have
als o each co ncluded that , from tim e to tim e, th eir intere sts will be best se rved by sharin g
documen ts, fac tu al material , mental im pre ss ions, mem orand a, int ervi ew repons, appellate
strat egie s and oth er inform ati on . includin g th e co nfiden ces of ea ch cl ient -all of whi ch
will hereafter be referred to as th e "Co mm on Interes t Mater ia!~": and
WH ERE A . it is th e purpose of' thi s Ag re ement to ensure tha t any exc han ge and /or
di sc losu re of the Co mm on Int eres t Mat eri als co nt emp la ted herein does not dimin is h in
an y way the co nfi denti alit y of th e Com mon Int erest Mate ri als and does not co nstitut e a
waiver of any pri vil ege or imm unit y oth erwise ava il abl e.
IT IS THEREFORE AGREED as follows:
I . Exce pt as exp ressly stated in writi ng to th e co ntrary , any and all omm on Int eres t
Ma ter ials obtai ned by any of th e unders igned co un sel fro m eac h othe r and /or eac h oth er's
cli ent are be in g prov id ed so lely for int ern al use of th e cli ent s and th eir roun se l and shall
remain co nfid enti al and shall be prote cted fr om di sc los ure to any third part y by the
co mm on inte rest privil ege , joint -defe nse privil ege, th e cli ent s' att orn ey -cli ent privil ege ,
th e attorn eys' wo rk product doc trine an d all oth er ap pli ca bl e pri vil eges and immuniti es .
All Com mon Int erest Materi als sha ll be used so lely in co nn ec ti on wi th th e Ap peal.
t00062091 DOC/I)!
2. either th e undersigned counse l nor their respe ctive clients shall disclose Common
Interest Materials to anyone not a signatory to thi s Agreement (except the undersigned
co ur,sel 's cl ient represe ntati ves , firms , or undersigned counsel's employees or agents)
without first obtaining th e written co nsent of all counsel who are panic s to thi s
Agreement. The panies hereby co nsent to the use of re search and drafts that they provide
to each other in their respective briefs to be filed in the Appeal. It is ex pre ss ly
understo od that nothing co ntained in thi s Agreement shall limit the right of any of the
undersigned to disc lose to anyone as the y see fit any of their own documents or
information , or any docu ments or infom1ation ob tai ned ind epende ntl y and not pursuant to
this Agreemen~ by the undersigned.
3. All persons permitted acce ss to Co mmon Interes t Materials shall be advised that the
Common Interest Materia ls are privileged and subject to the tem1 s of thi s Agree.;ne1 ,i.
4. If any person or entity reque sts or demand s, by subpoena or otherwise , any Co mmon
Inte rest Ma terials from any of the undersigned or their clients, that co unsel will
immedia tely notify all counsel who are panics to th is Agreeme nt whose clients or who
themse lves may have ri ght s in said materials, and eac h co un se l so notified will take all
reaso nab le steps nece ssary to pe rmi t th e assen ion of all appl icab le rights , privileges and
immun ities with re spect to suc h Common Interest Materials , inc lu din g permi tt ing th e
other affected pani cs a reaso nable opponunity to int ervene and be heard , and ot herwise
cooperating fu ll y wi th th e other affected paniei in any jud icial proceedi ngs relati ng to the
di sc losure of Co mm on Intere st Material s.
5. Not hing in thi s Agreement shall obligate any signatory to share or commun icate any
Common Interes t Mate ria ls or independentl y obtained or cre~ted materials with any other
sig na1ory hereto.
6. In th e eve nt an y undersigned counsel determ ines that hi s or her cli ent no longer has.
or wil l no longer have, any mutuality of interes t in the subject matter of thi s Ag ree ment ,
such counsel wi ll pro mptl y notify the other undersigned counsel of his or her withdrawal
fr om this Ag reement , whi ch wi ll thereu pon be tenn in ated as to that client: provided.
however. that such termina tion shall not affect or impair the ob li gation s of confi dentialit y
with rcspc t to Co mm , Intere st Materi als previou sly furnished pursuant to thi s
Agreeme nt; and thi s Agre, .. ,cnt shall co ntinu e as to all other panic s. If a part y to thi s
Ag ree ment adopts an adverse po sition on cenain issue s in th e Appeal. that party ma y
continue as a pm1 y but will only have access to th e Com mon Interest Mate ri al s pcnaining
excl usively to th e iss ue s on wh ich that pany is al igned with the oth er panic s. The pan y
whos e positi on is or become s advers e mu st immediately notify in writing the oth er
panic s of its adver se po sition so th at no fu rth er Co mm on Int ere st Material s will be
provided regarding th ose issue s. and shall return any ommon Int ere st Material s 1h01 do
not penain exc lu sive ly to issue s on which the party remain s ali gned with oth er Lh e panic s
10 thi s Ag ree ment.
7. Shou ld any client choo se to withdre ,v from thi s Agree ment , he or she shall provide
prior wr inen not ice to th e other clients , in which case thi s Agreement sha ll no longer be
(0006209 1 IX>C I !2
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operati ve as 10 th e withdrawin g clien t and his or her coun se l, but shall co ntinu e lo protect
all Co mm on !merest Mat erial s dis closed 10 the withdrawin g cli ent an d it s coun se l pri or 10
such \\1thdrawal. Th e withdrawin g client and hi s or her coun sel shall ~c0mp1l y return all
Comm on lnterc sl Material s and shall continue 10 be bound by the obli gation , of
confidenti al it y with respe ct 10 Co mmon Int eres t Mat eri als ?rev iously furn ished pursuant
10 thi s Agreement .
8. Th e Cit y of En gle woo d is onl y a pan y to thi s Agree ment in sofar as it penain s to th e
Metro Pump s iss ue. It is und erstood and agreed that on all other issue s in the appea l, th e
City of Engl ewoo d is adverse to th e Applicants as well as an y other partie s to thi s
Agreeme nt who are al igned with or may suppon the Applicant s appeal and , therefore ,
that the City of Englewood and the other panie s to th is Agreement are onl y enterin g into
thi s Agreement as it relates to thos e Common Interest Materi als that penain to the Metro
Pump s issue. Fo r pu rposes of this Agreement, th e "Metro Pun1ps iss ue" means th e
appeal of th e Water Coun 's ni lin gs set fo nh in paragra ph s 136-180 of its Fin din gs of
Fact, Conclusions of Law , and Order en tered on Sep tem be r 5, 2008 and in para graphs 33,
34, 36 and 37 of the Water Coun 's Findings of ract , Co ncl us ions of Law , and Dec ree,
dated May 11 , 2009 .
9. Thi s Agreement memorialize s any earlier oral agree ment s and inc orp orate s any prior
wrinen agreements, between or among an y of th e undersigned pursuant to which
Commo n In terest Materials have been exchanged .
I 0. lnis Agre ement may not be amended or modified except by a writt en agree ment
sign ed by eac h signatory hereto.
11. TI1i s Agreement do es not create a co mm on int erest among or be tw ee n any of th e
parti es with respect to an y ca se or mail er oth er than th e App eal.
12. TI1i s Ag ree ment shall tenninat e wh en a j udg ment in Case 1o. 09S/\ I 33 beco mes
fin al and subj ect to no furth er ap r,ca l.
13. The ex istence of thi s Ag ree ment is itse lf co nfid entia l and will not be di sc losed to
a third pany unle ss nccc. "'"°Y to de monstrate th e privilege or pro tec tion estah li shed or
preserved by thi s Agree ment.
farmers Rese n •oir and Irrigation Co mp any and
Burlin gion Ditch , Rese r vo ir and Land Co mpnn y
AKOLT & AKOLT, L.L.C.
John P. Akolt. Ill
John C. Ako h
100062091 DOC / I :3
DIETZE AN D DA VIS, P.C .
Star L. Waring
E a st Cherry Creek Vall ey Water a nd anitntion District
R YL EY C A RL OCK & APP LE WH ITE
William B. Tourtillott
Brian M. Nazarenus
Susan M . C urtis
Henry lynn Irrigation District
LAW OFFICES OF STEVEN L. JANSSEN
Steven L. Jansen
United Wat er 1111d Sanitation Distri ct
WHI TE ING & SMIT H
Tod J. Smi th
C ity of Thornton
WHI T & JA KOW KJ , LLP
Willi am A . Hillhouse II
Dav id F . .J ank owski
(00062091 DOC /I )4
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CITY A ITORN E'/, CITY OF THO RN TO N
---------------Denn is A. Hanso n
C il)• of Brig ht on
FISCHER, BR OWN, BARTLETT & GUNN, P.C.
Brent Banlen
Ci l)' and Co unty of Denve r , actin g by and through it s Boa rd of Wat er
Commiss ioners
Patr icia L. Well s
Casey S. Funk
Dani el J. Am old
Tow n of Loc hbui e (A ppc ll ee)
BERNARD.LYONS. GADD ! & KA H 1• P.C.
teve n P. Je ffers Da te
South Adams Co un l)· Wu lcr und Sani tation Di stri ct (App cll cc)
• MOSE , WIITEMEYE R. HARRISON & WO ODRUFF , P.C .
f00062 091 IJOC 1115
Richard Mehren
The City of Eoglewood (A ppellanUAppellee)
BERG, HILL , GREENLEAF & RUSC ITT I, LLP
Da vi d G. lilt
Jo n N. Rana shek
Heidi C. Potter
Date
Date
{0006209 1 DOC / 116
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COUNCIL COMMUNICATION
Dat e: Agenda Item : Subject :
March 1, 2010 11 a I Colo rado State U niversity Biosoli ds Re search
Agree men t
Initi ated Sy: Staff Source :
Li nl eton/Englewood WvVTP Supervisory Comm illee Stewa rt H . Fo nda, U tilit ies D irector
Jim Tall ent, O pe rations Divisi o n Manager
CO NCIL GOAL AND PREVIOUS COUNCIL ACTION
This agree m ent was previously approved by O rd inance No. 42, Se ries of 2004. Th e c urren t
pro pose d o rdin ance re new s the Biosolid s Resea rch A gree ment w ith Colo rado State U ni ve rsity .
RECOMMENDED ACTION
W e reco mmen d Co uncil ad o pt a b ill fo r an o rdin ance approvin g an Intergovern mental Ag ree m ent
w ith Colora d o Sta l e U nivers ity fo r cooperative resea rch proj ec ts on the land appli ca tion of
wast ewa ter b iosolids to d ryla nd w hea t far min g op erati ons. The 2010 program cos t is S 109,295 .
BACKGROUND, ANALYS IS, AND ALTERNATIVE S IDENTIFIED
Since 1982, th e Li tt leton/Englewood Wastewater Tr ea tm ent Plant (L/E l'.tv\lTP), in cooperation w ith
Colo rad o State U ni ve rs ity (CSU ) D epartm ent of So il and C.r op Sciences, has success fu ll y conducted
a continuo us resear ch program to observe the lo ng-t erm effec ts of the appli ca ti on of was tewa ter
biosoli ds for drylar,d wheal farming. The res ea rch has provided long-term research da td and a
sound basi s of kn owledge of the b iosoli ds produced by th e L/E WvVT P and th e envi ro nment al
impacts of the pro duct. Tlie informa tion ha s been use d extensively as a publ ic relatio ns tool, as
well.
Additio na ll y, the L/E WWTP/CSU resea rch project has been in strumental in establi shi ng the basis
for bioso lids beneficial use fo r the growth of dry la nd whea t crops in tht arid western states of the
United Sta tes and in Australi a. The long-term res ea rch dem o nstra tes that th e ben efi c ia l use of
wastewa ter biosolids is an environ men tall y safe, economica ll y be11efi cial , and agricu lturally sound
pra cti ce for reC)•ciing and co nserv in g a val uab le resource. The res~a rch has res ulted in 27 refe rred
journal ar ticles and b ook chap ters, 42 tec hnica l papers, num erous bu ll etin s and reports, hvo
d octo ral th esis and twn mas ters ' thesis (a n o ther is in p rogress). Th e resea rch has b en efited n o t o nl y
wes tern states fa rmin g co mmunit ies , bui also biosollds researc hers , re gulators, ge nera tors, app li ers
and o ther em iron mental p rofessiona ls. Th e L/E WvVrP bios o lid s program has als o receive d ti ,e
foll owing recogniti o n:
• US EPA Region 8 Ex ce llence Award for Ben eficial Use of Sewage Slu dge (1989)
• RMWEA Bios o lids Managem en t Meri t Award (1996, ·t 998, 2003)
• US EPA Beneficial Use of Bi oso lids ior Operating Projects N ational Honorabl e Men tion
(19%)
• U S EPA Bioso lids Resea rch, National First Pl ace (1999)
• AM SA -Resea rch and Technology Awa rd Bi osolids (2000)
• US EPA Biosoli ds Manage men t Exce ll ence Natio nal Firs t Pl ace (2003)
Colorad o Sta te U niversi ty has submitted its p roposal for th e cooperati ve research p roject o n land
applica tion of sewage bioso lid s o n d ryland w hea t. Th e 20 1 O studies include study sites at th e
Bennett si te and th e Bye rs sit e, w hich is th e C ity-owned farm. Th e cos t for each study site is as
fo ll ows :
Bennett
Bye rs
Microbial Study
TOTAL
FI NA NCI AL IMPACT
$ 48,853
57,352
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$1 09,295
Th e cost of th e proj ect is $109,295, w hich w ill b e sp lit 50/50 w ith th e City o f Li tt leto n . Th is project
cost is incl ud ed in th e Was tew ater Tr eatm ent Pl ant's 20 1 O Budget.
LIST OF ATTACHMENTS
Pro p ose d Bi ll for an O rdinan ce
CSU Bioso lids Research Pr ojec t Agree ment
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ORD INANCE NO.
SERIES OF 2~10
BY AUTHORITY
COUNCIL BILL NO . 3
INTROf\UCED BY COUNCIL
MEMBER _____ _
A BILL FOR
AN ORD INANCE AP PROVING AN INTERGO VERNM ENTAL AGRE EMENT BETWEEN
COLORADO STATE UNNERSITY (CSU) AND LITTLETON/ENG LEWOO D WASTEWATE R
TREATMENT PLANT FOR THE COOPERATIV E RES EARCH PROJECT ON LAND
APPLICAT ION OF SEW AGE BlOSOLIDS 8N DRYLAND WHEAT.
WHEREAS, sin ce I ~82 the Littlet on/E nglewood Wastewa ter Treatm ent Plant (UE WWTP)
and Colora do State University (CSU), Department of Soil and Crop Scien ces, have success full y
co nducted a co ntinu ous research program to obs erve the long-tenn effects of th e applicati on of
bioso lids for dry land wheat fanning ; and
WHEREAS, the City Coancil of th e Cit y of En glewood ap proved an IG A between CSU an d
th e Littleton/Engl ewood Wast ewater Trea tment Pl ant with th e passage of Ordinan ce No . 42,
Seri es of 2004; and
WHEREAS, th e research has provid ed long-t enn research data and a sound basis of
kn owl edge of the bioso lids prod uced by th e LIE WWTP and th e environment al imp acts of the
prod uct ; and
WHEREAS , th e UE WWTP-CSU research project has been instru men tal in establ ishi ng the
bas is fo r bioso li ds be nefic ial use for tl1e gro wth of dryland wheat crops in the arid western states
and in Australia ; and
WHEREAS, the long-term re search demo nstrates tha t the be neficial use of was tewa ter
bioso li ds is an environmentall y sa fe, economi cally beneficia l and abrricu ltu rall y so un d pract ice
for recyc li ng and co nservi ng a va lu able resource; and
WHEREAS , the research ha s benefi ted nm only !',r;,ning commun it ies of westem states but
also bioso lid s resea rchers, rcgu lmo rs, generators and ot her enviro nm ental professionals; and
WHEREAS, in 1999 the UE WWTP and CSU received th e U.S. EPA award for Outstanding
Research C1J ntributing to Benefi cial Use of Wa ste water Solids -Pirst Place National: and
WHEREAS , CSU ha s subm i11ed thei r proposal for the coo perative research projec t on land
applicat ion of sewage biosolids on dry land wheat ; and
WHEREAS , the 2010 st ud y includes stud y sit es nt the Bcnncll site. and th e Byers site ; and
WHEREAS , the cosi of the CSU Application of Sewage Biosolids Resea rch Projec t is split
50/50 between Er.glewood nnd Li nl eton .
NOW , THEREFORE , BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD, COLORADO , AS FOLLOWS :
Secti on I. The Colorodo State University Bio solid s Research Proposal, attac hed heret o as
Exhibi t A; and th e letter of acceptan ce, attached hereto as fahib it B, are hereby accepted and
ap µroved by the City Council of the City of Englewood.
Secti on 2. The Direc tor of the Littleton/Englew ood Was tewater Trea tm ent Plant is outho rized
to execute the Co lorado State University Bioso lids Research acceptan ce lett er fo r and on bcholf
of the Littleton/Englewood Wastewater Treatment Plant.
Secti on 3. Th e Director of the Littleton/Eng lewood Wastewa ter Treatment Plant is hereby
authorized to further extend the Intergovernmental Agreement between Litt leto n/ Englewood
Wastewater Treatment Plant and Colorado State University, Bio solid s Research Propo sal , for th e
cooperative research project on land application of sewage bio soli ds on dryland wheat for five
additional one year periods.
Introduced, read in full , and passed on first reading on the I st day of March, 20 10.
Published as a Bill fo r an Ordinance in the City 's official newspaper on the 5~ day of March,
2010 .
Published as a Bill for an Ordinance on the City's offic ial web site begi nning on th e 3~ da y of
March, 20 10 forthin y (30) days.
Jame s K. Woodward , Mayor
ATTEST:
Loucri shi a A. Elli s, City Clerk
I, Loucri shia A. Elli s, Ci ty Cl erk of th e City of Engl ewoo d. Co lomd o, hereby ct:n ify thot the
above and fo rego in g is n tru e copy of a Bill fo r an Ordinan ce , introd uced, rea d in full , and pas sed on
fi rs t rea ding on th e __ day of ____ ~ 20 I 0.
Lou cri shia A. Ell is
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LAND APPLICATION OF
SEWAGE BIOSOLIDS
PROPOSAL FOR COOPERATIVE
RESEARCH PROJECT BETWEEN
COLORADO STATE UNIVERSITY
AND
LITTLETON/ENGLEWOOD JOINT
COUNCIL
20 10
Land Application of Blosolids
ii. Personn el
Project Lea ders:
Iii. Introduction
K.A. Barba rlck, Profe ssor
J. McDan ie l, Re se arch Associate
N.C. Hansen , Ass oci at e P•·ofess or
We ha ve studied the bene ficial use of Littleton/Eng le wood (L/E ) biosollds ,ince 198 2 at
Ea st and West Bennett, 1988 at Kiow a, 1993 at North Bennett, and 1999 at By ers . We lost th e
East Bennett plots in 1993 due to a shift from dryland to irrigated agriculture and the last of the
West Bennett sites to development in 2005 . We ceased re search at the Kiowa location In 2007 .
We will present the proposed research and associated budget separate ly for three studie s
(North Benn ett, Microbial study, and Byer s) and then present the total budget for our propose d
research .
IV. Bennett Study Site
North Bennett
We in it ia t ed the North Benn ett ex per imental location t o re place the East Benn ett plots
th at we lo st i n 1993 . Our form er coop er ating farmer at East Benn ett, Ke vin Helze r, dec id ed to
gro w irrigated crops on our st udy sites in 1993. We als o cha ng ed the exp erimental approach at
No rt h Bennett to focus on det ermining th e N equ ivalency of L/E biosolid s as soci at ed with
rep eated app lica t ion s In a dryl and wheat summ er-fallow ag roecosystem . We wi ll comp le t e
harvest so il an d bioma ss sa mpli ng and ana lyses; ho weve r, we pla n to grow prose millet
(Panicum mifiaceum L.) o r sunflowers (Hellanthus ann us, L.) to help control an in fest ation of
jointed goat grass (Aegllops cyllndrica Host).
We have added Ba, Be , and Mn to our p lan t and soil analyses since US EPA has Ident ified
t hem as pot ential p oll ut ants t o th e CFR 503 reg ulation s. Althou gh Ag has also bee n add ed t o
the CFR 503 regul ations, Co lo ra do St at e Unive rsit y instrumenta tion util i zed t o de t ect Ag has
bee n less t ha n ade quate . Th erefo re, at thi s po int in time w e w ill not analyze p lants and soils fo r
Ag .
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A. Objective, for the Bennett study si t es (North Bennett)
The ob jectives of the Bennett stud y are :
1. To quantify the N equi va lency of repeated biosolids appli cat ion under
field co nditio ns compared with co mm ercial N fertilizer at our North
Benn ett plots.
2. To stud y the lon g-term effects of L/E blosolids on soil acc umu la ti on and
whe at uptake of Ba , Be , Cd , Cr , Cu , Mn , NI, Pb , Mo, and Zn .
3.
4 .
To study the long-term effect s of L/E biosollds on As , Hg, and Se levels in
soil and grain in the 0, 2, and S dry tons/acre plo ts for the North Bennett
site . Sampl es will cons ist of a compos ite of all replications fo r each rate
for gra in analyses . Th is give s three gr ain sample s. We al so will
compos ite se parately the 0-20 and 20-60-c m soil samples from th e sam e
plots as th e grain sam ple s. This will pro vide us a total of six soil samples
to analyze for each site .
To determine the acc umulated NO,-N leve ls to a depth of 180 cm (6 feet)
ass ociated with repeate d applicat ion of various N fertilizer or sew age
biosolid s at ou r No rth Bennett plots.
S. To determine the carryove r effects of blosolid s and N fertilizer on
introdu ction of proso mill et (Ponicum miliaceum L.) or sun flow ers
(Helian rhus annu s, L.) Into the whea t-fal low rotation . Th is chang e is
requir ed to control the noxious we ed jointed goat grass (Aegilops
cylindrica Ho st). Since jointed goa t grass has a life cycle :hat is similar to
winte r wheat , abo ut th e on ly control optio n is to add a crop to the
rotation that has a diffe rent life cycl e. Once th e jointed goa t grass Is
controll ed, we tentatively plan to return t o the wheat-fall ow rot atio n .
B,
Bennett study sites budget (See Table 1 on the ne•t page).
Table 1.
Proposed budgets for the Nort h Be nn ett sewage bio solid s studies.
North Bennett Current Proposed Proposed
Cate~orv 2009 2010 2011
Routine Analys es 13 25 1364 1405
As, Hg, Se Analyses 481 495 510
Student hourly salary
1 668 66 8 668
Student hourly fringe' 7 4
Travel 1680 1730 1782
Harvest, plot set-up 747 769 792
Research Assoc . (6 months)' 16000 16000 16000
Research Assoc . frlnge 1 3936 4128 4128
Professor (2 weeks)' 6419 6419 6419
Professor frin~e 1 1579 1656 1656
Total direct costs 32841 33233 33 364
indirect costs • 15435 15620 15681
Total costs 48276 4885 3 49045
Assumes SO % of the student hourly's effo rt 1n the No rth Bennet \ and 50% effort
on the Byers site.
Student-hourly fr inge rate Is 0.6% in 20 10 and 2011 ,
Ass um es 50% o n the North Bennett study an d 50% on th e By ers study . We also
ass umed a 0% s alary Inc re ase fo r 2010 and 20 11, We ass um ed that ail other
costs for 2009 and 20 10 will increase by 3% per ye ar.
Fringe benefit rat es were est imat ed to be 25 .1% for 2009 , and 25 .8% fo r 2010
and 2011 for the Re se arch Ass ocia t e and Pr ofessor.
The tot al indi rect co st s are 47% for 2009 thro ugh 2011.
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V. Microbial Study (To Replace the Phosphorus Study)
A. Introduction
Most biosolids land-application studies focus on risk assessment of pot ential problem<
associ ated with contamination of soils and water with heavy metals , pathogens , personJI care
prod ucts, flame retardants, etc . Othe r than studies regarding soil fertility status and crop
prod uction , studies wh ich test hypotheses of blosolid s as beneficial soil amendments are
scarce . It is surprising that few sci entists have sough t to quantify the environmental benef it s of
biosolids land applicat ion , give n that many studies have found little or no harmful effects of
biosollds when land applied at agronomic rates .
A novel laboratory incubat ion study to examine the effects of a biosolids amendment on
soil microbial-faunal interactions is proposed . Of the soil fauna , the stud\' will focus on
Enchytraeidae worms because their members have diverse feeding strategies (bacteria, fung i,
a,.J soil organic matter), and becau se they are known to affect dissolved organi c carbon
production and reservoirs In soil. This is important be cause the product ion of available
dis solved organic carbon is the rate-limiting step In microb ial nitrogen mlneralizatlon-
immobilization processes in a newly developed soil N biogeochemlcal model. The objectives for
this stu dy are to determine :
1) if enchytraeid worm populatio ns in crease in re spoo se to bioso lid s amendment,
2) if the worms sel~ctivt' / graze on bio solid s material or on bacteria du e to
Inc reased bacte rial biom ass in biosolids-amended soil,
3) if biosolids amendment results in increased soil dissolved organic carbon
concentrations due to enhanced mitrobial-faunal interactions,
4) whe th er these intera ctions ulti ma t ely lead to gre ater N mineralizati on rates in
soil. The hypothesis is that bio soii ds amendment to so il will in crease enchytraeid
trophi c inter actio ns with soil ba ct eria, re sultin g in gre at er release of di ssol ved
or ga nic carbon and min eral N into so il.
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B. M i cr ob ial st udy bu dgets (Se e Tabl e 2 b elow )
Table 2. Proposed b udget s for the microb ial sewage bio soli ds study.
Mir.ro bia l M icrobi al Micr obia l
M icro study Study Stud y St udy
cat eg ory 20 091 20101 20 11'
Supplies .300 309 318
Analyses 1741 1793 1847
Total di rect co st s 204 1 21 02 2 16 5
indi rect co sts ' 959 988 1018
Tota l costs 3000 3090 3183
We assumed that all costs for 2010 and 20 11 will i ncrease by 3 % per ye ar.
The total Indirect co st s are 47 % for 2009 t hrough 2011.
VI. By ers Study Sit e
A. Introduction
W ith the estab lish ment of the L/E Bye rs bioso lid s-applicatlo n site, we are deve lopin g
some practica l, nev er-don e-b efo re researc h. No-till and minimum tillage management is
increa sing in po~ularlty in eastern Co lorado because it im proves wa t er co nserva tio n and all ows
more Int ensive cro ppi ng. Bioso llds appli cation could enha nce the ben efits of no-t il l or
mini mum till age by improvin g so il cover and soil physica l chara ct eristics w hen surfa ce applied .
Bioso lid s co uld work in concert with cr op res i dues to allow farmers t o meet the Natu ral
Res ource Co nse rvation Se rvice 30 % soil cove rage requ ired to comply with co n se rvation
programs .
Bi oso lid s app li ca tion co ul d initi ally su pply soil cover until adequate crop residue ca n
acc umulat e. Con t inued ad dit ions m ay eve n provid e production and ec onomic ad va ntages.
Far mers may even tua ll y u se biosoli ds as an integra l part of a co nserva tion program. Becau se of
continuin g droughty co nditions, be ginning In Fall 2005, we change d our crop rot ation s. We
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eliminated th e wheat-wheat-c orn -s unflowe r-fa llow (WW CSF ) and conv ert ed t hos e plot s to our
other two rotations (wheat -fallow , WF and wheat-corn -fa llow , WCF). Thi s in creased our
replication s for WF and WC F from two to lour , providing us with a more robu st statisti cal
analysis of the effects of the se twr. ro tati ons .
8 . Objectives
Our objectives at the Byers site are:
1. To determine If increasing blosolids applicat ion from once every two
years to two out of three years Is a feasible management alternative .
2. To determine If blosolld s behave like crop res idues In terms of mo isture
storage and crop production . Available -water storage and crop yiel ds are
3.
t he propertie s of greate st Interest.
To determine the effects of blosolids application at the agronomic rat e
co mpared with commercial N fertlllzer In two cropping systems on soil
an d grain accumulation of plant nutrie nt s and trac e elements limit ed by
th e Co lorado Department of Pub lic Health and Environment blosollds-
app\i catlon re gulation s.
C. Procedures
Tre atm ent s:
1. Two crop rotation s:
a. Wheat -f allo w (typ ic al rotatio n)
b. Whea t-corn-fall ow
2. Biosolid s/ferti\izer tre atm ents :
a. Bios olid s appli catio n to supply N recomm ended for th e
measur ed soil •m,-N (e.g., t he agro no mic ra t e).
b. Com me rcial N ferti li er at t he agro no mic rate .
[\, Experimental design
We now use four blocks (replications) of each treatment arranged in a spli t-plot design .
The main pl ots w\11 co nsis t of the cropping rotations. Each main plot wi ll be spilt to
acco mmodate bios olld s application on half the plot and commercial 1 ~-tlll zer addition on the
other half.
All pha ses of each rot ation will be present each year to allow assessment of all soil and
crop resp onses each year. This requires a total of 20 main plots and 40 spilt plots (4
re plications, 5 cropping rotati ons , biosolld s/fertlllzer treatment split s).
Each ma in plot will be 0.8 km (0.5 miles) lon g by 30 m (100 fee t) wid e. Each
blosolids/fertlllzer spilt would , therefore, be 15 m (SO feet) wide .
E. Measurements
We will complete the follo wi ng mea sur ement s or analy ses .
1.
2.
3.
4 .
5.
6.
Ann Jal gra in and bioma ss yields .
Re co rds 0n farme r In puts.
Pla ·1t -available con centrations of N0 1-N , P, K, Fe, Mn, Cu, Zn, Na ,
Cd , Cr, Pb , Mo , Ni , Ba, Be , and Mn in soil before each crop
pla nt ing (determined In 0-5, 5-10 , 10·20 , and 20-30 cm sa mple s
fr, m each re pli cat e d plot ).
We will composite 0•5-cm soil sample s for As , Hg, and Se analyses
for each replication before each crop planting. This will give us 14
so ii samp les to analyze for As , Hg, and Se e a ch year .
Deep soil sampli ng b~for e each crop pl a;1tl ng by hydraulic probe
fo r N0 3-N (d et e rm ined 0-3 0, 30 -60, 60-90 , 90-120 , 120 •150 , 150 ·
180 cm samp les, If possible , from each replicated plot).
Co nce ntration s of P, K, Fe , Mn , Cu, Zn, Na, Cd, Cr, Pb, Mo , NI, Ba ,
Be , and Mn in grain sa mp le d from each re plicated plot.
7. For annu al As, Hg, and Se grain a nalyse s, we will composite grain
samples for each bio solids or N fert iliz er rep li cation for each typ e
of crop . Thi s scheme will provide us with four wheat and two
co rn sa mpl es for As, Hg , and Se analyse s each year.
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Byers study site budgets (See Table 3 on th e next page.)
Tab le 3. Propose d budeets for the Byers sewage blo so li ds stud y.
Byers Cu rr ent Propo,od Propos ed
Category 2009 2010 2011
Analyse s 2938 3026 3117
Hourly salary ' 668 668 G6 8
Hourly Fringe ' 7 4 4
Re search Assoc . (6 mon ths)• 16000 16000 16000
Research Assoc . frlnge 1 3936 4128 4128
Profes sor (2 weeks)• 6419 6419 6419
Professor fri ng e 1579 1656 16:J6
Harvest, plot set-up 211 7 2180 2245
Weat her Station Ma inte nan ce"' 446 459 473
Travel 4345 4475 4609
Total direct costs' 38454 390 15 39319
Indirect costs 18073 18337 18480
Total costs 56527 57352 5 7799
Ass um es 50% of the st udent hourly's effort on th e North Bennett and 50% effort
on the Byers sit e.
Student-ho urly fring e rate Is 0 .6% in 2010 and 2011.
Ass~me s 50% on th e North Ben nett st udy and 50% on the By ers study . We also
ass um ed a 0% salary in tre ase fo r 2010 an d 2011. We ass umed that all other
cos ts for 2009 and 2010 wil l in crease by 3% per year.
Fri nge benefit rate s were est ima ted to be 25 .1% for 2009, and 25.8% for 20 lO
and 2011 for the Resea rch Associa t e and Profe ssor .
The total indirect cos ts are 47% fo r 2009 through 2011 .
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VII . Total Budget s
We have t abu lated the total bud gets by location (Table 4) and by budget category (Table
5) for 2008 through 2010.
Table 4. Total budgets by location for 2009-2011.
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Total by location Current Proposed Proposed
Category 2009 2010 2011
North Be nnett
Total direct -:osts 32841 33233 33364
Indirect costs 15435 15620 15681
Total costs 48276 488 53 4904S
Byers
Total direct costs 38454 3901S 39319
Indirect costs 18073 18337 18480
Ti;. al costs 56527 573S2 57799
Micro study • Total direct costs 2041 2102 2165
Indirect costs 959 988 1018
Total costs 3000 3090 3183
Total
Total di rect costs 73336 7435 0 74848
Indi rect costs 34468 3494S 35179
To tal co sts 107804 109295 110027
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Table 5 . Total budgets by budget categories fo r 2009-2011.
Total by category Current Proposed Proposed
Ca tecory 2009 2010 2011
Analyse s 6784 69 87 7197
Personne l (salary plus fringe) 57218 57750 57150
Ha1vest, plot set up , we ath er statio n 3309 3408 3510
Travel 6024 G205 6391
Total direct costs 73336 7435 0 74 848
Ind irect cost s 1 3446R 34945 351 79
Total co sts 107 804 109295 !10027
Total ind irect costs are 47% of total direct costs for 2009-2011.
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• LITTLETO ',1::NGLEWOOD City of
Littleton
Cieyof
Englewood WASTEWA ER TREATMENT PLANT
2900 S. Plant AMI r-,n
Englewood . Colo1ado IICI
(303)762-2600
FAX 762•2620
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March , 20 10
Office of Sponso red Program s
20 02 Cam pu s Jeli very
Fort Collins, Co lorad o 80 523 -2002
Att emi on: Ch rist in e Ca rsten, Resea rch Ad min istrator
RE : COO PERA T!VE RESEARC H PROJECT -SLUDGE APPLI CATION TO DRYLA ND
WHEA T FIELDS -20 IO FISCAL YEAR
Dear Ms. Cars ten:
We are pleased to inform yo u th at the 20 10 proposa ls for co nt in uin g the resea rch projec ts m the
Benn ett and Byers sit es, and for Microbial Study were approved at th e Febru ary 18, 2010
Littlet on/E nglewood Was tewater Trcutment Plant Superviso ry Co mm itt ee mee tin g. Thi s leuc r serve s
as auth ori zatio n fo r th e 20 10 stud ies. Auth or izat ion is based on the fo ll ow in g understandin g:
I. The up per expe nditur e lim it for the Benn ett st udy is $48,85 3 for fi sca l year 2010
2. The upper expend itu re limit for the Byers study is $57,352 fo r fi scal yea r 20 I 0.
3. The up pe r ex penditure li mit for th e Mi crobial study is $3,090 fo r fi scal year 20 10.
4. Se para te nuth oriwti on 111 11st he ob tained for additional work be yo nd that dcs cri hed in the
prop osa ls.
5. Pro t;,·ess repo rt in g and invoicing will b<: on u quarterly husis . Proj ec t re1i ,ns must
acco mpany all inv oices, also on a qua rt er\) husis . A finnl report wil l be pro vided.
6. In vo ices are to provide detailed background of proj ect costs ucco rd ing to cat egor ies
sho,, i: th e Proposed Budge t Tables in yo ur proposu\.
7. All J • ·;,cat ions pertai :iin;; tC'I th e rcscurch wor k will be submi tt ed to th e citi es fo r review
prim to release . All \\;er co ndit ions set for th in yo ur July 2009 proposa l sha ll be
incorp orat ed in thi s agr eeme nt.
CSU Re search Proj ec ts
March 6, 20 I 0
Page Tw o
We anticipate your pro gram will proceed immediately. Plea se acknow led ge yo ur acceptance of the
t<'rm s of th e ag ree ment by sig nin g the bo tt om po11 ion of both agreem ents an d retu rnin g one original to
me for th e offic ial City records. Please rem in one original fo r your reco rd s.
Si ncere ly,
Stewart H. Fonda
Director
ACCEPTANCE OF TERMS OF AGREEMENT:
Sig nature
SI-IF/ca
Alla chm ent
Tit le Dat e
cc : Dr . Ken Barbnr ick , Dept of So il & Crop Scien ces, 1170 Cn mpu s De li very, CSU, Ft Co ll in s, CO 80S23-11 70
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COUNCIL COMMUNICATION
Date : Agenda Item : Subject :
March 1, 20 10 11 a ii A bill for an o rdina nce amendi ng Ordina nce 20,
Series of 2009 rega rding the leas e-pu rc hase of
eq uipment for City depar tments
Initiated B1•:
Finan ce and Admin is tra tive Serv ices Department
I Staff Source :
Fra nk Gryglewicz, Director
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
City Co uncil previously dis cussed leasi ng se lf co ntain ed brea th ing appa ratu s (SC BA) equipment,
poli ce tac ti ca l ves ts, and a voice ove r intern et pro tocol (VOIPi teleph o ne system at the 2009
Bu dget Re treat.
On May 8, 2009 , Ci ty Co uncil pas sed o n final rea ding Ordinance 20, Series of 2009, which
s oproved the lease-p urcha se of equipment for ,aric,11s City of Englewood d epa rt m ents .
RECOMMENDED ACTION
Staff recom m ends th e City Council approve the attac hed bill for an ord ina 11ce amending O rdinan ce
20, Series o f 2009, to remove tundin g tha t is no lo n ger needed.
BACKGROUND , ANALYSIS, AND ALTERNATIVES IDENTIFIED
Th e o rigin al bill fo r an o rdi nance in clu d ed equipm ent for lease-purcha se tha t was subseque ntl y
funded by o ther so urces, leaving o nl 1• in forma tion technology-related equ ipmen t subject to leas e-
i:•irchase .
This bill for an o rdin ance amends th e Ordinance 20, Se ri es of 2009, but sti ll all ows the City to lease-
pu rchase needed information tec hn o logy e<1uipment and conserve its ca pital and take ad van tage of
in teres t rates.
FINANCI AL IMPACT
Th is ac ti on preserve s a low interes t ra te not to excee d 4.75 pe rce nt. Th e annual principal and
int eres t pa yments over th e term o f th e lease will n o t exceed $1 28,000. The to tal principal paid will
not exceed $35 0,000 and will no t ex tend beyond ca l ndar year 20 13.
LIST OF ATTACHMENTS
Proposed Bi ll fo r an O rd ina nce
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BY AUTHORITY
ORDINANCE NO.
SERIES OF 2010
COUNCIL BILL NO. 4
INTRODUCED BY COUNCIL
MEMBER _____ _
A BILL FOR
AN ORDINANCE OF THE CITY OF ENGLEWOOD AMENDING ORDINANCE NO. 20,
SERIES OF 2009 REGARDING THE LEASE-PURCHASE OF CERT A1N EQUIPMENT FOR
CITY DEPARTMENTS .
WHEREAS, the City of Englewood, Colorado (the "City''), is a home rule municipality of the
State of Colorado (the "State'') duly organized and operating under the Home Ruic Chancr of the City
and the Constitution and laws of the State; and
WHEREAS , pW1uant to Ordinance No. 20, Series of2009 which passed on final reading on May
8, 2009 ("Ordinance No. 20"), the City Council of the City (the "City Council'') approved the lease-
purchase of certain ''Fire Departmt111 Equipment" for an amount not to exceed $330,000 and the
"Information Technology and Police Department Equipment" for an amount not to exceed $625,000, as
more specifically provided in Ordinance No . 20 ( capitalized terms used in this Ordinance but not
otherwise defined or redefined herein shall have the meanings set forth in Ordinance No. 20); and
WHEREAS, since the adoption of Ordinance No. 20, a significant portion of the Equipment bas
been acquired through non-leaac funding sources and the initial lease-purchase proposal to be funded
pW1uant to Ordinance No. 20 has cxpll'ed; and
WHEREAS, certain of the Information Technology and Police Department Equipment in an
amount not greater than $350,000 remains to be financed and an alternate lease-purchase proposal bas
been received by the City; and
WHEREAS, pW1uant to a Lease/Purchase Agreement and related documents recently presented
to the City (collectively, the "Lease Agreements''), Zions First National Banlc, as lessor, is to lease the
lnfortn11tion Technology and Police Department Equipment specifically identified in the Lease
Agreements for "Lease Payments" (set forth in an exhibit to Lease Agreements and defined in Ordinance
No. 20 as Rental Payments) which arc subject to annual appropriation by the City Counc il ; and
WH:JREAS, the City Council is desirous of reauthorizing Mt directing the transaction described
above ;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD , COLORADO , AS FOLLOWS:
~-Amendment of Section I of Ordinance No. 20. Section 1 of Ordinance No . 20 is
hereby amended to read as follows :
The City Council hereby approves the lease-purchase of the Information Technology and Police
Department Equipment identified in the Lease Agreements for an aggregate amount not to exceed
$350,000, with annual aggregate payments not to exceed $128 ,000 and lease terms which shall
net extend beyond calendar year 2013. The City Council hereby rcaffinn~ its delegation to the
Mayor, or in the absence thereof, the Mayor Pro Tern, of authority to determine the net effective
◄818-6: 15-1237.1
rate for the lease-purchase financing , which rate shall not be in excess of 4. 75 % per annwn, and
the fina l amounts of the Lease Agreements.
Section 2. Reaffirmation of Ordinance No . 20 . Th e City Counci l hereby reaffirms the
authmization , declarations , finding s and determinations set fonh in Ordinance No . 20 , except as amended
pursuant to Section I of this Ordinance .
Section 3. Effective Date . The Ordinance shall be effective thiny days after publication
following fina l passage .
Introduced, read in full , and passed on first reading on the I" da y of March , 20 I 0.
Publi shed as a Bill for an Ordinance on the 5th day of March, 20 I 0.
Publ ished as a Bill for an Ordinance on the Cit y's official website beginning on the J "' day of March ,
20 IO for thiny (30) days.
James K. Woodward , Mayor
ATTEST :
Lo ucrishia A. Ellis , City Clerk
•
I, Lou crishia A. Ellis, City Clerk of the City of Englewood, Colorado, hereby cenify that the above
and foregoing is a true copy of a Bill fo r an Ordinance , introduced , read in full . and pns sed on first reading on •
the !st day of March , 2010 .
Loucri shia A. Elli s
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481 8-6 115-1237.I 2
• COUNCIL COMMUNICATION
Date: I Agenda Item : I Sub ject :
March 1, 2010 11 a iii Br oken T Englewood Indoor Golfirai nin g Cen ter
Initi ated By: Staff Source:
D ep artm ent of Pa rks and Rec reatio n Jerrell Bla c k, D irector of Park s and Recreat ion
Bob Spada, Golf O p erations Manage r
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
2002 Approval of learning Cent er conu ac t -TNT
2008 Approva l of learning Ce nter co ntrac t -McGetri ck Golf Aca demy
RECOMMENDED ACTION
Staff recommen ds th at City Council adopt a h ill for an ordinance approvi ng an ag ree m ent w ith
Broken T Par tners LLC to operate th e Br oken Tee Eng lewood In door GolfTrai ni ng Cen ter.
• BACKGROUND, ANALYSIS, AN D ALTE RNATIVE S IDENTIFIED
•
Th e Bro ken Tee Golf Course indoor tr ai nin g ce nt er was part of th e cl u bhouse expansion in 1995.
Six hitting bays w ith two co mpu ter swi ng anal yze rs we,e ~c,t in p lace. W hi le th e fac ili ty has been a
posi ti ve addition to th e clu b house, th e reve nu e str ea m has been mi nimal. Monthly use passes we re
create d in 1999 to ge nerate par ti ci pa tion and revenu e in the faci li ty. In the fi rst yea r approx im ately
nin ety (90) passes were sold. The fo ll owing year th at nu mbe r was c ut in ha lf. At th at tim e, it was
rea lized th at in order for the training cent er to be succ essfu l, Jdditiona l staff W3S needed 10 be on
si te du rin g operating hours due to golf swing ana lys is and to c perat e th e comput ers properl1•.
Re ve nu e fr om the learning Cen ter was approxima tely S 10,000 annually.
i n October of 2002, Tim Grove ( w n er TNT) leased this space 10 offer indoor lesso n s, cl ub fi llings
and golf trai ning ses sio ns. TNT decided to termina te th eir contract in th e fa ll of 2006 du e to lack of
sal es an d usage.
In April 2007, staff sent cul an RFI (Re qu es t for In formation) 10 d !ermin e if an y area retail
busin es ses were int eres ted in a location at th e golf course. Sixt ee n ve nd o'.s µ,eked u p th e
doc L11n e11 ts bu t none ,ve re submi tt ed . Al that time, th e go lf co urse was und ergoi ng a renova ti on
and most of the faci lities were closed.
In December of 2007, M cGetri ck elf Academy (MGA) and O rt ega Golf bo th expressed an
int eres t in offe,in g less on progra ms through th e indoo r teac hing fa c il ity. Each group submitted a
proposa l end met wit h staff on num ero us occasio ns. Interviews we re L~nd ucted and MGA was
selec teJ . MCA was selected for the fo ll owin g reaso ns : highe r reven ue strea m fro m lease pa1•menl,
f,~e ins tru c tion l o our H ole--One junior golf program, discoun ted les sons l o all Engl ewood
redden ts.
McGetrick Golf Academy terminated its contra ct with th e City effecti ve November 30• 2009. Steve •
Buretz and Kev;o H oll ern , investors w ith MCA, approached staff and proposed a new agreemen t
that includes many of the same benefits that are in place plus new program ideas. Th ese be nefits
include di sco unted lesso ns to Englewood residents , free H ole-N-One ins tru c ti on , emphasis on junior
golf, improvements to the facility, seeki ng sponsorships for th e H ole-N-One p rogram and o ther
benefi ts.
FINANCIAL IMPACT
Th e term of the agreement is for one yea r w ith two ye ar renewal options b Br oke n T Partn ers LLC ,
and two additional year opti ons by agreement of both parti es . Broken Tee Englewood w ill receive
$20,000 plus 20% of utili ty cos ts for th e duration of th e contract
LIST OF ATTACHMENTS
Proposed Bill for an Ordinance
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ORDINANCE NO .
SERIES OF 20 10
BY AUTHORITY
CO UNCIL BILL 1\0. 5
INTRODUC ED BY COUNCIL
MEME 2R
AN ORDINANCE APPROVING AN AGREE !ENT BETWE EN THE CITY OF
EN GLEWOOD AND BROKEN T PARTNER .; LLC FOR A TRAINING CENTER AT
BROK.EN TEE ENC:LEWOOD .
WHEREAS, th e Englewood Golf Course indoor training center was pan of th e clubhouse
expansion in 1995, cons isting of 6 hittin g bays wi th two computer sw ing r.nalyzers ; and
WHEREAS , while the fa cility has been a positive additi on to the Clubhouse alth ough the
revenue stream has been minimal ; and
WHF-l~EAS, TNT lea sed th e Training Cent er offering indoor le ssons , club fittings and go lf
u:a ... ain~ !l es;.:oll~ from 2002 to 2006; and
I'. HEREA~. TNT dec ided to terminate th eir contract in the fall of 2006 ; wid
WHEREAS , in 200 7 a Request fo r Information was sent to determine if any area golf related
retail bu sin esses were int eres ted in a loca ti on at the Englewood go lf cowse: and
WHEREAS , pro posals were rece ived and interview s were held ; and
WHEREAS , th e Eng lewor,d Ci ty Co w1 ci l had prev iou sly approved an Agreement with
McGetrick Golf Academy 10 lease and manage the Training Center located at th e Broken Tr.e
Englew ood : and
WHEREAS, McGetrick Golf Aca demy ter. :tinated th eir contract as of Novemb er 30 . 2009;
and
WHEREAS , Broken T Panners LLC submitted a pro posa l and was select ed for th e fo ll owi ng
reasons: man y of lhe same benefit s that are currently in place , di scounted lessons to all
Englewood resid ents, free in struction to our Hole--On e with emphas is on junior go lf.
improvements 10 th e facilit y. seeking spon sorsh ips fo r the Hole-N-On e program and other
be nefits; and
WHEREAS , th e pa ssa ge of thi s Ordinance will ap prove the Agreement 10 lease and manage the
Trnioing Center located at the Brok en Tee Englewood ;
OW , THEREFORE , BE IT ORDAINED BY THE CITY COUNCIL !"F THE CITY OF
ENGLEWOOD . COLO RADO , AS FOLLOWS :
Section I . The City Council of the City of Englewood , Colorado, hereby authorizes and approves •
the Agreement for the lease and management of th e Trainin g Center located at the Broken Tee
Englewood between the City and Broken T Pann ers LLC. attached hereto as Attachm ent I .
Section 2 . The Mayor and the City Clerk are hereby authorized to sign and attest said Agreem ent
for and on behalf of the City of Englewood , Colorado.
In troduced , read in ful l, and passed on first reading on the I st da y of March, 20 I 0.
Pub lished as a Bill fo r an Ordinance in the City's official newspaper on the s" day of March.
2010 .
Publi shed as a Bill fo r an Ordinance on the Ci ty's official website beginning on the 3'" day of
March, 2010 for thirty (30) days.
James K. Woodward , Ma yo r
ATTEST :
Loucri shi a A. Ell is, Ci ty Clerk
I, Loucri shia A. Elli s, City Clc,k of th e Cit y of Englewood, Colo rado, hereby certify that the •
aoov e and fo regoi:ig is a true copy of a Bill for an Ordinance, introduced, rea d in full , and pa ss ed on
first reading on the I st day of Marc h, 20 I 0.
Lo ucri shi a A. Elli s
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AGRBBMBNT
nns AGRBEMl!NT, heroinaftorcalled "Leue", made and enteml into tbia __ day of_
------~ l0__, by and betwcoo tbe CITY OF HNGLBWOOD, a Colorado
municipal corporation, btmnaftor referred to as "City'', and BROKEN T P ARTNBRS I.LC,
hen,inaftcr rcforrcd toll "Trainor";
WITNBSSBTH:
~. the City awna certain real property -..bioh ii known as the Brokm Too
llnil""'ood Municipol Oolf Comte Clubbouae And Training Ccm!er, horeinafter called "Training
Cmlllr", and looaled in the City of Sbmidm; and
WHBRl!AS, City ml 'Ininor delin> to CDtor into a leaae for the manq,:ment of tho Training
Center located at tbe Brobn Too llnilowood Municipal Oolf Cow10;
NOW, THBRHFOJU!, for and In 0011lidenticm of the lllll\lal coveoaota hcninafter appearina
111d of tho paym,nt of the moni• hlnmaft« act forth, the parti01 hereto agree aa follows :
~ STATBMl!NT OF INTIDU.
Tho purpoao ofthla Lelli, ii to provide video aolftrainina, inltruction, club fitting ml
club alOI, The Trainer will not have =<cilllive right to all club llll.OI ,
b!.li!m.l,GRANT .
The City hereby llll"'OI to allow the Trainer to uae tho area doacnl>ed in "Bxhibit A" of tho
Bnalowood Clubbouao Tninina Cmt<rplua uae of the driving Illl&C Including uae of range
balll at no COit aod 1nctico aroaa for inatruction and other related activitiOI , Thero will bo
r;,aco cm tho drivina l'll1&0 and practicina area dOliiDIICd for tho Trainer. The Trainer will
be uaing 1111 agrood upon ll'OI for their IOIIIOlll/proi!IIIII, however, it ii ga,,nlly
UDdentood that the 'Ininor will uao tho wootom moat located spaces on the range.
~-DBFINITJON OF PREMISES .
The 'Leaaed Prcmilea" aa n,fmed to herein ii defined to bo the GolfClubbouac Training
umer, which ii owned by the City of Enalewood, Colondo. Soo Exhibit •A•, and portion
nf ranae aa refomd to in Soction 2.
~-TERM OF AGRBBMBNT.
The City hereby granll to Trainer the rigbt to hold tho Leased PrcmiaOI pursuant to tho
tennl oftbia Leaao for a ono (I) year1-with two (2) one (1) year nmewala ti tho
option of the Trainer 1111d with two (2) additional optional one (l)yoarperioda by
qrecnmt of both putiea. Iftbe Trainer inulull to nmw tho contract thoymuat Inform
the Director of Pam and R"""'"1icm nincl;· (90) days prior to tcnnination of the Lelle.
Tho City ahall inform Trniner of ill de:iaion throuah the Director of Parla and Recreation .
Section S. USB OF THE PREMISES .
Trainer shal l have the right to poascsaion of the Leased Premises for the purpose of
providing video golf training, instruction, club fitting, club sales and club repair. However,
nothing in this Lease shall be construed to authorize that which is proln'bitcd under United
States, State or local law, ordinance, code or regulation.
~-SERVICES .
All services provided by the Trainer shall be micwed and approved by the Di=tor of
Parla and Recreation. The Trainer will provide lessons and clinics for the City. The City
will continue to offer the Holc-N-One Prognun, Par 3 League, golf team and some lessons.
The Tmner will provide free instruction fo r the Holc-N-Onc Program. The Trainer will ·
provide !Clson diBCOUnts for Englewood residents and Parla and R.ocrcation sponson:d
programs.
~-HOURSOFOPERATION.
a) From May !st through September 30th of each year, the Trainer shall provide digital
video golf analysi s aix (6) clays per wcelc and during these months ahall be open each
clay to the public from 9:00 AM and shall remain open uotil S:00 PM .
b) During the month& of October 1st through April 30th of each year, the ~raincr shall
provide video golf analysis five (S) days per week and during these months ahall be •
open each day to the publi c at 9:00 AM and shall remain open until S:00 PM .
c) Nothing herein shall be construed as prolll1>iting the Tntiner from being open for
other boW1' in addition to thole 1tatcd in Paragraphs "•" and "b" above . Trainer may
close on Cbriatma, Day and Tbanbgiving.
d) Trainer agrees to coopcntc with the Golf Cour1e Manager in scheduling golf
meetings and evcnts . In the event of any di.!agrecmen~ the matter 1hall be referred
to tbc Director of Parks and Recn,ation and bis/her decision is final.
e) Any adjustments to th e boura of operation must be approved by the Di=tor of Parks
and Recreation or bis designcc.
I) Trainer and or the City w y temporarily cl ose the Training Center for cleaning,
construction and maintenance under a mutually agreed upon schedule.
~-MAINTENANCE, REPAIR AND REPLACEMENT .
a) The Trainer shall be rcaponsible for repairs and/or replacement of all equipment
associated with the leased premise. This docs not include driving range equipment
owned by the City of Englewood.
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~-CLEANLINESS GUIDELINES .
a) All ~tlcs, lq!UlatiODB and guidelines required by the City of Englewood must be
adb•.ired to .
b) All applicable local, state and Federal Go,emmoot Acts an.cl Regulations muat be
adhered to .
c) Any specific iWdelines established by the Director of Parlol and Recreation must be
adhered to .
~.RENT.
a) Tminor shall pay =t to the City:
i. Commoocing OD JanlW}' 1•, 2010, the Trainer ahall pay ,20,000 per year, in
,,<:eerdance with the following IChedule:
April through November: $2,500 per month .
Root can be prepaid anytimo .
ii. Trainer will provide reasoMb!.1 el'l'orta 1,, dttain sponsorahips for the Holc-N-
One Jr. Proaram .
The aforesaid fixed rent payments shall Ile paid, per schedule above on the
first day of cacb. month or OD the first Monday of each month iftb.e first day
falls on Saturday or Sunday,
A pcnslty fee of $10.00 per day or part then,of shall be charged lor each. day or
part then,of that the nmt is past due, until 12:00 midnight on the 14th day past
due. If the rent payment is not received by midnight on the 14th day past due,
the Trainer shall be in violation of the terms oftb.ia Agreemoo~ and subject to
termination.
~-UTILlTIES.
The Trainer · vill be responsible for twenty percent (20%) of all utility costs for the entire
building . In tho event of major changes to the existing facility which. increases utility
costs, this Section needs to be adjusted .
~ PARKJNG FACILITIES .
a) The existing parlring facility adjacent to the Golf Course Clubhouse (hereinafter
called "parking facility") shall be open for uac by Trainer and its customcra; such
rigb.t of use of the said parking facilities shall be non-o,cclusivo rigb.t.
b) City aball at its own o,cp enso Dlllinlain the parking facility, which aball include snow
removal when necessary .
~ SIGNS .
Any signage for the leased promiJe shall be the sole responsibility of the Trainer. All
signage must be approved by the Director of Parks and Recreation or his dcsigncc ,
~ ADDITIONAL FACILITIES AND EQUIPMENT.
Trainer shall have £. right to install additions! fAcilitics and equipment with the consent
of the Director of Parks and R.crcation or his dcsigncc. Permanently attalll!cd fixtures or
equipment aball become property of the City upon termination of the lcaac . PerTllall<nlly
au.clled fixtures arc coDJidcrcd to be any item that C8UIC8 damage to tho bui!dir,e ";> • •
removal. In no even! will a golf simulator be considered a pcrmancntly attach oo f!Xlurc ,
~ SECURITY.
Trainer is rcspol18lblc for the obtaining of theft inswancc covering equipm,:n~ SUpJ'•·· b and
penonal property of Trainer. Such policies shall contain no rill,bt of subrogati o,, as,,,inst
the City, Trainer aball provide a copy of tho policy to the Di=tor of Pub llll4
Recreation. Additions! coata for ,t.CWity, aa required by the Director of Paro acd
Recreation or his design cc, shall be tho rcspomibility of the Trainer.
~ PERSONNEL.
a) Trainer shall at its own cxpcoso omploy such qualified personnel as may be
ncccaaary for the training operation and shall require all personnel to be clean, polite, •
and courteous in their transactions with the public. .
b) Trainer shall give personal supervision and dim:tion to tho operation of the Training
Center and, wbcn absent, keep compctcct pcraonnol in charge.
c) City shall not be responsible for the wages or salaries of any employee or
rcprcscctative of Trainer, nor for any dcb",1, liabilitics or other obligations of Trainer.
d) Neither the Trainer nor the cmployocs who perform services pursuant to the
Agreement shall be considered employees, servants or agents of the City of
Englewood as a result of the performance of services under the Agreement.
e) Violence or acta prohibited by Jaw committed by the Trainer and employees of
Trainer shall cause immed iate teimination of tho Lease, if not resolved to the
satisfaction of the City, after notification.
~. LICENSES AND PERMITS .
Trainer, at its own c.~cnac, shall secure 11ny and all licenses and permits for services .
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~. INSURANCE/INDEMNIFICATION.
a) Trainer agrees to furnish to City a performance bond or letter of credit in the amount
of Ten Thousand Dollars ($10,000 .00) guanmtccing faithful performance by Trainer
of all payment of rent, utility costs, etc., along with all terms, covc:oants, and
conditiOllJI borcin contained and compliance with applicablo City ordinances. Said
bond lhall be furnished within 30 days of signed agreern,;nt aod sha1l romain in
effoct fur the tmn of the lease .
b) Trainer shall at Trainer's own expenae keep in full force and effect during the term of
this Leutl statutory Worker's Cor,pcnaation coverage if required. A copy of the
certificates of lnsumnce shall be scot to the City in care of the Depar1mcnl of Risk.
c) INDEMNIFICATION. Tn1iner agrees to indemnify and hold bannleaa tho City of
Enalowood, its CoUllcil, cmploycca, insurers, and aelf-insun,ncc pool, from and
against all liability, claima, and demaoda, on acoount of iajury, loSB or damage, of
an.v tcind wha!Jocvm, which arue out of or arc in any= connoctod with
'!'n,iner, if 1ucl!. ll\fury, lo88, or damago iA caused in whole or in part by the aot,
omiaaion, or other fault ofTnliner, or any officer or employee of Trainer. Trainer
agreos to invest!~ handle, rcapo1 •d to, and to provido defcnac for any such
liohillty, claims, or demands at the I ole expenao of Trainer, and a.'.lf'lC8 to beer all
other coats and expenses related thrreto, including court costs and attorney fees,
whether or not any such liability, o.aims, or demands allogod are groundless, falac, or
fraudr\cnt.
d) INSURANCE.
Trainer is to procure and maintain, at its own l!Nl l, a policy or policies of
insurance sufficient to iruoure against all oblil!lltions 888umod by Trainer
pumiant to this ~aite.
ii . Trainer shall procuro and continuously maintain the minimum insurance
coverage's liRlcd below, with the forms s:>d insurers acceptab le to the City of
Englewood. 1n the case of any claims-mada policy, the necessary mroacti ve
dales and cxtendod reporting periods shall be procured to maintain such
continuous coverage.
(A) Gonen,l liability and erro111 and omissions UlSW1lllCC with minimum
limits ofone million dollars ($1 ,000,000) per each pcraon and one
million dollers ($1 ,000 ,000) per each occurn:nce, plua an additional
amount suffi cient to pay related attorney,;' fees and defense costs.
iii Fire and Bxtendcd Coverage Insurance shall be provided by the City on the
ClubHouao buildin11, and extended buildings included in Leased Premises,
only . Trainer shall be solely responsible ior securina and payina for insurance
coverage on those improvements and contents bel onaing to Trainer located in
or on the Leased Pn:miaca. Trainer hereby exprca,ly waives ,my cauae of
action or right of =very, which Trainer may hc:Rafter have against City for
any loss or damage to Leased Premises or to any contents nr improvements
themo belonging to either party, caused by fire, explosion, or theft .
5
iv, The policies required above aha!! be endoraed to include the City of
Englewood and the City of Englewood's Council and employcea as additional
insured. Every policy required above shall be primary insurance, and any
insurance earned by the City of Englewood, its officera, or its employees, or
earned by or provided through any aelf-inaurance pool of the City of
Englewood, aball be exceas and not contributory insurance tu that provMed by
Trainer .
v. The certificate of inauraoce provided to the City of Bnglewoo<l shall be
completed by the Trainer's iim rance agent as evidcnce ih ( r.01 1.t,,; J>.o,,d!Dg
the required coverage's, conditiom , ar..! minimum lilr~~ are ir;_ f\,j} 1 tree and
effect, and aball be reviewed and approved by tho City of fl, r,:o,i,;:.. ' i>.rior to
commeocemcntoftheAgrocmcnt. No othcrfonnofcertlt, ,tt•. , U hewicd.
The certificate shall ideotify this Agreement and aha!! provide thnt the
covenige'a afforded under the policies shall not be canceled, t<ro.imted. or
materially changed until at least 30 daya p.rior writteo notice 1w bCCJ! given to
the City of Bnglowood. The com;,leted certificate of insurance shall be 11e11t
to :
City Clede
City of Englewood
1000 Englewood Parlcway
Englewood, Colorado 80110
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A certified copy of any policy ahall be provided to the City ofEn&Jewood at its •
~uest. A copy of tho certificates of insunioce &hall be sent to tho City in care
of the Departmeot of Risk, 1000 Englewood Parkway, Englewood, Colorado
80110.
vi . The parties hereto undomand and agree that the parties are relying on, and do
not waive or inteoo to wr:,e by any provision of this Agrccmen~ the monetary
limitations (presently $1,000,000 perperaon ""'1 $1 ,000,000 per occummcc)
or any other rights, immunities, and protectioos provided by tho Colorado
Governmm,tal Immunity Act, C.R .S. 24-10-101 ot seq., as from time to time
amended , or otherwise available to the parties, thoii officera, or their
employees.
A certificate evidencing aaid insurance policy shall be kept on file with the
Department of Risk of tho City and shall have a provision that the same shall not be
altered, amended, or canceled without first giving written notification thereof to the
City thirty days prior thereto. Tl1liner further agrees to indemnify the City for any
claims broughl agaiosl the City because or on account ofTrainer's opemion. A copy
of the certificates of insurance &ball be scot to the City in car• of the Department of
Risk.
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~ FOO!ORNATURALDISASTl!RS .
In tho cvem me or natma1 diauttr =den the Llub li.ctJIC and ill Tnming Center
fadlltica lnopcnhlo, the Tnincr oball be releucd from the tcnna of oomp!llUUOII t~ be
paid the City UDl:i.l IIICh limo u the Club Hmue ml ill Tnlnlng Cent« lilcilitica ore
doclarcd opm alld operable by the City. If in the cvllll IUCb Tnming Center lilcilitiol an,
not open ml operable wltbm a period of thirty (30) dllya from the dme of 111ch diauler,
TtaiDor hu the dabl to terminate !ta contract Ill~ l;:ue with the City 1lllder Section 2A,
Tonninatkm ofLeuo, contained benoln.
~-Tl!RMINATION OPLBASB.
a) Thil Leue may, at ,mytlmo, be terminAlcd by olth,:rpartyupon ninety (90) day,'
written DDlice to the other without cauae.
b) Tho parti111 may 111n11in11e thc Leue by s!vina tlmty (30) day,' wriUm aotioe of a
wilalionofplnllapbl 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,alld 18, provided
Trainer hu bem lfflllnolioe ofviolatioa, ~ hu neglected to cuze lUCb
violation.
c) Violation ofpmanph 19 lhall be gnJUDdl forimmodiatetenninalion of the Leue.
~ DBLIVllRY AND RBMOV AL UPON TIIRMINATION .
Trainer will dclm:r the pn,milea at the termination oflhil Lcuc in u aood condition awl
lltatc of repair u when received, except for ordinary woor and tear or Joa or d.mJaa,,
C&Ulcd by an act of God. Upon tarminalion, Tnimr oball haw the riabl to n:mow ,my
aupplica or penoaal property bc!crnaina to or lmtallcd by tho op<n!Or, subject, however, to
IIIY valid lien or claim, which City may have for unpold fool. Provide.I alao that if aid
removal .,_ 111Y dazmae to the pRIIIUIIII, said 'Iia!n« will repair tho IIIDO in a proper
alld l&tilfilctory IIIIIIMr Ill ill own OJ<PCDI<',
~-Thi, Aar-.emcnt may not be aaianed ml a IUbleue oball not be allowed without the
writta,. comcnt of both porti111. Independent conlraclol'I an, separate from this Section.
~ ATTORNBYPJ!llSPRHVAll,INGPARTY.
In the OVlllll that eilh« party to thia Agtellllllml oball CXlllllDCIICC any action apimt the otber pa,,y
arisina out of or in connection with thia Apomcn~ or conleating the validity of this AaJcomcnt
or any provision of this Aareemmt, tho prevailina party oball be entitled to recover from tho
other party reuonablc sttomcy's fcca and related coata, fees and e.pai1111 incurred ~Y tho
prcvailina party in conncctioll with IUCh ICtian or ~-
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~NOTICES.
All notices, demands and communications hereunder shall be personally served or given by
certified or registered mail, and:
a) If intended for City shall be addiesoed to City at:
City of Englewood
Attention: Director of Parb and Recreation
1000 Englewood parkway
Englewood, Colorado 80110
with a copy to.
City of Englewood
Attention: City Attorney
1000 Englewood Parkway
Bnglowood, Colorado 80 II 0
h) If intended for Trainer shall be addressed to Trainer ac
Broken T Partnera LLC
Attention: Manaaor [Kevin Hollem]
2!01 W. Oxford Avcn,·o
Englewood, CO 80110
c) Any notice given by mail shall be deemed deLivcred when deposited in a United
States aencral or hrancli po· t office, addressed ea above, with postage prepaid, or
when served personally at the applicable address.
~ !JNT!RBAGRBBMBNT.
This Lease, logolhcr with the Exhibit A attached hereto :
a) Contains the entire Leaae between the parties ; and
b) Shall be governed by the laws of the State of Colorado.
~ SEVERABD..ITY.
lf any clause of pm vision of thi s Lease is illegal, invali d or uncnfort' :able under present or
future laws effective during the term of this Lease, then and in that event, it is the inlCOJtion
of the parties hereto that the remainder of this Lease shall not be affected thereby. It is
also the intention of the parties to this Leaae that in lieu of esch clause or provision of this
Lcaso that is illegal, invalid or unenforceabl e, there be added ea a part of this Lease a
clause or provisi on ea similar in terms to such illegal, invalid or unenforceable clauac or
provision 38 may be possible and bo legal, valid and enforceable.
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~ CAPTIONS .
The caption of each Section ia added aa • matter of oonvenience only and lhall 1101 I>,
COlllidered in the COllllnlcllllll of any provilioo or proviaiom oflhil Lease.
~ BINDING BFPl!CT.
All terma, oonditiom and covaianta to be obacrved and pcrfanned by tho parti<1 h«elo
aball be applicable to and bindlna 1.,pon their rospoctivo bein, adminiltrllon, OXO<Ulorl,
-and auip.
IN WITNESS WHBREOF, tho parti<1 herolo have henomlo IOI 1heir bands and ambi u
of tho day and y,:u lint above written.
CITY OF BNGt.mVOOD, COWRADO
"City"
By.----------Iemll Black, Director of Pm:b & Jl.=eallon
BROKEN T PARTNBRS LLC
"Trainer'' •.
By: ____ #.r.£~---=--
Md.+\ ":1 «
STATBOF t.,Diovo.clo )
l'ar,.., )u.
COUNIY OF r ., "'f AJ,\O)
~· fo~ ~wledgod bafO'l'P.e,lhil Ji day of -kvrUJ...Vtl
201-, by ~~-~k aa .MM!Oj:U' ofBrokenTPartncn LLC. .
/iu./wu.4. a. ~
Notary Public
My Commiulon expires: / Jjf1(JdtJ..,
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City "Of Englewood .,
CG_((]ILlF ,_,_(C(Q)ILJffi§JE
Exhibit A
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TFIAJMNO
: CENTER
:E;xlubitA
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COUNCIL COMMUNICATION
Date: Agenda It em: Subj ect :
March 1,2010 11 Ci Professional Serv ices Ag re emen t -Broadway Pos t
Office Histori c D e•,ig nation Project
In it iate d By: I Staff Source :
City Coun cil Michael Fla11«rty, Deputy City Manager
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
City Council discussed the issue of histori c des ignation fo r th e Broadw ay Pos t Office during th e
Stu dy Ses sion on February 22, 20 1 O and direc ted staff to prnteed w ith th e project.
RECOMME '.,,DED ACTION
Reco mmenda ti on to approve, by mo ti on, a Pr ofessk>r ··I Services Agreem ent wi th His tori L
Pr ese rvation Consu ltan t Dian e Wra y Tomass o to pursu e a nomina tion to ha ve Englewood 's
downtown Broadway Pos t Office added to Nati onal Re gister of Historic Pl aces.
BACKGROUND, ANALYS IS, AND ALTERNATIVES IDENTIFIED
When th e U .S. Postal Service ann oun ce d late las t ye ar t:,at it was co ns idering th e possibili ty of
• clos in g and se lling the Broa dway Pos t Office in downt own Englewoo d, th e community ralli ed to
h elp save th e Post Office. During that process , it became abundan tl 1• cl ea r that efforts mus t be
undert ake n to p rese rve thi s hi stori c land mark. City Council foll owe d up w ith corresp ond en c e to
b r •h Congresswom an D eG ett e's offic e and the Un ited States Postal Service regardi ng th e pursuit of
hi stori c designation for thi s build in g. Both have ex presse d a w illin gness to support thi s us de rt aki ng.
The Ci ty of bglewood w as approac hed by His tori c Preserva tion Consu ltant D ia ne Wray Tom asso
with a pro posa l to prepare a nomina tion fo r in clusio n of the Br oad,-va y Pos t Office on tl1 e •aticmal
Regis ter of H istc ric Pla ces. Th e proposal also in clu des co mmunity mee tin gs to ga th er suppo rt for
lhe nomina ti on anrf pur~ue fund-raising effor ts to h Ip pay fo r it.
Pr ev ious es timate s fr om th e U.S. Pos tal Ser.i ice indi cated that th e cos ts ass ocia ter1 .. ,1 th a
nomina tion wou ld be approximat ely $15,000. Dian e \/\/ray Tomasso's se rvices wo uld be prov ided
to th e City at a fee of $5 ,300 Th e City woul d be , es ponsible for $2 ,800; the re,r.ainin g
co mpensa ti on (S2,500) wc-\1ld be co nting ent up on iun d-raisi ng effo rt s. Gi ven Ms. Wrd y Torna sso 's
m odes t co nsulting fee s, c,,upl ed w ith he r local background an d fa miliarity with thi s pa rticu lar
proj ec t, staff beli eves it is in the Cit y's bes t interes ts to emer in to a co nlrac t "ith her 10 fm th er
researc h and p r p are a Na tional Reg ist r nominati on for Englewood's Broadway Post Offi e.
FINANCIAL IMPACT
Th e Communi ty Developm ent D epartment has sufficient funds in its 2010 Bu dge t to pay for th e
Ci ty's porti on of the ass oci ated fees .
LI ST OF ATTACHMENTS
Professio nal Services Ag reement
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PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (t he "Agreement ") is ma de as of this __ day of
______ , 20_, (the "Effective Date ") by and Dia ne Wray Toma sso
("Consultan t"), and The City of Engl ewood , Colorado , a muni cipal cc rporat io n organ ized
unae r tne laws of the state of Colorado ("City").
City desires that Consultant , from time to time , prov ide certa in consulting services , systems
integration services , data conversion serv ices , train ing serv ices , and /or re lated services as desc ri bed
herein , and Consultant desires to perform such services on behalf of City on th e terms and conditions
set forth herein .
In consideration of the forego ing and the te rms here inafter set forth and other good and valuable
consideration , the rece ip t and sufficiency of wh ich are hereby ackn owledged , the parties hereto ,
intending to be legally boun d, agree as foll ows :
1. Definitions. The terms set fo rth below
shall be defined as follows :
(a) "Intellectua l Propert~ Rights "
shall mean any and all (by whatever n3me or
term known or designated ) tangible and
intangible and now known or hereafter exi st ing
(1) rights associate with works of authorship
throughout the universe , inclu ding but not
lim ited to copyri ghts , moral rights , and mask -
works , (2 ) trademark and trade name rights
an c' similar rights , (3) trade se cret rights , (4)
patents , designs, algorithms and other
industrial property rights , (5) all other
intellectual and industrial property rights (of
every ki nd and nature throu gh out the universe
and however des ig nated ) (including logos ,
"rental " rig hts and ri ghts to remunerat io n),
whether arising by operation of law , co ntra ct ,
license , or otherw ise , and (6) all reg istrations ,
initial applications , renewals . ext ens ions ,
continua tions. divisions or re issues hereof now
or hereafter in force (inc luding an y rights in an y
of the foregoing ).
(b) ·work Pro du ct" sh all mean all
patents , patent applicat ions , inventions ,
designs , mas k works , processes ,
me thodologies , co pyrights and co pyrightab l~
wo rks , trad e se crets includ ing confide ntial
information , data , designs , manuals , training
materials and documentat io n, formulas .
knowledge of manufa ct uring processes ,
methods , pri ces, fin an cial and accounting data ,
products and product spe cifications and all
other Intellectua l Property Rights created ,
developed or prep ared , documented and/or
del ivered by Consultant , pursuant to the
provision of the Services .
2. Statements of Work . During the term
hereof and subject to the terms and conditions
contain ed herein, Consultant ag rees to
provid e, on an as requested bas is, the
consulting services , systems integration
services , data convers io n serv ices , training
services , and rel ated services (the "Serv ice s")
as further described In Sched ule A (the
"Statement of Work") for Cit y, and in such
additional Statdments of Work as may be
executed by ea ch of th e part ies hereto from
time to time pursuant to this Agreement. Each
St atement of Work shall specify the scope of
work . spec ifi cati ons . bas is of com pen sa tion
and payment sch edul e, estimated leng th of
time required to co mplete each Sta te ment of
Work , inclu ding the estimated start/finish
dates , and other rele vant in format ion and sha ll
inco rp orate all terms and co nd iti ons contained
in th is Agree men t
3. Performanc £• of Services.
(a) Performance . Co nsultant shall
pe rform the Se rv ice s necessa ry to co mpl ete all
projects outl ined in a Sta tement of Work in a
timely and profess io nal manner consistent with
the specificat io ns , if any , set forth in the
St at ement of Work , and in ac co rda nce wit h
industry standard s. Cons ultant agrees to
exercise the highest degree of profess ionalism ,
and to utilize it s expertise and creative talents
in completing the projects outlined in a
Statement of Worl<.
(b) Delays. Consultant agrees to
notify City promptly of any factor , occurrence ,
or event com ing to its attention that may affect
Consu ltant's ability to meet the requirements of
the Agreement, or that is likely tr occasion any
material delay in completion of the projects
contemp ated by th is Agreement or any
Statemont of Work . Such not ice shall be given
in the event of any loss or reassignment of key
employees . threat of strike , or majo r equipment
failure. Time is expressly made of the Essence
with respect to each and every term and
provision of this Agreement.
(c) Discrepancies. If anything
necessary for the clear understanding of the
Services has been omitted from the Agreement
specifications or it appears that various
instructions are in confiict , Vendo r shall secure
written instructions from City 's project director
before proceed ing with the performance of the
Serv ice s affected by such omiss ions or
r:'•;cr:pancies .
4. Invoices and Payment Unless
otherwise provided in a Statement of Work ,
City shall pay the amounts agreed to in a
Statement of Work within thirty (30) days
following the acceptance by City of the work
called for in a Statemen t of Work by City .
Acceptance procedures shall be outlined in the
Statement of Work . If City disputes all or an y
portion of an invo ice for charges , then City
shall ;,ay th e undisputed port ion of the invoice
by the due date and shall provide the following
notific ati on with respect to the disputed port ion
of the invo ice . City s~all notify Consu ltant as
soo n as poss ible of the specific amount
disputed and shall provide reasonable detail as
10 th e basis for the dispL1te . The parties shall
then attempt to resolve the disputed port ion of
such invoice as soon as possible . Upon
re soluti on of the disputed portion , City shall
pa y to Consultant the resolved amount.
5. Taxes . Ci ty is not subject to
taxation . No federal or other ta xes (excise ,
lu xury , transportation, sales , etc .} shall be
included In quoted prices . City shall not be
obligated to pay or re imburse Consultant fo r
any ta xe s att ributab le to the sale of any
Services wh ich are imposed on or measured
by net or gros s income , capital, net worth ,
franch ise , privilege , any other taxes , or
anse ssments , nor any of the forago ing
im posed on or payable by Consultant. Upon
written notification by City and subsequent
verifi cation by Consultant , Consultant shall
reimbu rse or credit, as appl ica ble , Ci ty in a
tim11ly manner, for an y and all taxes
erroneously paid by City. City shall provide
Consultant with , and Consultant shall accept in
good faith , resale , direct pay , or other
exemption certificates , as applicable.
6. Out of Pocket Expenses. Consultant
shall be reimbursed only for expenses wh ich
are expressly provided for in a Statement of
Work or wh ;ch have been approved In advance
in writing by City , provided Consultant has
furnished such doc umentation for authorized
expenses as City may reasonably request.
7. Audits . Consultant shall provide such
employees and independent aud itors and
inspectors as City may designate with
reasonable access to all sites from wh ich
Services are performed for th e purposes of
performing audits or inspections of
Consultant 's operat ions and compliance with
th is Agreement. Consultant s; ,:'Ill provide such
auditors and inspectors any reasonabl e
assistance that they may requ ire . Such audits
shall be conducted in such a way so that the
Services or services to any other customer of
Consultant are not impacted adversely .
8. Term and Termination . The term of
this Agree ment shall com men c3 on the
Effect ive Date and shall cont inue unle ss th is
Agreement is term ir,ated as provided in this
Sect ion 8.
(a) Convenience. City may , without
cause and without penalty , terminate the
prov ision of Services unde r any or all
Statements of Work upon t~irty (30) days prior
written notice . Upon su ch term ination , City
sh all , upon receipt of an invoice from
Consultant , pay Cons ultant for Services
actually renrt~w d prior to the effective date of
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such termination . Charges will be based on
time expended for all incomplete t as ks as
listed in the applicable Statement of Work, and
all completed tasks will be ch arged as
indicated in the applicable Statement of Work .
(b) No Outstanding Statements of
Work . Erthe r party may terminate th is
Agreement by providing the other party with at
least thirty (30) days prior written notice of
termination if there are no outstanding
Statements of Work .
(c) Material Breach. If either party
materially defaults in the performance of any
term of a Statement of Work or u,is Agreement
with respect to a spe cific Statement of Work
(other than by nonpayment) and does not
substantially cure such default within thirty (30)
days after re ceiving written notice of such
default , then the non -defaulting party may
terminate this Agreement or any or all
outstanding Statements of Work by providing
ten (1 0) days prior wr itten notice of terminat ion
to the defaulting party .
(d) Bankruptcy or Insolvency. Eith er
party may terminate this Agreement effective
upon written notice stat ing its intention to
terminate in the event the ot her party: (1)
makes a general assignment of all or
substantially all of its assets for the benefit of
its :reditors ; (2) applies for , consents to , or
acquiesces in the appointment of a receiver ,
trustee , custodian , or liquidator for its business
or all or substantially all of its assets ; (3) files ,
or co nsents to or acquiesces in , a petition
seeking relief or reorganization under any
bankruptcy or insolvency laws ; or (4) files a
petitio n seeking rel ief or reorganiz~ti on under
any bankruptcy or insolvency lav,s is filed
against that other party and is not dismissed
within sixty (60) days after it was filed .
\e) TABOR . The parties "ndcrstand
and acknowledge that oach party i~ ,ubject to
Artic le X , § 20 of the Co lorado Constitution
(''TABOR"). The part ies do not intend to
·;iolate the terms and requirements of TAB OR
by the exec ution of this Agreement . I\ is
understood and agreed that this Agreement
does not create a multi-fiscal yea r direct or
ind ire ct debt or obligation within the mean ing of
TABOR and , notwithstanding anything in th is
Agreement to the contrary, all payment
obligations of City are expressly dependent
and conditioned upon the con tinuing
availability of funds bl'yond the term of City's
current fiscal period ,1 nrling upon the next
succeeding December 31 . Financial
obligations of City payable after the current
fiscal i•ear are contingent upon funG s for that
purpose being appropriated , budgeted , and
otherwise made avail&hle in accordance with
the rulois , regulat ions , and resolutions of City
and a 1plicable law. Upon the failure to
approp ·i ate such funds , this Agreement shall
be deemed terminated .
(f) Return of Property. Upon
termin at ion of this Agreement , both part ies
agree to return to the other all property
(i ncluc;~g any Confidentia l Information , as
defin~ c in Section 11) of the other party that it
may ! ,ave in its possession or control.
9. City Obligations . City will provide
timely access to Cit y personnel, systems and
informat io n requ ired for Consultant to perform
its obligations hereunder. City shall provide to
Consulta nt's employees performing its
obligations hereunde r at City's premises ,
without charge , a reasonable work
environment in compliance with all app licable
laws an d regulations , inclu ding office space ,
furniture , telephone service, and reproduction ,
computer, facsimile , se cretarial and other
necessary equ ipment, supplies , and services .
With respect to all third party hardware or
software operated by or on behalf of City , City
shall , at no expense to Co nsultant , obtain all
conse nls , licenses and subiicenses necessa ry
for Consultant to perfo rm under the Statements
of Work and shall pay any fees or other costs
associ ated with obtaining such co nsents ,
lice nses and sublicenses .
10. Staff. Consultant is an independent
consultant and ne ither Consultant nor
Consultant's staff is , or shall be deemed to be
employed by City . City is hereby contra cti ng
with Consultant for t: e Services described in a
Statement of Work and Consultant reserves
the right to determine th e method , manner and
means by which the Services will be
performed . The Services shall be performed by
Consultant or Consu lta nt 's staff, and City shall
not be requ ired to hire , supervise or pay an y
assistants to help Consultant perform th e
Services under this Agreement. Except to the
extent th at Consultant's work must be
pe,iormed on or with City 's computers or City 's
existi ng software , all mate ri als use d in
providing the Services sh all be provi ded by
Consultant.
11 . Confidential lnfomnation ,
(a) Obligations , Each party hereto
may receive from the other party informat io n
which relates to the other party 's bus iness ,
research , development, trade se crets or
bus iness affairs ("Confidential Informat io n").
Subject to the provisions and exceptions set
forth in the Colorado Open Records Act, CRS
Se cti on 24 -72-1 01 et. seq ., each party shall
protect all Confidential Information of the other
party with the same degree of care as it uses
to avoid unauthorized use , discl osure ,
publication or diss emination of its own
confi dential infonm a:ion of a similar nature , but
in no event less than a reasonable degree of
r,are. With out limit ing •he generality of th e
fore,;oi ng , ea ch party hereto agre es not to
dinc lose or permit ~.ny other perso n or ent ity
acce ss to the r,ther part y's Confide ntial
Information excerc such dh,closure or access
sha ll be permitced to an emp loyee , agent.
representative or independent co nsu ltant of
such party rr ,quiring acc es s to the same in
order to pe rform his or her employment or
services . Each party sh all ins ure that thei r
employe es, agents , representat ives . and
independen t co nsultants are ad vised of th e
confid ent ial nature of th e Confiden tial
Information and are precl uded fr om taking an y
action prohib ited under th is Sectio n 11 .
Further . each part y agrees not to alter or
remove any identi fic.,tio n, co pyright or other
prop rie ta ry righ ts noti ce which indicates the
ownership of any part of su ch Confi dent ia l
Informat ion by the other party . A party heret o
sh all undertake to immed iatel y notify the oth~r
part y in writing of all circumstances
surro un ding any possession , use or know ledg e
of Confidential Information at any location or by
any person or entity othe r th an those
autho rized by th is Agree men t.
Notwithstand ing the forego in s no thing in th is
Agreement shall rest ric t either party with
respe ct to info rmati on or data id£:n tic al or
si milar to that contained in the Confidential
Information of the other party but wh ich (1) tha t
party righ tfull y possessed before it received
such information from the other as ev idenced
by written documentation ; (2) subsequently
becomes publicly ava il ab le through no fault of
that party ; (3) is subsequently furn ished
rightfully to that part y by a third party without
restrictions on use or disclosure ; or (4) is
requ ired to be disclosed by law, provided that
the discl osin g party will exercise rea so nable
efforts to notify the other pa rty prior to
disclosure .
(b) Know-How. For the avoidance of
doubt ne it her City nor Consultant shall be
prevented from makin~ use of know-how and
principles learned or experience ga ined of a
non-proprietary and non -confidential nature .
(c) Remedies . Each of the part ies
hereto agree that if any of the m, their officers ,
emp loyee s or anyone obtaining acce ss to the
Confidential Information of the other party by ,
through or under them , breaches any provision
of thi s Section 11 . th e non-breaching party
shal l be entit le d to an acco unt ing and
repayment of all profits , compensation ,
co mmissions , remunerat io ns and benefits
which the brea ching part y, its officers or
employees directl y or in directly reu,Ize or may
real ize as a resu lt of or growing out of, or in
co nnection with any su ch breach . In additi on
to , and not in limitation of th e foregoing , in th e
event of an y breach of this Section 11 , the
parties agree that the non-b reaching party will
suffer irreparable harm and tha t the total
amount of monetary damages for any su ch
inju ry to the non-breach ing party ari sing from a
vio lati on of th is Secti on 11 wo ul d be impossible
to ca lcu la te and wo uld th ere fore be an
inadequate remedy at law . Ac cordingly , th e
parties agree that the non-bre ach in g part y
s~ .,II be en titled to te mporary and permane~t
i111unctive reli ef against the breaching party , its
officers or employe es and su ch other righ ts
and rem edies to which the non -brea ching party
may be enti tl ed to at law , in equity or under th is
Agree ment for any viola tion of this Sec ti on 11 .
Th e provisions Qf th is Section 11 shall surv ive
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the expiration or termination of this Agreement
for any reason .
12. Project Managers. Each party shall
designate one of its empl oyees to be its
Project Manager under each Statement of
Worl(, who shall act for that pa rty on all matters
under the Statement of Work . Each party shall
notify the other in writing of any replacement of
a Project Manage r. The Project Ma na gers for
each Statement of Work shall meet as often as
either one requests to review the status of the
Statement of Work .
13 . Warranties.
(a) Authority. Consultant represents
and warrants that: (1) Consultant ha s the full
corporate right, power and authority to enter
into th is Agreement and to perform the acts
requ ired of it he reunder; (2) the execution of
this Ag reement by Consultant , and the
performance by Consultant of its obl ig ations
and dut ie s hereunder, do not and will not
vi olate an y agreement to wh ic h Cons ultant is a
party or by which it is otherwise bound under
any appl icable law, rule or regulat ion ; (3) when
executed and delivered by Co nsultant, this
Agreement will co nst itute th e le ga l, vali d and
binding obligation of such party , enforceable
aga inst such party in accord ance with its
terms ; and (4) Consultant acknowledges that
City makes no rep rese ntation s, warrant ies or
agreements re lated to th e subject matter
hereof that are not exp ressl y provided for in
th is Agreement
(b) Service Warranty. Cons ultant
warrants that its employees and consultants
sha ll hav e suffic ient skill , knowledge , and
training to perform Services and that the
Services shall be performed in a profess io nal
and workmanlike manner.
(c) Personnel . Un less a specific
numb er of empl oye es is set forth in the
Sta tement of Work , Co ns ulta nt warran ts it wi ll
provide sufficient employees to complete the
Servi ces ordered within the applicable ti me
frames estabh hed pursuant to this Agreement
or as set forth in the Statement of Work ..
During the course of performance of Services .
City may , for any or no reason , request
repla cement of an employee or a pro posed
emp lo yee. In such even t, Consultant shall ,
with in five (5) working days of receipt of such
request from City , prov ide a substitute
employee of sufficient skill , kn owledge , and
training to perform the applicable Services .
Consu lt ant shall require employees prov idin g
Serv ices at a City location to comp ly with
applicable City security and safety regula ti ons
and pol icies .
(d) Co mpensation and Benefits .
Consultant shall provide fo r and pay the
comp£ 1sat ion of employees and shall pa y all
taxes , contribution s, and benefits (such as , but
not limited to , workers ' compe nsation benefits)
which an employer is required to pay relating
to the employment of employees . City shall not
be liab le to Consult ant or to any employee for
Consultant's fa ilure to perform its
co mpen sation , benefit , or tax obl igations .
Consultant shall indemnify, defend and hold
City harmless from and aga inst all such taxes .
contribut ions and benefits and will comply with
all asso ci ated governmental regulations ,
including the fi li ng of all necessary reports and
returns .
14. Indemnification .
(a) Consultant Indemnification .
Co nsultant shal l ind emn ify , defend and hold
harmless Ci ty, its directors , officers ,
employees , an d agent s and the heirs ,
executors , success ors. an d permi tted ass ign s
of an y of the forego ing lthe "City lndemnitees ")
from and against all losses , cl aim s, obligations .
de mand s, assessmen ts, fines and pena lti es
(whether ci vil or crimi nal ), liabilities , expe nse s
and costs (including reaso nabl e fee s and
disbursements of legal counsel and
accounta nts), bod il y and other personal
injuries , dama ge to tangible property , and
ot her damages , of an y kind or nature , suffered
or incurred by a City lndemnitee dire ct ly or
ind ire ctly ar ising fro m or related to : (1 ) an y
neg lige nt or intentional act or om ission by
Consultant or its representatives in the
performan ce of Consultant's obligations under
this Agreemen t, or (2) any materia l breac h in a
rep res entatio n, warranty , cove nant or
obligation of Con sultant contained i~ this
Agreement.
(b) Infringement Consultant will
indemnify , defend , and hold City harmless from
all lndemnifi able Losses arising from any th ird
party clai ms that any Work Product or
methodology supplied by Consultant infringes
or misappropriates any Intellectual Property
rights of any third party ; provided , however ,
that the forego ing indemnification obligation
shall not apply to any alleged infringement or
mis app ropriation based on: (1) use of th e
Work Produ ct in combination wi th products or
services not provided by Consultant to the
extent that such in fringement or
misappropriation would have been avoided if
such other products or services had not been
used ; (2) any mod ification or enhancement to
the Work Product made by City or anyone
other than Consultant or its sub -c onsultants ; or
(3) use of the Work Product other tha n as
perm itted under this Agreement.
(c) lndemnlflca!ion Procedures .
Notwith -st anding anything else con ta ined in
th is Agreement , no ob li gation to indemnify
which is set forth in this Section 14 shall apply
un less the party cla iming indemnificat ion
nolifies the other party as soon as practicable
to avo id any prejudice in the cl aim , su it or
proceeding of any matters in respe ct of which
the indemnity ma y apply and of which the
notifying party has knowled ge and gives th e
other party the opportunity to control the
response thereto and <he defense thereof :
provided , however, tha t the party cla iming
ind emnificat ion shall ha ve the right t0
participate in any legal proceed ings to co nte st
and defend a claim fo r indemnific at ion
involvi ng a thi rd party and to be re presented by
its own attorn eys , all at such party 's cost and
expens e: provid ed furthe r, however, th at no
settlemen t or co mprom ise of an asserted third •
party claim other than the paymenVmoney may
be made without th e pri or written consen t of
th e pa rt y cl aim ing ind emn ification .
(d) Immunity. Ci ty, its officers , and its
employees, are relying on, and do not waive or
int end to wai ve by any provision of th is
Agreement , the monetary lim itat ions or an y
other rights , im mu nities , and prote ction s
prov ided by th e Co lorado Governmenta l
Im munity Act , C.R.S . 24-10-101 et seq ., as
from time to time amended , or otherwise
available to City , its officers , or its emplo yees .
15 . Insurance.
(a) Requirements . Consultant agrees
to keep in full force and effeci and maintain at
its sole co st and expense the following policies
of insurance during the term of this Agreement:
(1) The Consultant shall comply
w ith the Workers ' Compensation Act of
Colorado and shall provide co mpensation
insurance to protect the City from and against
any and all Workers ' Compensation claims
aris ing fr om performance of the work under
this contract. Workers ' Compensation
insurance must cover obligations imposed by
applicable laws for any employee engaged in
the performa nce of work under this contract , as
well as the Employers ' Liability within the
minimum statutory li mits .
(2 ) Commercial General Liability
Insurance and auto liab ili ty insurance
{including con tra ct ual liability insurc 1ce)
providing coverage for bodily injury and
property damage wit h a comb ined single limit
of not less than three million dollars
{$3 ,000.000) per occurrence .
(3) Profess ion al Li ability /Errors and
Om issio ns In su ran ce cov ering acts , errors and
omissions aris ing out of Consultant's
operations or Services in an amount not less
than one million dollars {$1 ,000 ,000) per
occurrence .
(4) Employee Dis honesty and
Co mputer Fraud In surance coveri ng losses
arising out of or in connec tion wi th an y
fraudulent or dis hones t acts co mm itted by
Consult ant personnel, acting alone or with
others , in an amo unt not less than one milli on
dollars ($1 ,000 ,000) per occ urrence.
(b) App roved Companies . All such
insurance shall be procu red with such
ins uran ce companies of good standing ,
permitted to do bus iness in the country , stat e
or ter rito ry where the Se rv ices are being
p~rformed .
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(c) Certificates. Consultant shall
provide City with certificates of insurance
evidencing compliance with th is Section 15
(including evidence of renewal of insurance)
signed by authorized representatives of the
respective carriers for each year that this
Agreement is in effect. Certificates of
insurance wil l list the City of Engle woo d as an
addi tional insured . Each ce rtificate of
Insurance shall provide that the issuing
co mpany shall not cancel , reduce , or otherwise
materially change the insurance after .Jdd under
the above policie s unless thirty (30) days'
not ice of such cancellation , reduction or
material change has been pro vided to City .
16. Rights in Work Product
(a) Generally. Except as specifically
agreed to the contrary in any Statement of
Work , all Intellectual Property Rights in and to
the Work Product produced or provided by
Consultant under any Sta tement of Work shall
remain the property of Consultant. With
respect to the Work Product , Consultant
unconditionally and irrevocably grants to City
during the term of such Intell ectual Property
Rights , a non -excl usive , irrevocable , perpetual ,
worldwide , fully paid and ro ya lty-free license ,
to reproduce , create deriv at ive works of,
distribute , publicly perform and publ icly display
by all means now known or later developed ,
such Intellectu al property Rights .
(b) Know-How. Notwi thstand ing
anything to the contrary herein , each party and
its respective personnel and consultants shall
be free to use and employ its and their general
skills , know-how, and expe rt ise , and to use ,
disclose , and employ any generalized ideas ,
co ncepts , know-how , methods , techniques , or
skills gained or learned during th e course of
any assignment , so long as it or the y acquire
and apply such information without dis closure
of an y Confidential Information of the other
party .
17 . Relationship of Parties . Consul ta nt is
acting only as , an independen t consultant and
does not undertake , by this Agreement , any
Statement of Work or otherwise , to perform
any obiigation of Ci ty , whether regu late ~ or
con tra ctual , or to assume any responsibil ity for
City's business or operations . Neither party
sh all act or rep resent it self, directly or by
implication , as an agent of the other , except as
expressly authorized in a Statement of Work .
18 . Complete Agreement. This
Agreem ent con ta ins the en tire agreement
between the parties hereto with respect to the
matters covered herein .
19 . Applicable Law . Consulta nt shall
comply with all appl icable laws in performing
Services but shall be held harmless for
violation of any governmental procurement
regulation to which it may be subject but to
which reference is not made in the applic able
Statement of Work . This Agreement shall be
construed in accordance with the laws of the
State of Colorado . Any action or proceeding
brought to interpret or enforce th e provisions of
this Agreement shall be brou gh t before the
state or federal court situated in Arapahoe
County , Colorado and each party hereto
consents to jurisdiction and venue before such
cou rts .
20 . Scope of Agreement. If the scope of
any provisions of this Agreement is too broad
in any respect whatsoever to permit
enforcement to its fullest extent , then such
provision shall be enforced to the maximum
extent permitted by law , and the pa rt ies hereto
consent to and agree that such scope may be
Judicially modified accordingly and that the
whole of such provis io n of this Agreement shall
not th ereby fail , but that the scope of such
provision shall be curtailed only to th e extent
necessary to conform to law .
21 . Additional Work . After receipt vf a
Statement of Wor k, City , with Consultant's
conse nt , may request Consult ant to undertake
addi ti on al wo rk with respect to such Statem ent
of Work . In such event , City and Consultant
shall execute an addendum to th e Statement
of Work specifying su ch additional work and
the compensation to be paid to Consultant for
such additional work.
22 . Sub-consultants . Consu lt ant may not
subcon tra ct any of the Services to be prov ided
hereunder without the prior written consent of
Ci ty . In th e event of any permitted
subcontracting , the agreement with such third
party shall provide that , with respect to the
subcontracted work , such sub-consultant shall
be subject to all of the obligations of
Consultant specified in this Agreement.
23. Notices. Any notice provided pursuant
to this Agreement shall be in writing to the
parties at the addresses set forth below and
shall be deemed given (1) if by hand delivery ,
upon receipt thereof, (2) three (3) days after
deposit in the United States mails , postage
prepa id , certified mail , return receipt requested
or (3) one (1) day after r.eposit with a
nationally-recognized overnight cour!er.
specifying overnight priority delivery. Eil t,,i r
party may change its address for purposes of
this Agreement at any time by giving written
notice of such change to the other party
hereto.
24. Assignment This Agreement may not
be ass igned by Consultant without the prior
written consent of City . Except for the
prohibition of an assignment contained in the
preceding sentence, this Agreemtlnt shall be
binding upon and inure to the benefit of the
heirs , successors and assigns of the parties
hereto .
25. Third Party Beneficiaries . This
Agreement is entered into solely for the benefit
of the parties hereto and shall not confer any
rights upon any person or entity not a party to
this Agreement.
26. Headings. The section headings in
this Agreement are solely for convenience and
shall not be cons idered in its inte rpretation .
The rec itals set forth on the first page of this
Agreement are incorporated into the body of
this Agreement. The exhibits referred to
throughout this Agreement and any Statement
of Work prepared in confonmance with this
Ag reement are incorporated into this
Agreement.
27 . Waiver. The failure of either party at
any time to requ ire performance by the other
party of any provision of this Agreement shall
not effect in any way the full right to require
such perfonmance at any subsequent time ; nor
shall the waiver by either party of a breach of
any provision of this Agreement be taken or
held to be a wa iver of the provision itself.
28 . Force Majeure. If perfonmance by
Consultant of any service or obligation under
this Agreement is prevented, restricted ,
delayed or interfered with by reason of labor
disputes , strikes , acts of God , floods , lightning ,
severe weather , shortages of materials ,
rationing , utility or co mmunications failures ,
earthquakes , war , revolution, civil commotion ,
acts of public enemies , blockade , embargo or
any law , order , proclamation , regulation ,
ordinance , demand or requirement having
legal effect of any govemmentsl or judicial
aut1,ority or representative C'f any such
government, or any other act whether similar
or dissimilar to those referred to in this clause ,
wh ich are beyond the reasonable control of
Ccr•; Jlt~•:. then Consultant shall be excused
from 1:1r.• oo ;fonmance to the extent of such
prev · l\ion , ;estriction, delay or interference . If
the pc;iod of such delay exceeds thirty (30)
days , City may , without liability , tenminate the
affected Statement of Work(s) upon written
notice to Con sul tant.
29. Time of Performance . Time is
expressly made of the essence with respect to
each and every term and provision of this
Agreement.
30. Permits. Consultant shall at its own
expense secure any and all licenses, permits
or certificates that may be required by any
federal , state or local stat ute , ordinance or
regulation for the perfonma nce of the Services
under the Agreement. Consultant shall also
co mply with the provisions of all Applicable
Laws in performing the Services under the
Agreement. At its own expense and at no cost
tr> City , Consultant shall make an y change ,
alteration or modification that may be
necessary to comply with any Applicable Laws
that Consultant failed to comply wi th at the
time of perfonmance of the Services .
31. Media Releases. Except for any
announcement intended solely for internal
distribution by Consultant or any disclosure
required by legal , accounting , or regulatory
requirements beyond the reasonable control of
Consultant , all media releases , publi c
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announce ments , or public disclosures
(including , but not lim ited t0 , promot ional or
marketing material ) by Consultant or its
employees or agents relating to this
Agreement or its subject matter, or including
the name , trade mark , or symbo l of City , shall
be coordinated with and approved in writing by
City prior to the release thereof. Consultant
shall not represent directly or indirectly that any
Services provided by Consultant to City has
been approved or endorsed by City or include
the name , trade mark, or symbol of City on a
list of Consultant's customers without City 's
express written consent.
32 . Nonexclusive Market and Purchase
Rights . It is expressly understood and agreed
that this Agreement does not grant to
Consultant an exclusive right to provide to City
any or all of the Services and shall not prevent
City from acquiring from other suppliers
services similar to the Services . Consultant
agrees that acquisitions by City pursuant to
this Agreement sha ll neither restrict the right of
City to cease ar'luiring nor require City to
cont inue any leve, of such acquis itions .
Estimates or forecas .'s furnished by City to
Consultant prior to or during the term of this
Agreement shall not c,mstitute comm it ments .
33. Survival. Th 6 provisions of Sect ions 5,
8(g ). 10 , 11 , 13 , 14 , 16 , 17 , 19, 23 , 25 and 31
shall survive any expiration or term ination for
any reason of this ~.nent.
34 . Verification of Compliance with C.R.S.
8-17 .5-101 ET .SEQ . Regarding Hiring of
Illegal Aliens :
(a) Employees , Cons~ltants and
Sub-consultants : Consu ltan t shall not
knowingly empl oy or contra ct with an illeg al
ali en to perform wor k und er this Contract .
Consultant shall not contract with a sub-
consultant that fa ils to ce rt ify to the Consultant
that the sub-consul tant will not knowingly
employ or contra ct with an ille ga l alien to
perform work under this Contract. [CRS 8-
17 .5-102(2)(a)(I) & (II ).]
(b) Verification: Cons ultant will
port ici pat e in either the E-Verify prog ram or the
Department program , as define d in C.R.S . 8-
17 .5-101 (3.3) and 8-17 .5-101 (3.7),
respectively , in order to confirm the
employment eligibility of all employees who are
newly fired for employment to perform work
under this pub lic contract for serv ices.
Consultant is prohib ited from using the E-Verify
prog ram or the Department program
procedures to undertake pre-employment
screening of job applicants wh ile this contract
is being performed .
(c) Duty to Terminate a
Subcontract: If Consultant obtain3 actual
knowledge that a sub-consultant perform ing
work under this Contract knowingly employs or
contracts with an ill egal ali en , the Consultant
shall ;
(1) notify the sub-consultant and
the City with in three days that the
Consultant has actual knowledge that
the sub-consultant is employing or
contracting with an illegal alien ; and
(2) terminate the subcontract
with the sub-consultant if, with in three
days of rece iving notice required
pursuant to th is paragraph the sub-
consultant does not stop employi n9 or
contracting with the il legal alien ; except
that the Consultant shall not terminate
the contract with the sub-consultant if
during such three days the sub-
consultant p:ov ides information to
establish that the sub-consultant has
not knowingly empl oyed or contracted
with an ille gal ali en.
(d) Duty to Comply with State
Investigation : Consultant shall comply with
any reasonable request of the Col orado
Departm en t of Lab or anci Emplo yment made in
the course of an investigation by that th e
Department is undertaking purswant to C.R.S .
8-17 .5-10 2 (5)
(e) Damages for Breach of Contract:
The City may term inate this contract for a
breach of contract , in wh ole or in part , due to
Co nsultant's breach of an y section of th is
para graph or prov isions requ ired pursuant to
CRS 8-17.5-10 2. Consultant shall be liable for
actua l and co nsequen ti al damages to th e City
in addition to any other legal l'l r equitable
remedy the City may be entitled to 1ur a breach
of this Contract under this Paragraph 34 .
35 . The Consultant is hereby notified of the
requirements of Colorado Constitutional
Amendment 54 , effective December 31 , 2008 ,
which limlts the righ~., of the holder of a sole
source government contract to mako :"?litical
contributions .
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IN WITNESS WHEREOF , the parties to this Agreement have caus ed it to be executed by their
authorized officers as of the day and year first above written . This Agreement may be exe cuted in
counterpar:~. each of which shall be deemed an orig inal , but all of whi ch together shall constitute one
and the same instrument.
CITY OF ENGLEWOOD , COLORADO
By; ____________ _
Title; ____________ _
ATTEST ;
City Clerk
(Consultant Name)
Address
City, State, Zip Code
By: ________ _
Title: _________ _
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SC HEDULE A
SCOPE OF SERVICES FOR BROADWAY POST OFFICE PROJECT
DIANE WRAY TOMASSO , CONSULTANT
Dia ne Wray Tomasso will make a series of three brief presentations to citize ns
and downtown property and business owners to assist the Ci ty of Englewood in
ra ising matching funds for the preparation of a National Register of His toric
Pla ces nomination for th e Bro adway Post Office .
Concurrently , Diane Wray Tomasso will prepare a National Register nomination
for the Englewood Post Office.
Dia ne Wray Tomasso will interface as necessary with the Ci ty of Englewood ,
Co lorado Historical So ciety, U.S. Po st Office and Na tional Reg ister of Historic
Pl aces to submit the application and assist and coord inate th e required state anJ
federal nomination and review process .
The City of Englewood understands that th e National Park Service al on e
determi[''3 S wheth er or not a property will be listed on the Na tional Re gister , and
th at the preparation of a Nationa l Regis ter nomination ca ~not guarante e National
Registe r listi ng cf the Englewood Po st Office .
At the completion of th is project, Diane Wray Tomasso (Consultant}, shall
prepare a report and bill the City for the services described herein . In add ition ,
cons ultant shall provide an item ized stateme nt of related reimbursable expenses .
Consul tant's compensation fo r services described in th is statement of work shall
Ile as fo llows :
1 . For consu lting services for the Broadway Po st Office Project ,
Two-thousand , five hundred dollars $ 2,500 .00
2. For related rei mbu rsable expenses , not to exceed
Three-hundred dollars $ 30 0.00
3. Any Publi c contributions to a Ci ty "donor' fund
set up fo r the Broadway Post Office Project in an
amount not to exceed two-thousand, five-hundred
dollars . $ 2,500 .00
Th e amo unts for items one ,nd two are currently budgeted in th e Commun ity
Development department. The compensation from th e "donor' fund are
con tingent upon the City receiving such con trib uti ons .
Because of the limited scope of this co ntract , the City agrees that in lieu of the
insura nce requiremen ts of Paragraph 15 In th is professiona l services ag reement ,
proof of Consultant's umbrella policy shall be provi ded to the City.
Th e Ci ty agrees that any con tributions to the Broadway Po st Office Project '
Donor fund in excess of the $2 ,500 .00 note d above , shall be ret ained by th e City
for related his torical preservation uses as determined by City Council.
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MON ICA N, KO\l ;\CI I mkov11cl@s£rllc.com
February 19, 2010
VIA ELECTRONIC AND U.S. MAIL
Dan Brotzman
City of Eng lewood , City Attorney
1000 Englewood Parkway
Eng lewood , CO 80110
Di anne Hall
Colorado Intergovernmental Risk Sharing Agency
_1665 Cherry Creek North Dri ve
Denver , Cl'1~rado 80209
RE: Claimant
Member
Claim No.
Tr ia l Date
Denr Mr. Brotz111ai , .J Ms . 1-lnll:
Timothy Scott Parks
City of Englewood
500947 0
March 15, 201 L
1l1e purpos e of this letter is to provid e you with a brief case background, an upda te 11s to
case status , as well as to infon11 you of the proposed settlement agreeme nt we have reac he d with
Plainti ff Timothy Parks .
I. Cnsc Bnckgrou nd
On Ma y 9, 2006 ,· appro xima tel y 11 :45 p.m., Officer Eric Zasada observed a truck
travel in g eas tb ou nd on E. Oxfo rd Ave. in the City of Englewood. Officer Zasadn stopped the
truck ofter he observed th e driver fa11 to use II signal while making a turn and on the belief that
th e truck had expired li cense plat es. Upon contacting Pl ai ntiff, who was the driver, Officer
Zasado beli eve d that there was a strong odor of alco hol on Plaintifr s breath. Plnintiff did not
ha ve a driver 's license , which had been revol :cd for previou s alcohol co nvictions, and the
re gistration on the vehic le had exp ired in 2003. Plaintiff also ind icated that he did not bave proof
of insurance . Officer Zasada arrested Plaintiff and cond ucted an in ventory searc h of th e truck,
following which Sergeant Michael O'Connor impounded the truck. The search of Plain tiff's
truck yielded drugs and drug paraphernalia .
Plaintiff was cha rged with multiple counlS of drng posse ss ion . At the suppression •
hearing, however, the trial coun dismissed th e criminal case upon finding that the pro sec ution
had failed to show that Officer Zasada had an aniculable and specific basis in fact for suspecti ng
Plaintiff of crim inal ac tivity to justify the traffic stop. This rnling was based on Officer Zasada's
testimony that the on ly reason he stopped Plaintiff was because of his be lief that the license plate
was expired. The hcense plate had a 2006 sticker and, on its foce, it did not appear to be expired .
Funher, th e officer testified that he could not recall whe th er he ran a license plate check and
obta in ed res ult s of sa me befo re conduc tin g the traffi c sto p. Officer Znsada also made no
mention of Plaintiff's failure 10 use a signa l while makin g a tum , wh ich would ha ve pro vi ded
bim with a lawful basis to conduct the stop .
Following dis mi ssal of the crimin al cas~, Pl aintiff sued a number of police Jfficers who
were involved in the arrest. Following is sues with proper service of al I th e Defend ant officers
and the Co un's dismissal of same, th e only remaining Defend ant. arc Officer Zasada and
Sergeant O'Connor. Plainti frs claims against Dr.fe ndants were as follows: (I) mnlicious
prosecu tion; (2) un lawful trnff:o ~top; (3) fal se arre,:t , and (4) unl awful search.
On October 30, 2009, we filed a Motion for Partial Summary Jud gment and requested
tha t all claims against Sergea nt O'Connor be dismissed as he had no personal panicipation in the
stop of Pl aintifr s ve hicle, his arres t, or th e vehicle search. We also sough t di smi ssa l of the
mali cio us prosecution claim again st Officer Zasa da beca use th e di stric t attorney, not the officer,
caused Plaint ifrs criminal prosecu ti on and there was no evidence that the officer acted with •
ma lice .
The Court issued an Order on February 16, 2010 grant in g our Motion in its entire ty. The
Order is encl osed for your review. The on ly rcmai111ng claims thut cou ld proc eed to tri al arc the
unlawfu l traffic stop, false arres t, and unlawful search claims against Office r Zasada.
Though we are prepared to go to trial and be lieve inn likely defen se ve rdi ct, Plaintiff has
raised som e issues that could result in a find in g of liability fo r Officer Zusadn. It wou ld be
Officer Zasnda's testimony at trial that he co nducted the in itial traffic stop based on ob se rving
Plaintifrs failure to use a turn signal while making a tum . During the crim inal case, Officer
Zasada based th e stop on expired li ce nse plates but could not recall at trial (nor can he now) ifhe
ran the plate pri or to making th e st p. In addition, there is no mention in the police rcpon,
dispat ch record s, or th e officer's testimony in the crimmal case of the purponcd turn signal
violation. h1 fact, Ofiiccr Zasada tes tified at the suppression hea rin g that the license plates were
the on ly reason he co nduct ed th e traffic stop. Th e record established to date wo uld pr esent us
with a difficult hurdle at tri al on th e unlawfu l traffi c stop claim. Addit ionally, PlaintifT claim s
that th e police office rs had no reason to impound his vehic le, which 1h c invent ory sea rch was
based upon. Pl aintiff claims that hi s cur was lawiul ly parked in front of his hou se, it did not
impede traffic, and he wou ld have nonnally parked the car in that spot. Therefore, if th ere wa s
no need to move th e ca r, there was no ne ed for it to be impounded and se arched.
If the jury be li eves Plaintifrs vers ion of the facts and find s that Offi er Zasada ha d no
reasonable basis for conducting the traffi c stop, the jury cou ld potentiall y award Plainti ff
SG H p.19.20 10 11111:r 1 •
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compensatory damages resulting not only from the stop, but also from all actions that occ urred as
a result of the stop, suc h as the arrest, searc h, and Pl aintifl's incarcera tion for seven month s.
Plaintiff has indicated that hi s out-of-pocket damages resulting from the DITes t are $80,00 0,
whic h include damages associated wit h storage fees, pa yi ng on a lease agreement, "lost
vehicles," hiring move rs, and auomey fees in the criminal case (in the amount of $12,500).
While most of these claim s ha ve not been ap propriately substantia ted by any documentation , it
would appear that Plaintiff would likely recover the $12,500 in attorney fees we re he to prevail
on any clai m at tri al. Pla intiff also seeks damages for cmouonal distress and punitive damages .
Rea li stic all y, we believe th at even if the jury would fi nd for Pl aintiff 011 th e traffic stop
cla im, th ey wi ll not award him much money co nsideri ng th at he was found with drugs and drug
parap bemalia and that he is a pri or felon . Our best estimate is th at a damages award wou ld not
exceed $20 ,000.
Ill , Se tll cmcnt Strn tccv
Cons id erin g th e new case status, Pl aintiff is interested in settle men t. Plaintiff ulti matel y
agree d to dismiss all his clai ms arising out of his arrest in excha nge for payment in th e amou nt of
$12,500, and our ag reem ent to waive our attorneys' fees and costs . Th is settlem ent amount is
dramati ca ll y lower than Pl aint iffs last demand of $80,000.
In mak ing the detem1inat ion whether to settl e for thi s amo unt , please note th at we are
fu ll y prepared to try this case and do not beli eve th ere is a great risk of a finding of li abili 1y
aga in st Offi cer Zas nda . With th at said, how ever, yo u mu st al so co nsider th e co sts assoc iat ed
wi th tryi ng this case. Also, our onl y re main ing cl ient , Officer Zasa da 1 has express ed n stro ng
desire to have thi s cas e se ule d,
At thi s sta ge, we are a little less than one month fro m trial, whic h is schedul ed to i tnrt on
March 15, 2010 , and the re arc ma ny tasks tha t still need to be comp leted . We sti ll need to
fina lize jury instruc ti ons, ve rdi ct fom ts, voir dire questions, exh ib it nnd wi tness lists, att en d the
Finni Trial Pre paration Co nference, and pre pare ourselves and all our witne sses for 1 ,al, We
have filed a Not ice of Settlemen t, which is als o enclosed, noti fyin g the Court of th , sett le me nt
di sc ussions and requesting that case deadli nes be vacated until a fina l decisio n I made ns to
sc 11lcmcnt. If the case proceeds to trinl , ou r costs and nuorney fee s to fu lly prepare for tr ial and
try the case will be $12,000-$15,000 . There is also the po ss ibility that Plaintiff, who is currently
proc eedmg without an attorn ey, wi ll find nn attorney to take his cas c1 which may re su lt in a rcscl
trinl cl.tie and additional cos ts,
A such , if the Cny takes an econo mi c view of the case, se 1tl ement of thi s maner for
SI 2,500 makes financial se nse. Fu11he1111orc, scu lem ent wi ll eliminat e the possibilit y of any
linbilit y aga inst Officer Zns nd a. If. however, th e City wa nts lo move forw ard with trial ns 11
111a11 er of prin ciple, we are fu ll y pre1 ared to try the case .
sen 12.19,10 10 I v ■11r J
We hope tnis leucr has suffi cie nt ly apprised yo u as to cnse starus nnd the prop os ed •
settlement agreem ent and we loo k forw ard to henring fr om yo u ns to ho w to proceed . If you
have any questions or if we can pro vide you with nn y additio nn l information , plense feel free to
contact us . Thank you.
EMZ:MNK
cc (w/ enc los .):
Pat Merr ill , CIRSA
Tom Van dermee
Joan Web er
Very ui1ly yours,
ENTE R GOLDFARB & RIC E, L.L .C.
Moni ca N. Kovaci
SG lll2.19.20IOIJIAllt 4
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