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Home My WebLink About2022-11-21 (Regular) Meeting Agenda Packet Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. 1000 Englewood Pkwy - Council Chambers Englewood, CO 80110 AGENDA City Council Regular Meeting Monday, November 21, 2022 ♦ 6:00 PM Council Dinner will be available at 5:30 p.m. Study Session will begin at 6:00 pm Regular Council Meeting will begin at 7:00 pm To view the meeting, please follow this link to our YouTube live stream link: https://www.youtube.com/watch?v=8uk8bNATMA8 1. Study Session Topic a. Planning Manager Bryan Isham and Director of Community Development Brad Power will be present to discuss CodeNext update regarding sustainability 1a 2. Call to Order 3. Pledge of Allegiance 4. Roll Call 5. Consideration of Minutes of Previous Session a. Minutes of the Regular City Council Meeting of November 7, 2022 5a 6. Appointments, Communications, Proclamations, and Recognition a. Recognition of Police Citizens Academy Graduates b. Proclamation recognizing Small Business Saturday 6b 7. Recognition of Scheduled Public Comment Public Comment typically starts at 7:00 pm The deadline to sign up to speak for Scheduled Public Comment is Wednesday by 5 p.m., prior to the meeting, through the City Clerk’s Office. This is an opportunity for the public to address City Council. There is an expectation that the presentation will be conducted in a respectful manner. Council may ask questions for clarification, but there will not be any dialogue. Please limit your presentation to five minutes. Written materials for presentation to Council may be submitted to the City Clerk. a. Gary Kozacek, Englewood resident, will speak about the proposed re-development on Oxford Avenue b. Derek Fox from the Davey Tree Expert Company will address council regarding Right of Way Occupancy permits and enforcement Page 1 of 482 Englewood City Council Regular Agenda November 21, 2022 Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. 8. Recognition of Unscheduled Public Comment If you would like to sign-up to speak virtually for public comment at the upcoming City Council meeting on Monday, November 21st, please visit https://englewoodco.zoom.us/webinar/register/WN_Hd2RKOGCSZKm2PBhawPJFQ to register or plan to attend the meeting in person at 1000 Englewood Pkwy, Englewood CO 80110, Second Floor Council Chambers. If registering to speak virtually, you will receive a unique and personalized invitation by email to join the meeting. Every speaker who wants to register should sign-up with their own email address. If you do not have an email address or if you have any questions regarding this process, please reach out to the City Clerk's Office at CityClerk@englewoodco.gov or call 303- 762-2430. Citizens may also submit written public comments to the City Clerk's Office at CityClerk@englewoodco.gov until 12 p.m.Tuesday, November 22nd. This is an opportunity for the public to address City Council. There is an expectation that the presentation will be conducted in a respectful manner. Council may ask questions for clarification, but there will not be any dialogue. Please limit your presentation to 3 minutes. Council Response to Public Comment. 9. Consent Agenda Items a. Approval of Ordinances on First Reading i. CB 37 - Amending Englewood Municipal Code Regarding Traffic Procedures, Definitions 9ai Staff recommends City Council approve a Bill for an Ordinance amending Title 11, Chapter 1b, Sections 11-1b-1 And 11-1b-2 Of Englewood Municipal Code Regarding Traffic Procedures, Definitions. Staff: City Attorney Tamara Niles, and Assistant City Attorney Sergio Renteria ii. CB 63 – Intergovernmental Agreement (IGA) between the City of Littleton and the City of Englewood for a cost share to review and evaluate the sewer connector district agreements 9aii Staff recommends City Council approve a Bill for an Ordinance for an Intergovernmental Agreement Between the City of Littleton and the City of Englewood Regarding Cost-Sharing for Revising Sewer Connector District Agreements. Staff: Director of Utilities & South Platte Renew Pieter Van Ry iii. CB 72 - Amending Englewood Municipal Code to ensure compliance with applicable law, current practices 9aiii Page 2 of 482 Englewood City Council Regular Agenda November 21, 2022 Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. Staff recommends City Council approve a Bill for an Ordinance amending various sections of the public offense code to mirror changes in state law and ensure compliance. Staff: City Attorney Tamara Niles, and Assistant City Attorney Sergio Renteria iv. CB 73 - Amending Englewood Municipal Code authorizing City to recover costs of collection for unpaid debts 9aiv Staff recommends City Council approve a Bill for an Ordinance creating EMC 1-4-4 regarding collection of debts owed to the City. Staff: City Attorney Tamara Niles b. Approval of Ordinances on Second Reading. i. CB 67 - Increase the Waste Transfer Surcharge from $.50 per cubic yard to $.63 per cubic yard effective January 1, 2023 9bi Staff recommends City Council approve an Ordinance to increase the Waste Transfer Surcharge from $.50 per cubic yard to $.63 per cubic yard effective January 1, 2023. Staff: Finance Director Jackie Loh ii. CB 68 - Repealing the Shoplifting and Price Switching Ordinances from Offenses Code 9bii Staff recommends City Council approve an Ordinance for Repeal of Shoplifting and Price Switching Ordinances from Offenses Code. Staff: City Attorney Tamara Niles, and Assistant City Attorney Sergio Renteria iii. CB 69 - Amending Englewood Municipal Code establishing standard provisions for City contracts 9biii Staff recommends City Council approve an Ordinance creating Englewood Municipal Code establishing standard provisions for City contracts. Staff: City Attorney Tamara Niles iv. CB 71 - Approval of 3-year IGA with the Aurora-South Metro Small Business Development Center 9biv Staff recommends City Council approve an Ordinance for a 3-year IGA with the Aurora-South Metro Small Business Development Center. Staff: Economic Development Manager Darren Hollingsworth, Community Development Director Brad Power, and Executive Director of the Aurora-South Small Business Development Center Marcia McGilley c. Resolutions and Motions i. Motion to approve an internal committee to provide advice and guidance on the management of the City's 401(a) and 457 retirement plans 9ci Staff recommends City Council approve, by Motion, Approval of 401(a)/457 Committee. Staff: Assistant City Manager Tim Dodd Page 3 of 482 Englewood City Council Regular Agenda November 21, 2022 Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. ii. Award of Two Professional Services Agreements for Water Rights Legal Support and Water Resources Engineering for Utilities 9cii Staff recommends City Council approve, by Motion, two Professional Services Agreements, one with Berg Hill Greenleaf Ruscitti, LLP for water rights legal support and another with Martin and Wood Water Consultants, Inc for water resources engineering. Staff: Director of Utilities & South Platte Renew Pieter Van Ry iii. Resolution increasing City Manager salary by 5 percent, to receive the same city-wide compensation increase as other City employees; and increase the City Attorney's salary to reflect current market conditions 9ciii Staff recommends City Council approve a Resolution increasing City Manager, City Attorney salary by 5 percent, effective January 2023. Staff: City Attorney Tamara Niles 10. Public Hearing Items 11. Ordinances, Resolutions and Motions a. Approval of Ordinances on First Reading i. CB 39 - Amending Englewood Municipal Code regarding animal impoundment 11ai Staff recommends City Council approve a Bill for an Ordinance Amending Title 7, Chapter 1A, Sections 7-1A-5, 7-1A-9 and 7-1A-16 Of Englewood Municipal Code Regarding Animal Impoundment. Staff: City Attorney Tamara Niles ii. CB 70 - Amending Englewood Municipal Code to add and remove city facilities for open carry of firearms on City property 11aii Staff recommends City Council approve a Bill for an Ordinance amending EMC 7-6C-6 to update for current City property ownership. Staff: City Attorney Tamara Niles b. Approval of Ordinances on Second Reading c. Resolutions and Motions i. Resolution to appoint Vincent Atencio as Associate Municipal Court Judge and Establish Compensation for Municipal Judges 11ci Staff recommends City Council approve a Resolution regarding Municipal Judges, Appointing Judge Vincent Atencio As Municipal Court Judge and Establishing Compensation for Municipal Judges. Staff: Court Administrator Kennetha Julien ii. Award a Professional Services Agreement for On-Call Engineering Professional Service Agreements Page 4 of 482 Englewood City Council Regular Agenda November 21, 2022 Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. 11cii Staff recommends City Council approve, by Motion, Award of Professional Service Agreements (PSAs) with Carollo Engineers, Inc (Carollo), Hazen and Sawyer (Hazen), HDR, Inc (HDR), and Jacobs Engineering Group, Inc (Jacobs) to provide on-call engineering support services for the Utilities department up to an amount of $200,000 each, for a total authorization of $800,000. Staff: Director of Utilities and South Platte Renew Pieter Van Ry iii. Award of a Professional Services Agreement with Johnson, Mirmiran and Thompson, Inc. for Water Main Replacement Design 11ciii Staff recommends City Council approve, by Motion, Award of a Professional Services Agreement with Johnson, Mirmiran and Thompson, Inc. for Water Main Replacement Design, in the amount of $258,880 including approval to execute any change order(s) to expend a 10% staff-managed contingency amount of $25,888, for a total project authorization of $284,768. Staff: Director of Utilities and South Platte Renew Pieter Van Ry 12. General Discussion a. Mayor's Choice b. Council Members' Choice 13. City Manager’s Report 14. Adjournment Page 5 of 482 STUDY SESSION TO: Mayor and Council FROM: Bryan Isham DEPARTMENT: Community Development DATE: November 21, 2022 SUBJECT: CodeNext: Sustainability Provisions DESCRIPTION: CodeNext update regarding sustainability RECOMMENDATION: CodeNext project consultants Chris Brewster of Multi-Studio and Matt Ashby of Ayers Associates, project manager Bryan Isham, Planning Manager, and Brad Power, Director of Community Development, will be present to update city council on CodeNext. PREVIOUS COUNCIL ACTION: March 22, 2021: Presentation of the final Unified Development Code (UDC) Assessment Report and consensus to move forward with the request for proposals and establishment of a steering committee for the development code redrafting process. May 10, 2021: City council interviewed 14 residents for possible appointment to the steering committee. May 17, 2021: City council appointed five members from the community to the steering committee, completing the steering committee formation. July 19, 2021: Professional Services Agreement with Gould Evans approved by city council. November 1, 2021: Quarterly update of the CodeNext project. February 7, 2022: Quarterly update of the CodeNext project with steering committee members present. April 18, 2022: Professional Services Agreement with Root Policy Research approved by city council for Housing Needs Assessment. May 9, 2022: Quarterly Update of the CodeNext project. August 22, 2022: Quarterly Update of the CodeNext project. November 7, 2022: CodeNext update of the draft technical provisions. Page 6 of 482 November 14, 2022: CodeNext revisit of draft technical provisions and update of the draft mobility, access, and public realm design provisions. SUMMARY: The CodeNext project team will provide an update to city council on the technical provisions of Title 16, including discussions from the technical committee, key changes being proposed, and the drafts of chapters six and eight. ANALYSIS: This is the third scheduled review of the redrafted Title 16, addressing the sustainability provisions of the updated development code, which includesChapters 6, Nonresidential Development & Design and Chapter 8, Landscape Design. Since the last quarterly update, the technical committee met to discuss issues related to these chapters on September 9, and the steering committee reviewed and discussed the “working drafts” of these chapters on October 18. Staff and the consultant team incorporated direction and comments from these meetings into the initial drafts. The information in this communication includes: 1. Development Code Framework, providing an “executive summary” overview of all of the development code sections. 2. Section maps, comparing the drafts of Chapters 6, Nonresidential Development & Design and Chapter 8, Landscape Design to the relevant sections of the current code, including some specifics on the scope, nature, and rationale for changes (or where sections are not changing and simply being reorganized or reformatted). 3. Draft chapters, initial draft of the specific code sections. The project team will present these items to the city council for review and discussion. This is the third in a series of study sessions that will ultimately cover all key issues and potential updates to the Englewood Development Code. COUNCIL ACTION REQUESTED: The project team will respond to comments or questions from city council regarding the sustainability provisions of the CodeNext process. Discussion and direction will be used by staff and the consultant team to prepare a final draft and formal recommendation on the CodeNext updates. The final study session will provide a review of the general community design and housing and neighborhood design provisions. The project team will continue to provide quarterly updates at city council study sessions, as well as monthly updates provided in the city manager's weekly report. FINANCIAL IMPLICATIONS: The CodeNext project is incorporated in the 2022 Community Development Department work plan and budget. CONNECTION TO STRATEGIC PLAN: CodeNext addresses the following Strategic Plan Goals: Page 7 of 482 Community Wellbeing Affordability Community-Wide Identity Governance Community Engagement Infrastructure and Transportation Multi-Modal Transportation Economy Commercial Corridor Vibrancy CityCenter Redevelopment Neighborhoods Community Engagement Neighborhood Aesthetics Safety Building and Public Safety Sustainability Built Environment and Infrastructure Community Resilience Economic Resilience Energy Natural Environment Water Protection OUTREACH/COMMUNICATIONS: All project information and materials can be found on the CodeNext webpage on the Englewood Engaged platform. engaged.englewoodco.gov/codenext ATTACHMENTS: Draft Chapter Outline and Section Map Chapter 6 Nonresidential Development & Design Chapter 8 Landscape Design Chapter10 Floodplain Regulations (Current Code Language) PowerPoint Presentation Page 8 of 482 DEVELOPMENT CODE UPDATE DEVELOPMENT CODE FRAMEWORK June 10, 2022 1 ENGLEWOOD CO DEVELOPMENT CODE FRAMEWORK INITIAL DRAFT CHAPTER OUTLINE & SECTION MAP – 10/25/22 The framework includes two elements – ▪ Chapter Outline. An overview of the organization and general content of the development code, based on internal “working drafts” that the project team and Technical Committee have been discussing, ▪ Section Maps. A navigation tool and comparison of the current code to the initial drafts of each chapter. The section maps will be prepared as each initial draft is introduced for preliminary review. While the section maps are not comprehensive, they provide an overview of what is changing and why, and can help guide reviewers to sections or changes of most interest to them. Section maps and initial drafts will be delivered to the Steering Committee and City Council over the next several weeks. The initial drafts are not yet a formal recommendation, but provide an opportunity to become more familiar with the overall development code and general direction prior to the final draft. In some cases, the initial drafts are not complete. This is due to three factors: (1) concepts that are contingent on coordination with details in other chapters that are yet to be determined by staff and the Technical Committee; (2) strategies or options that need further direction prior to finalizing recommended actions; or (3) “non-priority” sections where no substantive changes are anticipated, and the current code sections will be incorporated as a final step to preparing the recommended draft. Drafting notes may indicate sections where this occurs. Discussion on the framework, section maps, and initial drafts will lead to a formal recommended draft introduced in late fall or early winter. Chapter Outline Chapter 1: General This chapter includes the legal foundations and technical requirements of the code, including purposes, interpretation, jurisdiction, and authority. Recommended changes deal primarily with improved wording, better organization, and reducing redundant sections. Chapter 2 Applications and Procedures This chapter addresses the applicability, process, criteria, and effects for all development applications. Recommended improvements include: ▪ Better correspondence between the summary table and text, eliminating redundant sections. ▪ Distinguish between development applications and general administrative, interpretation, and permit review steps (the later not needing to be include in this Chapter); ▪ Use the “General – All Applications” section to control for most applications and not repeat sections in multiple applications. The use of the summary table and simplified sections on each application is used to identify unique aspects of a particular application. Page 9 of 482 DEVELOPMENT CODE UPDATE DEVELOPMENT CODE FRAMEWORK June 10, 2022 2 The overall goal for this section would be to raise expectations for when and how decisions are made when reviewing development proposals. Chapter 3 Community & Subdivision Design Subdivision regulations typically trigger when someone is dividing property or “subdividing.” Standards typically address the following: • coordinate development across different areas and between projects over time; • promote civic design of streets, open spaces, block, and lot patterns; • ensure that all lots and blocks are served by utilities, public services, and community facilities. Since Englewood is largely built out and on an established grid of streets, the larger-scale subdivision standards apply differently than they do in communities experiencing new growth. Recommended improvements include: ▪ Emphasize the large-scale community design elements and move the technical or procedural aspects of subdividing to the platting process in Chapter 2. ▪ Improve street design standards for more emphasis on multi-modal design, and better distinctions in street design for different contexts. ▪ Refine open/civic space standards to become coordinating design elements (whether public, common, or private), and identify different types of open spaces ▪ Clarify approach to required public improvements and utilities and ensure that proper capacity analysis is done as new development occurs. Chapter 4 Zone Districts & Uses This chapter includes standards for the use of land and buildings in specific locations or districts; organizes the community into distinct areas that correspond to long-range land use categories in the comprehensive plan; and addresses compatibility through the scale, format, and types of permitted uses. Recommended improvements include: • Consolidating current Chapters 3 and 5, which each address some of the foundational elements of the zone districts. • Review the current use table for better distinctions between uses (based on either scale, format, or type), and/or consolidate some uses in to general categories where there are no important distinctions; • Incorporate revised approach to Limited Use Permits and Temporary Use Permits (removing them form a specific process in Chapter 2; relay on the site improvement plan process; and then incorporate the use-specific standards, performance criteria, or conditions in this chapter0 Chapter 5 Residential Development & Design This chapter includes standards for the design and construction of residential development, including lot and building standards for a range of residential building types and design standards to allow buildings to contribute to common characteristics of neighborhoods, such as streetscape and frontage design, building design, and open space design Recommended improvements include: ▪ Coordinating all development and design standards for residential development in one chapter; ▪ Strengthening the “building type” elements of the current code and shifting entirely to a building type approach (standards keyed to each building type, and then different zone districts can enable a range of compatible types). Based on public engagement and Steering Committee direction this includes o Broadening the applicability of ADUs to all R-1 districts (currently just R-1-C) Page 10 of 482 DEVELOPMENT CODE UPDATE DEVELOPMENT CODE FRAMEWORK June 10, 2022 3 o Allowing small lot detached houses in some districts to have another option of small-scale, moderate density building types. (provisional in R-1 districts; permitted in R-2 districts) o Improving options for small-scale, multi-unit building types in R-2 districts (this involves allowing more units but maintaining or even reducing the allowable unit sizes.) o Refining approaches to larger-scale apartment and mixed-use buildings in the MU-R-3 districts. ▪ Broadening the applicability of the design standards to all buildings, but simplifying the standards to focus on three key elements: o Frontage types – addressing building placement, lot access, and balancing car-oriented vs. human-scale features (currently addressed in various lot coverage, garage or parking standards) o Building design – addressing the scale, massing, and any other architectural features of buildings that are important (currently addressed in the bulk plane standards) o Open Space – coordinating the design of unbuilt portions of the site as both usable space and creating good transitions to adjacent property. (Currently addressed by setback, lot coverage or landscape standards) Chapter 6 Nonresidential Development & Design This chapter includes standards for the design and construction of nonresidential development, including lot and building standards for nonresidential districts and design standards that focus on how projects relate to their specific district, block, and site, such as streetscape and frontage design, building design, and open space design. Key recommendations in this chapter are similar to those in the residential chapter, but addressing the scale, format and design issues for mixed-use or other nonresidential development. Like the residential chapter, this involves organizing many of the topics already regulated in the code but addressing them in a manner that allows more context-specific application for how sites and buildings relate to the block, adjacent property, and the public streetscape. Chapter 7 Access & Parking This chapter includes standards to improve access for various modes of transportation, including pedestrian, bicycle, and vehicles; balance potential competing interests associated with streetscape design, access (curb-cuts and driveways, sidewalks, or other paths / trails), parking, and internal circulation and mobility; and reduce negative impacts of these areas on streetscapes and adjacent property. Recommended improvements include: ▪ Break this topic into its own chapter for better organization and emphasis on design issues; ▪ Broaden the topics to coordinate more aspects of transportation and site design in context – including pedestrian, bicycle, and transit access as appropriate; ▪ Increase and/or streamline flexibility for “right-sized parking” and allow more options by default or through administrative adjustments, as apposed to the current process- and documentation-intensive alternative parking plans. ▪ Promote many of the sustainable practices associated with parking design, including landscape design and electric vehicle parking considerations. Chapter 8 Landscape Design This chapter includes standards for the design of unbuilt portions of sites, addressing living landscape and aesthetics, functional and environmental benefits, and promote better relationships of projects to the surroundings. Recommended improvements include: ▪ Break this section into its own chapter for better organization and emphasis on design issues; Page 11 of 482 DEVELOPMENT CODE UPDATE DEVELOPMENT CODE FRAMEWORK June 10, 2022 4 ▪ Simplify and better organize requirements based on key functional components of sites – streetscapes, frontages, building/foundation areas, parking, or other areas that need buffering or screening. ▪ Emphasize important sustainability aspects regarding water use, stormwater performance, passive heating/cooling, and coordination with any on-site renewable energy facilities. Chapter 9 Signs This chapter includes standards for any sign on property that is potentially visible from the right-of-way, public areas, or adjacent sites, Recommended improvements are intended to primarily be non-substantive and merely organizational to allow easier interpretation and administration. These include: ▪ Break this section into its own chapter for better organization; ▪ Categorize signs into a few general sign types with basic standards for each type (size, quantity, location) ▪ Allocate a sign allowance based on the scale of sites and buildings; ▪ Address specific design standards for some sign types. Although no substantive changes are intended initially, in the course of simplifying and ensuring a “content neutral” sign code, some changes in outcomes could occur. Chapters 10 Floodplain;11 Telecommunications;, and 12 Historic Preservation The changes in these chapters are non-substantive and are only organizational or to simplify and clarify wording, or otherwise integrate existing sections into the new format. Chapter 13 Definitions The changes in this chapters will primarily correspond to changes in other chapters and will likely involve: ▪ Coordination with any changes or different approaches to the use table and the description of uses. ▪ Elimination of defined terms (purging) from either a “plain language” approach or by eliminating conflicting or duplicating terms. ▪ Adding definitions for new “terms of art” in substantive changes in the code. This chapter will be addressed last, when approaches and terminology are nearly final. Page 12 of 482 DEVELOPMENT CODE UPDATE DEVELOPMENT CODE FRAMEWORK June 10, 2022 5 Proposed Summary of Contents Chapter 1: General Provisions 16-1-1 Title 16-1-2 Authority & Jurisdiction 16-1-3 Purposes 16-1-4 Applicability 16-1-5 Administration 16-1-6 Interpretation 16-1-7 Severability 16-1-8 Nonconformities 16-1-9 Enforcement Chapter 2 Applications & Procedures Table 2-1 Summary of Applications and Procedures 16-2-1 General – All Applications 16-2-2 Text Amendment 16-2-3 Map Amendment (Rezoning) 16-2-4 Specific Plan (Regulating Plan) 16-2-5 Planned Unit Development (PUD) 16-2-6 Site Improvement Plan 16-2-7 Major Subdivision Plat 16-2-8 Minor Subdivision Plat 16-2-9 Conditional Use Permit 16-2-10 Zoning Variance 16-2-11 Administrative Adjustment 16-2-12 Appeals 16-2-13 Vested Rights Chapter 3 Community & Subdivision Design 16-3-1 Intent 16-3-2 Applicability 16-3-3 Street & Block Patterns 16-3-4 Street Design 16-3-5 Civic & Open Space Design 16-3-6 Required Improvements Chapter 4 Zone Districts & Uses 16-4-1 Establishment of Districts 16-4-2 Allowed Uses / Use Table 16-4-3 Use-Specific Standards 16-4-4 Accessory Uses 16-4-5 District Performance Standards Chapter 5 Residential Development & Design 16-5-1 Intent 16-5-2 Applicability 16-5-3 Development & Dimension Standards 16-5-4 Residential Design Standards 16-5-5 Attainable Housing Guidelines 16-6-6 Sustainable Sites & Building Guidelines 16-6-7 Neighborhood Protection Overlay Chapter 6 Nonresidential Development & Design 16-6-1 Intent 16-6-2 Applicability 16-6-3 Development & Dimension Standards 16-6-4 Frontage Design 16-6-5 Building Design 16-6-6 Open Space Design 16-6-7 Sustainable Sites & Building Design Chapter 7 Access & Parking 16-7-1 Intent 16-7-2 Applicability 16-7-3 Access & Circulation 16-7-4 Required Parking 16-7-5 Parking Design 16-7-6 Alternative Parking Plan Chapter 8 Landscape Design 16-8-1 Intent 16-8-2 Applicability 16-8-3 Landscape Requirements 16-8-4 Plant Specifications 16-8-5 Fences & Walls Chapter 9 Signs 16-9-1 Intent 16-9-2 Applicability 16-9-3 Exempt Signs 16-9-4 Sign Allowances 16-9-5 General Standards – All Signs 16-9-6 Standards for Specific Signs 16-9-7 Alternative Compliance Chapter 10 Floodplain Regulations Chapter 11 Telecommunications Chapter 12 Historic Preservation Chapter 13 Definition 16-13-1 Description of Uses 16-13-2 Definitions Page 13 of 482 DEVELOPMENT CODE UPDATE INITIAL DRAFT SECTION MAPS October 4, 2022 1 ENGLEWOOD DEVELOPMENT CODE: SECTION MAP CHAPTER 6 – NONRESIDENTIAL DEVELOPMENT & DESIGN Proposed Section Current Code References Notes 16-6-1 Intent 16-6-10 Design Standards and Guidelines; General Purpose 16-6-10.E.1. Design Standards and Guidelines for Large Retail Buildings; Purpose Expended on context, design, and placemaking aspects of building and site design for nonresidential uses, and revised to generally reflect the organization and structure of the code update. 16-6-2 Applicability n/a/ - Chapter is a compilation of various standards and sections. General section to specifical identify when standards apply and give flexibility to small additions or adaptive reuse of existing buildings. 16-6-3 Development & Dimension Standards A. Lot & Building Design Standards B. Accessor Buildings – Nonresidential C. Dimension Exceptions 16-6-1.B Dimensional Requirements (Summary Table) 16-6-1.C. Additional Dimensional and Development Standards (subsections 5. – MU-B-2, and 6. M-1, M- 2and M-O-2) 16-6-1.D Lots: Special Exceptions 16-6-1.E Height: Special Regulations 16-6-1.F Setbacks and Yards Special Regulations 16-6-1-H. Requirements for Accessory Structures Coordination of all of the basic development standards for nonresidential district – reorganized and simplified. Note: due to similar approach to residential districts in Chapter 5, and the shift to a stronger “building type” approach in that chapter, defaulting to the MU-R-3-B standards for any residential uses in the MU- and M- districts seem most appropriate based on latest working draft. 16-6-4 Frontage Design A. Design Objectives B. Frontage Design Standards C. Front Building Line D. Access & Parking Limits E. Landscape F. Administrative Adjustments n/a – new approach; however the strategies in this section are reflected in: • 16-6-1.C.5 MU-B-2 District (giving relief to the 0’ – 5’ required building line) • 16-6-1.C.6.d. M-1, M-2, and M-O-2 Minimum Lineal Street Frontage (requiring FBL for % of lot) • 16-6-5 Pedestrian and Bicycle Access and Connectivity (though larger scale elements addressed in working draft sections 16-3-4, 16-3-5, and 16-7-3) • 16-6-10.E.4.d. Design Standards for Large Scale Commercial Buildings; Pedestrian Flows New approach to package all standards that affect the relationship of the building and site to the streetscape into a singe “frontage design” concept. Apply standards that are being addressed currently either in segmented ways or only in specific districts in a more comprehensive way to all nonresidential buildings and sites. Apply frontage standards approach to all non-residential districts and projects. Apply standards based on assumed and default degrees of “pedestrian-orientation” (Types A & B) vs. car-emphasis (Types C & D) per zone district; allow different application of each type based on specific context analysis – either by staff (Administrative Adjustment) or PC (CUP). Note: the approach uses an objective, default standard (16-6-4.B / Table 16-6-2), combined with more subjective or suggested lists of strategies, techniques, and options to meet the standard (Sections 16-6-4.C. – F.) 16-6-5 Building Design A. Design Objectives B. Building Design Standards C. Massing & Modulation D. Entry Features E. Transparency n/a – new approach; however the strategies in this section are reflected in: • 16-6-1.C.6.e. M-1, M-2, and M-O-2 Zone of Transparency (requiring specific percentage of windows / doors. New approach to refine the deign details of buildings on a few basic, and style-neutral concepts of building design aimed at breaking up the mass of larger buildings, limiting blank walls, and adding details to walls. Apply standards that are being addressed in limited fashion to large commercial buildings in a more comprehensive way to all nonresidential buildings DRAFTPage 14 of 482 DEVELOPMENT CODE UPDATE INITIAL DRAFT SECTION MAPS October 4, 2022 2 ENGLEWOOD DEVELOPMENT CODE: SECTION MAP CHAPTER 6 – NONRESIDENTIAL DEVELOPMENT & DESIGN Proposed Section Current Code References Notes F. Materials G. Administrative Adjustments • 16-6.-10.E.3.a Design Standards and Guidelines for Large Retail Buildings; Facades and Exterior Walls • 16-6.-10.E.3.c Design Standards and Guidelines for Large Retail Buildings; Detail Features • 16-6.-10.E.3.eDesign Standards and Guidelines for Large Retail Buildings; Materials & Colors • 16-6.-10.E.3.f Design Standards and Guidelines for Large Retail Buildings; Entryways (requiring a front orientation) Apply building design standards to all non-residential districts and projects. Allow refinement of the standards based on how near the building is to the streetscape or public spaces. Note: the approach uses an objective, default standard (16-6B.B / Table 16-6-##), combined with more subjective or suggested lists of strategies, techniques, and options to meet the standard (Sections 16-6-5.C. – G.). This is similar to the “Guideline / Standard” approach used in the current Section 16-6-10.E.3. Design Standards and Guidelines for Large Retail Buildings; Aesthetic Character) 16-6-6 Open Space Design A. Design Objectives B. Lot Open Space Design C. Administrative Adjustments 16-6-1.B Dimensional Requirements; Summary Table (Max lot coverage %) 16-6-7.E.2 and 3. Landscape & Screening; Minimum Landscape requirements (Table 16-6-7.4 -MU and M districts; Table 16-6-7.5 I- districts)landscape standards and RLA – required landscape area as a % of specific sites 16-6.-10.E.4.d Design Standards and Guidelines for Large Retail Buildings; Central Features and Community Spaces 16-6-3.F.3 Streets and Vehicle Access and Circulation; New Intersections and Curb-cuts (Driveways) Revised approach to try to combine 3 concepts (landscape, lot coverage, and usable opens space) to design more site- and context-appropriate open spaces Attempt to reward spaces based on design and function, not necessarily amount of space. Coordinate with • 16-6-3.A (Table 16-6-#) – required open space per lot; • 16-8-3.B / Table 16-8## Plant Requirements for Civic & Open Spaces or Other (unbuilt portions of lots); and • 16-3-5.B. and C. (coordination with larger scale project-, block-, or district open spaces) 16-6-7 Sustainable Sites & Building Guidelines A. Design Objectives B. Guidelines C. Administrative Adjustments n/a - new item Added to leverage enhanced Administrative Adjustments process and prioritize sustainability objectives. Note: these are just guidelines to (1) remind and recommend “best practices”; and (2) reinforce the “sustainability” criteria for all administrative adjustments where deviations from standards may be justified. DRAFTPage 15 of 482 DEVELOPMENT CODE UPDATE INITIAL DRAFT SECTION MAPS October 4, 2022 3 ENGLEWOOD DEVELOPMENT CODE: SECTION MAP CHAPTER 8 – LANDSCAPE DESIGN Proposed Section Current Code References Notes 16-8-1 Intent 16-6-7.A Purpose 16-6-6.A. Purpose Expended on the design and sustainability aspects of landscape design, and revised to generally reflect the organization and structure of the code update. 16-8-2 Applicability 16-6-7.B Landscape & Screening; Applicability 16-6-7.C. Landscape & Screening; Landscape Plan Converting from a list of landscape plan submittal requirements (which will be delegated to and administered by Community Development through application forms - 16-2-1.A.1) to a specific list of triggering activities for when the landscape design standards apply. Consider other scenarios or other items to capture in this section. 16-8-3 Landscape Requirements A. Design Objectives B. Planting Requirements C. Credits for Existing Vegetation D. Design & Location E. Administrative Adjustments 16-6-7.D Landscape Requirements 16-6-7.E Minimum Landscape Requirements 16-6.7.F. Landscaping of off-street Parking Areas 16-6-7.H. Alternative Methods of compliance Change from current approach for RLA (required landscape area), which has a somewhat complicated formula, to a more objective plant requirement tied closely to 5 key areas of sites. This will give a required plat count for each site (subsections B. and C.), which can then be designed more flexibly to meet intent, design objectives, and performance criteria of this section (subsections D. and E. if necessary). Additionally, the RLA approach may cause smaller lots and compact sites being added under this effort to have too small of a plant requirement, while larger lots or lower density to have a large requirement. Otherwise, this approach should result in a comparable plant requirement 16-8-4 Buffers & Screening A. Design Objectives B. Buffer Planting C. General Screening D. Administrative Adjustments 16-6-7.G. Screening Requirements 16-6-7.H. Alternative methods of compliance Breaking out the buffer / screening elements in a specific subsection due to the unique landscape design issues they address (compatibility, transitions, separation, etc.) Converted current table to 3 distinct buffer types based on intensity/compatibility of specific location, and then created greater distinctions between the width and/or planting intensity. 16-8-5 Plant Specifications A. Design Objectives B. Species C. Plant Specifications D. Tree Diversity E. Xeric Guidelines F. Stormwater Treatment G. Planting & Maintenance H. Administrative Adjustments 16-6-7 (various sections and subsections) Separated out elements regarding the species, planting, and overall survivability and trying to invoke outside resources for plant specifications on the details of installation. (either Englewood manual or other regional resource) Added section on tree diversity and xeric guidelines to align with broader sustainability goals. Added coordination with stormwater to encourage effective / efficient site design. 16-8-6 Fences & Walls A. Design Objectives B. Permit C. Height & Location D. Materials E. Prohibited Materials F. Retaining Walls G. Administrative Adjustments 16-6-6 Fences and Retaining Walls Reflects existing standards; Reorganized to simplify and better reflect structure of code update. Generally no substantive standards unless necessary to reconcile things that arise form reorganizing or simplifying the standards. DRAFTPage 16 of 482 DEVELOPMENT CODE UPDATE INITIAL DRAFT SECTION MAPS October 4, 2022 4 ENGLEWOOD DEVELOPMENT CODE: SECTION MAP CHAPTER 10 – FLOODPLAIN REGULATIONS Proposed Section Current Code References Notes 16-10-1 Intent 16-10-2 Applicability 16-10-3 - ## TBD (but will incorporate current sections) See existing Floodplain Regulations in Chapter 4 found here: Chapter 4, Floodplain Regulations. There are no substantive changes anticipated with this section; however, Public Works is reviewing for any “quick fixes” to commonly referring problems or interpretation issues, or other non-policy updates. Otherwise, changes will only be to clarify, reorganize, or further edit to match the overall structure of the code update, or to better coordinate with other substantive changes of other Chapters in the development code. DRAFTPage 17 of 482 1 General 16-6-1 INTENT Initial Draft Title 16: Englewood Development Code November 2022 6-1 Chapter 6 Nonresidential Development & Design 16-6-1 Intent 16-6-2 Applicability 16-6-3 Development & Dimension Standards 16-6-4 Frontage Design 16-6-5 Building Design 16-6-6 Open Space Design 16-6-7 Sustainable Sites & Buildings Guidelines 16-6-1 Intent The intent of the Nonresidential Development & Design standards is to: A.Enable a range of compatible buildings and sites that meet the intent of each zoning district. B.Improve the appearance and vibrancy of mixed-use, commercial, and employment centers with good civic design. C.Reinforce the distinct character of different corridors, centers and districts with building and landscape design appropriate to the context. D.Strengthen the accessibility of places by coordinating site access and internal circulation systems with multi-modal street networks. E.Promote lasting and sustained investment in corridors, centers, and districts with quality design. 16-6-2 Applicability A.The standards in this Chapter shall apply to all development in the M-1, M-2, MU-B-1, MU-B-2, I- 1, and I-2 districts, except where stated that sections only apply to specific districts or specific situations. Specifically, the Standards in this Chapter apply to: 1.All new structures shall comply with these standards. 2.Modification or additions to existing structures or sites shall meet these standards to the extent of the modification or addition, except that the Director may waive any design standards applied to modifications or additions that: a.Conflict with the consistent design of an existing building; b.Conflict with a desired and prevailing character on the block or immediate vicinity of the project; or c.To otherwise facilitate infill development or adaptive reuse of an existing building. B.The standards shall not apply to ordinary maintenance of existing buildings or sites, except that maintenance shall not occur in a manner that brings the building or site out of conformance with these standards. 16-6-3 Development & Dimension Standards A.Lot & Building Standards. The lot and building standards for non-residential districts are specified in Table 16-6-1.DRAFTPage 18 of 482 1 General 16-6-3 DEVELOPMENT & DIMENSION STANDARDS Initial Draft Title 16: Englewood Development Code November 2022 6-2 Table 16-6-1: Nonresidential District Lot & Building Standards Zoning District [1] Lot Standards Minimum Setbacks Building Height Size Frontage Width Open Space Front [2] Interior Side [3] Corner Side [2] Rear [3] M-1 Mixed-use Medical 6K s.f. n/a 10% 5’ – 15’ 5’ 5’ – 15’ 5’ [4] M-2 Mixed-use Medical 6K s.f n/a 10% 5’ – 15’ 5’ 5’ – 15’ 5’ [4] MU-B-1 Mixed-use Commercial n/a n/a 5% 5’ – 15’ n/a 5’ – 15’ 5’ 100’ MU-B-2 Mixed-use Commercial n/a n/a 10% 5’ – 15’ n/a 5’ – 15’ 5’ 60’ I-1 - Industrial n/a n/a 15% [5] [5] [5] [5] n/a I-2 - Industrial n/a n/a 15% [5] [5] [5] [5] n/a [1] Residential uses and buildings permitted each zoning district may be developed according to the residential building type development and design standards applicable to the MU-R-3-B district in Chapter 5, except that the high limits in the non-residential districts may apply to mixed-use buildings [2] Front and street side setbacks may be modified according to the frontage type design standards in 16-6-4. [3] Non-street setbacks shall be as specified by the building code for each class of building except that: ▪ Principal buildings on the same lot or adjoining lots shall be separated by at least 15’ when not joined by a party wall; and ▪ Greater setbacks may be necessary to meet the building design standards or landscape standards applicable to a particular use or building. [4] Building heights in the M-1 and M-2 district are determined by height zones depicted in Figure ##-##, with Hight Zone 1 allowing 145’, Height Zone 2 allowing 60’, and Height Zone 3 allowing 32’ [5] Industrial zoned property abutting any residential zoning district or residential use shall have a 10’ setback on all sides, or a greater setback when required by applicable buffer and screening standards in Section 16-8-4. B. Accessory Buildings – Nonresidential. Accessory buildings shall be permitted in association with and on the same lot as a principal building, subject to the standards in Table 16-6-2, Nonresidential Accessory Structures, and to the following additional limitations. Table 16-6-2: Nonresidential Accessory Structures Type Quantity Size Height Setbacks Minor Structure (small shed, and similar structures) ▪ 1 / lot; ▪ + 1 / each 10k s.f; ▪ Maximum of 3 ▪ 200 s.f. max ▪ 10’ max ▪ 0’ side or rear; 5’ if on a concrete slab or similar foundation; ▪ 20’ on any street side lot line; and ▪ Behind the front building line of the principal structure Secondary Building (detached accessory building) ▪ 1 / principal building ▪ 50% of principal building footprint, up to 1,000 s.f. max. ▪ 25’ max, but no higher than principal structure. ▪ 3’ from side and rear; ▪ 10’ from street side; and ▪ Behind the front of building line of the principal structure Any building over 10’ high or more than 320 square feet shall meet the design standards.in Section 16-6-3.B.4 1. All accessory buildings shall be at least 10 feet from the principal building, or other distance specified by applicable building codes based on fire ratings of adjacent walls. 2. Accessory buildings shall be clearly incidental and subordinate to the principal building or use, in terms of scale, location and orientation. 3. Minor accessory structures of 120 square feet or less, and not on a slab or similar foundation do not have a required interior side or rear setback but should be movable Figure ## M- Districts Height Zones [insert current height zone map] DRAFTPage 19 of 482 1 General 16-6-3 DEVELOPMENT & DIMENSION STANDARDS Initial Draft Title 16: Englewood Development Code November 2022 6-3 and are otherwise placed “at risk” by the owner with regard to any easements, fence, or screening requirements. 4 Any building or structure over 320 square feet or over 10 feet high, and potentially visible from the street or other public areas shall use materials, colors, scale and forms (roofs and massing), and details that are compatible with the principal structure, or otherwise be screened according to Section 16-8-4. 5. Prior to any building permit required by the City, applicants shall demonstrate that any manufactured structure meets all applicable state and local code requirements 6. Any building or structure exceeding the limits in Table 16-6-2 shall be treated as a second principal building and meet all lot and building design standards for a principal building. C. Dimension Exceptions. 1. Setback & Lot Exceptions. The following are exceptions to the lot and setback standards in Table 16-6-1, except that in no case shall this authorize structures that violate the provisions of any easement: a. The minimum side setback may be reduced to 0 feet to conform with an adjacent structure’s 0 feet rear or side setback. b. The minimum rear setback may be reduced to 0 feet on lots less than 100’ deep. c. Open air balconies may extend into the front setback up to 10’ on upper stories. d. Any projections over public rights of way, or any similar area designed for pedestrian circulation, shall be at least 8 feet above the grade, and in no case within 5 feet of any curb for a street, through access drive or other area designed for vehicles. e. Structural projections such as bay windows, balconies, canopies, chimneys, eaves, cornices, awnings, open fire escapes, egress wells, or other non- foundational overhangs or projections may extend up to 4 feet from the foundation and encroach into the setback, but no closer than 2 feet from any lot line. This exception shall be limited to no more than 20% of the total area of a building elevation. f. Ground-mounted mechanical equipment, meters, and utility boxes accessory to the building may be located in side or rear setbacks at the discretion of the Director, and provided they are screened from rights-of-way and other public spaces by structures or landscape. g. Any other accessory use or structure in the required setback, not specified in Section 16-6-1.B, shall have a setback of at least one-half its height from the property line. 2. Height Exceptions. The following are exceptions to the height standards in Table 16-6-1: a. Accessory elements integral to the design and construction of the building, such as parapet walls, false mansards, or other design elements essential to quality appearance of the building may extend up to 6 feet above the roof deck on a flat roof. b. Architectural features such as chimneys, ornamental towers and spires, and similar accessory elements may extend up to 30% above the permitted height provided: (1) It is no more than 50% above the actual building height. (2) It is integral to the specific architectural style of the building, and a (3) It is less than 15% of the building footprint. c. Functional and mechanical equipment such as elevator bulkheads, cooling towers, smokestacks, roof vents, or other equipment may be built up to their necessary height in accordance with building codes DRAFTPage 20 of 482 1 General 16-6-4 FRONTAGE DESIGN Initial Draft Title 16: Englewood Development Code November 2022 6-4 16-6-4 Frontage Design A. Design Objectives. Frontage design determines the relationship between private development and the streetscape and affects the character of different streets, blocks, and districts. The frontage design standards have the following design objectives: 1. Enhance the image of the City by coordinating streetscape investment with private lot and building investment. 2. Use buildings to shape streetscapes and public spaces, and orient buildings to these spaces. 3. Design frontages based on the context of the area, block, and street, particularly emphasizing landscape areas to buffer sites from higher-volume / higher speed streets and emphasizing social spaces and human-scale features on walkable and multi-modal streets. 4. Coordinate development across multiple lots with compatible frontages along block faces, considering building placement, access, parking, landscape, and open space design. 5. Strengthen the identity and economic value of distinct places by reinforcing consistent patterns of streetscape, frontage design, and building placement and form. B. Frontage Design Standards. The frontage types and design standards are based on the context of different streets and blocks, and may modify the front setback established in 16-6-1. Subsections following this table provide specific design strategies and techniques to meet the design objectives and standards. Table 16-6-3: Nonresidential Frontage Design Frontage A Frontage B Frontage C Frontage D Front Building Line (build-to range) 5’ – 15’ 5’ – 25’ 5’ – 25’ 25’ + Required Front Building Line 75% + 50% - 75% 30% -50% n/a Access Width (max.) 20’ 24’ 32’ 40’ Access Spacing 1 per block max 200’ + 150’ + 100’ + Parking Setback (min.) Behind rear of building Behind front building line 6’ min. See Sec.16-7-5.B 10’ min. See Sec.16-7-5.B Extent of Parking Frontage (max.) 0% 40% n/a n/a Landscape See Sections 16-3-4, 16-7-5, and 16-8-3 Applicability MU-B-1 & MU-B-2     M-1 & M-2     I-1, I-2      Permitted by right  Permitted subject to administrative adjustment. See 16-6-4.E. Administrative Adjustments  Limited to Planning Commission approval through appeal and referral of Administrative Adjustments DRAFTPage 21 of 482 1 General 16-6-4 FRONTAGE DESIGN Initial Draft Title 16: Englewood Development Code November 2022 6-5 C. Front Building Line. All buildings shall establish a front building line within the range specified in Table 16-6-3, Nonresidential Frontage Design, based on the appropriate frontage type for the specific street and block. All buildings shall occupy the minimum percentage specified for required front building line with either of the following: 1. Front building facades meeting the design standards in Table16-6-4, Nonresidential Building Design; or 2. Open spaces meeting the requirements of Section 16-6-6, Open Space Design, provided: a. It is limited to no more than 50 linear feet or 50% of the lot frontage, whichever is greater; b. There are defining vertical features at the extension of the required front building line, such as decorative walls, fences, or landscape features; and c. All building facades fronting the open space meet the building design standards otherwise applicable to the building frontage. 3. Corner lots shall meet the frontage requirement along the side street for at least 25’ or 25% of the lot depth, whichever is greater. D. Access & Parking Limits. The following standards apply to the driveway and parking limits in Table 16-6-3, Nonresidential Frontage Design: 1. Access width limits apply to the first 25 feet of the lot depth. 2. Access spacing specifies the minimum distance between edges of driveways or internal access streets. However, the Englewood Standards & Specifications Manual may specify different access standards on any particular lot, street, or block. 3. In cases where these standards limit access to a lot, options that coordinate access to lots on the same block shall be used, including mid-block alleys, internal access streets, common access lanes, or shared drives and cross access easements. 4. All parking shall be setback as specified in Table 16-6-3, be limited only to the extent specified along the frontage. Figure ## Frontage Design [insert image – basic diagram of how to apply elements of the table] Frontage types are differentiated based on the location of the front building line (FBL), the extent of the front building line occupied by the building (Required FBL), access widths, and parking location and extent along frontage. Coordinating frontage design of multiple buildings and sites along a block impacts the character of the streetscape and the block. 16-6-4.B. Figure ## Frontage Types [insert images of basic arrangements for each type] The relationship between private development and streetscape determines the character of different districts. Building placement, parking and access locations, and landscape and streetscape design distinguish different frontage type designs. Social spaces and human-scale architectural features are emphasized in more pedestrian-oriented contexts, and landscape screens and setbacks are emphasized in more car-oriented areas. 16-6-4.B and C. Figure ## Required Front Building Line [insert images] The required front building line determines the extent of the lot width required to be occupied by building frontage at the front building line. Alternatives that activate the streetscape with active social spaces may serve this function provided they establish similar defining elements of this space along the frontage. 16-6-4.C.. Figure ## Access and Parking Limits [insert image] Access & parking limits determine the extent of frontages that are designed for cars, including driveways and surface parking. Parking and vehicle access is more limited in the frontage area for pedestrian-oriented contexts, and more permissive in car-oriented areas 16-6-4.D. DRAFTPage 22 of 482 1 General 16-6-4 FRONTAGE DESIGN Initial Draft Title 16: Englewood Development Code November 2022 6-6 E. Landscape. The remainder of the frontage between the streetscape and front building line shall include landscape and open space designs. 1. For frontages with buildings built between 5 and 15 feet from the front lot line, the streetscape design standards in 16-3-4, Street Design and Chapter 8, Landscape Design may satisfy this requirement, or extensions of the streetscape and landscape elements in easements or the private frontage. 2. In all other cases the landscape design shall be according to the requirements of Chapter 7, Access & Parking and Chapter 8, Landscape Design. 3. On all frontage types, lot open space meeting the standards of Section 16-6-6 may be included in the frontage area. F. Administrative Adjustments. Application of frontage types is based upon a combination of the character of the district, the streetscape design along the block, and the relationship to adjacent lots. Administrative adjustments to the frontage design standards in this Section may be authorized according to the process and criteria in Section 16-2-11, Administrative Adjustments and any of the following additional applicable criteria: 1. The context presents a clear pattern of existing buildings and lots on the same block and opposite block face that are different from the requirements and are desirable to maintain. a. Frontages should be similar for all lots on the same block face or gradually transition to different frontage types in situations that enable multiple types. b. Front building lines on adjacent lots should generally not differ by more than 10 feet, unless substantial space exists between the buildings. c. Blocks with pedestrian amenities, on-street parking, or designed according to the Mixed-use or Pedestrian street type standards in Section 16-3-4 are generally appropriate for the Frontage Types A and B standards. d. Blocks with higher traffic speeds or volumes, that lack pedestrian amenities, or lack on-street parking are generally appropriate for Frontage Types C and D standards. e. Frontage Type A may reduce the front building line to between 0 and 5 feet of the front lot line when fronting on streets designed to the Mixed-use or Pedestrian street type standards in 16-3-4, and where no additional streetscape elements are needed according to those standards. 2. Parking and access that serves a greater area beyond the site and block may deviate from these standards, provided it does not negatively impact development on adjacent lots and it is designed to minimize impacts on streetscapes. 3. Civic uses or landmark buildings may deviate from frontage designs provided they are in a location that serves as a focal point for the surrounding area, and the exception is used for improved social space or aesthetic features on the frontage. 4. In all cases where a non-building frontage area is permitted with an administrative adjustment, a strong development edge shall be created along the required frontage by a combination of an ornamental wall or fence that compliments the building design and additional landscape elements that create defined vertical elements. 5. In all cases the deviation is the minimum necessary to address the circumstance and does not negatively impact other design standards applicable to the building or site. 16-6-5 Building Design A. Design Objectives. Building design refines the scale and form of buildings beyond the basic setback, height, and lot coverage standards and improves the relationship of buildings to public and active spaces. The building design standards of this Section have the following design objectives: DRAFTPage 23 of 482 1 General 16-6-5 BUILDING DESIGN Initial Draft Title 16: Englewood Development Code November 2022 6-7 1. Refine the scale, massing, and details of buildings to a greater degree the closer they are to the streetscapes and other publicly used spaces. 2. Relate buildings to adjacent development by mimicking similar scale, massing, and proportions though step-backs and secondary masses that break up larger masses. 3. Locate doors and windows in a way that activates spaces, creates connections to important exterior spaces, and promotes economic activity at the interface of buildings and public spaces. 4. Use materials and human-scale architectural features to create depth, texture, variation, and visual interest, particularly on larger facades, along streetscapes, or near active open spaces or adjacent lots. 5. Emphasize the quality and longevity of investments with materials and colors that are attractive, durable, and have low maintenance requirements. B. Building Design Standards. The building design standards in Table 16-6-4 are based on the placement of the building and proximity to the streetscape. Subsections following the table provide specific design strategies and techniques to meet the design objectives and standards. Table 16-6-4: Nonresidential Building Design Front building line 0’ – 10’ 11’ – 25’ 26’ + Massing & Modulation 50’ / 500 s.f. 75’ / 1,000 s.f. 100’ / 2,000 s.f. Entry Feature Spacing 50’ max. 100’ max 1 per building First Story Transparency 60% - 90% 40% - 90% 40% - 90% w/in 50’ of entry Upper Story Transparency 15% - 40% 15% - 40% 15% - 40% n/a for industrial buildings Materials See Section 16-6-5.F / Table 16-6-5 C. Massing & Modulation. Wall planes that exceed the linear feet or square footage limits in Table 16-6-4, Nonresidential Building Design shall be interrupted by one or a combination of the following techniques: 1. Emphasize structural bays and vertical breaks in interior components of the building at regular intervals, with visible features such as columns, pillars, pilasters, or other details and accents that are between 6 and 48 inches wide, and project between 4 and 24 inches off the facade. 2. Define horizontal elements with projections between 2 feet and 4 feet from the wall associated with entrance features or differentiating stories, such as balconies, awnings, cantilevers, or similar horizontal elements. 3. Break the volume of the building into distinct components with: a. Step-backs of upper stories of at least 8 feet b. Recesses of the building footprint greater than 4 feet. c. Deviations shall encompass at least 20% wall planes of the entire elevation. d. Any building over 60 feet tall shall step back the upper stories above 60 feet at least 8 feet from the lower stories. 4. Horizontal differentiation of a base, body and top of buildings with materials and architectural details. a. For buildings less than 3 stories, this can be a distinct foundation, a main facade, and an embellished roof structure, such as eaves and fascia for pitched roofs, or cornices and parapets for flat roofs. DRAFTPage 24 of 482 1 General 16-6-5 BUILDING DESIGN Initial Draft Title 16: Englewood Development Code November 2022 6-8 b. For buildings 3 stories or more, the first floor should be clearly differentiated from upper stories to establish the base and an embellished roof structure. c. Any belt course or trim band establishing the break in base, body and top shall use a material or pattern distinct from the primary material, be 6 to 36 inches wide, and off-set from the wall plane 4 to 24 inches; or be a lessor trim associated with a material change. 5. Use patterns of windows and doors, meeting the transparency requirements in subsections D. or E., to create a rhythm and balance with vertical and horizontal elements on the elevation. 6. Use ornamental architectural details, and material and color changes associated with trim or massing elements along areas where there are no windows or doors. D. Entry Features. Primary public entrances shall be clearly defined on all front facades with at least two of the following elements and be located at intervals specified in Table16-6-4, Nonresidential Building Design: 1. A single-story architectural emphasis such as raised parapets, gables, canopies, porticos, overhangs, pediments, arches, or recessions within the wall plane of at least 3 feet. 2. Transom or sidelight windows that frame and emphasize the entry. 3. Architectural details such as tile work and moldings, columns, pilasters, or other similar material changes. 4. Integral planters, seating, or wing walls associated with an entry court or plaza that integrates landscape and hardscape designs. 5. For corner buildings, any entrance feature located on the street corner may count to both sides, and may be considered located at 25’ from each corner for the purpose of the required primary entry feature intervals. E. Transparency. The transparency requirements of Table 16-6-4, Nonresidential Building Design shall be met with one or more of the following techniques: 1. Where expressed as a first story requirement the percentage shall be measured between 2 feet and 8 feet above the sidewalk grade, or within 10 feet above the first floor elevation if the building is set back more than 10 feet from the street. 2. Where expressed as an upper story requirement, the percentage shall be measured between the floor level and ceiling of each story. 3. All first story windows required shall provide direct views to the building’s interior or to a lit display area extending a minimum of 3 feet behind the window. 4. For industrial and civic buildings setback more than 25 feet from the street, clerestory windows may meet the first or upper story window requirements. Figure ## Primary Entry Features. [insert image] Entrances help activate the streetscape and orient buildings to public spaces. More pedestrian-oriented blocks benefit from the activity created by smaller-scale uses and the rhythm created by more frequent entrances. More car-oriented streets may allow less frequent entrances or alternative orientations of buildings to internal access streets or common spaces. 16-6-5.D. Figure ## Massing & Modulation [insert image] Wall planes that exceed either the linear dimension limits or the square foot limits in Table 16-6-4 wall plane limits shall be broken up by massing elements and/or architectural details. 16-6-5.C. DRAFTPage 25 of 482 1 General 16-6-5 BUILDING DESIGN Initial Draft Title 16: Englewood Development Code November 2022 6-9 5. Locate windows doors in conjuction with massing and modulation standards in Subsection C., including: a. Create a coordinated facade composition considering the entire facade as a whole, and to break up large expances into different components with the grouping of windows and doors. b. Use projecting trim and ornamentation to create depth, texture, and shadows on the façade. c. Emphasize openings or to combine groups of openings in association with ornamental details and architectural projections or recessions. F. Materials. Use building materials with a texture and pattern that creates visual interest and signifies quality construction and detailing. 1. The predominant surfaces on building walls shall be one of the primary materials listed in Table 16-6-5, Nonresidential Building Materials. 2. No more than 4 materials should be use, including the use of secondary and accent materials. 3. Material changes shall emphasize different elements of the building, in association with the massing and modulation standards in subsection C. a Where material changes are vertical (i.e. different materials stacked one above another), the transition between materials should include a belt course, trim band, sill, cap, frame, roof (if at ceiling height), or similar element to separate the two materials. Heavier and larger materials should be below lighter or smaller materials. b. Where material changes are horizontal (i.e. different materials side-by-side) the transition between materials should occur at interior corners or at the trim line, architectural column or pilaster where the change is emphasizing different structural or massing components for a building. 4. Material colors shall be low reflectance, subtle, neutral or earth tone colors. Primary, secondary, and accent materials shall establish distinct but compatible color palettes. The use of high-intensity colors, metallic colors, black or fluorescent colors is limited to accent areas. Table 16-6-5: Nonresidential Building Materials Primary Materials (50% to 90%) Secondary Materials (20% to 40%) Accent Materials (5% to 20%) ▪ Brick ▪ Stone ▪ Slate ▪ Stucco ▪ Tinted, textured concrete masonry units ▪ Corrugated metal (I-1 and I-2 only) ▪ Any of the primary materials ▪ Wood siding ▪ Architectural tiles ▪ Tilt-up concrete panels with brick or stone facing ▪ Architectural metals (prefinished non-corrugated) ▪ Transparent or tinted glass ▪ Any of the primary or secondary materials ▪ Precast stone ▪ Wood trim or simulated wood ▪ Translucent glass (not on first story) ▪ Corrugated metal ▪ Canvas or similar durable cloth (awnings only) ▪ Acrylic (canopies only) Figure ## Transparency. [insert image] Transparency requirements eliminate large expanses of blank walls and create physical and perceptual connections to spaces around buildings. Meeting the requirements for each story helps reduce the scale of larger buildings. 16-6-5.E DRAFTPage 26 of 482 1 General 16-6-5 BUILDING DESIGN Initial Draft Title 16: Englewood Development Code November 2022 6-10 G. Administrative Adjustments. Administrative adjustments to the building design standards in this Section may be authorized according to the process and criteria in Section 16-2-11, Administrative Adjustments, and any of the following additional applicable criteria: 1. The requirement is not consistent with the specific architectural style selected for the building based on reputable industry resources documenting the style. 2. The requirement would make the building less compatible with designs or characteristics of other buildings or sites adjacent to the project or that are prevalent throughout the area, and that are desirable to reinforce. 3. The requirement is inconsistent with the principal function of the building when applied to industrial buildings in the I-1 and I-2 districts. 4. Deviations from material standards and any simulated products demonstrate a proven performance in terms of maintenance and quality appearance. Manufacturer specifications and/or precedents for application may be required demonstrate that it will perform equally or better than the allowed material. 5. In all cases the deviation is the minimum necessary to address the circumstance, the alternative equally or better meets the design objectives of this Section, and there are no negative impacts on other design standards applicable to the building or site. 16-6-6 Open Space Design A. Design Objectives. The design of open space can reinforce the character of unique districts and distinct places. Lot open space can provide active, social spaces that relate unbuilt portions of the sites to public spaces, or provide landscape areas to mitigate undesirable relationships. The open space design standards in this Section have the following design objectives: 1. Coordinate site design with the larger block- or district-scale open space systems and public realm design. 2. Use open space as an organizing element for development, creating focal points for buildings or groups of buildings, and create transitions between distinct building sites. 3. Design a hierarchy of gateways, gathering places, parks, and natural features, and integrate these spaces with the system of streets, through drives, trails, and pedestrian passages. 4. Select open space types based on the context and natural amenities of the site; in general, more compact and formal gathering spaces are most appropriate in walkable commercial and mixed-use areas, and more spacious and natural areas are most appropriate in large commercial or industrial areas. 5. Use landscape, furnishings, fixtures, art, planters, and other elements of open spaces to complement buildings, coordinate buildings and sites, and distinguish the unique character of different places. 6 Preserve natural features that can serve as amenities for development, maintain views to and from important outside spaces, perform ecological functions, or provide important connecting corridors. B. Lot Open Space Design. Lot open space required for each building and lot required in Table 16-6-1 shall create a common or private amenity for the site and building. Buildings and the required lot open space required by Table 16-6-1, Nonresidential District Lot & Building Standards shall be arranged to create usable outdoor spaces that meet one or more of the following types: 1. Private frontage landscape areas designed according to the frontage design standards in Section 16-6-3., excluding any driveways, parking areas, or other automobile space. 2. Open space meeting the requirements for public or common open space in Section 16-3- 5. 3. Common rooftop decks provided they are at least 200 square feet, and at least 12 feet in all directions – this space is limited to no more than 50% of the requirement for the lot and building. DRAFTPage 27 of 482 1 General 16-6-6 OPEN SPACE DESIGN Initial Draft Title 16: Englewood Development Code November 2022 6-11 4. Private balconies or patios, provided they are at least 100 square feet, and at least 8 feet in all directions– this space is limited to no more than 25% of the requirement for the lot and building. 5. Landscape areas and buffers designed according to the standards of Chapter 8. In order to promote active gathering spaces in appropriate locations, landscape and buffers shall only be counted towards the following percent of the open space requirement, even where greater landscape or buffers are required by other sections: a. No more than 25% of the requirement for lot open space in the MU-B-1 and MU- B-2 districts. b. No more than 50% of the requirement for lot open space in M-1 and M-2 districts; and c. No limit in the I-1 and I-2 districts. C. Administrative Adjustments. Administrative adjustments to the standards in this Section may be authorized according to the process and criteria in Section 16-2-11, Administrative Adjustments, and any of the following additional applicable criteria: 1. The lot and building has access to at least two different active open spaces on the same block or abutting blocks. 2. Other designs that promote infill development or rehabilitation of existing buildings and sites in a compact, and walkable context. 3. In all cases the deviation is the minimum necessary to address the circumstance, the alternative equally or better meets the design objectives of this Section, and there are no negative impacts on other design standards applicable to the building or site. 16-6-7 Sustainable Sites & Buildings Guidelines A. Design Objectives. The sustainable sites and buildings guidelines have the following design objectives: 1. Augment the larger-scale sustainable development patterns and policies enforced elsewhere in this code (i.e. walkable, bike-able, and transit supportive neighborhoods and commercial areas). 2. [review comp plan and sustainability strategic plan for any specifics that are not already included in other sections and/or which need more specific direction to outcomes listed here…] B. Guidelines. Sustainable sites and buildings involve many complimentary issues regarding resource and energy efficiency, water use, impact mitigation, waste, and materials, and sometimes competing issues must be evaluated. The following guidelines are issues that can impact the overall sustainability performance of a site and building. Figure ## Courtyards, Patios and Plazas [insert image] More compact and walkable places benefit from smaller and more formal social spaces, such as courtyards, patios and plazas. 16-6-6.B.2 Figure ## Private or Common Open Spaces [insert image] Private or common areas incorporated into the building can provide a portion of the useable on-lot open spaces. These elements can also meet design requirements for breaking up the massing or blank wall of buildings. 16-6-6.B.3 and 4. DRAFTPage 28 of 482 1 General 16-6-7 SUSTAINABLE SITE & BUILDING GUIDELINES Initial Draft Title 16: Englewood Development Code November 2022 6-12 1. Improve the energy efficiency of buildings through passive heating and cooling strategies that optimize natural ventilation and capitalize on winter sun and summer shade. 2. Reduce urban heat island effects through any of the following measures: a. Reduce building footprints and paved areas that capture heat. b. Maintain and increase tree canopies, particularly over paved surfaces and building footprints with strategically located landscape. c. Use roof and paving materials and colors that reflect sunlight and heat away from the surfaces and reduce surface temperatures. 3. Promote site-specific renewable energy technologies. 4. Ensure that sites and buildings are EV-ready. 5. Emphasize facilities for recycling and composting, including storage areas and access for pick-up services. 6. Maintain water-efficient landscape through any of the following: a. Plant all xeric landscaping according to Section 16-8-5.E. b. Use high efficiency irrigation systems, such as drip systems or rain-sensor systems. c. Implement non potable water systems. 7. Improve water quality in coordination with the City’s stormwater management requirements, and permit best practices that address the quality, quantity, and rate of runoff. 8. Coordinate with the building code and energy code to ensure that all buildings, fixtures, and appliances are meeting energy, water, waste, and recyclable material benchmarks. C. Administrative Adjustments. Achieving significant performance levels on any of these guidelines may justify administrative adjustments to the standards of this Chapter according to the process and criteria in Section 16-2-11, Administrative Adjustments and based on the intent and design objectives of this section. DRAFTPage 29 of 482 8 Landscape Design 16-8-1 INTENT Initial Draft Title 16: Englewood Development Code November 2022 8-1 Chapter 8 Landscape Design 16-8-1 Intent 16-8-2 Applicability 16-8-3 Landscape Requirements 16-8-4 Buffers & Screening 16-8-5 Plant Specifications 16-8-6 Fences & Walls 16-8-1 Intent The intent of the Landscape Design standards is to: A. Improve the image of the City and build value with a well-designed public realm. B. Emphasize distinct areas throughout the City with the location and design of landscape areas. C. Coordinate landscape and design amenities across multiple sites and leverage the impact of consistent relationships of public and private frontages. D. Strengthen the character, quality, and value of development with landscape design that serves multiple aesthetic, environmental, and social functions. E. Enhance the ecological function of un-built portions of sites, and protect and integrate established natural amenities into development projects. F. Screen and mitigate the visual, noise, or other impacts of sites and buildings. G. Conserve water and shift to water–conscious landscape design that is regionally appropriate and specific to the arid Front Range climate. 16-8-2 Applicability The standards of this Chapter shall apply to the following: A. A building permit for a new principal structure; B. A building permit for an existing principal structures that results in an increase of the gross floor area by more than 15% and more than 500 square feet; C. A Site Improvement Plan that increases the impervious area by more than 20%; D. Any addition of parking to nonresidential uses or residential uses with 10 or more dwelling units E. A building permit for the renovation, remodeling or expansion of an existing residential structure that includes a change to a non-residential use. In cases where the landscape standards apply, the intent is to bring the site into full compliance with these standards. However, for infill and rehabilitation of existing sites the Director may prorate the requirements to the extent of the site work where full compliance is not possible or practical, and only apply the standards to portions of the site subject to development. 16-8-3 Landscape Requirements A. Design Objectives. Landscape plans shall meet the following design objectives: 1. Frame streets and emphasize important gateways with street trees, landscape massing, and other vertical elements. 2. Provide comfort, spatial definition, and visual interest to active outdoor spaces including walkways, civic spaces, parks, trails, or other similar outdoor gathering places. DRAFTPage 30 of 482 8 Landscape Design 16-8-3 LANDSCAPE REQUIREMENTS Initial Draft Title 16: Englewood Development Code November 2022 8-2 3. Improve resource and energy efficiency with landscape arrangements that consider wind blocks, heat gain, water usage, solar access, and other elements inherent to the site. 4, Increase the tree canopy, particularly to reduce heat gain from paved surfaces and buildings and shade active spaces of streetscapes and sites. 5. Improve water quality, prevent erosion, and reduce runoff with natural landscape elements that intercept, infiltrate, store, or convey precipitation and runoff. 6. Locate plants, landscape features, and site design elements sensitive to seasonal solar and shading conditions, particularly maximizing summer shade and winter sun on active portions of sites. 7. Encourage the protection and preservation of healthy plants and landscape features that can meet current and future needs of the site through development, rather than plant and design new ones. B. Planting Requirements. The required landscape shall be based on different elements of the site according to Table 16-8-1, Plant Requirements. Table 16-8-1: Plant Requirements Site Element Trees Evergreen Trees Shrubs Streetscape: The landscape area in the ROW or along the lot line immediately abutting the ROW. 1 large tree per 30’ of lot frontage n/a n/a Corner lots shall meet this requirement on street side lot lines at a rate of 50% of the requirement. Constrained right-of-way or streetscapes may substitute 1 ornamental tree per 20’. Frontage & Foundation. The area between the building line and ROW, including street sides of corner lots. 1 ornamental tree per 30’ of lot frontage for buildings set back more than 10’ from the front lot line; AND 1 large tree per 30’ of lot frontage for buildings set back more than 40’. Evergreen trees may be substituted for ornamental trees at a rate of 1 for 1, and for large trees at a rate of 2 for 1, for up to 50% of the requirement. 1 shrub per 5’ of building frontage. 3 ornamental grasses may be substituted for each shrub up to 50% of the requirement. Seasonal planting beds or pots associated with the entrance may substitute for any building located closer than 10’ to the front lot line. Corner lots shall meet this requirement on street side lot lines at a rate of 50% of the requirement Parking. Areas on the perimeter, or interior of parking. 1 large tree per 5 parking spaces Evergreen trees may be substituted for large trees at a rate of 2 for 1, for up to 50% of the requirement 1 shrub per 5’ of perimeter. 1 shrub per 3’ for any parking area within 20’ of any right of way or sidewalk. 3 ornamental grasses may be substituted for each shrub up to 50% of the requirement. Ornamental trees may be substituted for large trees at a rate of 2 for 1 up to 50% of the requirement Buffers. Areas of a site that require additional landscape to mitigate potential impacts on streetscape or adjacent property. See Section 16-8-4 Civic and Open Spaces. Areas of the site designed as part of a broader system of formal and natural open spaces. See Section 16-3-5 Other. All other unbuilt and unpaved areas. All other unbuilt or unpaved areas of a site shall require ground cover, perennials, grasses, rock, mulch or other natural and permeable surfaces. Up to 30% of any landscape area may consist of inorganic (non-living) decorative material such as river rock, colored pea gravel, boulders, pavers or similar natural material, provided it is designed and arranged in a way that can infiltrate runoff in association with planting areas. DRAFTPage 31 of 482 8 Landscape Design 16-8-3 LANDSCAPE REQUIREMENTS Initial Draft Title 16: Englewood Development Code November 2022 8-3 C. Credits for Existing Vegetation. Preservation of existing landscape material that is healthy and desirable species may count for landscape requirements provided measures are taken to ensure the survival through construction and all other location and design standards are met. 1. Landscape plans shall provide an inventory of all existing trees or significant woody vegetation including size, health, species, and any proposed for removal. 2. Existing landscape credits shall only count towards the portion of the site where it is located, according to the site elements in Table 8-1. For example, an existing tree may only count towards the required planting for parking lot perimeters if it remains in the parking perimeter in the final design. 3. Credits shall be as follows, provided it meets the minimum specifications for new plants: Table 16-8-2: Existing Tree Credit Existing Trees Allowed Tree Credit 2.5” – 6” caliper 1 6”+ - 12” caliper 2 12” +; or any other plants of exceptional quality due to species, location, maturity, and health 3 4. Trees or other existing landscape that contributes to the standard shall be identified on a landscape plan and the critical root zone shall be protected for the entirety of construction by a construction fence. Tree protection measures shall be based on applicable industry standards and best practices to ensure survival of the landscape. D. Design & Location. The landscape required by Table 16-8-1 shall be arranged and designed in a way that best achieves the intent of this Chapter and design objectives of this Section, considering the context and adjacencies proposed on the site. Required plantings shall be planted in the following specific locations on the lot. 1. Streetscape Trees. Streetscape and frontage trees shall be located in line with other trees on the block to create a rhythm along the streetscape and promote enclosure of the tree canopy. In the absence of a clearly established line along the block, trees may be planted in the following locations in order of priority. a. Centered between the sidewalk and curb where at least 6 feet of landscape area exists; b. In tree wells that are at least 4 feet in all directions and at least 24 square feet located within the sidewalk (applicable on wider attached sidewalks or pedestrian-oriented commercial or mixed-use streets); c. 5 to 10 feet from the back of curb where no sidewalk exists or from the sidewalk in other situations where the sidewalk is attached; d. Within the first 5 feet of the front lot line where any constraints on the lot or in the right-of-way would prevent other preferred locations; e. Ornamental trees may be substituted for large street trees only in situations where no other alternative is available due to constraints of the site or right-of- way conditions. Ornamental trees should be used where trees are to be located within 10 feet of any overhead wires. No evergreens shall be planted in the right of way. f. Shrubs or perennials planted in the streetscape (parkway, tree strip, or medians) shall not exceed 36 inches high, or 30 inches high in any area impacted by the sight distance limits of Section 16-3-4.C.2. 2. Frontage & Foundation Trees & Shrubs. Foundation plantings shall be located in open spaces near the building or in planting beds associated with the design of any hardscape along the building frontage. DRAFTPage 32 of 482 8 Landscape Design 16-8-3 LANDSCAPE REQUIREMENTS Initial Draft Title 16: Englewood Development Code November 2022 8-4 a. Ornamental and evergreen trees shall be located within 25 feet from the building. b. Shrubs and other plantings shall be located within 6 feet of the foundation. c. Where planting beds are used within hardscape around a foundation, they should be at least 4 feet deep, at least 60 square feet, and concentrated along at least 50% of the building frontage. d. Use larger and vertical landscape elements to frame entries, anchor the corners of buildings, or break up and soften larger building expanses. 3. Parking Lot Landscape. Parking lot landscape requirements shall be planted in perimeter buffers and landscape islands planned and designed according to Section 16-7-5, Parking Design. a. There shall be at least one large tree per 30 feet of parking lot perimeter, or one ornamental or evergreen tree per 20 feet of perimeter. b. There shall be at least one tree per parking lot island, or one large tree or two evergreen or ornamental trees per 300 feet of other internal landscape area. c. Shrubs shall be located to define parking lot edges, screen parking from adjacent sites, or create low barriers along sidewalks and streetscapes. d. Any parking within 20 feet of the ROW shall have a Type I buffer per Section 16-8- 4. 4. Evergreens and Other Shaded Areas. Avoid locating evergreen trees, fences, and other opaque screens that cause winter shade and freezing on the south sides near sidewalks, trails, or other active outsides social areas. Use deciduous ornamental or shade trees that provide summer shade and winter sun in these locations. 5. Visibility at Intersections. Screens, buffers and landscape shall be located and designed to maintain proper lines of sight at all intersections of streets, alleys, driveways, and internal access streets as provided in Section 16-3-4.C.2., Sight Distances. 6. Specific Applicability. Where landscape standards for different elements of a site overlap, effective site and landscape design may enable the space and plants to count toward more than one requirement, based on the greater plant requirement applicable to that area. For example, a buffer area required by Section 16-8-4 may also be along a parking area perimeter, or a parking area perimeter may also be along a streetscape, and the greater planting requirement between these areas can satisfy both requirements. Approval shall be subject to the Director determining that the intent and design objectives of this section are achieved. E. Administrative Adjustments. Administrative adjustments to the landscape design standards in this Section may be authorized according to the process and criteria in Section 16-2-11, Administrative Adjustments, and any of the following additional applicable criteria: 1. The alternative results in better design of common or civic space on the site; 2. The alternative results in a better allocation of plants in relation to adjacent streetscapes or other public spaces; or 3. The alternative is necessary to improve the longevity, survival, or environmental performance of plant materials. 16-8-4 Buffers & Screening A. Design Objectives. The buffer planning and screening standards have the following design objectives: 1. Mitigate impacts of parking lots or vehicle circulation near streets or property lines with landscape barriers and low-level headlight screening. DRAFTPage 33 of 482 8 Landscape Design 16-8-4 BUFFERS & SCREENING Initial Draft Title 16: Englewood Development Code November 2022 8-5 2. Use berms, vertical landscape, dense plantings, or other grade or spatial changes to alter views, subdue sound, and change the sense of proximity of incompatible uses, buildings, or site conditions. 3. Soften transitions where changes in development patterns, intensity of land uses, or building scale occur. 4. Screen service and utility areas of buildings and sites from adjacent property or streetscapes with architectural features, fences, or landscape that limit visibility or noise. 5. Address three layers of landscape, including: large trees (high-level – 30’+); evergreen or ornamental trees (mid-level – 6’ to 30’); and shrubs, annuals, perennials, and ground cover (low-level – under 6’), to directly mitigate the potential impacts and adjacencies. B. Buffer Planting. The planting requirements in Table 16-8-3: Buffer Designs shall be used to buffer and screen more intense land uses or site elements according to the design objectives of this section. The buffer width is independent of and may include any setback, parking perimeter buffer, or other open space requirement so that the larger requirement controls. Table 16-8-3: Buffer Designs Site Element Width [1] Trees Screen Type 1: A low screen used to define the edges of areas, particularly along streets, alleys or walkways. 5’ 1 large tree per 30’ May substitute evergreens or ornamental tree at 2 for 1 for up to 50% of the trees 3’ high shrubs at 3’ on center; OR 3’ high decorative wall or fence with shrubs and perennials along 50% Type 2: A buffer designed to soften the transition between different uses, scales of buildings, or intensity of uses 10’ 1 large tree per 30’ May substitute evergreens or ornamental tree at 2 for 1 for up to 50% of the trees 3’ high shrubs planted 6’ on center. Type 3 : A buffer design to create a special and visibility barrier between incompatible situations 15’ 1 large tree per 40’ AND 1 ornamental or evergreen tree per 20’ 6’ high shrubs planted 6’ on center; OR 6’ high solid fence or wall with shrubs and perennials along 50% [1] The width of a required buffer may be narrower to account for infill situations, or more compact and urban conditions. In these cases, a combination of additional plants or structural separation may be required. Buffer types in Table 16-8-3 shall be required in the following circumstances. 1. Type 1 Buffers. Type 1 buffers shall be required: a. Anywhere parking is located within 20 feet of the public right of way. b. Where a parking lot abuts a public or internal sidewalk. c. Along alleys where there is a transition between industrial uses to residential uses across the apply. 2. Type 2 Buffers. Type 2 buffers shall be required: a. At a common boundary between multi-unit projects with 10 or more units and detached houses. b. At a common property boundary between commercial and residential uses. c. At a common property boundary between industrial and commercial uses. 3. Type 3 Buffers. Type 3 buffers shall be required. a. Any transition between industrial and residential uses. b. Buffer and screening of any specific high-intensity uses or high-intensity portions of a site abutting or visible for public spaces or active portions of commercial and mixed-use property. DRAFTPage 34 of 482 8 Landscape Design 16-8-4 BUFFERS & SCREENING Initial Draft Title 16: Englewood Development Code November 2022 8-6 4. Generally. Any buffer may be required where necessary to meet the design objectives of this section or to achieve the general screening standards of Section 16-8-5.C. C. General Screening. All of the following shall be screened from streets or adjacent property by placement of buildings, open space, dense evergreen vegetation, a decorative opaque fence or wall complementing the architectural details and materials of the building, or a combination of these screening strategies. Where design of the building, frontages, open space, buffers, and other site requirements do not adequately screen these elements, the Director may require additional planting to achieve the design objectives of this Section. 1. Electrical and mechanical equipment such as transformers, air conditioners, or communication equipment and antennas whether ground-, wall- or roof-mounted. 2. Permanent or temporary outdoor storage areas where supplies, equipment or vehicles are stored. 3. Trash enclosures. 4. Utility stations or fixtures. 5. Delivery and vehicle service bays, except that bays do not need to be screened from adjacent property with the same or more intense zoning. 6. Large blank walls or the rear and sides of buildings visible from public streets, public or common areas or other sensitive boundaries. 7. Nonresidential or multi-family parking lots over 10 spaces adjacent to residential lots. D. Administrative Adjustment. Administrative adjustments to the buffer and screening standards in this Section may be authorized according to the process and criteria in Section 16-2-11, Administrative Adjustments, and any of the following additional applicable criteria: 1. The alternative promotes an appropriate exchange of buffer width and plant intensity based on the circumstances of the site. 2. Other physical elements on the subject site or the abutting site make the applicable standard ineffective or impractical. 16-8-5 Plant Specifications A. Design Objectives. The plant specifications have the following design objectives: 1. Ensure the longevity and survival of landscape investments with proper species, location, installation, and maintenance of plants. 2. Promote regionally appropriate strategies, including limiting risk of disease or infestation through diversity of urban forest on an area- or city-wide basis. 3. Establish minimum standards that balance immediate conditions with reasonable long- term growth and performance of landscape plans. 4. Require water efficient strategies in terms of the water needs of landscape plans, and the continued operations and maintenance of sites. B. Species. All trees and shrubs shall be selected and planted according to the Englewood Landscape Manual In addition to any species on these lists, alternatives may be proposed and approved as part of the site improvement plan provided they: 1. Are documented by a landscape architect or other credible information comparable in type and performance to any species on this list; 2. Are adaptable to the climate of the Front Range region and the specific conditions in which they are proposed; and 3. Are not invasive or otherwise problematic to the overall health of the landscape. C. Plant Specifications. All landscape materials shall meet the American Standards for Nursery Stock standards and be selected for its native characteristics or survival in the climate for the Front Range region. Plants shall meet the following specifications at planting: DRAFTPage 35 of 482 8 Landscape Design 16-8-5 PLANT SPECIFICATIONS Initial Draft Title 16: Englewood Development Code November 2022 8-7 Table 16-8-4: Plant Specifications Type Specification Large Tree 2.5” DBH; Mature height of at least 30’ Ornamental Tree 2” DBH ; 8’ to 10’ minimum planting height for multi-stemmed; Mature height of 15’ – 30’ Evergreen Tree 6’ minimum planting height; Mature height of at least 10’. Evergreens with mature heights of 30’ or more may be classified as large trees. Shrub 24” or 5-gallon minimum container Perennials and Ornamental Grass 1-gallon container Ground Cover Areas designed for vegetative cover shall have 50% ground cover at the time of planting and full coverage within 2 growing seasons General Plants used for screening and buffers shall achieve the required opacity and function in its winter seasonal conditions within 2 years following planting. DBH – Diameter at breast height D. Tree Diversity. The required trees planted shall promote diversity with the following species selection criteria. Table 16-8-5: Tree Diversity Required Trees Diversity 1 - 9 No specific requirement, but trees should be diversified from those existing trees in the vicinity. 10 - 39 At least 2 genus; AND At least 3 species No more than 50% of any one species 40+ At least 3 genus; AND At least 4 species No more than 33% of any one species * Any streetscape master plan or public realm plan may achieve street tree diversity on a broader or block-scale basis while planting the same species on individual segments for the urban design effect. E. Xeric Guidelines. All landscape plans shall conserve water with landscape materials and design techniques using the following xeric principles. 1. Incorporate a “zoned planting scheme” to reduce water demand by grouping plants with similar water requirements together in the same hydrozone. 2. Limit high-irrigation turf and plantings to appropriate high-use areas with high visibility and functional needs and use water-conserving grasses such as fescue sods. 3. Use drought tolerant plants, suitable to the region, with low watering and pruning requirements. 4. Incorporate soil amendments and use of organic mulches that reduce water loss and limit erosion. All plant areas should receive soil amendments of at least 3 cubic yards per 1,000 square feet. 5. Install efficient automatic irrigation systems that incorporate water conservation measures, including spray heads for ground cover and drip irrigation for shrubs and DRAFTPage 36 of 482 8 Landscape Design 16-8-5 PLANT SPECIFICATIONS Initial Draft Title 16: Englewood Development Code November 2022 8-8 trees, and high-efficiency or precision nozzles. Provide regular and attentive maintenance to ensure irrigation systems are functioning properly. 6. Alternative sources of irrigation for all landscape areas are encouraged. F. Stormwater Treatment. Landscape amenities that incorporate stormwater treatment are recommended, provided they can meet both the landscape design standards and the stormwater management performance standards. Techniques such as bioswales, water quality ponds, and rain gardens should be used to improve water quality and slow and infiltrate runoff and from parking lots, streets, civic spaces, and other impervious surfaces. G. Planting & Maintenance. All landscape plans shall include installation specifications, method of maintenance including a watering system and statement of maintenance methods. At a minimum landscape plan shall demonstrate the following: 1. No plants shall be planted over any area that has been compacted. All planting areas shall be excavated and filled with amended soils to a depth of at least 24 inches, or additional sufficient depth to reach existing soils and remove any pervious material, compacted soils, stones 1 inch or larger, or any other material harmful to plant growth. 2. All plant materials and planting areas shall be prepared and planted according to American Standard for Nursery Stock (ANSI) details and ensure proper soil quality and conditions. 3. All plantings shall be properly maintained, including pruning, mowing, weed removal, replacement of dead plants, and irrigation. Plant materials which fail to grow within a 2- year period or which exhibits evidence of insect pests, disease, and/or damage shall be appropriately treated, and any plant in danger of dying may be ordered by the Director to be removed and replaced. 4. All elements of an approved landscape plan including plant materials shall be considered elements of the project in the same manner as parking, buildings, or other details. Deficiencies of any approved landscape plan at any point may be enforced as a violation of the provisions of this ordinance. H. Administrative Adjustment. Administrative adjustments to the plant specification standards in this Section may be authorized according to the process and criteria in Section 16-2-11, Administrative Adjustments, and any of the following additional applicable criteria: 1. The alternative is necessary to improve the longevity or survival of plant materials. 2. The alternative improves the health or general species mix specific to the context and vicinity of the site. 3. The alternative and any substituted materials are of the same general type (i.e. tree, shrub, or ground cover) and have the same or similar performance as intended by the standard. 16-8-6 Fences & Walls A. Design Objectives. Fences and wall designs shall consider the context and location on the site and meet the following design objectives: 1. Provide safety and security, screening, and architectural enhancements to sites and buildings. 2. Publicly visible locations require fences and walls with higher design standards, accompaniment of landscape to soften the expanse, or a combination of both. 3. Walkable contexts or near pedestrian facilities require fences and walls with a lower profile, more open design, or both. 4. Prominent public places require fences and walls that complement the design of the site and the architecture of the associated building. 5. Fences and walls shall be designed and located sensitive to the relationship and impacts to adjacent property. DRAFTPage 37 of 482 8 Landscape Design 16-8-6 FENCES & WALLS Initial Draft Title 16: Englewood Development Code November 2022 8-9 B. Permit. A permit requiring conformance with these standards shall be required for: 1. All new fences or walls; and 2. All repairs or replacement of existing fences more than 50% of the fence or 25 feet, whichever is less. 3. Replacement of all or any portion of a retaining wall. Permits may be incorporated into Site Improvement Plan review according to Section 16-2-6, Site Improvement Plan. C. Height & Location. Fences for individual property shall be located according to Table 16-8-6: Fence Height and Location. Table 16=8-6: Fence Height and Location Residential Commercial Industrial Front ▪ 3’ high if solid ▪ 4’ high if at least 25% open ▪ 6’ high if decorative material and 50% open ▪ 3’ high ▪ 6’ high if decorative material and 50% ▪ 12’ high Side & Rear ▪ 6’ if behind the front building line ▪ 6’ if at least 15’ from front lot line ▪ 12’ high Setbacks ▪ All fences or walls located along adjacent lot lines shall be constructed so that either: o The face of the fence is on the property line, with the finished side facing outward; or o The face of the fence is at least 3 feet from the property line. Any areas set back 3 feet or more from the property line, which could become enclosed by other similarly located fences or walls, shall provide at least one gate for access and maintenance equipment. ▪ All fences shall be at least 1 foot from any public sidewalk, and gates shall be prohibited from opening into or over any public sidewalk, street, or alley. ▪ All fences shall be located to not interfere with the sight distance requirements in Section 16-3-4.C.2. Sight Distances Additional Height Standards ▪ Height is measured from the grade the fence is erected on and fences erected on top of a retaining wall shall be measured from the top of the retaining wall ▪ Pillars or posts supporting the fence or wall may exceed the maximum permitted fence height by 10%, provided there is at least 5’ between posts or pillars.. ▪ Ornamental enhancements associated with an entry or gateway may be up to 8’ high. ▪ Fences or walls outside of required setbacks (i.e. in the buildable envelope),and behind front building line can exceed height limits, but may be limited by building codes or other public health and safety standards. ▪ Refer to the Englewood Municipal Code for fence requirements for swimming pools D. Materials. All fences and walls shall be made of the following: 1. Masonry, including brick, stone, integrally colored concrete, textured concrete, smooth or textured concrete masonry unit (CMU), stucco, or other similar material. 2. Decorative metal, such as cast or wrought iron other decorative metal. 3. Chain link – steel. aluminum, or vinal clad except prohibited for any front fence in commercial districts or uses; 4. Wood materials designed specifically for fencing purposes. Wood fence material shall meet EPA residential use standards. 5. Vinyl, plastic, or composite fence products designed specifically for fencing purposes limited to 50% open design in residential districts. 6. Steel or aluminum woven wire designed for fencing. Barbed or other sharp wire shall only be permitted to the side or rear of commercial and industrial fences and only if all portions of barbed wire are above 6 feet high; DRAFTPage 38 of 482 8 Landscape Design 16-8-6 FENCES & WALLS Initial Draft Title 16: Englewood Development Code November 2022 8-10 7. Decorative Architectural Materials. Decorative architectural materials, including tile or glass block, may be incorporated into the design of fences upon the approval of the Director. E. Prohibited Materials. The following materials are specifically prohibited: 1. Creosote or chromated copper arsenate (CCA) treated wood products, utility poles, railroad ties, plywood, fiberboard, salvage wood, corrugated metal, sheet metal, scrap or salvage metal, PVC pipe, chicken wire, snow fences, plastic weaving, or plastic slats for use in chain link. 2. Electrically charged fences shall be prohibited in all zone districts. 3. Plastic construction fencing may be used only for temporary construction fencing. F. Retaining Walls. 1. Required Wall Materials. All retaining wall shall be made of the following: a. Masonry, including brick, stone, integrally colored concrete, textured concrete, smooth or textured CMU, stucco, or other similar material. b. Wood or landscape timbers, provided they meet EPA residential use standards. c. Other materials commonly used for retaining walls in the Denver metro area and approved by the Director. 2. Prohibited Wall Material Utility poles, railroad ties, or any creosote or CCA treated materials are prohibited. 3. Retaining Wall Development Standards. a. Retaining walls shall meet all applicable Building Code standards adopted by the City. b. All retaining walls shall be located on the applicant's property but no closer than 1 foot behind any public sidewalk. G. Administrative Adjustments. Administrative adjustments to the fence and wall standards in this Section may be authorized according to the process and criteria in Section 16-2-11, Administrative Adjustment. DRAFTPage 39 of 482 TITLE 16 - UNIFIED DEVELOPMENT CODE Chapter 4 FLOODPLAIN REGULATIONS Englewood, Colorado, Code of Ordinances Created: 2022-10-13 14:56:22 [EST] (Supp. No. 56) Page 1 of 23 Chapter 4 FLOODPLAIN REGULATIONS1 16-4-1: Authority and Purpose. A. Statutory Authority. The legislature of the State has in Title 29, Article 20 C.R.S., as amended, delegated the responsibility to local governmental units to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry by minimizing flood losses. B. Findings of Fact. 1. The flood hazard areas of the City are subject to periodic inundation which can result in loss of life and property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare. 2. These flood losses are caused by the cumulative effect of obstructions in special flood hazard areas that cause an increase in flood heights and velocities, and by the occupancy of flood hazard areas by uses vulnerable to floods and hazardous to other lands because they are inadequately anchored, elevated, floodproofed or otherwise protected from flood damage. C. Purpose. It is the purpose of this Chapter to promote the public health, safety and general welfare, and to minimize public and private losses due to flood conditions in specific areas by provisions designed to: 1. Protect human life and health; 2. Protect property and minimize damage to critical facilities infrastructure and other public facilities such as water, sewer, and gas mains; electrical and communications stations; and streets and bridges located in floodplains; 3. Minimize expenditure of public money for costly flood control projects; 4. Protect the natural areas required to convey flood flows so that they develop in a manne r consistent with reasonable floodplain management; 5. Protect and preserve the water-carrying characteristics and capacities of all watercourses, including gulches, sloughs, and artificial water channels used for the conveyance of storm and floodwater; 6. Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public; 7. Minimize prolonged business interruptions; 8. Help maintain a stable tax base by providing for the sound use and development of flood prone areas to minimize future flood blight areas; and 9. Insure that potential buyers are notified that property is in a flood hazard area. D. Methods of Reducing Flood Losses. In order to accomplish its purposes, this Chapter uses the following methods: 1Editor's note(s)—Ord. 10-44, § 1, adopted Nov. 1, 2010, amended Ch. 4 in its entirety and enacted the provisions set out herein. The former Ch. 4 pertained to Flood Plain Overlay District and derived from Ord. 04-5. Page 40 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 2 of 23 1. Restrict or prohibit uses that are dangerous to health, safety or property in times of flood, or cause excessive increases in flood heights or velocities; 2. Require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction; 3. Control the alteration of natural floodplains, stream channels, and natural protective barriers, which are involved in the accommodation of floodwaters; 4. Control filling, grading, dredging and other development which may increase flood damage; and 5. Prevent or regulate the construction of flood barriers, including fences and walls, which will unnaturally divert floodwaters or which may increase flood hazards to other lands. (Ord. 10-44, § 1; Ord. 8-13, § 6) 16-4-2: Jurisdiction and Applicability. A. Applicability. The provisions of this chapter shall apply to all land within the City defined as: 1. The special flood hazard areas identified by the Federal Emergency Management Agency "FEMA" in a scientific and engineering report entitled "Flood Insurance Study - Arapahoe County, Colorado, and Incorporated Areas" with accompanying Flood Insurance Rate Maps and Flood Boundary -Floodway Maps ("FIRM and/or FBFM") and any revisions thereto. All revisions to the FIRMs and/or FBFMs applicable to land within the City and issued by FEMA through a Letter of Map Revision ("LOMR") or Physical Map Revision ("PMR") are hereby deemed adopted by the City as of the effective date of the LOMR or PMR. 2. All revisions to the FIRMs and/or FBFMs and/or flood boundary-floodway maps applicable to land within the City and issued by FEMA through a Letter of Map Revision ("LOMR") or Physical Map Revision ("PMR") shall be conveyed to the City Council by written technical report within sixt y (60) days of having been received by the City. 3. The boundaries of the West Harvard Gulch Flood Hazard Area as shown on Sheets 13 and 14 in a report entitled "Flood Hazard Area Delineation, Harvard Gulch, West Harvard Gulch, and Dry Gulch" dated December 1979 by Gingery Associates, Inc., and approved by the Colorado Water Conservation Board on January 30, 1980. 4. Flood Hazard Area delineated as Harvard Gulch and Dry Gulch prepared by Matrix Design Group in February of 2017, and approved by the Colorado Water Conservation Board on January 23, 2018. The above Official Flood Studies are hereby adopted by reference and declared to a part of this title. B. Basis for Establishing Special Flood Hazard Areas. The City hereby establishes floodplains and flood ways whose boundaries are those of the designated 100-year floodplain, special flood hazard areas and the designated floodways as are shown or tabulated in the Flood Insurance Study for the City of Englewood. C. Compliance. No structure or land located in a special flood hazard area shall hereafter be constructed, located, extended, converted, altered or have its use changed without full compliance with the terms of this chapter and all other applicable regulations. These regulations meet the minimum requirements set forth by the Colorado Water Conservation Board and the National Flood Insurance Program. 1. Floodplain Development Permit. A Floodplain Development Permit shall be required prior to commencement of any construction or other development to ensure conformance with the provisions of this chapter. 2. Certificate of Compliance. Page 41 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 3 of 23 a. No vacant land shall be occupied or used and no building shall be hereafter erected, altered, or moved on the floodplains of any watercourse, nor shall such buildings be occupied, until a certificate of compliance has been issued by the Floodplain Administrator. b. The applicant shall submit a certification by a registered Colorado professional engineer to the Floodplain Administrator that the finished fill and building floor elevations, floodproofing measures, or other protection factors were accomplished in compliance with the provisions of this chapter. This certification shall also state whether or not the structure contains a basement. Within ten (10) days after receipt of such certification from the applicant, the Floodplain Administrator shall issue a certificate of compliance only if the building or premises and the proposed use thereof, conform with all of the requirements of this chapter. D. Abrogation and Greater Restrictions. The regulations of this chapter shall be construed as being supplementary to the regulations imposed on the same lands by the underlying zone classification. This chapter is not intended to repeal, abrogate, or impair any existing easement, covenants, or deed restrictions. However, where this chapter and other ordinance, easement, covenant, or deed restriction con flict or overlap, whichever imposes the more stringent restrictions shall apply. E. Interpretation. In their interpretation and application, the provisions of this chapter shall be held to be minimum requirements, shall be liberally construed in favor of the City, and shall be deemed neither to limit nor repeal any other powers granted under State Statutes. F. Warning and Disclaimer Liability. The degree of flood protection intended to be provided by this chapter is considered reasonable for regulatory purposes and is based on engineering and scientific considerations. Larger floods may occur on occasions, or the flood height may be increased by man -made obstacles or natural causes, such as ice jams, and bridge, culvert, and drainage openings restricted by debris. This chapter does not imply that the areas outside of special flood hazard areas or land uses permitted within such areas will always be free from flooding or flood damages. This chapter shall not create liability on the part of the City or any officer or employee thereof for any flood damages that result from reliance on this chapter or any administrative decision lawfully made thereunder. G. Severability. See Section 16-1-10 E.M.C., (Severability). (Ord. 10-44, § 1; Ord. 8-13, § 6; Ord. 6-18 , § 1; Ord. 31-2020 , § 1) 16-4-3: Permitted Uses. The following open uses shall be permitted within a special flood hazard area to the extent that they are not prohibited in a particular area by any underlying zone district classification: A. Agricultural uses, such as general farming and the raising of plants, flowers, and nursery stock. B. Public and private recreational uses such as parks, swimming areas, golf courses, driving ranges, picnic grounds, fishing, and hiking and biking trails not requiring permanent or temporary structures designed for human habitation. C. Utility facilities such as: flowage areas, transmission lines, pipelines, water monitoring devices, roadways and bridges. D. All uses allowed by the underlying zone district classification within a special flood hazard area shall be permitted as long as the use complies with conditions set forth in Subsection 16-4-7(B) EMC, (Floodplain Development Permit Criteria). (Ord. 10-44, § 1; Ord. 8-13, § 6) Page 42 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 4 of 23 16-4-4: Similar Uses. Uses very similar in nature to permitted uses may be allowed by the Floodplain Administrator, provided that they are consistent with the provisions of this Chapter. (Ord. 10-44, § 1; Ord. 8-13, § 6) 16-4-5: Nonconforming Uses. Existing nonconforming uses in a special flood hazard area may be modified, altered, or repaired to incorporate floodproofing measures; but such nonconforming uses shall not be expanded. (Ord. 10-44, § 1; Ord. 8-13, § 6) 16-4-6: Administration. A. Floodplain Administrator. The City Manager or designee shall be the Floodplain Administrator and shall enforce the provisions of this Chapter and other appropriate sections of 44 CFR (National Flood Insurance Program Regulations) pertaining to floodplain management. The Department of Public Works shall provide the Floodplain Administrator with a technical review of all applications to build within the floodplain or a drainage way prior to the issuance of a Floodplain Development Permit. B. Floodplain Administrator Duties and Responsibilities. The Floodplain Administrator's duties and responsibilities shall include, but not be limited to, the following: 1. Maintain and hold open for public inspection all records pertaining to the provisions of this Chapter. For all new or substantially improved structures the Floodplain Administrator shall maintain the following information: a. The actual elevation (in relation to mean sea level) of the lowest floor (including basement). b. The actual elevation (in relation to mean sea level) to which the structure has been floodproofed. c. The floodproofing certifications required in Section 16-4-11 EMC — (Minimum Floodproofing Criteria). 2. Review all applications within ten (10) working days for Floodplain Development Permits required by this Chapter. Such review shall: a. Determine whether such construction or development is located within a special flood hazard area. b. Assure that all necessary permits have been obtained from those Federal, State or local governmental agencies (including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334) from which prior approval is required. c. Determine whether a proposed building site, including the placement of manufactured homes, will be reasonably safe from flooding. d. Consider the following: 1) The danger that materials may be swept onto other lands to the injury of others. 2) The danger to life and property due to flooding or erosion damage. Page 43 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 5 of 23 3) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner. 4) The importance of the services provided by the proposed facility to the community. 5) The availability of alternative locations for the proposed use that is not subject to flooding or erosion damage. 6) The compatibility of the proposed use with existing and anticipated development. 7) The relationship of the proposed use to the Comprehensive Plan. 8) The safety of access to the property in times of flood for ordinary and emergency vehicles. 9) The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site. 10) The costs of providing governmental services during and after flood such as sewer, gas, electrical, and water systems, and streets and bridges. 11) Flood barriers, including fences, which will unnaturally divert floodwaters or which may increase flood hazards to other lands. 3. Review all Building Permit applications for construction or development in a special flood hazard area within ten (10) working days. Approval of a building permit shall be deemed to neither limit nor repeal any other powers granted under State Statutes. Applications for building permits shall be reviewed on a case-by-case basis to: a. Determine if the proposed development is located in a special flood hazard area. b. Assure the building site will be reasonably safe from flooding. c. Assure all necessary permits have been obtained from the Federal, State, or local governmental agencies from which prior approval is required. d. Assure all new construction and substantial repairs, improvements, or alterations shall be made in accordance with the minimum floodproofing criteria specified in Section 16-4-11 EMC — (Minimum Floodproofing Criteria), or elevation criteria in Subsection 16-4-7(B)(2) EMC. e. Inspect all development at appropriate times during the period of construction to ensure compliance with all provisions of this Chapter, including proper elevation of the structure. 4. Interpret, where needed, the exact location of the boundaries of special flood hazard areas (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). Any person contesting the location of the boundary shall be given a reasonable opportunity to present a case to the Floodplain Administrator and to submit supporting technical evidence. The decision of the Floodplain Administrator may be appealed as provided in Section 16 -4-14 EMC, (Floodplain Appeals and Variances). 5. When base flood elevation data has not been provided in accordance with Section 16-4-8 EMC, (Floodplain Regulations), the Floodplain Administrator shall obtain, review and reasonably utilize any base flood elevation data and floodway data available from a Federal, State or other source, in order to administer this Chapter. 6. Notify, in riverine situations, adjacent communities and the State Coordinating Agency which is Colorado Water Conservation Board, prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Emergency Management Agency. 7. When a regulatory floodway has not been designated, the Floodplain Administrator shall require that no new construction, substantial improvements, or other development (including fill) shall be Page 44 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 6 of 23 permitted within Zones A1-30 and AE on the City's FIRM, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one-half foot (½') at any point within the City. 8. Under the provisions of 44 CFR Chapter 1, Section 65.12, of the National Flood Insurance Program regulations, the Floodplain Administrator may approve certain development in Zones A1 -30, AE, AH, on the FIRM which increases the water surface elevation of the base flood by more than one-half foot (½'), provided that the City first applies for a conditional FIRM revision through FEMA (Conditional Letter of Map Revision), fulfill the requirements of such revisions as established under the provisions of Section 65.12 and receives FEMA approval. 9. Shall keep a copy of the Flood Insurance Study (FIS), DFIRMS, FIRMS on file and available for public inspection. (Ord. 10-44, § 1; Ord. 8-13, § 6) 16-4-7: Floodplain Development Permit. A. Floodplain Development Permit Process. 1. Application. A Floodplain Development Permit shall be obtained before a building permit may be issued or construction or development begins on lands within a special flood hazard area as identified in Subsection 16-4-2(A) EMC — (Applicability). Application for a Floodplain Development Permit shall be made on forms provided by the City and may include, but is not limited to: Plans in duplicate drawn to scale showing the nature, location, dimensions, and elevations of proposed landscape alterations; existing and proposed structures; fill, storage of mat erials, and drainage facilities; and the location of the foregoing in relation to special flood hazard areas. Specifically, the following information is required: a. Elevation (in relation to mean sea level) of the lowest floor (including basement) of all new and substantially improved structures; b. Elevation (in relation to mean sea level) to which any nonresidential structure shall be floodproofed; c. A certificate from a registered Colorado professional engineer or architect that the nonresidential floodproofed structure shall meet the floodproofing criteria of Section 16 -4-11 EMC, (Minimum Floodproofing Criteria); and d. Description of the extent to which any watercourse or natural drainage will be altered or relocated as a result of proposed development. 2. Decision of Floodplain Administrator is to be Based on Certain Factors. The determination of the Floodplain Administrator on each Floodplain Development Permit shall be based on applicable provisions of this Chapter and the following relevant factors: a. The danger to life and property due to flooding or erosion damage; b. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; c. The danger that materials may be swept onto other lands to the injury of others; d. The compatibility of the proposed use with existing and anticipated development; e. The safety of access to the property in times of flood for ordinary and emergency vehicles; Page 45 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 7 of 23 f. The costs of providing governmental services during and after flood conditions including maintenance and repair of streets and bridges, and public utilities and facilities such as sewer, gas, electrical and water systems; g. The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; h. The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use; and i. The relationship of the proposed use to Roadmap Englewood: 2003 Englewood Comprehensive Plan, as amended. 3. Floodplain Administrator Decisions on Permits for Public Facilities or Utility Development in a Floodway. Subject to Section 16-4-10 EMC, (Development in Floodways), the Floodplain Administrator shall act on an application for public facilities or utility development in a floodway within thirty (30) days from receiving the application. 4. Conditions Attached to Development Permits. Upon consideration of the factors listed above and the purposes of this Chapter, the Floodplain Administrator shall attach such conditions, in addition to those required by the Floodplain Development Permit, as are necessary to further the purposes of this Chapter. Such conditions may include specifications for, without limitation because of, specific enumeration, modification of waste disposal methods and facilities, landscaping, period of operation, operational controls, sureties, deed restriction, and adequate floodproofing. B. Floodplain Development Permit Criteria. 1. Structures Accessory to Open Uses. Structures accessory to open uses permitted in Section 16-4-3 EMC, (Permitted Uses), whether temporary or permanent, may be permitted only upon a determination by the Floodplain Administrator that: a. Structures will not be designed for human habitation. b. Structures will have low flood damage potential. c. The structure or structures, if permitted, will be constructed and placed on the building site so as to offer the minimum obstruction to the flow of floodwaters. 1) Whenever possible, structures will be constructed with the longitudinal axis parallel to the direction of flow of floodwaters. 2) So far as is practicable, structures will be placed so that their longitudinal axis are approximately on the same line as those of adjoining structures. 3) Structures will be firmly anchored to prevent the structure or building from floating away and thus threatening to further restrict bridge openings and other restricted sections of the stream or river. 4) All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage. 5) All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage. 6) All new construction and substantial improvements shall be constructed with electrical, heating, ventilation, plumbing, and air-conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding. Page 46 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 8 of 23 2. Other Structures, Temporary or Permanent, to be Occupied by People. Other structures, whether temporary or permanent, which are to be occupied by people, may be permitted only upon a finding by the Floodplain Administrator that: a. Such structures shall comply with Section 16-4-7 EMC, (Floodplain Development Permit); and Section 16-4-11 EMC, (Minimum Floodproofing Criteria). b. The lowest floor, including the basement, of any structure to be erected, constructed, reconstructed, or moved on or within a special flood hazard area, shall be constructed at or above a point one foot (1') above the 100-year flood elevation for the particular area and the fill shall extend at such elevation at least fifteen feet (15') beyond the limits of any structure or building erected thereon. c. All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure and to withstand hydrodynamic loads. 3. Fills or Deposition of Materials. Fills or deposition of materials may be permitted only upon a finding by the Floodplain Administrator that: a. Any fill or deposition of materials will comply with applicable sections of Chapter 16-6 EMC, (Development Standards). b. The fill or deposition of materials will have some beneficial purpose and the amount thereof will not be greater than is necessary to achieve that purpose, as demonstrated by a plan submitted by the owner showing the final dimensions of the proposed fill or other material and the use to which the filled land will be put. c. The fill or deposition of materials does not encroach on that portion of the floodplain, which would have significant and perceptible flow during the flood, and which for that reason would help convey the floodwaters. d. The fill or other materials will be protected against erosion by riprap, s trong vegetative cover, or bulkheading. 4. Storage or Processing of Materials. The storage or processing of materials that are buoyant, flammable, explosive, or in time of flooding, could be injurious to human, animal or plant life, shall be above the flood protection elevation for the particular area or floodproofed in compliance with Section 16 -4-11 EMC, (Minimum Floodproofing Criteria). Solid waste disposal facilities, such as salvage yards or areas for the dumping of refuse or the storage of non-operable vehicles, shall not be permitted. (Ord. 10-44, § 1; Ord. 8-13, § 6) 16-4-8: Floodplain Regulations. The following regulations shall apply to all uses within a special flood hazard area, notwithstanding that such uses may be specifically permitted under the terms of this Chapter: A. Flood Protection Elevation or Height. The flood protection elevation or height shall correspond to a point one foot (1') above the elevation or "flood profile" shown on or attached to the FIRM. B. Flood-Carrying Capacity. No floodplain uses shall adversely affect the efficiency of, or unduly restrict the capacity of any channel, any tributary to any main stream, drainage ditch, or any other drainage facility or systems; nor shall any watercourse be altered or restricted unless the flood-carrying capacity of the watercourse shall be maintained. C. General Standards. In all special flood hazard areas the following provisions are required for all new construction and substantial improvements: Page 47 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 9 of 23 1. All new construction or substantial improvements shall be designed (or modified) and adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy; 2. All new construction or substantial improvements shall be constructed by methods and practices that minimize flood damage; 3. All new construction or substantial improvements shall be constructed with materials resistant to flood damage; 4. All new construction or substantial improvements shall be constructed with electrical, heating, ventilation, plumbing, and air-conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding; 5. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system; 6. New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the system and discharge from the systems into floodwaters; and, 7. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. 8. All manufactured homes shall be installed using methods and practices which minimize flood damage. For the purposes of this requirement, manufactured homes must be elevated and anchored to resist flotation, collapse, or lateral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable State and local anchoring requirements for resisting wind forces. D. Specific Standards. In all special flood hazard areas where base flood elevation data has been provided as set forth in Subsections 16-4-2(B) EMC — (Basis for Establishing Special Flood Hazard Areas), 16-4- 6(B)(5) EMC, or 16-4-13(D) EMC — (Subdivision Plats), the following provisions are required: 1. Residential Construction. New construction and substantial improvement of any residential structure shall have the lowest floor (including basement), electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), elevated to one foot (1') above the base flood elevation. A registered Colorado professional engineer, architect, or land surveyor shall certify and submit the elevation of the lowest floor, including basement, to the Floodplain Administrator. 2. Nonresidential Construction. With the exception of Critical Facilities, outlined in Subsection 16-4- 8(H) EMC — (Standards for Critical Facilities), new construction and substantial improvements of any commercial, industrial or other nonresidential structure shall either have the lowest floor (including basement) electrical, heating, ventilation, plumbing, and air conditioning eq uipment and other service facilities (including ductwork), elevated to one foot (1') above the base flood elevation or together with attendant utility and sanitary facilities, be designed so that at one foot (1') above the base flood elevation, the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. A registered Colorado professional engineer or architect shall develop and/or review structural design, specifications, and plans for the construction, and shall certify that the design and methods of construction are in accordance with accepted standards of practice as outlined in this Subsection. A record of such certification which includes the specific elevation (in relation to Page 48 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 10 of 23 mean sea level) to which such structures are floodproofed shall be maintained by the Floodplain Administrator. 3. Enclosures. New construction and substantial improvements, with fully enclosed areas below the lowest floor that are usable solely for parking of vehicles, building access or storage in an area other than a basement and which are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered Colorado professional engineer or architect or meet or exceed the following minimum criteria: a. A minimum of two (2) openings having a total net area of not less than one (1) square inch for every square foot of enclosed area subject to flooding shall be provided. b. The bottom of all openings shall be no higher than one foot (1') above grade. c. Openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters. 4. Manufactured Homes. a. Zones A1-30, AH and AE: All manufactured homes that are placed or substantially imp roved on sites (i) outside of a manufactured home park or subdivision; (ii) in a new manufactured home park or subdivision; or (iii) in an expansion to an existing manufactured home park or subdivision; or (iv) in an existing manufactured home park or subdivision on which manufactured home has incurred "substantial damage" as a result of a flood, shall be elevated on a permanent foundation such that the lowest floor of the manufactured home, electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), are elevated one foot (1') above the base flood elevation and are securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement. This Subsection shall apply in an expansion to an existing manufactured home park or in an existing manufactured home park where the repair, reconstruction, or improvement of the streets, utilities and pads equals or exceeds fifty percent (50%) of the value of the streets, utilities and pads before the repair, reconstruction or improvement has commenced. b. Zones A1-30, AH, and AE: Manufactured homes, in an existing manufactured home park, not subject to the provisions of 4.a. above shall be elevated so that either: 1) The lowest floor of the manufactured home and electrical, heating, ventilation, plumbing, air conditioning equipment and other service facilities (including ductwork) are one foot (1') above the base flood elevation, or 2) The manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than thirty- six inches (36") in height above grade and be securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement. Manufactured homes shall be installed using methods and practices which minimize flood damage. For the purpose of this requirement, manufactured homes shall be elevated and anchored to resist flotation, collapse, and la teral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable State and local anchoring requirements for resisting wind forces. Any additions to the manufactured home shall be similarly anchored. Page 49 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 11 of 23 5. Recreational Vehicles. Recreational vehicles placed on sites within Zones A1-30, AH, and AE shall either: a. Be on the site for fewer than one hundred eighty (180) consecutive days, b. Be fully licensed and ready for highway use, or c. Meet the permit requirements of Subsection 16-4-7(B) EMC — (Floodplain Development Permit) and the elevation and anchoring requirements for "manufactured homes" in paragraph (4) of this Subsection. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions. E. Standards for Areas of Shallow Flooding (AO/AH Zones). Located within special flood hazard areas established in Subsection 16-4-2(A) EMC — (Applicability) are areas designated as shallow flooding. These areas have special flood hazards associated with base flood depths of one to three feet (1'—3') where a clearly defined channel does not exist and where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow; therefore, the following provisions apply: 1. Residential Structures: All new construction and substantial improvements shall have the lowest floor (including basement), electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), elevated above the highest adjacent grade at least one foot (1') above the depth number specified in feet on the FIRM (at least three feet (3') if no depth number is specified). Upon the completion of the structure, the elevation of the lowest floor, including basement, shall be certified by a registered Colorado professional engineer, architect, or land surveyor. Such certification shall be submitted to the Floodplain Administrator. 2. Non-residential Structures: With the exception of Critical Facilities, outlined in Subsection 16-4- 8(H) EMC — (Standards for Critical Facilities), all new construction and substantial improvements shall: a. Have the lowest floor (including basement), electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), elevated above the highest adjacent grade at least one foot (1') above the depth number specified in feet on the FIRM (at least three feet (3') if no depth number is specified), or; b. Together with attendant utility and sanitary facilities, be designed so that the structure is watertight to at least one foot (1') above the base flood level with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads of effects of buoyancy. Upon completion of the structure, the elevation of the lowest floor, including basement, shall be certified by a registered Colorado professional engineer or architect. Such certification shall be submitted to the Floodplain Administrator. 3. Within Zones AH or AO, adequate drainage paths around structures on slopes shall be required to guide floodwaters around and away from proposed structures. F. Alteration of a Watercourse. For all proposed developments that alter a watercourse within a special flood hazard area, the following standards apply: 1. Channelization and flow diversion projects shall appropriately consider issues of sediment transport, erosion, deposition, and channel migration and properly mitigate potential problems through the project as well as upstream and downstream of any improvement activity. A detailed Page 50 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 12 of 23 analysis of sediment transport and overall channel stability should be considered, when appropriate, to assist in determining the most appropriate design. 2. Channelization and flow diversion projects shall evaluate the residual 100-year floodplain. 3. Any channelization or other stream alteration activity proposed by a project proponent must be evaluated for its impact on the regulatory floodplain and be in compliance with all applicable Federal, State and local floodplain rules, regulations and ordinances. 4. Any stream alteration activity shall be designed and sealed by a registered Colorado professional engineer or Certified Professional Hydrologist. 5. All activities within the regulatory floodplain shall meet all applicable Federal, State and City of Englewood floodplain requirements and regulations. 6. Within the Regulatory Floodway, stream alteration activities shall not be constructed u nless the project proponent demonstrates through a Floodway analysis and report, sealed by a registered Colorado professional engineer, that there is not more that a 0.00-foot rise in the proposed conditions compared to existing Floodway conditions resulting from the project, otherwise known as a No-Rise Certification, unless the community first applies for a CLOMR and Floodway revision in accordance with Subsection 16-4-8(D) EMC — (Specific Standards). 7. Maintenance shall be required for any altered or relocated portions of watercourses so that the flood-carrying capacity is not diminished. G. Properties Removed from the Floodplain by Fill. A Floodplain Development Permit shall not be issued for the construction of a new structure or addition to an exist ing structure on a property removed from the floodplain by the issuance of a FEMA Letter of Map Revision Based on Fill (LOMR_F), unless such new structure or addition complies with the following: 1. Residential Construction: The lowest floor (including basement), electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), must be elevated to one foot (1') above the base flood elevation that existed prior to the placement of fill. 2. Nonresidential Construction: The lowest floor (including basement), electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities (including ductwork), must be elevated to one foot (1') above the Base Flood Elevation that existed prior to the placement of fill, or together with attendant utility and sanitary facility be designed so that the structure or addition is watertight to at least one foot (1') above the base flood level that existed prior to the placement of fill with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads of effects of buoyancy. H. Standards for Critical Facilities. A Critical Facility is a structure or related infrastructure, but not the land on which it is situated, as specified in Rule 6 of the Rules and Regulations for Regulatory Floodplains in Colorado, that if flooded may result in significant hazards to public health and safety or interrupt essential services and operations for the community at any time before, during and after a flood. 1. Classification of Critical Facilities. It is the responsibility of the City to identify and confirm that specific structures in the community meet the following criteria. Critical Facilities are classified under the following categories: (a) Essential Services; (b) Hazardous Materials; (c) At-risk Populations; and (d) Vital to Restoring Normal Services. Page 51 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 13 of 23 a. Essential services facilities include public safety, emergency response, emergency medical, designated emergency shelters, communications, public utility plant facilities, and transportation lifelines. These facilities consist of: (1) Public safety (police stations, fire and rescue stations, emergency vehicle and equipment storage, and emergency operation centers); (2) Emergency medical (hospitals, ambulance service centers, urgent care centers having emergency treatment functions, and non -ambulatory surgical structures but excluding clinics, doctors' offices, and non-urgent care medical structures that do not provide these functions); (3) Designated emergency shelters; (4) Communications (main hubs for telephone, broadcasting equipment for cable systems, satellite dish systems, cellular systems, television, radio, and other emergency warning systems, but excluding towers, poles, lines, cables, and conduit); (5) Public utility plant facilities for generation and distribution (hubs, treatment plants, substations and pumping stations for water, power and gas, but not including towers, poles, power lines, buried pipelines, transmission lines, distribution lines, and service lines); and (6) Air Transportation lifelines (airports, municipal and larger), helicopter pads and structures serving emergency functions, and associated infrastructure (aviation control towers, air traffic control centers, and emergency equipment aircraft hangars). (7) Exemptions. (a) Specific exemptions to this category include wastewater treatment plants (WWTP), non-potable water treatment and distribution systems, and hydroelectric power generating plants and related appurtenances. (b) Public utility plant facilities may be exempted if it can be demonstrated to the satisfaction of the City that the facility is an element of a redundant system for which service will not be interrupted during a flood. At a minimum, it shall be demonstrated that redundant facilities are available (either owned by the same utility or available through an intergovernmental agreement or other contract) and connected, the alternative facilities are either located outside of the 100-year floodplain or are compliant with the provisions of this Section, and an operations plan is in effect that states how redundant systems will provide service to the affected area in the event of a flood. Evidence of ongoing redundancy shall be provided to the City on an as-needed basis upon request. b. Hazardous materials facilities include facilities that produce or store highly volatile, flammable, explosive, toxic and/or water-reactive materials. (1) These facilities may include: (a) Chemical and pharmaceutical plants (chemical plant, pharmaceutical manufacturing); (b) Laboratories containing highly volatile, flammable, explosive, toxic and/or water-reactive materials; Page 52 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 14 of 23 (c) Refineries; (d) Hazardous waste storage and disposal sites; and (e) Above ground gasoline or propane storage or sales centers. Facilities shall be determined to be Critical Facilities if they produce or store materials in excess of threshold limits. If the owner of a facility is required by the Occupational Safety and Health Administration (OSHA) to keep a Material Safety Data Sheet (MSDS) on file for any chemicals stored or used in the work place, and the chemical(s ) is stored in quantities equal to or greater than the Threshold Planning Quantity (TPQ) for that chemical, then that facility shall be considered to be a Critical Facility. The TPQ for these chemicals is: either five hundred (500) pounds or the TPQ listed (whichever is lower) for the three hundred fifty-six (356) chemicals listed under 40 C.F.R. § 302 (2010) also known as Extremely Hazardous Substances (EHS); or ten thousand (10,000) pounds for any other chemical. This threshold is consistent with the requirements for reportable chemicals established by the Colorado Department of Health and Environment. OSHA requirements for MSDS can be found in 29 C.F.R. § 1910 (2010). The Environmental Protection Agency (EPA) regulation "Designation, Reportable Quantities, and Notification." 40 C.F.R. § 302 (2010) and OSHA regulation "Occupational Safety and Health Standards.) 29 C.F.R. § 1910 (2010) are incorporated herein by reference and include the regulations in existence at the time of the promulgation of this ordinance, but exclude later amendments to or editions of the regulations. (2) Specific exemptions to this category include: (a) Finished consumer products within retail centers and households containing hazardous materials intended for household use and agricultural products intended for agricultural use. (b) Buildings and other structures containing hazardous materials for which it can be demonstrated to the satisfaction of the local authority having jurisdiction, by hazard assessment and certification by a qualified professional (as determined by the local jurisdiction having land use authority), that a release of the subject hazardous material does not pose a major threat to the public. (c) Pharmaceutical sales, use, storage, and distribution centers that do not manufacture pharmaceutical products. These exemptions shall not apply to buildings or other structures that also function as Critical Facilities under another category outlined in this Section. c. At-risk population facilities include medical care, congregate care, and schools. (1) These facilities consist of: (a) Elder care (nursing homes); (b) Congregate care serving twelve (12) or more individuals (day care and assisted living); (c) Public and private schools (preschools, K-12 schools), before-school and after-school care serving twelve (12) or more children); d. Facilities vital to restoring normal services including government operations. Page 53 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 15 of 23 (1) These facilities consist of: (a) Essential government operations (public records, courts, jails, building permitting and inspection services, community administration and management, maintenance and equipment centers); (b) Essential structures for public colleges and universities (dormitories, offices, and classrooms only). These facilities may be exempted if it is demonstrated to the City that the facility is an element of a redundant system for which service will not be interrupted during a flood. At a minimum, it shall be demonstrated that redundant facilities are available (either owned by the same entity or available through an intergovernmental agreement or other contract), the alternative facilities are either located outside of the 100-year floodplain or are compliant with this ordinance, and an operations plan is in effect that states how redundant facilities will provide service to the affected area in the event of a flood. Evidence of ongoing redundancy shall be provided to the City on an as-needed basis upon request. (2) Protection for Critical Facilities. All new and substantially improved Critical Facilities and new additions to Critical Facilities located within the special flood hazard area shall be regulated to a higher standard than structures not determined to be Critical Facilities. For the purposes of this ordinance, protection shall include one (1) of the following: (a) Location outside the special flood hazard area; or (b) Elevation of the lowest floor or floodproofing of the structure, together with attendant utility and sanitary facilities, to at least two feet (2') above the Base Flood Elevation. (3) Ingress and Egress for New Critical Facilities. New Critical Facilities shall, when practicable as determined by the City, have continuous non-inundated access (ingress and egress for evacuation and emergency services) during a 100-year flood event. (Ord. 10-44, § 1; Ord. 8-13, § 6) 16-4-9: (Reserved) (Ord. 8-13, § 6) 16-4-10: Development in Floodways. Floodways are administrative limits and tools used to regulate existing and future floodplain development. The State of Colorado has adopted Floodway standards that are more stringent than the FEMA minimum standard (see definition of Floodway in Section 16-4-16 EMC — (Floodplain Definitions). Located within special flood hazard areas established in Subsection 16-4-2(A) EMC — (Applicability) are area designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of floodwaters that carry debris, potential projectiles, and erosion potential, the following provisions shall apply: A. Prohibit encroachments, including fill, new construction, substantial improvements, and other development unless it has been demonstrated through hydrologic and hydraulic analyses performed by a registered Colorado professional engineer in accordance with standard engineering practice that Page 54 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 16 of 23 the proposed encroachments shall not result in any increase in flood levels (a No-Rise Certification is required) during the occurrence of the base flood discharge. B. If Subsection A., above, is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of this Section. 1. The Floodplain Administrator shall act on an application in the manner above described within thirty (30) days from receiving the application. C. Under the provisions of 44 CFR Chapter 1, Section 65.12, of the National Flood Insurance Regulations, a community may permit encroachments within the adopted regulatory floodway that would result in an increase in Base Flood Elevations, provided that the community first applies for a CLOMR and floodway revision through FEMA. (Ord. 10-44, § 1; Ord. 8-13, § 6) 16-4-11: Minimum Floodproofing Criteria. A. All new construction and substantial improvements of non-residential structures within zones A-AE on the FIRM that do not have the lowest floor, including basement, elevated to or above th e base flood level shall be floodproofed. All floodproofed structures, together with attendant utility and sanitary facilities, shall be so designed that below the base flood level, the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. The Floodplain Administrator shall require that the applicant submit a plan or document certified by a registered Colorado professional engineer that the floodproofing measures are consistent with the flood protection elevation for the particular area. B. Floodproofing measures include the following: 1. Anchorage to resist flotation and lateral movement. 2. Installation of watertight doors, bulkheads and shutters. 3. Reinforcement of walls to resist water pressures. 4. Use of waterproof paints, membranes, or mortars to reduce seepage of water through walls. 5. Addition of mass or weight to structures to resist flotation. 6. Installation of pumps to lower water levels in structures. 7. New and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system. 8. New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the systems and discharge from the systems into the floodwaters. 9. Pumping facilities for subsurface drainage systems for buildings to relieve external foundation wall and basement floor pressures. 10. Construction to resist rupture or collapse caused by water pressure or floating debris. 11. Cutoff valves on sewer lines or the elimination of gravity flow basement drains. 12. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. 13. Other floodproofing measures certified by a registered Colorado professional engineer to be consistent with the flood protection elevation for the particular area. Page 55 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 17 of 23 C. Where a non-residential structure is intended to be made watertight below the base flood level. 1. A registered Colorado professional engineer shall develop and/or review structural design, specifications, and plans for the construction, and shall certify that the design and methods of construction are in accordance with accepted standards of practice for meeting the applicable provisions of Section 16-4-7 EMC, "Floodplain Development Permit." (Ord. 10-44, § 1; Ord. 8-13, § 6) 16-4-12: Special Flood Hazard Area Amendments. The boundaries of the Special Flood Hazard Areas shall be subject to periodic review and shall be amended in the manner provided by law, to conform to any revised, corrected or additional hydrological data available from Federal, State or regional agencies or from a consulting engineer retained by the City. (Ord. 10-44, § 1; Ord. 8-13, § 6) 16-4-13: Subdivision Plats. A. All subdivision proposals including the placement of manufactured home parks and subdivisions shall be designed to minimize flood damage. B. All subdivision proposals including the placement of manufactured home parks and subdivisions shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage. C. All subdivision proposals including the placement of manufactured home parks and subdivisions shall have adequate drainage provided to reduce exposure to flood hazards. D. Base flood elevation data shall be provided for subdivision proposals and other proposed developments including the placement of manufactured home parks and subdivisions that contain at least fifty (50) lots or five (5) acres, whichever is less, if not otherwise provided pursuant to Subsections 16 -4-2(B) EMC — (Basis for Establishing Special Flood Hazard Areas) and 16-4-5(B) EMC — (Floodplain Administrator Duties and Responsibilities). E. All proposals for the development of subdivisions including the placement of manufactured home parks and subdivisions shall meet requirements of Section 16-4-7 EMC — (Floodplain Development Permit). (Ord. 10-44, § 1; Ord. 8-13, § 6) 16-4-14: Floodplain Appeals and Variances. A. General. The Planning and Zoning Commission shall hear and decide appeals and requests for variances from the requirements of this Chapter. 1. Appeals and floodplain variance requests shall be processed pursuant to the general zoning appeals and variances requirements of 16-2-18 EMC — (Appeals) and 16-2-16 EMC, (Variances), respectively. 2. Those aggrieved by the final decision of the Commission may appeal such decision by appropriate legal action to a court of record having jurisdiction. Such appeal shall be filed no more than thirty (30) days from the date of the Commission's final decision. Page 56 of 482 Created: 2022-10-13 14:56:21 [EST] (Supp. No. 56) Page 18 of 23 B. Appeals. The Commission shall hear and decide appeals only when it is alleged there is an error in any requirement, decision, or determination made by the Floodplain Administrator in the enforcement or administration of this Chapter. C. Variances. 1. Any applicant to whom a variance is granted to build the lowest floor elevation below the base flood elevation shall be given written notice that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. 2. Variances may be issued for new construction and substantial improvements to be erected on a lot of one-half (½) acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing the relevant items 1—11 in Subsection 16-4- 6(B)(2)(d) EMC have been fully considered. As the lot size increases beyond one-half (½) acre, the technical justification required for issuing the variance increases. 3. Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result. 4. Variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. 5. In passing upon a Floodplain Variance application, the Commission shall consider all technical evaluations, all relevant factors, and standards specified in other sections of this Title. 6. Criteria for Considering a Floodplain Variance. The Commission shall grant a Floodplain Variance only upon a showing of good and sufficient cause and determination that: a. The variance is the minimum necessary, considering the flood hazard, to afford relief; b. Failure to grant the Floodplain Variance would result in exceptional hardship to the applicant; and c. The granting of a Floodplain Variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws. 7. Upon consideration of the above and the intent of this Chapter, the Commission may attach such conditions to the granting of variances as it deems necessary to further the purpose and objectives of this Chapter. (Ord. 10-44, § 1; Ord. 8-13, § 6) 16-4-15: Enforcement. No structure or land shall hereafter be constructed, located, extended, converted, or altered without being in full compliance with the terms of this Chapter and other applicable regulations. Enforcement of the provisions of this Chapter shall be pursuant to Chapter 16-10 EMC, (Enforcement and Penalties). (Ord. 10-44, § 1; Ord. 8-13, § 6) Page 57 of 482 Created: 2022-10-13 14:56:22 [EST] (Supp. No. 56) Page 19 of 23 16-4-16: Floodplain Definitions. The following definitions pertain specifically to Chapter 16-4 EMC, (Floodplain Regulations ) and are intended to be used only in the regulation of special flood hazard areas as identified in this Chapter. For the purposes of floodplain regulation, these definitions supersede the same terms as defined in 16-11-2 EMC, (Definition of Word, Term, and Phrases) of this Title. 100-Year Flood: A flood having a recurrence interval that has a one-percent (1%) chance of being equaled or exceeded during any given year (1-percent-annual-chance flood). The terms "one-hundred-year flood" and "one percent chance flood" are synonymous with the term "100-hundred flood." The term does not imply that the flood will necessarily happen once every one-hundred years. 100-Year Floodplain: The area of land susceptible to being inundated as a result of the occurrence of a one - hundred-year flood. 500-Year Flood: A flood having a recurrence interval that has a 0.2-percent chance of being equaled or exceeded during any given year (0.2-percent-chance-annual-flood). The term does not imply that the flood will necessarily happen once every five-hundred years. 500-Year Floodplain: The area of land susceptible to being inundated as a result of the occurrence of a five- hundred-year flood. Addition: Any activity that expands the enclosed footprint or increases the square footage of an existing structure. Area of Shallow Flooding: A designated AO, AH, or VO zone on the City's Flood Insurance Rate Map (FIRM) with a one percent (1%) chance or greater annual chance of flooding to an average depth of one to three feet (1'— 3') where a clearly defined channel does not exist, where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow. Base Flood: A flood having a one percent (1%) chance of being equaled or exceeded in any given year. Base Flood Elevation (BFE): The elevation shown on a FEMA Flood Insurance Rate Map for Zones AE, AH, A1- A30, AR, AR/A, AR/AE, AR/A1-A30, AR/AH, AR/AO, V1-V30, and VE that indicates the water surface elevation resulting from a flood that has a one percent (1%) chance of equaling or exceeding that level in any given year. Basement: Any area of a building having its floor sub-grade (below ground level) on all sides. Channel: The physical confine of stream or waterway consisting of a bed and stream banks, existing in a variety of geometries. Conditional Letter of Map Revision (CLOMR): FEMA's comment on a proposed project, which does not revise an effective floodplain map, that would, upon construction, affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodplain. Critical Facility: A structure or related infrastructure, but not the land on which it is situated, as specified in Subsection 16-4-8(H) EMC — (Standards for Critical Facilities) that if flooded may result in significant hazards to public health and safety or interrupt essential services and operations for the community at any time before, during and after a flood. Development: Any manmade change in improved and unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials. Digital Flood Insurance Rate Map (DFIRM): FEMA digital floodplain map. These digital maps serve as "regulatory floodplain maps" for insurance and floodplain management purposes. Page 58 of 482 Created: 2022-10-13 14:56:22 [EST] (Supp. No. 56) Page 20 of 23 Elevated Building: For insurance purposes, a nonbasement building which has its lowest elevated floor raised above ground level by (i) foundation walls, shear walls, posts, piers, pilings, columns, or shear walls p arallel to the flow of the water and (ii) adequately anchored so as not to impair the structural integrity of the building during a flood of up to the magnitude of the base flood. In the case of Zones A1-30, AE, A, A99, AO, AH, B, C, X, and D, "elevated building" also includes a building elevated by means of fill or solid foundation perimeter walls and openings sufficient to facilitate the unimpeded movement of floodwaters. Existing Construction: For the purposes of determining flood insurance rates, struc tures for which the "start of construction" commenced before the effective date of the FIRM or before January 1, 1975, for FIRMs effective before that date. "Existing construction" may also be referred to as "existing structures." Existing Manufactured Home Park or Subdivision: A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before the effective date of the floodplain regulations adopted by the City. Expansion to an Existing Manufactured Home Park or Subdivision: The preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads). FEMA: Federal Emergency Management Agency, the agency responsible for administering the National Flood Insurance Program. Flood (or Flooding): A general and temporary condition of partial or complete inundation of normally dry land areas from: (A) The overflow of inland or tidal waters, and/or (B) The unusual and rapid accumulation or runoff of surface waters from any source. Flood Damage Potential: The susceptibility of a specific land use at a particular location to damage by flooding, and the potential of the specific land use to increase off-site flooding or flood related damages. Flood Insurance Rate Map (FIRM): The official map on which the Federal Insurance Administration has delineated both special flood hazard areas and the risk premium zones applicable to the City of Englewood. Flood Insurance Study (FIS): The official report provided by the Federal Insurance Administration that includes flood profiles, the flood boundary-floodway map, and the water surface elevation of the base flood. Flood Profile: A graph or longitudinal profile showing the relationship of the water surface elevation of a flood event to location along a stream or river. Flood Protection Elevation: An elevation one foot (1') above the elevation of "flood profile" of the 100-year flood under existing channel and floodplain conditions. It is one foot (1') above the elevation of the flood for a special flood hazard area as shown on the City's official Flood Insurance Rate Maps maintained in the office of the Community Development Department. Floodplain or Flood-Prone Area: Any land area susceptible to being inundated as the result of a flood, including the area of land over which floodwater would flow from the spillway of a reservoir. Floodplain development permit: A permit required before construction or development begins within any special flood hazard area (SFHA). If FEMA has not defined the SFHA within a community, the community shall require permits for all proposed construction or other development in the community including the placement of manufactured homes, so that it may determine whether such construction or other development is proposed within flood-prone areas. Permits are required to ensure that proposed development projects meet the requirements of the NFIP and this floodplain management ordinance. Page 59 of 482 Created: 2022-10-13 14:56:22 [EST] (Supp. No. 56) Page 21 of 23 Floodplain Management: The operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works and floodplain regulations. Flood-prone Area: Any land area susceptible to being inundated by water from any source (see definition of flooding). Floodproofing: Any combination of structural and nonstructural additions, changes, or adjustments to structures, primarily for the reduction or elimination of flood damage to lands, water, and sanitary facilities, structures, and their contents. Floodway: The channel of a river or other watercourse and adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. The Colorado statewide standard for the designated height to be used for all newly studied reaches shall be one-half foot (½'). Letters of Map Revision to existing floodway delineations may continue to use the floodway criteria in place at the time of the existing floodway delineation. Freeboard: The vertical distance in feet above a predicted water surface elevation intended to provide a margin of safety to compensate for unknown factors that could contribute to flood heights greater than the height calculated for a selected size flood such as debris blockage of bridge openings and the increased runoff due to urbanization of the watershed. Highest Adjacent Grade: The highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. Historic Structure: Any structure that is: (A) Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register; (B) Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district; (C) Individually listed on a State inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or (D) Individually listed on a local inventory or historic places in communities with historic preservation programs that have been certified either: 1. By an approved state program as determined by the Secretary of the Interior; or 2. Directly by the Secretary of the Interior in states without approved programs. Letter of Map Revision (LOMR): FEMA's official revision of an effective Flood Insurance Rate Map (FIRM), or Flood Boundary and Floodway Map (FBFM), or both. LOMRs are generally based on the implementation of physical measures that affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway, the effective Base Flood Elevation (BFEs), or the Special Flood Hazard Area (SFHA). Letter of Map Revision Based on Fill (LOMR-F): FEMA's modification of the Special Flood Hazard Area (SFHA) shown on the Flood Insurance Rate Map (FIRM) based on the placement of fill outside the existing regulatory floodway. Lowest Floor: The lowest floor of the lowest enclosed area (including basement). Any floor used for living purposes which includes working, storage, sleeping, cooking and eating, or recreation or any combination thereof. This includes any floor that could be converted to such a use such as a basement or crawl space. The lowest flo or is Page 60 of 482 Created: 2022-10-13 14:56:22 [EST] (Supp. No. 56) Page 22 of 23 a determinate for the flood insurance premium for a building, home or business. An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access, or storage, in an area other than a basement area, is not considered a building's lowest floor, provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of Section 60.3 of the National Flood Insurance Program regulations. Manufactured Home: A structure transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. The term "manufactured home" does not include a "recreational vehicle". Manufactured Home Park or Subdivision: A parcel (or contiguous parcels) of land divided into two (2) or more manufactured home lots for rent or sale. Mean Sea Level: For purposes of the National Flood Insurance Program, the National Geodetic Vertic al Datum (NGVD) of 1988 or other datum, to which base flood elevations shown on the City's Flood Insurance Rate Map are referenced. National Flood Insurance Program (NFIP): A Federal program that authorizes the sale of federally subsidized flood insurance in participating communities. Natural Drainage: The pattern of surface and stormwater drainage from a particular site before the construction or installation of improvements or prior to any regrading. New Construction: For the purpose of determining insurance rates, structures for which the "start of construction" commenced on or after the effective date of an initial FIRM or after December 31, 1974, whichever is later, and includes any subsequent improvements to such structures. For floodplain management purposes, "new construction" means structures for which the "start of construction" commenced on or after the effective date of a floodplain regulation adopted by the City and includes any subsequent improvements to such structures. New Manufactured Home Park or Subdivision: A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of floodplain management regulations adopted by a community. No-Rise Certification: A record of the results of an engineering analysis conducted to determine whether a project will increase flood heights in a floodway. A No-Rise Certification must be supported by technical data and signed by a registered Colorado professional engineer. The supporting technical data should be based on the standard step-backwater computer model used to develop the 100-year floodway shown on the Flood Insurance Rate Map (FIRM) or Flood Boundary and Floodway Map (FBFM). Recreational Vehicle: A vehicle which is: (A) Built on a single chassis; (B) Four hundred (400) square feet or less when measured at the largest horizontal projections; (C) Designed to be self-propelled or permanently towable by a light duty truck; and (D) Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use. Special Flood Hazard Area: The land in the floodplain within the City of Englewood subject to a one percent (1%) or greater chance of flooding in any given year, i.e. the 100-year floodplain. Start of Construction: Includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, or other improvement was within one hundred eighty (180) days of the permit date. The actual start means either the first Page 61 of 482 Created: 2022-10-13 14:56:22 [EST] (Supp. No. 56) Page 23 of 23 placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or n ot that alteration affects the external dimensions of the building. Structure: A walled and roofed building, including a gas or liquid storage tank that is principally above ground, as well as a manufactured home. Substantial Damage: Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed fifty percent (50%) of the market value of the structure before the damage occurred. Substantial Improvement: Any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds fifty percent (50%) of the market value of the structure before "start of construction" of the improvement. This includes structures which have incurred "substantial damage", regardless of the actual repair work performed. The term does not, however, include either: (A) Any project for improvement of a structure to correct existing violations of State or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary conditions, or (B) Any alteration of a "historic structure", provided that the alteration will not preclude the structure's continued designation as a "historic structure." Violation: The failure of a structure or other development to be fully compliant with the City's floodplain regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in NFIP Standards Sections 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), or (e)(5), as amended, is presumed to be in violation until such time as that documentation is provided. Water Surface Elevation: The height, in relation to the National American Vertical Datum (NAVD) of 1988, (or other datum, where specified) of floods of various magnitudes and frequencies in the floodplain. Watercourse: A channel, natural depression, slough, artificial channel, gulch, arroyo, stream, creek, po nd, reservoir, or lake in which storm runoff and floodwater flows either regularly or infrequently. This includes major drainageways for carrying urban storm runoff. (Ord. 10-44, § 1; Ord. 8-13, § 6) Page 62 of 482 City Council Work SessionNovember 21, 2022Initial Draft / Status UpdateSustainability & Community Design (Chapters 6, 8, and 10) Page 63 of 482 Project StatusPage 64 of 482 What's working and what needs improvement?July – September – building to initial draftTechnical Provisions• General provisions and procedures• Notice & Hearings• Administrative approvals• Flexibility criteria and processesHousing & Neighborhoods• Range of options refined to districts•Practical & technical issues• Utilities, platting, permits and design, review• Coordination with DOLA grant studyMobility, Access, & Public Realm Design• Street design• Coordination with public works engineering & technical specs• Access, parking, and parking design• Interim strategiesSustainability & Community Design• Building code coordination• EV parking• Xeric landscape• Site-scale renewable energy• Mixed-use & non-residential designJuly 29August 5 August 19September 9 Technical & Steering CommitteeOctober 4October 4November 8October 18Steering CommitteeTechnical CommitteePage 65 of 482 Draft FrameworkProposed Reorganization – Title 16Technical Committee Meetings July – early SeptemberCh. 1 –General ProvisionsCh. 2 –Applications & ProceduresCh. 3 –Community Design & Subdivision StandardsCh. 4 –Zone Districts & UsesCh. 5 –Residential Development & Design StandardsCh. 6 –Nonresidential Development & Design StandardsCh. 7 –Access & ParkingCh. 8 –Landscape DesignCh. 9 -Signs Ch. 10 –Floodplain RegulationsCh. 11 –TelecommunicationsCh. 12 –Historic PreservationCh. 13 –DefinitionsProceduresHousing & Neighborhood DesignStreets & Public Realm DesignSustainability + General Community DesignPage 66 of 482 Draft FrameworkProposed Reorganization – Title 16Technical Committee Meetings July – early SeptemberCh. 1 –General ProvisionsCh. 2 –Applications & ProceduresCh. 3 –Community Design & Subdivision StandardsCh. 4 –Zone Districts & UsesCh. 5 –Residential Development & Design StandardsCh. 6 –Nonresidential Development & Design StandardsCh. 7 –Access & ParkingCh. 8 –Landscape DesignCh. 9 -Signs Ch. 10 –Floodplain RegulationsCh. 11 –TelecommunicationsCh. 12 –Historic PreservationCh. 13 –DefinitionsProceduresHousing & Neighborhood DesignStreets & Public Realm DesignSustainability + General Community DesignSeptember 9October ##Page 67 of 482 ProceduresChapter 6Nonresidential Development & Design16-6-1 Intent16-6-2 Applicability16-6-3 Development & Dimension Standards16-6-4 Frontage Design16-6-5 Building Design16-6-6 Open Space Design16-6-7 Sustainable Sites & Building GuidelinesKey ChangesMaintain current development / dimension standards as basis of MU-B-, M-, and I- districts (16-6-3 / Table)•Change “build to” range from 0’-10’ to 5’ – 15’ (staff update)•Convert required landscape area & lot coverage to an open space requirement; coordinate with public / common (16-3-5)•Use MU-R-3-B standards as default for residential projects in nonresidential districtsComprehensive but simplified design strategy•Frontages (16-6-4), Buildings (16-6-5), Open space (16-6-6)•Context application – pedestrian oriented to car oriented•Objective default standards with flexible strategies and techniques•Coordinate with administrative adjustmentsSustainable site and building guidelines (16-6-7)Page 68 of 482 Three Simple Rules of Urban Design1. Build to the Sidewalk2. Make the Building Front “Permeable”3. Prohibit Parking in Front of the BuildingPage 69 of 482 Current StandardsBuilding placement (table 6-1.1 / 6-1.1a)Massing and scale (over 60’ high; 75’ length)Frontage relief / alternatives (MU-B-2)Minimum Lineal Street Frontage (M- districts)Transparency (M- districts)Required entrances (M-districts)Driveway limits, nonresidential On-site Pedestrian & Bicycle AccessMaterial, texture, color changes (large retail)Roofs (slope, overhang, screening – large retail)Entryways (large retail)Back and side facades (large retail)Central features & community spaces (large retail)Frontage Types & DesignFront Building LineRequired Extent of FBLAccess Width / SpacingParking Extent / LocationBuilding DesignMassing / Blank Wall LimitsFront Entry Features TransparencyMaterials & DetailsOpen Space Types & DesignCivic / Social SpacesStreetscape & Frontage LandscapeBuilding-related amenitiesBuffers & ScreeningOtherPage 70 of 482 Frontage BFrontage AFrontage CFrontage DFront Building LineRequired Front Building LineAccess Spacing and WidthParking Location & ExtentLandscape (or streetscape)Frontage DesignPage 71 of 482 Wall Plane / Blank Wall LimitsFront Entry FeaturesTransparency (1st& Upper stories) Materials0’ – 10’Building Design11’ – 25’26’ +Page 72 of 482 Open SpaceSocial SpacesLandscape / ScreensBuilding SpacesPublic / CommonPage 73 of 482 Energy Efficient Buildings •Passive heating & cooling (building placement / landscape) •Green building (coordination with building code)Urban Heat Island•Reduce paved surfaces (parking)•Shade pavement / roofs (landscape)•Cool materials / colors (coordination with building code)Site-scale Renewable Energy •Permitted “accessory use” (Chapter 4) (landscape / building design)Water Efficiency & Quality•Xeric guidelines (landscape standards)•Nonportable water (coordination with building code)•Quality, quantity, and rate BMPsWaste Reduction / Reuse Facilities•Site design (landscape / access & circulation)EV-ready •Base requirement (parking; coordination with building code)Sustainable Site & Building GuidelinesHow should the UDC address specific topics?Require: Make the “best practice” the minimum standard Promote: Incentives for selecting the “best practice”Enable: Remove barriers to implementing “best practices”Coordinate: Leverage non-development code issuesSeveral issues already addressed by other larger topics and issues (multi-modal – walk, bike, transit streets & development patterns; landscape and open spacePage 74 of 482 ProceduresChapter 8Landscape Design16-8-1 Intent16-8-2 Applicability16-8-3 Landscape Requirements16-8-4 Buffer & Screening16-8-5 Plant Specifications16-8-6 Fences & WallsKey ChangesChange from required landscape area (RLA) to standards for 5 key site elements (16-8-3 / Table)•Current RLA is a flat percentage of all sites•Site elements approach based more on context•Plant requirements should be comparable but geared more to specific design or performance goalsRevised buffer standards to create greater distinctions (3 types) (16-8-4)Improved xeric guidance (16-8-5.E)•Up to 50% non-living (was 30%) (see base table)•Improved xeric guidance as a baseline for all landscape designReorganized and simplified fence and wall approach, with no intended or significant substantive changes (16-8-6)Page 75 of 482 Frontages & FoundationsParking AreasStreetscapeBuffers & ScreensPage 76 of 482 ProceduresChapter 10Floodplain Regulations16-10-1 Intent16-10-2 Applicability16-10-3 - 16-10-## TBD (reorganization of current sections)Key ChangesNo substantive changes anticipated•Organize to correspond to code update•Clarify with “plain language” approachPublic Works reviewing for any “quick fix” / clean up itemsPage 77 of 482 Draft ScheduleSteering Committee Meetings UPDATED– Tentative; for DiscussionTechnical ProvisionsMobility, Access, & Public Realm DesignHousing & Neighborhood DesignSustainability & General Community Design10/410/1811/15Other Provisions11/22 or11/29Chapter 1 – General ProvisionsChapter 2 – Applications & ProceduresChapter 3 - Community Design & Subdivision StandardsChapter 7 – Access & ParkingChapter 6 – Nonresidential Development & Design StandardsChapter 8 – Landscape DesignChapter 10 – Floodplain RegulationsChapter 9 – SignsChapter 11 – TelecommunicationsChapter 12 – Historic PreservationChapter 13 - DefinitionsExecutive SummaryFramework & Section MapsDraft Code SectionsReview Tools & OptionsCC Work Sessions – 11/7, 11/14, 11/21, 12/5 Chapter 4 – Zone Districts & UsesChapter 5 – Residential Development & Design StandardsChapter 7 – Access & Parking (revisited)Chapter 8 – Landscape Design (revisited) Page 78 of 482 DiscussionPage 79 of 482 Discussion Reference Slides – If Needed Page 80 of 482 Conventional Approach: A Collection of RegulationsRegulationApplicationPurposeDesign Based Approach: A System of How We Build, and WhyIntentDesign ObjectiveStandardsDecision CriteriaAlternativeContextExceptionVariancePlan / PolicyVariancePlan / PolicyFlexibility + CertaintyPage 81 of 482 Intent + Design Objectives (rationale / outcome)Context (refine applicability)Standard (objective / measurable)Design Strategies & Techniques (options )Exceptions + Administrative Adjustments(subjective / discretionary)Flexibility + CertaintyChapter 2 – Applications & Procedures16-2-10 Administrative AdjustmentsA. ApplicabilityB. Review CriteriaC. Review ProcedureD. Effect of DecisionChapter 6 – Nonresidential Development & Design16-6-4 Frontage Design16-6-5 Building Design16-6-6 Open Space Design16-6-7 Sustainable Site & Building GuidelinesChapter 8 – Landscape16-8-3 Required Landscape16-8-4 Buffers & Screening16-8-5 Plant Specifications16-8-6 Fences & WallsPage 82 of 482 16-6-4 Frontage DesignA. Design ObjectivesB. Frontage Design StandardsC. Front Building LineD. Access & Parking LimitsE. LandscapeF. Administrative AdjustmentsPage 83 of 482 16-6-5 Building DesignA. Design ObjectivesB. Building Design StandardsC. Massing & ModulationD. Entry FeaturesE. TransparencyF. MaterialsG. Administrative AdjustmentsPage 84 of 482 Landscape Design16-8-3 Landscape RequirementsA. Design ObjectivesB. Plant RequirementsC. Credits for Existing VegetationD. Design & LocationE. Administrative Adjustments16-8-4 Buffers & ScreeningA. Design ObjectivesB. Buffer Planting (Types)C. General ScreeningD. Administrative Adjustments16-8-5 Plant SpecificationsA. Design ObjectivesB. SpeciesC. Plant SpecificationsD. Tree DiversityE. Xeric GuidelinesF. Stormwater TreatmentG. Planting & MaintenanceH. Administrative AdjustmentsPage 85 of 482 Open SpaceSocial SpacesLandscape / ScreensBuilding SpacesPublic / CommonPage 86 of 482 Landscape DesignSite ElementsBuffers & ScreensFrontage & FoundationPage 87 of 482 Frontage APage 88 of 482 Frontage BPage 89 of 482 Frontage CPage 90 of 482 Frontage DPage 91 of 482 MINUTES City Council Regular Meeting Monday, November 7, 2022 1000 Englewood Parkway - 2nd Floor Council Chambers 6:00 PM 1 Study Session Topic a) Director of Finance Jackie Loh was present to review the Monthly Financial Report. b) Director of Community Development Brad Power and Planning Manager Bryan Isham was present to give an update on CodeNext technical provision within Title 16. 2 Call to Order The regular meeting of the Englewood City Council was called to order by Mayor Sierra at 7:11 p.m. 3 Pledge of Allegiance Mayor Sierra led the Pledge of Allegiance 4 Roll Call COUNCIL PRESENT: Mayor Othoniel Sierra Mayor Pro Tem Steven Ward Council Member Joe Anderson Council Member Chelsea Nunnenkamp Council Member Rita Russell Council Member Jim Woodward COUNCIL ABSENT: Council Member Cheryl Wink STAFF PRESENT: City Manager Lewis Deputy City Attorney McDermott Senior Deputy City Clerk McKinnon Deputy City Clerk Harkness Assistant City Manager Dodd Director of Finance Loh Director of Community Development Power Director of Parks, Recreation, Library, and Golf Underhill Deputy Director Hoos, Public Works Page 1 of 9 Draft Page 92 of 482 City Council Regular November 7, 2022 Deputy Director of Business Solutions and Engineering Stone, Utilities Economic Development Manager Hollingsworth, Community Development Budget Administrator Nolan, Finance Department Code Enforcement Manager Lewis, Police Department Lead Code Enforcement Officer Futro, Police Department Code Enforcement Officer Kenny, Police Department Code Enforcement Officer Faseruk, Police Department Code Enforcement Officer Faricy, Police Department Park Ranger and Code Enforcement Officer, Kemberling, Police Department Network Administrator Hunnicutt, Information Technology System Administrator Munnell, Information Technology Sr. Tech Support Analyst Vinson, Information Technology Officer Smith, Police Department 5 Consideration of Minutes of Previous Session a) Minutes of the Regular City Council Meeting of October 17, 2022. Moved by Council Member Rita Russell Seconded by Council Member Chelsea Nunnenkamp APPROVAL OF THE MINUTES OF THE REGULAR CITY COUNCIL MEETING OF OCTOBER 17, 2022. AS AMENDED. For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp (Seconded By) x Joe Anderson x Steven Ward x Rita Russell (Moved By) x Jim Woodward x 6 0 0 Motion CARRIED. 6 Appointments, Communications, Proclamations, and Recognition a) Englewood Code Enforcement was recognized for receiving the Code Enforcement Division of the Year award and Code Enforcement Manager Dave Lewis received the Code Enforcement Supervisor Of The Year award • Code Enforcement Manager Dave Lewis • Lead Code Enforcement Officer Alexander Futro • Code Enforcement Officer Stacy Kenny • Code Enforcement Officer Caroline Faseruk • Code Enforcement Officer Tracie Faricy • Park Ranger and Code Enforcement Officer Sean Kemberling Page 2 of 9 Draft Page 93 of 482 City Council Regular November 7, 2022 7 Recognition of Scheduled Public Comment a) Marcia McGilley addressed Council regarding an IGA (economic development partnership) with the Aurora-South Metro Small Business Development Center. b) Kelly McCloskey, an Englewood resident, addressed Council to thank the Englewood Police and Victims Advocate for their quick response and compassion. c) PJ Kolnik, an Englewood resident, addressed Council regarding Code Next. 8 Recognition of Unscheduled Public Comment a) Nathan Hoag, an Englewood resident, addressed Council regarding the Englewood Christmas store. b) Dan Jacobson, an Englewood resident, addressed Council regarding the Englewood Can Group and Code Next. c) Gary Kozecek, an Englewood resident, addressed Council regarding new apartment development. Council Member Anderson responded to Public Comment. The meeting recessed at 7:53 p.m. for a break. The meeting reconvened at 8:04 p.m. with six Council Members present, Member Wink was absent. 9 Consent Agenda Items Moved by Council Member Ward seconded by Council Member Nunnenkamp to approve Consent Agenda Items 9(a)(i-ii), 9(b)(i-iii), and 9(c)(i). a) Approval of Ordinances on First Reading i) CB 68 - Repealing the Shoplifting and Price Switching Ordinances from Offenses Code COUNCIL BILL NO. 68, INTRODUCED BY COUNCIL MEMBER WARD A BILL FOR AN ORDINANCE AMENDING TITLE 7, CHAPTER 6 ARTICLE F, OF ENGLEWOOD MUNICIPAL CODE REGARDING SHOPLIFTING AND PRICE SWITCHING. ii) CB 71 - Approval of 3-year IGA with the Aurora-South Metro Small Business Development Center Page 3 of 9 Draft Page 94 of 482 City Council Regular November 7, 2022 COUNCIL BILL NO. 71, INTRODUCED BY COUNCIL MEMBER WARD A BILL FOR AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ENGLEWOOD AND AURORA-SOUTH METRO SMALL BUSINESS DEVELOPMENT CENTER TO PERFORM SMALL BUSINESS SEMINARS, ONE-ON-ONE CONSULTING, AND WORKSHOPS IN THE CITY OF ENGLEWOOD. b) Approval of Ordinances on Second Reading. i) CB 62 - Amending the Englewood Municipal Code regarding Definition of Pawnbroker ORDINANCE NO. 57, SERIES OF 2022 (COUNCIL BILL NO. 62, INTRODUCED BY COUNCIL MEMBER NUNNENKAMP) AN ORDINANCE AMENDING TITLE 5, CHAPTER 15, SECTION 5-15- 1 OF ENGLEWOOD MUNICIPAL CODE REGARDING THE DEFINITION OF PAWNBROKER. ii) CB 65 - Amending the Englewood Municipal Code regarding Trees and Shrubs. ORDINANCE NO. 58, SERIES OF 2022 (COUNCIL BILL NO. 65, INTRODUCED BY COUNCIL MEMBER ANDERSON) AN ORDINANCE AMENDING ENGLEWOOD MUNICIPAL CODE TITLE 11 CHAPTER 5 AND EMC § 15-1-2, REGARDING TREES TO ADOPT MODEL CODE TO ENSURE PROTECTION OF CITY TREES AND MOVE CORRECTION OF TREE VIOLATIONS TO NUISANCE ABATEMENT CODES. iii) CB 66 - IGA for Pedestrian Improvements at the Malley Senior Recreation Center. ORDINANCE NO. 59, SERIES OF 2022 (COUNCIL BILL NO.66, INTRODUCED BY COUNCIL MEMBER NUNNENKAMP) AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT (IGA) BETWEEN THE DENVER REGIONAL COUNCIL OF GOVERNMENTS AND THE CITY OF ENGLEWOOD, COLORADO FOR MALLEY SENIOR CENTER SIDEWALK IMPROVEMENTS. c) Resolutions and Motions i) Resolution adopting the Economic Development Strategic Plan RESOLUTION NO. 35, SERIES OF 2022 Page 4 of 9 Draft Page 95 of 482 City Council Regular November 7, 2022 A RESOLUTION ADOPTING THE ECONOMIC DEVELOPMENT STRATEGIC PLAN. Moved by Council Member Steven Ward Seconded by Council Member Chelsea Nunnenkamp Motion to approve Consent Agenda items 9(a)(i-ii), 9(b)(i-iii), and 9(c)(i). For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp (Seconded By) x Joe Anderson x Steven Ward (Moved By) x Rita Russell x Jim Woodward x 6 0 0 Motion CARRIED. 10 Public Hearing Items No public hearing was scheduled before Council. 11 Ordinances, Resolutions and Motions a) Approval of Ordinances on First Reading i) CB 39 - Amending Englewood Municipal Code regarding animal impoundment. Moved by Council Member Rita Russell Seconded by Council Member Joe Anderson Motion to table Council Bill No. 39 to the November 21, 2022, Regular City Council Meeting. For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp x Joe Anderson (Seconded By) x Steven Ward x Rita Russell (Moved By) x Jim Woodward x 5 1 0 Page 5 of 9 Draft Page 96 of 482 City Council Regular November 7, 2022 Motion CARRIED. ii) CB 67 - Amending Englewood Municipal Code to Increase the Waste Transfer Surcharge from $.50 per cubic yard to $.63 per cubic yard Moved by Council Member Steven Ward Seconded by Council Member Joe Anderson Discussion ensued. Moved by Council Member Jim Woodward Seconded by Council Member Steven Ward Motion to amend Council Bill No. 67 by increasing the Waste Transfer Surcharge from .63 cents to .65 cents per cubic yard. For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp x Joe Anderson x Steven Ward (Seconded By) x Rita Russell x Jim Woodward (Moved By) x 1 5 0 Motion DEFEATED. Moved by Council Member Steven Ward Seconded by Council Member Joe Anderson COUNCIL BILL NO. 67, INTRODUCED BY COUNCIL MEMBER WARD A BILL FOR AN ORDINANCE AMENDING TITLE 4, CHAPTER 7, SECTION 4-7-3 OF ENGLEWOOD MUNICIPAL CODE REGARDING WASTE TRANSFER SURCHARGE. For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp x Joe Anderson (Seconded By) x Steven Ward (Moved By) x Rita Russell x Jim Woodward x 6 0 0 Page 6 of 9 Draft Page 97 of 482 City Council Regular November 7, 2022 Motion CARRIED. iii) CB 69 - Amending Englewood Municipal Code establishing standard provisions for City contracts Moved by Council Member Jim Woodward Seconded by Council Member Joe Anderson COUNCIL BILL NO. 69, INTRODUCED BY COUNCIL MEMBER WOODWARD A BILL FOR AN ORDINANCE AMENDING ENGLEWOOD MUNICIPAL CODE TO ESTABLISH MUNICIPAL CONTRACTING PROCESSES. For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp x Joe Anderson (Seconded By) x Steven Ward x Rita Russell x Jim Woodward (Moved By) x 6 0 0 Motion CARRIED. b) Approval of Ordinances on Second Reading There were no additional Ordinances on Second Reading. (See Agenda Items 9(b)(i-iii).) c) Resolutions and Motions i) 2023 Fees and Rates Schedule Moved by Council Member Chelsea Nunnenkamp Seconded by Council Member Jim Woodward RESOLUTION NO. 36, SERIES OF 2022 A RESOLUTION ADOPTING THE 2023 FEE AND UTILITY RATE SCHEDULE FOR THE CITY OF ENGLEWOOD, COLORADO. For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp (Moved By) x Joe Anderson x Page 7 of 9 Draft Page 98 of 482 City Council Regular November 7, 2022 Steven Ward x Rita Russell x Jim Woodward (Seconded By) x 6 0 0 Motion CARRIED. 12 General Discussion a) Mayor's Choice i) Executive Session for personnel matters under C.R.S. Section 24-6- 402(4)(f)(1) regarding review of the City Manager and City Attorney salaries. Moved by Council Member Othoniel Sierra Seconded by Council Member Steven Ward MOTION TO MOVE INTO AN EXECUTIVE SESSION FOR PERSONNEL MATTERS UNDER C.R.S. SECTION 24-6-402(4)(F)(1) REGARDING REVIEW OF THE CITY MANAGER AND CITY ATTORNEY SALARIES. For Against Abstained Othoniel Sierra (Moved By) x Chelsea Nunnenkamp x Joe Anderson x Steven Ward (Seconded By) x Rita Russell x Jim Woodward x 6 0 0 Motion CARRIED. The meeting recessed at 8:58 p.m. to go into Executive Session. The meeting reconvened at 10:21 p.m. with six Council Members present, Member Wink was absent. Mayor Sierra recited the following statement: For the record, if any person who participated in the executive session believes that any substantial discussion of any matters not included in the motion to go into the executive session occurred during the executive session, or that any improper action occurred during the executive session in violation of the Open Meetings Law, I would ask that you state your concerns for the record. Page 8 of 9 Draft Page 99 of 482 City Council Regular November 7, 2022 None stated. Moved by Council Member Othoniel Sierra Seconded by Council Member Steven Ward MOTION TO CLOSE THE EXECUTIVE SESSION. For Against Abstained Othoniel Sierra (Moved By) x Chelsea Nunnenkamp x Joe Anderson x Steven Ward (Seconded By) x Rita Russell x Jim Woodward x 6 0 0 Motion CARRIED. b) Council Members' Choice 13 City Manager’s Report 14 Adjournment MAYOR SIERRA MOVED TO ADJOURN. The meeting adjourned at 10:28 p.m. Senior Deputy City Clerk Page 9 of 9 Draft Page 100 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Darren Hollingsworth DEPARTMENT: Community Development DATE: November 21, 2022 SUBJECT: Small Business Saturday DESCRIPTION: Approval of a proclamation recognizing Small Business Saturday RECOMMENDATION: This field is now required. Please contact City Clerk's office with questions. SUMMARY: This field is now required. Please contact City Clerk's office with questions. COUNCIL ACTION REQUESTED: This field is now required. Please contact City Clerk's office with questions. FINANCIAL IMPLICATIONS: This field is now required. Please contact City Clerk's office with questions. ATTACHMENTS: Proclamation Page 101 of 482 P R O C L A M A T I O N Declaring all Saturdays in December, 2022, as “Shop Englewood – Small Business Saturdays” Whereas, the City of Englewood, Colorado, celebrates local small businesses and the contributions they make to the local economy and community; and Whereas, the United States Small Business Administration data indicates there are 31.7 million small businesses in the United States, that small businesses represent 99.9% of all companies with paid employees, that small businesses employ 47.1% of all employees in the private sector, and that small businesses are responsible for 65.1% of net new jobs created from 2000 to 2019; and Whereas, 62% of U.S. small businesses reported that they need to see consumer spending return to pre-COVID levels by the end of 2020 in order to stay in business, 65% of U.S. small business owners said it would be most helpful to have their “regulars” return and make purchases again; and Whereas, three-quarters of U.S. consumers are currently looking for ways to Shop Small® and support their community, 97% of consumers who shopped on Small Business Saturday agree that small businesses are essential to their community, and 96% of consumers who have shopped on Small Business Saturday® agree that shopping at small, independently-owned businesses supports their commitment to making purchases that have a positive social, economic, and environmental impact; and Whereas, 95% of consumers who shopped on Small Business Saturday reported that spending a day focusing upon shopping within their communities inspires them to shop or eat at small, independently-owned businesses all year long, not just during the holiday season; and Whereas, Englewood, Colorado, supports local businesses and recognizes the role that local businesses and small businesses play in creating local jobs, boosting the local economy and establishing and preserving the character, strength, spirit and charm of the community; and Whereas, advocacy groups and public and private organizations across the country have endorsed the Saturday after Thanksgiving as Small Business Saturday. Now, Therefore, I, Othoniel Sierra, Mayor of Englewood, Colorado, do hereby proclaim all of the Saturdays of December, 2022, as: SMALL BUSINESS SATURDAYS And urge the residents of Englewood, and communities across the country, to support small businesses and merchants on Small Business Saturdays and throughout the year. GIVEN under my hand and seal this 21st day of November, 2022. Othoniel Sierra, Mayor Page 102 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: November 21, 2022 SUBJECT: CB 37 - Approve a bill for an ordinance amending Title 11, Chapter 1b, Sections 11-1b-1 And 11-1b-2 Of Englewood Municipal Code Regarding Traffic Procedures, Definitions. DESCRIPTION: CB 37 - Englewood Municipal Code §§ 11-1B-1 and 11-1B-2 contain provisions that are largely duplicative of state rules of traffic violation procedures and definitions of misdemeanor traffic offenses. The proposed ordinance removes duplication, incorporates state procedure and model traffic code by reference, and amends those to reflect current City best practices. RECOMMENDATION: Approve a bill for an ordinance amending Englewood Municipal Code §§ 11-1B-1 and 11-1B-2 to incorporate by reference state law and model traffic code provisions for traffic infractions and traffic offenses, remove duplicative provisions, and retain modifications to these rules that are legally enforceable. SUMMARY: Englewood Municipal Code §§ 11-1B-1 and 11-1B-2 contain provisions that are largely duplicative of state rules of traffic violation procedures and definitions of misdemeanor traffic offenses. The proposed ordinance removes duplication, incorporates state procedure and model traffic code by reference, and amends those to reflect current City best practices. These revisions only make 1 substantive change: in compliance with state law, it designates a misdemeanor traffic speeding offense as those in excess of 24 mph, rather than 19 mph as currently stated within municipal code. Assistant City Attorney Sergio Renteria consulted with Municipal Court and revised this proposed council bill to align with their requested revisions. COUNCIL ACTION REQUESTED: Approve Council Bill on first reading. FINANCIAL IMPLICATIONS: None anticipated. ATTACHMENTS: Council Bill #37 Page 103 of 482 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 37 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER _________________ A BILL FOR AN ORDINANCE AMENDING TITLE 11, CHAPTER 1B, SECTIONS 11- 1B-1 AND 11-1B-2 OF ENGLEWOOD MUNICIPAL CODE REGARDING TRAFFIC PROCEDURES, DEFINITIONS. WHEREAS, Englewood Municipal Code § 11-1B-1 provides definitions and procedure for traffic violations within the City and prosecuted in Englewood Municipal Court; and WHEREAS, this section requires revision to ensure statutory consistency and compliance, specifically to denote that criminal speeding offenses are only those in excess of 24 mph over the posted speed limit, not 19 mph as currently stated; and WHEREAS, Englewood Municipal Code §§ 11-1B-1 and 11-1B-2 contain provisions that are largely duplicative of state rules of traffic violation procedures and definitions of misdemeanor traffic offenses; and WHEREAS, in a continuing effort to update Municipal Code sections for clarity and brevity, and to comport with best practices, in addition to amendments to mirror state traffic laws, the Municipal Code amendments contained herein remove duplicative rules and procedures, incorporate state rules by reference, and provide amendments to reflect current best practices previously implemented by the City of Englewood Municipal Court. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Amendment of Englewood Municipal Code Title 11, Chapter 1B, Section 11-1B-1 of Englewood Municipal Code is hereby amended to read as follows (new provisions bold/italics, deleted provisions struck through): 11-1B-1: Traffic InfractionsViolation Procedures. A. The Colorado Court Rules Chapter 29.7 Rules for Traffic Infractions (C.R.T.I.) Rules 2,3,4,6,7,9,11,12,13,15,16,17, and 18 are incorporated by reference as if fully set forth herein. To the extent a C.R.T.I. provision is not otherwise applicable, it shall be interpreted to apply to the City or EMC equivalent. In any conflict, EMC provisions shall apply. B. Definitions. The following words, Terms and phrases, when used in this Chapter shall These definitions shall supplement C.R.T.I. and Model Traffic Code (MTC):have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning. In the event of any conflict between the Model Traffic Code and the definitions contained in this Section, this Section shall be controlling: Page 104 of 482 2 Charging Document: Means the document commencing or initiating the traffic violation matter whether denoted as a complaint, summons and complaint, citation, penalty assessment notice, or other document charging the person with the commission of a traffic violation. Defendant: Means any person charged with the commission of a traffic violation. 1. Judgment: Means the admission of guilt or liability for any traffic violation, the entry of judgment of guilt or liability, or the entry of default judgment as set forth in this Code in Title 11, Articles 1A or 1B, against any person for the commission of a traffic violation. 1. Penalty includes: Means that a fine and/or imprisonment under imposed pursuant to EMC § Section 1-4-1, but not imprisonment. of this Code. 2. Tender in C.R.T.I. 4 includes conspicuously attaching a parking violation charging document to the subject vehicle. 3. Traffic Infraction includes: Means every violation of any provision of EMC Title 11, Chapters 1, and this Chapter 1A and the MTC, relating to traffic or any provision of the Model Traffic Code, as adopted or amended by the City, excluding except those traffic violations defined as misdemeanors and traffic offenses. 4. Traffic Offense:Means the following offenses as set forth in this Chapter or in Article I of the Model Traffic Code as adopted and amended by the City: 1. Section 235 MTC: Minimum Standards for Commercial Vehicles. 2. Sec. 1903 MTC: Stopping for School Buses. 3. Secs. 1101, 1102, 1103, 1104 MTC: Basic Speed Rules - Including Decreasing of Speed Limits, Altering of Speed Limits and Elevated Structures Speed Limits Only Where the Speed Alleged is Greater Than 19 Miles Per Hour Over the Posted Speed Limit. 4. Sec. 1105 MTC: Speed Contests/Exhibition of Speed. 5. Sec. 1401 MTC: Reckless Driving. 6. Sec. 1402 MTC: Careless Driving. 7. Sec. 1409 MTC: Compulsory Insurance-Penalty, as amended by E.M.C. § 11-1-1B(21) E.M.C. 8. Sec. 1413 MTC: Eluding or Attempting to Elude Police Officer. 9. Sec. 603(5) MTC: Obedience to Official Truck Traffic Control Devices. 5. Traffic Violation: Means any violation of Title 11, Chapters 1, 1A or 1B, whether or not such violation is a traffic infractions or a traffic offense. CB. Civil Matters: Traffic Infractions Not Criminal: All Traffic infractions are deemed and shall constitute civil matters, and are not criminal violations, tried to a referee and not to a jury unless the charging document includes an offense that provides the defendant with a right to a jury trial. In that case, the action shall follow rules of procedure for that offense. C. No Jury Trial for Traffic Infractions: 1. A defendant brought to trial solely upon a traffic infraction shall have no right to a trial by jury as contemplated by C.R.S. Section 13-10-114 or Rules 223, of the Municipal Court Rules of Procedure. Trial of all traffic infractions shall be to the Court. No defendant found liable for a traffic infraction shall be punished by imprisonment for such traffic infraction. Page 105 of 482 3 2. Trials for traffic infractions shall in all other matters be subject to the same procedures as any other Municipal ordinance violation. D. Right to Jury Trial for Traffic Offenses: 1. Any defendant charged with any traffic offense shall have the right to a jury trial upon proper perfection of a jury trial demand pursuant to Rule223 of the Municipal Court Rules of Procedure. 2. If a defendant is charged with more than one traffic violation arising out of the same incident and at least one of the charged traffic violations is a traffic offense, the defendant shall have the right to demand a trial by jury as set forth in subsection D1 of this Section as to all violations, which shall be consolidated for purposes of trial. E. Commencement of Traffic Infraction Action: An action under this Chapter charging a traffic infraction is commenced by the tender or service of a charging document upon the defendant or by conspicuously attaching a parking traffic infraction document to the subject vehicle and by filing the charging document with the Municipal Court. F. Payment of Traffic Infraction Penalty Without Appearance: 1. The clerk of the Court shall accept payment of a traffic infraction penalty by a defendant without an appearance before the Court under the following conditions: a. If payment is made no later than the close of business on the thirtieth day following the date of issuance of the charging document. b. If payment is allowable by mail, telecommunications, electronic means, or at the Traffic Violations Bureau under the fine schedule. c. At the time of payment, which shall include all costs, fees, and surcharges regularly assessed by the Court; as the same are required for defendants pleading or being found guilty of non-civil Municipal violations, the defendant shall sign a waiver of rights and acknowledgment of guilt or liability upon a form approved by the Court. 2. This procedure shall constitute an entry in satisfaction of judgment. G. Traffic Infraction First Appearance: 1. If the defendant has not previously acknowledged guilt or liability and satisfied the judgment on the traffic infraction, he or she shall appear before the Court within the time period scheduled for first appearance. 2. The defendant may appear in person or by counsel who shall enter an appearance in the case; provided, however, if an admission of guilt or liability is entered, the Court may require the presence of the defendant for the assessment of the penalty. 3. If the defendant appears in person, he or she shall be advised of the following: a. The nature of the traffic infraction alleged in the charging document; b. The penalty, fees, costs and surcharges that may be assessed, and the penalty points that may be assessed against his or her driving privilege; c. The consequences of the failure to appear at any subsequent hearing, including entry of judgment against the defendant and reporting the judgment to the State Motor Vehicle Division which may assess points against his or her driving privilege and may deny an application for a driver's license; d. He or she has the right to be represented by an attorney at his or her expense; Page 106 of 482 4 e. He or she has the right to deny the allegations and to have a final hearing before the Court; f. He or she has the right to remain silent because any statement made by the defendant may be used against him or her; g. Guilt or liability for a traffic infraction must be proven beyond a reasonable doubt; h. He or she has the right to testify, subpoena witnesses, present evidence, and cross- examine any witness; i. Any answer must be voluntary and not the result of undue influence or coercion on the part of any person; and j. An admission of guilt or liability constitutes a waiver of the rights in the subsection and any right to appeal. 4. The defendant personally or by counsel shall answer the allegations in the charging document either by admitting guilt or liability or by denying the allegations. 5. If the defendant admits guilt or liability, the Court shall enter judgment and assess the appropriate penalty, fees, costs and surcharges. DH. Rule 13(b), Post-Hearing Motions and Appeal, shall be amended as follows: (b) Appeal of any finding of guilt or liability of a traffic infraction judgment shall follow the same procedure be as other Municipal Court convictionssubject to the same procedures applicable to convictions of Municipal offenses generally. E. Rule 16, Default shall be amended as follows: Judgment On Traffic Infraction After Final Hearing: 1. If the defendant is found guilty or liable the Court shall assess an applicable penalty and such additional costs and fees that are otherwise generally imposed in non-civil Municipal offenses together with applicable fees, costs, and surcharges. 2. The judgment shall be satisfied upon payment to the clerk of the Municipal Court of the total amount assessed. 3. If the defendant fails to satisfy the judgment upon the finding of guilt or liability or within the time of a reasonable extension granted upon a showing of good cause by and upon the application of the defendant, such nonpayment in the full amount of the penalty, fees, costs, and surcharges, if applicable, shall be treated as a default. (f) In addition to all other actions authorized by law, a default shall be certified to the State Motor Vehicle Division for enforcement action. I. Traffic Infraction Post-Hearing Motions: There shall be no traffic infraction post-hearing motions except for a motion to set aside a default judgment. J. Default On Traffic Infraction: 1. If the defendant fails to appear for his or her first appearance or any hearing involving a traffic infraction, the Court shall enter a default judgment against the defendant. 2. The amount of the judgment shall be the appropriate penalty that would be assessed after a finding of guilt or liability, fees, and additional costs assessable to Municipal violations generally upon conviction of non-civil Municipal charges, together with applicable surcharges. Page 107 of 482 5 3. The Court may set aside a default judgment entered under this rule on a showing of good cause or excusable neglect by the defendant. A motion to set aside the judgment shall be made to the Court not more than ten (10) days after the entry of judgment. 4. The defendant may satisfy judgment entered under this rule by paying the clerk of the Court. 5. No warrant shall be issued for the arrest of a defendant who was charged with a traffic infraction and failed to appear at a first appearance or any subsequent hearing or who failed to satisfy a judgment. F. The Municipal Prosecutor may, in the prosecutor’s discretion, represent the City or Officer in traffic infraction proceedings. Section 2. Amendment of Englewood Municipal Code Title 11, Chapter 1B, Section 11-1B-2 of Englewood Municipal Code is hereby amended to read as follows (new provisions bold/italics, deleted provisions struck through): 11-1B-2: - Traffic Offenses Procedure. A. A Traffic Offense is every offense designated as such by this Code, the Model Traffic Code (MTC), and other applicable law, including the offenses designated in MTC § 1701 as misdemeanors. B. Right to Jury Trial: A defendant charged with a traffic offense shall have the right to a jury trial for all violations arising out of the same incident upon compliance with and pursuant to Colorado Municipal Court Rules of Procedure 223. C.A. The Traffic Offenses shall follow Municipal Court procedures established in EMC Title 1, Chapter 7, Article A. commencement and all subsequent proceedings through and including appeal on matters concerning a traffic offense shall be the same as those provided and required for all criminal Municipal ordinance violations. DB. When the Court determines that a person charged with a traffic offense is guilty of a lesser included traffic infraction, The Court may enter a judgment of guilt or liability as to a lesser-included the traffic infraction, when considering guilt for a traffic offense. Section 3. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. Page 108 of 482 6 C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Introduced, read in full, and passed on first reading on the 21st day of November, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 24th day of November, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 23rd day of November, 2022 for thirty (30) days. Page 109 of 482 7 Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Bill for an Ordinance introduced, read in full, and passed on first reading on the 21st day of November, 2022. Stephanie Carlile Page 110 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Pieter Van Ry DEPARTMENT: Utilities DATE: November 21, 2022 SUBJECT: CB 63 – Approve a Bill for an Ordinance Authorizing an Intergovernmental Agreement Between the City of Littleton and the City of Englewood Regarding Cost-Sharing for Reviewing and Evaluating Sewer Connector District Agreements DESCRIPTION: CB 63 – Approve a bill for an ordinance authorizing an Intergovernmental Agreement (IGA) between the City of Littleton (Littleton) and the City of Englewood (Englewood) for a cost share to review and evaluate the sewer connector district agreements. RECOMMENDATION: Utilities staff recommends City Council approve an IGA with Littleton to utilize a Professional Services Agreement (PSA), led by Littleton, with Financial Consulting Group, Inc. (FCS Group) to review and evaluate the business terms of Englewood's Sewer Connector District Agreements. The recommendation includes Englewood contributing $21,850 towards Littleton’s PSA. The Water and Sewer Board recommended Council approve the IGA with Littleton during its November 8, 2022 meeting. PREVIOUS COUNCIL ACTION: None. SUMMARY: • Englewood and Littleton co-own and operate South Platte Renew (SPR) through the Joint-Use Agreement. • SPR provides sanitary sewer treatment to a total of 21 Connector Districts which include the cities of Littleton and Englewood themselves. • Englewood oversees a total of 13 Connector Agreements and two (2) shared with Littleton. • Englewood and Littleton each manage and administer unique Connector Agreements with the respective Connector Districts for wastewater treatment at SPR, while each district is responsible for owning and maintaining sewer mains. • Addendums to Englewood’s Connector Agreements were approved by City Council in 2016 and 2017 to implement SPR’s Industrial Pretreatment Program, however, a review of business terms in the agreements has not been conducted within the last decade. • In April 2022, the Littleton Public Works Director initiated a PSA to review the business terms of the Littleton’s Connector Agreements. Englewood Utilities staff recommend Page 111 of 482 collaborating with Littleton on this effort to ensure consistency of terms across the connector district agreements. ANALYSIS: Englewood's 13 Connector Districts include Bow Mar Water and Sanitation District*, Columbine Water and Sanitation District*, Cherry Hills Heights, Cherry Hills Village Sanitation, Cherryvale Sanitation, City of Cherry Hills Village, City of Sheridan, County Homes Metropolitan, Sheridan Sanitation #1, South Arapahoe Sanitation, South Englewood Sanitation, Southgate Water and Sanitation, and Valley Sanitation District. Littleton's eight Connector Districts are Bow Mar Water and Sanitation District*, Columbine Water and Sanitation District*, Grant Water and Sanitation, Ken Carly Ranch Water and Sanitation District, Meadowbrook Fairview Metropolitan Sanitation, Platte Canyon Water and Sanitation District, Roxborough Water and Sanitation District, and Southwest Metropolitan Water and Sanitation District. In order to provide a comprehensive review of Englewood's Connector Agreements, consultant services are required due to the specialized expertise and resources necessary to complete the review. Utilities staff expressed interest in partnering with Littleton to increase the scope of work to include Englewood. The proposed IGA would permit Englewood to collaborate with Littleton on its existing PSA with FCS Group. Staff recommends entering into this IGA to formalize and establish the terms of Englewood’s funding commitment towards the evaluation. *Two Connector Districts are connected to SPR through both cities: Bow Mar Water and Sanitation District and Columbine Water and Sanitation District. COUNCIL ACTION REQUESTED: City Council to approve a bill for an ordinance authorizing an Intergovernmental Agreement with the City of Littleton to utilize a Professional Services Agreement with Financial Consulting Group, Inc., to review and evaluate the business terms of the City of Englewood’s Sewer Connector District Agreements, in the amount of $21,850. FINANCIAL IMPLICATIONS: Funding for this IGA is included in the Utilities department 2022 and 2023 budgets and will not exceed the total Sewer Enterprise Fund budget appropriations. Source of Funds Line Item Description 2022 Line Item Budget 2022 YTD Line Item Expensed 2023 Line Item Budget Purchase Amount 41–1607– 54201 Sewer Fund, Business Solutions, Professional Services $57,317 $ 106,571 N/A $14,000 41–1607– 54201 Sewer Fund, Business Solutions, N/A N/A $75,000 $7,850 Page 112 of 482 Professional Services CONNECTION TO STRATEGIC PLAN: Infrastructure: • Proactively in a cost-effective manner invests, maintains, improves and plans to protect sewer infrastructure ATTACHMENTS: Council Bill #63 IGA with Littleton for Connector Agreement Amendments Littleton PSA with FCS Group Letter from FCS Group – Amendment for Englewood Connectors Littleton Amendment #1 to PSA with FCS Group PowerPoint Presentation Page 113 of 482 1 BY AUTHORITY ORDINANCE NO. __ COUNCIL BILL NO. 63 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER __________ A BILL FOR AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF LITTLETON AND THE CITY OF ENGLEWOOD REGARDING COST-SHARING FOR REVISING SEWER CONNECTOR DISTRICT AGREEMENTS WHEREAS, the City of Littleton, a Colorado home rule municipality of the State of Colorado (“Littleton”), is undertaking the task of revising Sewer Service Agreements with its Connector Districts (the “Project”) as a part of a Professional Service Agreement (“PSA”) with Financial Consulting Group, Inc. (“Contractor”); and WHEREAS, the City of Englewood, a home rule municipality of the State of Colorado (“Englewood”), desires to participate in the Project with Littleton (together the “Parties”) in order to revise its sewer connector district agreements and develop consistent language across the Parties’ connector agreements; and WHEREAS, pursuant to Colorado Constitution Article XIV, Section 18(2)(a), and Section 29-1-203, C.R.S., the Parties may cooperate or contract with each other to provide any function, service or facility lawfully authorized to each, and any such contract may provide for the sharing of costs, the imposition of taxes, and the incurring of debt; and WHEREAS, each Party is a home-rule municipality pursuant to Article XX, Section 6 of the Colorado Constitution, and is authorized by C.R.S. 29-1-203 to enter into a contract or agreement for the sharing of costs related to the revising of sewer connector district agreements; and WHEREAS, Article 20, Title 29 C.R.S., clearly articulates and affirmatively expresses a state policy that authorizes political subdivisions of the State of Colorado to cooperate and contract to make the most efficient and effective use of their respective resources; and WHEREAS, the Parties have determined cooperation on the Project will make the most efficient and effective use of their respective resources; and WHEREAS, the inclusion of Englewood’s Connector Districts to the scope of work for the Project will increase the total cost of services from $40,000 to $61,850, for a total obligation by Englewood in the amount of $21,850.00; and Page 114 of 482 2 WHEREAS, the passage of this Ordinance will formalize and establish the scope of work and terms of Englewood’s funding commitment towards the Project. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The City Council of the City of Englewood, Colorado hereby authorizes the Intergovernmental Agreement entitled Intergovernmental Agreement Between The City Of Littleton And The City Of Englewood Regarding Cost-Sharing For Revising Sewer Connector District Agreements (Led By The City Of Littleton), between the City of Littleton and the City of Englewood, a copy of which is marked as “Exhibit A” and attached hereto. Section 2. General Provisions Applicable to this Ordinance. The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. D. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. E. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City Page 115 of 482 3 of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. Introduced, read in full, and passed on first reading on the 17th day of October, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 20th day of October, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 19th day of October, 2022. for thirty (30) days. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Bill for an Ordinance introduced, read in full, and passed on first reading on the 17th day of October, 2022. Stephanie Carlile Page 116 of 482 City of Littleton and City of Englewood Intergovernmental Agreement Cost Sharing for Sewer Service Agreements Page 1 of 7 INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF LITTLETON AND THE CITY OF ENGLEWOOD REGARDING COST-SHARING FOR REVISING SEWER CONNECTOR DISTRICT AGREEMENTS (LED BY THE CITY OF LITTLETON) This INTERGOVERNMENTAL AGREEMENT (“Agreement”) is made and entered into effective the _______ day of ___________, 2022, (the “Effective Date), by and between the CITY OF LITTLETON, a Colorado home rule municipality of the State of Colorado, hereinafter referred to as “Littleton”, and the CITY OF ENGLEWOOD, a home rule municipality of the State of Colorado, hereinafter referred to as “Englewood” (together the “Parties”). RECITALS WHEREAS, pursuant to Colorado Constitution Article XIV, Section 18(2)(a), and Section 29-1-203, C.R.S., the Parties may cooperate or contract with each other to provide any function, service or facility lawfully authorized to each, and any such contract may provide for the sharing of costs, the imposition of taxes, and the incurring of debt; WHEREAS, each of the Parties is a home-rule municipality pursuant to Article XX, Section 6 of the Colorado Constitution, and are authorized by C.R.S. 29-1-203 to enter into a contract or agreement for the sharing of costs related to the revising of sewer connector district agreements identified in this Agreement; WHEREAS, Article 20, Title 29 C.R.S., clearly articulates and affirmatively expresses a state policy that authorizes political subdivisions of the State of Colorado to cooperate and contract to make the most efficient and effective use of their respective resources; WHEREAS, Littleton is undertaking the task of revising Sewer Service Agreements with our Connector Districts (the “Project”) as a part of a Professional Service Agreement (PSA) with Financial Consulting Group, Inc. (hereinafter referred to as “Contractor”); WHEREAS, the Parties’ have determined to utilize the services of the Contractor through the professional services agreement with Littleton for the Project. WHEREAS, in recognition of the regional benefits of expanding the initial scope of work to including the thirteen (13) additional Englewood Connector Districts to the Project, Littleton has requested, and Englewood agrees, that Englewood pay Littleton for the increase in total compensation from $40,000 to $61,850. WHEREAS, the Parties wish to enter into this Agreement to formalize and establish the terms of Englewood’s funding commitment towards the Project. NOW THEREFORE, in consideration of the mutual covenants and agreements herein, and for other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties do hereby agree as follows: Page 117 of 482 City of Littleton and City of Englewood Intergovernmental Agreement Cost Sharing for Sewer Service Agreements Page 2 of 7 1. TERM. This Agreement shall commence on the date of mutual execution hereof, and shall continue through November 15, 2023. 2. RESPONSIBILITIES OF LITTLETON. Littleton shall act as the project manager. Littleton shall be responsible for the following obligations in connection with the administration of the Project: (a) Littleton shall manage the PSA with the Contractor for the Project. The PSA with the Contractor, and approvals thereof, shall conform to Colorado law and Littleton Municipal Code requirements for public contracts. (b) Littleton shall designate a person (“Littleton Project Manager”) responsible for the day-to-day management of the Project. (c) The Littleton Project Manager shall coordinate with Englewood regarding the schedule associated with the Project and will provide updates to Englewood concerning updates to such schedule. The Englewood Designated Representative (defined below) will be invited to all coordination meetings with the Contractor. The Littleton Project Manager will provide to the Englewood Designated Representative the opportunity to review and submit comment on all agreements at issue in the Project as well as all proposed amendments thereto. (d) Subject to annual appropriation, Littleton shall complete the Project by the target completion date of November 15, 2023. If the completion date for the work on the Project is expected to be extended beyond November 15, 2023, the Littleton Project Manager will communicate the same to the Englewood Designated Representative and the Parties agree to cooperate in good faith to amend this Agreement to extend the term of the Agreement. 3. RESPONSIBILITIES OF ENGLEWOOD. Englewood shall be responsible for the following obligations in connection with the administration of the Project: (a) Englewood shall designate an individual responsible for representing Englewood (the “Englewood Designated Representative”) who shall coordinate with the Littleton Project Manager in order to ensure that the project schedule and other project details are consistent with the intent of the project. (b) The Englewood Designated Representative shall review the initial sewer agreement draft and provide written comments on the draft to the Contractor and the Littleton Project Manager. (c) The Englewood Designated Representative will help to resolve any preference conflicts generated by the Connector Districts. Littleton and Englewood will work together with all parties to develop alternative proposals to resolve conflicts. 4. STATEMENTS AND PAYMENT: Upon receipt and approval of partial pay requests from Contractor, Littleton shall make periodic payments to the Contractor. Upon payment to Contractor, Littleton will forward invoices to Englewood for costs associated with work completed for the Page 118 of 482 City of Littleton and City of Englewood Intergovernmental Agreement Cost Sharing for Sewer Service Agreements Page 3 of 7 service agreements associated with Englewood’s connector districts. Englewood shall reimburse Littleton said full amount of such invoices within thirty (30) days of receipt of billing from Littleton. Billing will be based upon the Contractor’s 2022 Standard Fee Schedule associated with the work on the Project, and as more specifically set forth in Attachment A. 5. WHEN RIGHTS AND REMEDIES NOT WAIVED: In no event shall any performance by one party hereunder constitute or be construed to be a waiver by such party of any breach of covenant or condition or any default which may then exist on the part of the other party, and the rendering of any such performance when any such breach or default shall exist shall in no way impair or prejudice any right or remedy available to the non-breaching party with respect to such breach or default, and no assent, expressed or implied, to any breach of any one or more covenants, provisions or conditions of the Agreement shall be deemed or taken to be a waiver of any succeeding or other breach. 6. LIABILITY: Each party shall be responsible for its own negligence hereunder to the extent provided by law. Neither party shall be deemed to be an agent for the other party. 7. SUBJECT TO LOCAL LAWS; VENUE: Each and every term, provision or condition herein is subject to and shall be construed in accordance with the provisions of Colorado law. Venue for any action arising hereunder shall be in Arapahoe County, Colorado. 8. ASSIGNMENT AND SUBCONTRACTING: Neither party is obligated or liable under this Agreement to any party other than those specified herein. Englewood and Littleton understand and agree that they shall not assign or subcontract with respect to any of the rights, benefits, obligations or duties under this Agreement except upon prior written consent and approval of the other party, which consent or approval may be withheld in the absolute discretion of that other party, and in the event any such assignment or subcontracting shall occur, such action shall not be construed to create any contractual relationship between either of the parties and such assignee or subcontractor, and Englewood and Littleton shall remain responsible to each other according to the terms of this Agreement. 9. NO THIRD PARTY BENEFICIARIES: It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement, and rights of action relating to such enforcement, shall be strictly reserved to Englewood and Littleton, and nothing contained in this Agreement shall give or allow any such claim or right of action by any other third person on such Agreement. It is the express intention of Englewood and Littleton that any person other than Englewood or Littleton receiving services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. 10. STATUS OF PARTIES: It is understood and agreed by and between the Parties that the status of each of the Parties hereto shall be that of independent contractor and it is not intended, nor shall it be construed, that either party or any employee, contractor, or consultant of such party is an employee, officer, or agent of the other party for purposes of unemployment compensation, workers’ compensation, or for any purpose whatsoever. Nothing herein shall be interpreted or construed as creating a joint venture or partnership between the Parties. Neither of the Parties shall have the right under this Agreement to create any obligation or incur any debt on behalf of Littleton Page 119 of 482 City of Littleton and City of Englewood Intergovernmental Agreement Cost Sharing for Sewer Service Agreements Page 4 of 7 or Englewood. 11. EXAMINATION OF RECORDS: Englewood’s Finance Director or his or her designee shall, until three (3) years after final payment under this Agreement is made, have access to and the right to examine any of Littleton’s pertinent books, papers, documents, or other records involving transactions related to performance of this Agreement, including but not limited to records pertaining to the Project. The period of access and examination for records relating to: (1) litigation or settlement of claims arising from performance of this Agreement, or (2) costs and expenses of this Agreement to which the Englewood Finance Director or his or her designee has secured access to, shall continue until such appeals, litigation, claims, exceptions are fully and finally resolved. 12. PARAGRAPH HEADINGS: The captions and headings set forth herein are for convenience of reference only, and shall not be construed so as to define or limit the terms and provisions hereof. 13. SEVERABILITY: It is understood and agreed to by the parties hereto that if any part, term, or provision of this Agreement is by the courts held to be illegal or in conflict with any law of the State of Colorado, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision held to be invalid. 14. AGREEMENT AS COMPLETE INTEGRATION – AMENDMENTS: This Agreement is intended as the complete integration of all understandings of the parties, their successors and assigns. No prior or contemporaneous addition, deletion or other amendment hereto shall have any force or effect whatsoever, unless embodied herein in writing. No subsequent notation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied in written amendatory or other Agreement executed by the parties and signed by the signatories of the original Agreement. This Agreement and any amendments shall be binding upon the parties, their successors and assigns. 15. LEGAL AUTHORITY: (a) Each party assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Agreement. (b) The person or persons signing and executing this Agreement on behalf of each party, do hereby warrant and guarantee that he/she or they have been fully authorized by Littleton or Englewood to execute this Agreement on behalf of Littleton or Englewood and to validly bind Littleton or Englewood to all the terms, performances and provisions herein set forth. 16. COUNTERPARTS OF THIS AGREEMENT: This Agreement may be executed in several counterparts, each of which shall be deemed the original, and all of which together shall constitute one and the same instrument. Page 120 of 482 City of Littleton and City of Englewood Intergovernmental Agreement Cost Sharing for Sewer Service Agreements Page 5 of 7 17. PROJECT MANAGEMENT: It is mutually agreed between the parties that Littleton shall be responsible for management of the project through direction to the Contractor. It is further agreed that the Englewood Designated Representative will work through the Littleton Project Manager to provide direction or comments to the Contractor. 18. COST OVER RUNS FROM ESTIMATE IN AGREEMENT: If actual costs exceed the Estimated Cost plus 5% Contingency as stated in Attachment A due to actual field constructed quantities, the Parties agree to amend this Agreement to reflect the actual cost of Englewood’s portion of the project and reimburse said amount to Littleton. Furthermore, Englewood and Littleton understand that if the actual project cost exceeds the Estimated Cost plus 5% Contingency per Attachment A, Littleton will notify Englewood and receive authorization before any additional costs are incurred on the Road Project. Englewood and Littleton are aware, understand, and acknowledge that the construction costs provided in this Agreement are an estimate based on the best available information and that actual construction costs may vary. 19. GOVERNMENAL IMMUNITY: Notwithstanding any other provision herein to the contrary, no term or condition of this Agreement shall be construed or interpreted as a waiver of the monetary limitations on liability or of any of the immunities, rights, benefits, or protections provided to either Party under the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended (the “CGIA”). The Parties understand and agree that liability for injuries or damages to persons or property arising out of the alleged negligence or willful and wanton acts of either Party, and respective officials, officers, and employees, is controlled or limited by the CGIA, nothing herein shall be construed or interpreted as modifying any liability protection thereunder. Page 121 of 482 City of Littleton and City of Englewood Intergovernmental Agreement Cost Sharing for Sewer Service Agreements Page 6 of 7 [SIGNATURE PAGES FOLLOW] IN WITNESS WHEREOF, the Parties have executed this Intergovernmental Agreement Regarding cost-sharing for Revising Sewer Connector District Agreements as of the day and year first above written. CITY OF LITTLETON, COLORADO By:________________________________ Kyle Schlachter, Mayor Attest: Reviewed by: ___________________________________ ____________________________________ City Clerk or Deputy City Clerk Reid Betzing, City Attorney CITY OF ENGLEWOOD, COLORADO By:_________________________________ Othoniel Sierra, Mayor Attest: Reviewed by: __________________________________ ____________________________________ City Clerk or Deputy City Clerk Tamara Niles, City Attorney Page 122 of 482 City of Littleton and City of Englewood Intergovernmental Agreement Cost Sharing for Sewer Service Agreements Page 7 of 7 ATTACHMENT A (Agreement for Professional Services and Amendment) Page 123 of 482 Revised 12.22.21 CITY OF LITTLETON AGREEMENT FOR PROFESSIONAL SERVICES THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into on April 19, 2022 by and between FINANCIAL CONSULTING SOLUTIONS GROUP, INC. whose business address is 7525 166TH AVENUE NE SUITE D215, REDMOND, WA 98052 (the “Contractor”) and the CITY OF LITTLETON, COLORADO (“City”), a Home Rule municipality of the State of Colorado. The City and the Contractor may be collectively referred to as the “Parties.” RECITALS AND REPRESENTATIONS WHEREAS, the City needs for certain services to be performed as described in this Agreement; and WHEREAS, the Contractor represents that it has the skill, ability, and expertise to perform the services described in this Agreement; and WHEREAS, the Contractor represents that it can perform the services described in this Agreement within the deadlines provided in this Agreement; and WHEREAS, the Parties desire to enter into this Agreement. NOW, THEREFORE, in consideration of the benefits and obligations of this Agreement, the Parties mutually agree as follows: 1.0 SERVICES AND PERFORMANCE. As directed by the City and under the management of the City Manager, the Contractor shall provide the services described in Exhibit A (the “Services”). Exhibit A is incorporated herein in its entirety. The City may request a change or changes in the Services. Any changes that are mutually agreed upon between the City and the Contractor shall be made in writing and upon execution by both Parties shall become an amendment to this Agreement. 2.0 Independent Contractor. The Contractor shall perform the Services as an independent contractor and shall not be deemed by virtue of this Agreement to have entered into any partnership, joint venture, employer/employee or other relationship with the City other than as a contracting party and independent contractor. The City shall not be obligated to secure, and shall not provide, any insurance coverage or employment benefits of any kind or type to or for the Contractor or the Contractor’s employees, sub-consultants, contractors, agents, or representatives, including coverage or benefits related but not limited to: local, state, or federal income or other tax contributions; insurance contributions (e.g., FICA); workers’ compensation; disability, injury, or health; professional liability insurance, errors and omissions insurance; or retirement account contributions. DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 124 of 482 Revised 12.22.21 3.0 Standard of Performance. In performing the Services, the Contractor shall use that degree of care, skill, and professionalism ordinarily exercised under similar circumstances by members of the same profession practicing in the State of Colorado. The Contractor represents to the City that the Contractor is, and its employees performing such Services are, properly licensed and/or registered within the State of Colorado for the performance of the Services (if licensure and/or registration is required by applicable law) and that the Contractor and employees possess the skills, knowledge, and abilities to competently, timely, and professionally perform the Services in accordance with this Agreement. 3.1 The Contractor shall become fully acquainted with the available information related to the Services. The Contractor is obligated to affirmatively request from the City such information that the Contractor, based on the Contractor’s professional experience, should reasonably expect is available and which would be relevant to the performance of the Services. 3.2 The Contractor shall promptly inform the City concerning ambiguities and uncertainties related to the Contractor’s performance that are not addressed by the Agreement. 3.3 The Contractor shall provide all of the Services required in the Agreement in a timely and professional manner. 3.4 The Contractor shall promptly comply with any written request for the City or any of its duly authorized representatives to reasonably access, review and audit any books, documents, papers, and records of the Contractor that are pertinent to the Contractor’s performance under this Agreement for the purpose of the City performing any review of the Services. 3.5 The Contractor shall comply with all applicable federal, state and local laws, ordinances, regulations, and resolutions. 3.6 The Contractor shall be responsible at the Contractor’s expense for obtaining, and maintaining in a valid and effective status, all licenses and permits necessary to perform the Services unless specifically stated otherwise in this Agreement. 4.0 COMPENSATION. Following execution of this Agreement by the City, the City shall compensate the Contractor in accordance with Section 3 of Exhibit A. Any increases or modification of compensation shall be subject to the approval of the City and shall be made only by a written amendment of the Agreement executed by both Parties. 5.0 TERM AND TERMINATION 5.1 Unilateral Termination. This Agreement may be terminated by either Party for any or no reason upon written notice delivered to the other at least ninety (90) days DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 125 of 482 Revised 12.22.21 prior to termination. In the event of the exercise of the right of unilateral termination as provided by this paragraph: The Contractor shall continue to provide the Services under this Agreement until the ninety (90) day notice period has passed, unless otherwise provided in any notice of termination delivered by the City; and All finished or unfinished documents, data, studies and reports prepared by the Contractor pursuant to this Agreement shall be delivered by the Contractor to the City and shall become the property of the City. 5.2 Termination for Non-Performance. Should a Party to this Agreement fail to materially perform in accordance with the terms and conditions of this Agreement, this Agreement may be terminated by the performing Party if the performing Party first provides written notice to the non-performing Party which notice shall specify the non-performance, provide both a demand to cure the non-performance and reasonable time to cure the non-performance, and state a date upon which the Agreement shall be terminated if there is a failure to timely cure the non - performance. For purpose of this Subsection, “reasonable time” shall be not less than five (5) business days. Provided that notice of non-performance is provided in accordance with this Subsection, nothing in this Subsection shall prevent, preclude, or limit any claim or action for default or breach of contract resulting from non-performance by a Party. 5.3 Mutual Termination. The City and the Contractor may agree in writing to mutually terminate this Agreement. 5.4 City Unilateral Suspension of Services. The City may suspend the Contractor’s performance of the Services at the City's discretion and for any reason by delivery of written notice of suspension to the Contractor which notice shall state a specific date of suspension. Upon receipt of such notice of suspension, the Contractor shall immediately cease performance of the Services on the date of suspension except: (1) as may be specifically authorized by the notice of suspension (e.g., to secure the work area from damage due to weather or to complete a specific report or study); or (2) for the submission of an invoice for Services performed prior to the date of suspension in accordance with this Agreement. 5.5 Reinstatement of Services Following City’s Unilateral Suspension . The City may at its discretion direct the Contractor to continue performance of the Services following suspension. If such direction by the City is made within (30) days of the date of suspension, the Contractor shall recommence performance of the Services in accordance with this Agreement. If such direction to recommence suspended Services is made more than thirty-one (31) days following the date of suspension, the Contractor may elect to: (1) provide written notice to the City that the suspension is considered a unilateral termination of this Agreement; or (2) recommence performance in accordance with this Agreement; or (3) if DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 126 of 482 Revised 12.22.21 suspension exceeded sixty (60) consecutive days, request from the City an equitable adjustment in compensation or a reasonable re-start fee and, if such request is rejected by the City, to provide written notice to the City that such suspension and rejection of additional compensation is considered a unilateral termination of this Agreement. Nothing in this Agreement shall preclude the Parties from executing a written amendment or agreement to suspend the Services upon terms and conditions mutually acceptable to the Parties for any period of time. 5.6 Delivery of Notice of Termination. Any notice of termination permitted by this Section shall be addressed to the person signing this Agreement on behalf of the Contractor or to the City Manager at the address shown below or such other address as either Party may notify the other of and shall be deemed given upon delivery if personally delivered, or forty-eight (48) hours after deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested. 6. INSURANCE 6.1 Insurance Generally. The Contractor shall obtain and shall continuously maintain during the term of this Agreement insurance of the kind and in the minimum amounts specified (“Required Insurance”): A. Worker’s Compensation Insurance in the minimum amount required by applicable law for all employees and other persons as may be required by law. Such policy of insurance shall be endorsed to include the City as a Certificate Holder. B. Comprehensive General Liability insurance with minimum combined single limit for each occurrence of One Million Dollars ($1,000,000.00) and of One Million Dollars ($1,000,000.00) aggregate. The policy shall be applicable to all premises and all operations of the Contractor. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. Coverage shall be provided on an “occurrence” basis as opposed to a “claims made” basis. Such insurance shall be endorsed to name the City as a Certificate Holder and name the City, and its elected and appointed officials, officers, employees and agents as additional insured parties. C. Professional Liability (errors and omissions) Insurance with a minimum limit of coverage of One Million Dollars ($1,000,000.00) per claim and annual aggregate. Such policy of insurance shall be obtained and maintained for one (1) year following completion of all Services under this Agreement. Such policy of insurance shall be endorsed to include the City as a Certificate Holder. DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 127 of 482 Revised 12.22.21 The Required Insurance shall be procured and maintained with insurers with an A- or better rating as determined by Best’s Key Rating Guide. All Required Insurance shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor. 6.2 Additional Requirements for Insurance. In addition to specific requirements imposed on insurance by this Section and its subsections, insurance shall conform to all of the following: A. All policies of insurance shall be primary insurance, and any insurance carried by the City, its officers, or its employees shall be excess and not contributory insurance to that provided by the Contractor; provided, however, that the City shall not be obligated to obtain or maintain any insurance whatsoever for any claim, damage, or purpose arising from or related to this Agreement and the Services provided by the Contractor. The Contractor shall not be an insured party for any City-obtained insurance policy or coverage. B. The Contractor shall be solely responsible for any deductible losses. C. For Required Insurance, no policy of insurance shall contain any exclusion for bodily injury or property damage. D. Contractor shall provide the City with notice no less than thirty (30) days prior to any cancellation, termination, or a material change in such policy. 6.3 Failure to Obtain or Maintain Insurance. The Contractor’s failure to obtain and continuously maintain policies of insurance in accordance with this Section and its subsections shall not limit, prevent, preclude, excuse, or modify any liability, claims, demands, or other obligations of the Contractor arising from performance or non-performance of this Agreement. Failure on the part of the Contractor to obtain and to continuously maintain policies providing the required coverage, conditions, restrictions, notices, and minimum limits shall constitute a material breach of this Agreement upon which the City may immediately terminate this Agreement, or, at its discretion, the City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by the City shall be repaid by the Contractor to the City immediately upon demand by the City, or at the City’s sole discretion, the City may offset the cost of the premiums against any monies due to the Contractor from the City pursuant to this Agreement. 6.4 Insurance Certificates. Prior to commencement of any Services under this Agreement, the Contractor shall submit to the City certificates of insurance for all Required Insurance. Insurance limits, term of insurance, insured parties, and other information sufficient to demonstrate conformance with this Section and its subsections shall be indicated on each certificate of insurance. The City may request and the Contractor shall provide within three (3) business days of such DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 128 of 482 Revised 12.22.21 request a current certified copy of any policy of Required Insurance and any endorsement of such policy. The City may, at its election, withhold payment for Services until the requested insurance policies are received and found to be in accordance with the Agreement. 7.0 OWNERSHIP OF DOCUMENTS Any work product, materials, and documents produced by the Contractor pursuant to this Agreement shall become property of the City upon delivery and shall not be made subject to any copyright unless authorized by the City. Other materials, methodology and proprietary work used or provided by the Contractor to the City not specifically created and delivered pursuant to the Services outlined in this Agreement may be protected by a copyright held by the Contractor and the Contractor reserves all rights granted to it by any copyright. The City shall not reproduce, sell, or otherwise make copies of any copyrighted material, subject to the following exceptions: (1) for exclusive use internally by City staff and/or employees; or (2) pursuant to a request under the Colorado Open Records Act, § 24-72-203, C.R.S., to the extent that such statute applies; or (3) pursuant to law, regulation, or court order. The Contractor waives any right to prevent its name from being used in connection with the Services. 8.0 COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT AND OTHER LAWS CONCERNING ACCESSIBILITY Consultant covenants that all designs, plans and drawings produced or utilized under this Agreement will address and comply with all federal, state and local laws and regulations regarding accessibility standards for persons with disabilities or environmentally limited persons including the following: the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. and the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities ("ADAAG"); the Architectural Barriers Act, Pub. L. 90-480 (1968), and the Uniform Federal Accesibility standards ("UFAS"). If the above standards are inconsistent, Consultant must assure that its designs, plans, and drawings comply with the standard providing the greatest accessibility. Also Consultant must, prior to construction, review the plans and specifications to insure compliance with these standards. If Consultant fails to comply with the foregoing standards, the City may, without limiting any of its remedies set forth in Section 9.2 or otherwise available at law, in equity or by statute, require Consultant to perform again, at no expense, all Services required to be reperformed as a direct or indirect result of such failure. 9.0 CONFLICT OF INTEREST The Contractor shall refrain from providing any services to other persons, firms, or entities that would create a conflict of interest for the Contractor with regard to providing the Services pursuant to this Agreement. The Contractor shall not offer or provide anything of benefit to any City official or employee that would place the official or employee in a position of violating the public trust as provided by C.R.S. § 24-18-109, as amended, or any City–adopted Code of Conduct or ethical principles. DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 129 of 482 Revised 12.22.21 10.0 REMEDIES In addition to any other remedies provided for in this Agreement, and without limiting its remedies available at law, the City may exercise the following remedial actions if the Contractor substantially fails to perform the duties and obligations of this Agreement. Substantial failure to perform the duties and obligations of this Agreement shall mean a significant, insufficient, incorrect, or improper performance, activities or inactions by the Contractor. The remedial actions include: A. Suspend Contractor’s performance pending necessary corrective actions as specified by the City; B. Withhold payment to the Contractor until the necessary Services or corrections in performance are satisfactorily completed; and/or C. Deny payment for those Services which have not been satisfactorily performed, and which, due to circumstances caused by the Contractor, cannot be performed, or if performed would be of no value to the City; and/or D. Recover actual and/or consequential damages; and/or E. Terminate this Agreement. The foregoing remedies are cumulative and the City, it its sole discretion, may exercise any or all of the remedies individually or simultaneously. 11.0 MISCELLANEOUS PROVISIONS 11.1 No Waiver of Rights. A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either Party. The City’s approval or acceptance of, or payment for, Services shall not be construed to operate as a waiver of any rights or benefits to be provided under this Agreement. No covenant or term of this Agreement shall be deemed to be waived by the City except in writing signed and any written waiver of a right shall not be construed to be a waiver of any other right or to be a continuing waiver unless specifically stated. 11.2 No Waiver of Governmental Immunity. Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to the City, its elected and appointed officials, employees, contractors, or agents, or any other person acting on behalf of the City and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 130 of 482 Revised 12.22.21 11.3 Equal Employment Opportunity. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Contractor will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 11.4 Binding Effect. The Parties agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal representatives, and assigns; provided that this Section shall not authorize assignment. 11.5 No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub-consultant or sub-contractor of the Contractor. Absolutely no third party beneficiaries are intended by this Agreement. Any third-party receiving a benefit from this Agreement is an incidental and unintended beneficiary only. 11.6 Article X, Section 20/TABOR. The Parties understand and acknowledge that the City is subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the City's current fiscal period ending upon the next succeeding December 31. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the City, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. 11.7 Governing Law, Venue, and Enforcement. This Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Agreement shall be in the appropriate court for Arapahoe County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Agreement. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Agreement. DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 131 of 482 Revised 12.22.21 11.8 Survival of Terms and Conditions. The Parties understand and agree that all terms and conditions of the Agreement that require continued performance, compliance, or effect beyond the termination date of the Agreement shall survive such termination date and shall be enforceable in the event of a failure to perform or comply. 11.9 Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by the Contractor without the express written consent of the City. Any written assignment shall expressly refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned. No assignment shall release the Contractor from performance of any duty, obligation, or responsibility unless such release is clearly expressed in such written document of assignment. 11.10 Headings. The captions in this Agreement are for the convenience and reference of the Parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. 11.11 Integration and Amendment. This Agreement represents the entire and integrated agreement between the City and the Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral. Any amendments to this Agreement must be in writing and be signed by both the City and the Contractor. 11.12 Severability. Invalidation of any of the provisions of this Agreement or any paragraph, sentence, clause, phrase, or word herein or the application thereof in any given circumstance shall not affect the validity of any other provision of this Agreement. 11.13 Employment of or Contracts with Workers Without Authorization. The Contractor shall not knowingly employ or contract with a worker without authorization to perform work under this Agreement. The Contractor shall not contract with a subcontractor that fails to certify that the subcontractor does not knowingly employ or contract with any workers without authorization. By entering into this Agreement, the Contractor certifies as of the date of this Agreement that it does not knowingly employ or contract with a worker without authorization who will perform work under this Agreement and that the Contractor will participate in the e-verify program or department program in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement. The Contractor is prohibited from using either the e-verify program or the department program procedures to undertake pre-employment screening of job applicants while this Agreement is being performed. If the Contractor obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with a worker without authorization, the Contractor shall be required to notify the subcontractor and the City within three (3) days that the Contractor has actual knowledge that a DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 132 of 482 Revised 12.22.21 subcontractor is employing or contracting with a worker without authorization. The Contractor shall terminate the subcontract if the subcontractor does not stop employing or contracting with the worker without authorization within three (3) days of receiving the notice regarding the Contractor’s actual knowledge. The Contractor shall not terminate the subcontract if, during such three days, the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with a worker without authorization. The Contractor is required to comply with any reasonable request made by the Department of Labor and Employment in the course of an investigation undertaken to determine compliance with this provision and applicable state law. If the Contractor violates this provision, the City may terminate this Agreement, and the Contractor may be liable for actual and/or consequential damages incurred by the City, notwithstanding any limitation on such damages provided by such Agreement. 11.14 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified mail or registered mail, postage and fees prepaid, addressed to the Party to whom such notice is to be given at the address set forth below or at such other address as has been previously furnished in writing, to the other Party. Such notice shall be deemed to have been given when deposited in the United States Mail properly addressed to the intended recipient. If to the City: If to the Contractor: City Manager City of Littleton 2255 W. Berry Avenue Littleton, Colorado 80120 FINANCIAL CONSULTING SOLUTIONS GROUP, INC. 7525 166TH AVENUE NE SUITE D215, REDMOND, WA 98052 With Copy to: City Attorney City of Littleton 2255 W. Berry Avenue Littleton, Colorado 80120 12. INDEMNIFICATION AND HOLD HARMLESS The Contractor expressly agrees to, and shall, indemnify and hold harmless the City and any of its elected and appointed officials, officers, agents, or employees from any and all claims, damages, liability, or court awards, including costs and reasonable attorney fees that are or may be awarded as a result of any loss, injury or damage sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation, to the extent caused by the negligent acts, errors or omissions of the Contractor or any of its employees, agents, partners, subcontractors, consultants, or others working on behalf of the Contractor in performance of the Services under this Agreement. Nothing in this paragraph shall constitute an agreement by the DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 133 of 482 Revised 12.22.21 Contractor to indemnify or hold the City harmless for any omission or action by the City or any of its elected and appointed officials, officers, agents, or employees. By demanding this right to indemnification, the City in no way waives or limits its rights under the Colorado Governmental Immunity Act, C.R.S. § 24-20-101, et. seq. 13. AUTHORITY The individuals executing this Agreement represent that they are expressly authorized to enter into this Agreement on behalf of City and the Contractor and bind their respective entities. THIS AGREEMENT is executed and made effective as provided above. CITY OF LITTLETON, COLORADO By: Mark Relph, City Manager Dave Ems, Procurement Officer APPROVED AS TO FORM CONTRACTOR By:_____________________ By: ______ Reid Betzing, City Attorney Jason Mumm Principal DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 4/29/2022 4/29/2022 5/1/2022 John Ghilarducci President Page 134 of 482 Revised 12.22.21 EXHIBIT A To Agreement between the City and FINANCIAL CONSULTING SOLUTIONS GROUP, INC. 1. Scope of Services. The Contractor hereby agrees to and accepts responsibility to perform the services described on the attached Exhibit B (Scope of Services/Proposal). 2. Time of Performance. Performance of the Services of the Contractor shall commence on 04/08/2022 and shall be completed, or shall end, by 04/08/2023. 3. Compensation. The City agrees to compensate the Contractor for the performance of the Services detailed in Exhibit B, as follows: A. Lump Sum: The total sum of $ 0.00 for the Services described in Exhibit B. If the City is satisfied with Contractor’s performance, the City shall pay this sum within forty-five (45) days of receipt of Contractor’s invoice indicating that it has completed the Services. Non-reimbursable Costs, Charges, Fees, or Other Expenses. Any fee, cost, charge, fee, or expense incurred by the Contractor shall be deemed a non-reimbursable cost and shall be borne by the Contractor and shall not be billed or invoiced to the City and shall not be paid by the City. If dollar amount in this Sub-paragraph A, Lump Sum, is zero, this Sub- paragraph shall void and of no effect. B. Time and Material: The Contractor shall perform the Services described in Exhibit B and shall invoice the City for work performed based on the rates and/or compensation methodology described in Exhibit B. Total compensation (including any and all mobilization costs, other costs, charges, fees, or other expenses that might otherwise be incurred by other contractors and payable as a reimbursable expense) shall not exceed $ 40,000.00 The Contractor shall submit invoices and requests for payment in a form acceptable to the City. Invoices shall not be submitted more often than once each month unless otherwise approved by this Agreement or in writing by the City. Unless otherwise directed or accepted by the City, all invoices shall contain sufficient information to account for all Contractor time (or other appropriate measure(s) of work effort) and all authorized reimbursable expenses for the Services during the stated period of the invoice. Following receipt of a Contractor’s invoice, the City shall promptly review the Contractor’s invoice. The City may dispute any Contractor time, reimbursable expense, and/or compensation requested by the Contractor described in any invoice and may request additional information from the Contractor substantiating any and all compensation sought by the Contractor before accepting the invoice. When additional information is requested by the City, the City shall advise the Contractor in writing, identifying the specific item(s) that are in dispute and giving specific reasons for any request for information. The City shall pay the Contractor within forty-five (45) days of the receipt of an invoice for any undisputed charges or, if the City disputes an item or invoice and additional information is requested, within thirty (30) days of acceptance of DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 135 of 482 Revised 12.22.21 the item or invoice by the City following receipt of the information requested and resolution of the dispute. To the extent possible, undisputed charges within the same invoice as disputed charges shall be timely paid in accordance with this Agreement. Payment by the City shall be deemed made and completed upon hand delivery to the Contractor or designee of the Contractor or upon deposit of such payment or notice in the U.S. Mail, postage pre-paid, addressed to the Contractor. If dollar amount in this Sub- paragraph B, Time and Material, is zero this Sub-paragraph shall be void and of no effect. C. Annual Fee: The annual sum of $ for the Services described in Exhibit B. The City shall pay this sum in equal monthly payments over twelve months. Non-reimbursable Costs, Charges, Fees, or Other Expenses. Any fee, cost, charge, fee, or expense incurred by the Contractor shall be deemed a non-reimbursable cost and shall be borne by the Contractor and shall not be billed or invoiced to the City and shall not be paid by the City. If dollar amount in this Sub-paragraph C, Annual Fee, is zero, this Sub-paragraph shall be void and of no effect. 4. Special Conditions. DocuSign Envelope ID: 6D5503F4-6A27-48CD-8801-E81E398E9156 Page 136 of 482 Firm Headquarters Redmond Town Center 7525 166th Ave NE, Ste. D-215 Redmond, Washington 98052 Established 1988 Washington | 425.867.1802 Oregon | 503.841.6543 Colorado | 719.284.9168 August 1, 2022 Keith Reester Director of Public Works, City of Littleton 2255 W. Berry Ave. Littleton, CO 80120 Subject: Amendment to FCS GROUP Scope and Budget Dear Mr. Reester: Per our recent discussions together and with Pieter Van Ry from the City of Englewood, the following is an estimated amendment to our agreement for the purposes of increasing the scope of work to include both the Littleton and Englewood connector districts. It is our understanding that Englewood will provide the funding for the proposed amendment. The scope of work is the same as our original, which included only the Littleton connector districts. However, we are increasing the expected timeline for completion and the budget to accommodate the 13 additional Englewood connectors. Task 1 of our original scope is completed; there is no need to amend it to add the Englewood connectors. Tasks 2 – 5 are amended as shown below. Task 2: Identify and Define the Connector Districts’ Preferences This task will involve engaging in outreach to the City’s Littleton and Englewood connector districts in an effort to solicit their input into the first draft of the new agreement. • Schedule and facilitate one individual meeting with each of the connector districts. Before each meeting, we will provide the districts with appropriate background materials and preliminary questions intended to help them prepare their comments in advance. • Schedule and facilitate one group meeting for all Littleton connector districts and one group meeting for all Englewood connector districts. The group meetings is are an opportunity to solicit group feedback about the agreement. In our experience, we often get different kinds of comments from a group setting than individual ones. • Document the individual and group comments. Task 3: Develop Initial Draft Based on the input received in Tasks 1 and 2, FCS GROUP will prepare an initial draft of the business terms and conditions. • Circulate the initial draft to Littleton, Englewood the City, and all connector districts. • Review the initial draft with both Littleton and Englewood the City. We will request written comments on the draft. After the City’s comments are received, we will schedule and Page 137 of 482 August 1, 2022 Keith Reester, Dir. Public Works, City of Littleton RE: Amendment to FCS GROUP Scope and Budget www.fcsgroup.com facilitate a review meeting to discuss how to incorporate the City’s comments into the document. • Review initial draft with all connector districts. We will request written comments from each connector district. Once those comments are received, we will schedule and facilitate one group meeting with the districts to review their comments and discuss how to incorporate them into the document. Task 4: Identify and Work to Resolve Key Issues Working from the comments received on the initial draft, FCS GROUP will document those elements in which the City’s Littleton, Englewood, and the connector districts’ preferences conflict. We will then work with all parties the City and the districts to develop alternative proposals to resolve the conflicts. Task 5: Document the Final Disposition After up to three review meetings with the City and districts parties, FCS GROUP will document the remaining conflicts and prepare a final version of the agreement terms, noting those elements where conflicts still exist. We will provide Littleton and Englewood the City with our recommendations, if appropriate, for finalizing the agreement. The initial not-to-exceed budget for the above scope of services shall be increased from $40,000 to $61,850. We will endeavor to complete the scope of services as quickly as possible in coordination with the City's timelines. We will keep you apprised of the status of our work at regular intervals. The City may terminate our engagement at any time at its convenience; we will bill the City for any fees and expenses incurred up to termination. We understand the confidential nature of our engagement. We will not share any details discovered or developed in our work with any party other than those authorized by the City. I will serve as the principal-in-charge on behalf of FCS GROUP and manage the project. You can contact me at my direct phone number at (303) 652-7548 or by email at jasonm@fcsgroup.com. Yours very truly, Jason Mumm Principal Approved Page 138 of 482 August 1, 2022 Keith Reester, Dir. Public Works, City of Littleton RE: Amendment to FCS GROUP Scope and Budget www.fcsgroup.com Keith Reester Public Works & Utilities Director City of Littleton Page 139 of 482 August 1, 2022 Keith Reester, Dir. Public Works, City of Littleton RE: Amendment to FCS GROUP Scope and Budget www.fcsgroup.com FCS GROUP 2022 STANDARD FEE SCHEDULE Effective November 8, 2021 LABOR POSITION/TITLE BILLING RATE Principals Standard Rate $280 Project Managers • Senior Project Manager / Practice Lead Standard Rate $215 • Project Manager II Standard Rate $205 • Project Manager I Standard Rate $195 • Assistant Project Manager Standard Rate $185 Consultants • Project Consultant Standard Rate $175 • Senior Analyst Standard Rate $155 • Analyst Standard Rate $145 Administrative and Technical Support Public Relations $155 Technical Writer/Graphic Artist $130 Administrative Support $ 90 DIRECT EXPENSES Major direct expenses, such as travel, mileage, and lodging, will be charged at cost. Other expenses will not be directly charged unless by mutual agreement of the client and FCS GROUP, and specific terms will be established in advance before expenditure and billing. SUBCONSULTANTS Sub consultants will be charged at invoiced cost plus 10% when applicable. Page 140 of 482 August 1, 2022 Keith Reester, Dir. Public Works, City of Littleton RE: Amendment to FCS GROUP Scope and Budget www.fcsgroup.com BUDGET DETAIL Task Mumm Hobart Total Hours Task 1 8 8 16 Task 2 32 62 32 62 64 124 Task 3 8 8 16 Task 4 24 40 24 40 48 80 Task 5 8 8 16 Total Hours Rate / Hr. Total Fees Expense & Contingency Budget Request 126 $280 $35,280 $1,000 126 $195 $24,570 $1,000 252 - $59,850 $2,000 $61,850 Page 141 of 482 Revised 10032022 CITY OF LITTLETON AMENDMENT #1 TO AGREEMENT FOR PROFESSIONAL SERVICES THIS AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT (“Amendment”) is entered into on 10/18/2022 by and between FCS GROUP whose business address is 7525 166TH AVENUE NE, Ste. D-215 REDMOND, WA 98052 (the “Contractor”) and the CITY OF LITTLETON, COLORADO (“City”), a Home Rule municipality of the State of Colorado. The City and the Contractor may be collectively referred to as the “Parties.” RECITALS AND REPRESENTATIONS WHEREAS, the City and Contractor entered into that certain Professional Services Agreement described on Exhibit A (the “Agreement”); and WHEREAS, the Parties desire to amend the Agreement; NOW, THEREFORE, in consideration of the benefits and obligations of this Agreement, the Parties mutually agree as follows: 1. To amend the scope/fee in order to include thirteen (13) additional Englewood connector districts agreements with associated costs not to exceed an additional $21,850, as outlined in the updated Scope of Work. This Amendment is subject to approval of an Intergovernmental Agreement between Littleton and Englewood, which specifies that Englewood will provide funding for this amendment. 2. No other terms and conditions of the Agreement are modified except as provided in this Amendment. 3. The individuals executing this Amendment represent that they are expressly authorized to enter into this Amendment on behalf of the City and the Contractor and bind their respective entities. THIS AMENDMENT is executed and made effective as provided above. CITY OF LITTLETON, COLORADO By: Jim Becklenberg, City Manager APPROVED AS TO FORM CONTRACTOR By:_____________________ By: Reid Betzing, City Attorney John Ghilarducci, President FCS Page 142 of 482 Intergovernmental Agreement with the City of Littleton City Council, Regular Session Pieter Van Ry, Englewood Utilities and South Platte Renew Director November 21, 2022 Page 143 of 482 IGA Background •19 Sanitation Districts •Englewood: 13 districts •Littleton: 8 districts *Two districts connect through both cities •Connector District Agreements: •Evaluate Key Business Terms •Identify Key Issues •Meet with Connector Districts •IGA to cost share for $21,850 Page 144 of 482 Questions?Page 145 of 482 Thank you Page 146 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: November 21, 2022 SUBJECT: CB 72 - Approve a bill for an ordinance amending various sections of the public offense code to mirror changes in state law and ensure compliance DESCRIPTION: CB 72 - The City Attorney's Office compared the City public offense code to changes in state law through statutes and case law, and concluded revisions to multiple sections were necessary. These revisions mirror state law, and modify code language for clarity and consistency. RECOMMENDATION: CONSIDER AN ORDINANCE AMENDING SECTIONS 1-4-1, 1-7-2, 7-6A-5, 7-6B-10, 7-6C-1, 7- 6C-2, 7-6C-3, 7-6D-1, 7-6D-10, 7-6D-12 OF ENGLEWOOD MUNICIPAL CODE TO ENSURE COMPLIANCE WITH APPLICABLE LAW, CURRENT PRACTICES SUMMARY: TheCity of Englewood, as a home-rule city, has authority to enact ordinances on and regulate matters of both local and statewide concern when the ordinances and state statutes do not conflict. Many sections under Title 1, Title 6, and Title 7 of the Englewood Municipal Code are generally reflective of statutes under Title 18 “Criminal Code” of the Colorado Revised Statutes, but statutes are regularly amended. Various sections of Englewood Municipal Code should be amended to mirror revisions in state law, to provide language that is clear, succinct, and consistent, to remove offenses that can no longer be prosecuted in Englewood Municipal Court, and to reflect current and best practices. Proposed substantive provisions are as follows: 1-4-1: -General Penalty. Municipal Court can impose jail up to 360 364 days 1-7-2: -Jurisdiction, Power. Mirrors state law definitions, procedure for contempt Provides more due process to defendants Requires affidavit before warrant issued for failure to appear Order to appear on contempt served 21 days before hearing 7-6A-5: - Resist, Interfere With Municipal Officers. Page 147 of 482 Expanded to include EMS, fire, code enforcement, building officials Remaining silent or stating verbal opposition is OK 7-6B-10: - False Reports and Alarms. Falsely reporting animal cruelty is not a violation 7-6C-1: - Concealed Weapons. Expands exceptions for concealed weapons prohibition to include the following: United States probation officer Pretrial services officer Member of the armed forces 7-6C-2: Possession of Illegal Weapons. Expands exceptions for illegal weapon prohibition to include the following: United States probation officer Pretrial services officer Removes weapons that cannot be prosecuted in Municipal Court 7-6C-3: - Prohibited Use of Weapons. Adds a new prohibition: 4. Knowingly set a loaded gun, trap, or device designed to cause an explosion upon being tripped or approached, and leave it unattended by a competent person immediately present; 7-6D-1: - Prostitution. Removes certain acts that can no longer be prosecuted in Municipal Court 7-6D-10: - Gambling. Provides new exception to prohibition for lawful sports betting and a crane game Lawful possession of a gambling device or record is not prohibited 7-6D-12: - Possession, Use or Consumption of Marijuana Prohibited. State laws on marijuana possession, use, consumption change regularly Amendments mirror current law, but also attempt to reduce likelihood that this section must be changed every year to mirror state law Removes specific ounce measurements for lawful possession COUNCIL ACTION REQUESTED: CONSIDER AN ORDINANCE AMENDING SECTIONS 1-4-1, 1-7-2, 7-6A-5, 7-6B-10, 7-6C-1, 7- 6C-2, 7-6C-3, 7-6D-1, 7-6D-10, 7-6D-12 OF ENGLEWOOD MUNICIPAL CODE TO ENSURE COMPLIANCE WITH APPLICABLE LAW, CURRENT PRACTICES FINANCIAL IMPLICATIONS: None anticipated. ATTACHMENTS: Page 148 of 482 Council Bill #72 Powerpoint Page 149 of 482 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 72 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER _________________ A BILL FOR AN ORDINANCE AMENDING SECTIONS 1-4-1, 1-7-2, 7-6A-5, 7-6B-10, 7- 6C-1, 7-6C-2, 7-6C-3, 7-6D-1, 7-6D-10, 7-6D-12 OF ENGLEWOOD MUNICIPAL CODE TO ENSURE COMPLIANCE WITH APPLICABLE LAW, CURRENT PRACTICES. WHEREAS, the City of Englewood, as a home-rule city, has authority to enact ordinances on and regulate matters of both local and statewide concern when the ordinances and state statutes do not conflict; and WHEREAS, many sections under Title 1, Title 6, and Title 7 of the Englewood Municipal Code are generally reflective of statutes under Title 18 “Criminal Code” of the Colorado Revised Statutes; and WHEREAS, many statutes under Title 18 “Criminal Code” of the Colorado Revised Statutes have been amended by the state legislature and though case law, including reclassification of certain crimes as felonies or civil offenses that must be filed in state county court; and WHEREAS, municipal courts do not have jurisdiction over felonies or civil offenses that must be filed in state county court; and WHEREAS, various sections of Englewood Municipal Code should be amended to mirror revisions in state law, to provide language that is clear, succinct, and consistent, to remove offenses that can no longer be prosecuted in Englewood Municipal Court, and to reflect current and best practices. . NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Amendment of Englewood Municipal Code Title 1, Chapter 4, Section 1-4-1 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 1-4-1: -General Penalty. A. Fine; Imprisonment: It shall be unlawful for any person to violate, disobey, omit, neglect, refuse or fail to comply with or resist the enforcement of any provision of this Code or any secondary code adopted herein (collectively “violation”). Except as otherwise specifically provided for in this Code, the violations of any provisions of this Code or of any secondary code adopted herein shall be punished by a fine not exceeding two thousand six hundred and fifty dollars ($2,650.00) or imprisonment for a term not exceeding three hundred sixty-four (360364) Page 150 of 482 2 days or by both such fine and imprisonment. The imposition of one (1) penalty shall not excuse any violation nor permit it to continue. Unless otherwise indicated, a separate offense shall be deemed committed upon each day or portion thereof during or on which any violation of any provision of this Code or any secondary code adopted herein occurs or continues. B. No Jail Sentence for Juveniles: No jail sentence shall be imposed upon persons under the age of eighteen (18) years. C. Trial By Jury for Juveniles: No child under the age of eighteen (18) years shall be entitled to a trial by jury, for a violation of a municipal ordinance for which imprisonment in jail is not a possible penalty; except that such a child is entitled to a trial by jury for any offense classified as which would be a Class 1 misdemeanor under a State counterpart statute. D. Every person convicted of a violation of any provision stated or adopted which is designated as a "traffic infraction" and for which a penalty is paid or payable at the "Traffic Violations Bureau" shall be punished by a fine penalty not exceeding two thousand six hundred and fifty dollars ($2,650.00), but. There shall be no imprisonment for traffic infractions. Section 2. Amendment of Englewood Municipal Code Title 1, Chapter 7, Section 1-7-2 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 1-7-2: -Jurisdiction, Power. A. The Municipal Court shall have: original jurisdiction of all cases arising under Englewood Municipal the Code of Ordinances of the City with full power to carry the same into effect to enforce and to punish violations thereof by the imposition of such fines and penalties as in such Code provided; it shall have all powers incident to a court of record, including in relation to the attendance of witnesses, the punishment of contempt, issuance of warrants and enforcing Court of orders of the court. The Court’s jurisdiction does not extend to felonies, civil infractions, or other matters over which Colorado Municipal Courts are prohibited from asserting jurisdiction under applicable law. B. Contempt means disobedience of an order of the court; conduct tending Definition: Misbehavior of any person in the presence of the court, or misbehavior so near thereto as to obstruct or interfere with the orderly administration of justice; misbehavior of any officer of the court in his official transactions and disobedience or resistance of any person or interference with any lawful process, order, rule, or command of the Englewood Municipal Court or any act or omission designated as contempt by this Code or the Colorado Municipal Court Rules of Procedure shall constitute contempt. C. In Presence of Court: When contempt is committed in the presence of the Englewood Municipal Court, the Judge presiding over the proceeding shall it may be punished summarily. In such a case, issue an order shall be made on the record or in writing reciting the facts constituting the contempt, adjudging the contemner guilty of contempt and prescribing the Page 151 of 482 3 punishment therefor. including a description of the person's conduct, and findings that the conduct was so extreme that no warning was necessary or the conduct was repeated after the Court's warning to desist and that the conduct is offensive to the authority and dignity of the Court. D. Out of Presence of Court: When it appears to the court by a motion supported by affidavit establishes probable cause that a contempt was has been committed outside of the presence of the Ccourt, or if a person fails to appear in Court after being ordered to return either in person or in writing, the Ccourt may ex parte order a citation to issue to the alleged offenderperson so charged to appear and show cause at a date, time, and place designated why the person should he/she shall not be punished therefor. However, in the case where a person fails to appear at a court hearing after being ordered to do so by a properly executed document, either the court sua sponte or on motion, may order such citation supported by a copy of the executed document requiring attendance in lieu of the affidavit. The order to appear and show cause, along with a copy of any motion, affidavit or other citation and a copy of the supporting documents, shall be served upon such person at least 21 daysa reasonable time before the time designated. If the person fails to appear at the time designated (or any continuance thereof), and the person was either properly served with the order and supporting documentation or the contempt arises out of the person’s failure to appear in Court after being ordered to return either in person or in writing, a warrant for the person's arrest may issue. The warrant shall fix the date, time and place for the production of the person in court, and the amount and kind of bond required for release. , or, if the court so orders, when the citation is issued or thereafter, a warrant for his/her arrest may issue to any peace officer. Such warrant shall fix the time for production of the person into court. The court shall direct by endorsement thereon the amount of bail or bond required. Such person shall be discharged upon delivery to and approval of any peace officer or clerk of a court of record, so designated by a Police Chief, Sheriff, or Judge of a Court of Record of a bond corresponding to the requirements established by the court. If he/she fails to make bond, he/she shall be kept in custody subject to an order of the court. Any bond may be forfeited upon proper notice of hearing to the surety, if any, and may be paid to any aggrieved party by order of the Court. E. Contempt Hearings. The court shall hear evidence for and against the person charged with contempt, and prior to the imposition of sanctions, any person charged with contempt shall have the right to make a statement in mitigation. Upon a finding or admission of guilt, the Court may impose costs of contempt proceedings and sanctions as provided in EMC § 1-4-1. and it may find him/her guilty of contempt and by order prescribe the punishment therefor. The maximum punishment that can be imposed is as is set forth in Section 1-4-1 of this Code. However, in imposing punishment for contempt on minors, the court is not limited to the restrictions of subsection 1-4-1B of this Code but cannot adjudge confinement in excess of forty- eight (48) hours. Also, the court may impose costs of the contempt proceedings. F. No Contact Orders Prior to Trial. 1. For the purpose of this section the following definition applies: No Contact Order - an order issued by the Judge of the Englewood Municipal Court prohibiting a person from initiating any contact with another person at any place or through any means designated in the order for a Page 152 of 482 4 period of time designated in the order. However, a restricted contact can be provided for in such order under limited conditions, times, places, and circumstances. 2. The Judge of the Englewood Municipal Court may, in his/her discretion for good cause shown, issue a No Contact Order against a defendants before trial when the issuance of such order is to protect the safety of persons or prevent damage to property, including a prohibition or limited restriction against initiating any contact with another person. 3. The Municipal Court Judge may require a cash or surety bond to ensure athat said defendant shall obeys the No Contact Order, and may order forfeiture of the bond. U upon a violation of the No Contact Order by the defendant, the court can order forfeiture of the bond. 4. Each violation of a No Contact Order is a separate contempt and may can be punished as provided hereinin subsection E of this section. G. Restraining Orders. Englewood Municipal Court may issue temporary or permanent civil protection orders pursuant to C.R.S. § 13-14-104.5. 1. The Judge of the Englewood Municipal Court may, in his/her discretion, issue temporary and permanent restraining orders to prevent domestic abuse whether or not such relief could be obtained in a domestic relations action filed in a District Court. 2. Action to obtain such relief is initiated by filing a complaint, duly verified, alleging that the defendant has committed acts constituting domestic abuse against the plaintiff or a minor child of either of the parties. 2. Upon the filing of such complaint aAfter hearing the evidence and, being fully satisfied therein that sufficient cause exists, the Municipal Court Judge may issue a temporary restraining order and command to prevent domestic abuse and a citation directed to the defendant, commanding the person to appear before the court at a specific time and date, to show cause, if any, why said temporary restraining order should not be made permanent. 3. If, at the hearing held by the Municipal Court Judge upon the filing of such complaint, the defendant is present and participates in the hearing, the Municipal Court Judge if otherwise satisfied proper cause is shown, may issue a permanent restraining order. H. Juvenile Evaluation. 1. The Judge of the Englewood Municipal Court may, in his/her discretion, order a juvenile to obtain an evaluation from the 18th Judicial District Juvenile Assessment Center or other qualified provider, upon receipt of a verified complaint . 2. Action to obtain such relief is initiated by filing a complaint, duly verified, alleging that the defendant is a juvenile defendant that is at risk and/or a delinquent and finding after hearing . Upon the filing of such complaint after hearing the evidence and being fully satisfied therein that sufficient cause exists to support the allegations within the complaint, the Municipal Court Judge may issue an order to have the juvenile obtain such an evaluation. Section 3. Amendment of Englewood Municipal Code Title 7, Chapter 6, Article A, Section 7-6A-5 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 7-6A-5: - Resist, Interfere with Municipal Officers. Page 153 of 482 5 A. No person shall It shall be unlawful for any person to resist a peace officer, under color of official authority, from effecting the arrest of any person, by the use or threat of physical force or violence, or any other means which creates a substantial risk of physical injury. B. No person shall It shall be unlawful to knowingly obstruct or interfere with or hinder a peace officer (including those persons described in C.R.S. § 18-3-201(2)), City employee designated by EMC § 6-5-1, emergency medical service provider, or firefighterman in the discharge of theirhis duties, but remaining silent or stating verbal opposition to an order does not constitute a violation of this section. C. City of Englewood employees who do not have to be certified under the provisions of part 3 of Article 33.5 of Title 24, Colorado Revised Statutes, as a condition of employment, shall be included within the definition of "peace officers engaged in the performance of their duties" within the meaning of Section 18-3-201(2) C.R.S, even though such personnel, by their limited appointments as specified in Section 6-5-1 of this Code, are without the certification requirements of part 3 of Article 33.5 of Title 24, Colorado Revised Statutes. D. Code Enforcement Officers, with respect to Titles 5, 6, 8, 9, 10, 11, 12, 15, 16, and Title 7, Chapter 1, Sections 1A, 1B, 1C and 2 Englewood Municipal Code of 1985, and also the adopted secondary codes applicable thereto are also "peace officers" within the meaning of this section. The aforementioned limited appointments do not permit these designated appointees to carry firearms, make arrests, and exercise any other duties of law enforcement officers, except as herein provided. Section 4. Amendment of Englewood Municipal Code Title 7, Chapter 6, Article B, Section 7-6B-10 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 7-6B-10: - False Reports and Alarms. A. To Law Enforcement Authorities. 1. Falsely Incriminating Another. No person shall It shall be unlawful for a person to knowingly give false information to any law enforcement officer with purpose to implicate another. 2. Fictitious Reports. No person shall It shall be unlawful for a person to: a. Report to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; or b. Pretend to furnish such authorities with information relating to an offense or incident when hethe person knows hethey have has no information relating to such offense or incident or knows that the information is false, other than a false report regarding animal cruelty. 3. Fictitious Names and Addresses. No person shall It shall be unlawful for a person to give a false name or address or age to a peace law enforcement officer with the intent of concealing or hiding one's own real name, and/or address, or and/or age. Page 154 of 482 6 B. To Agencies of Public Safety. No person shall It shall be unlawful for a person to knowingly cause a false alarm of fire or other emergency to be transmitted to or within any organization, official or volunteer, for dealing with emergencies involving danger to life or property. Section 5. Amendment of Englewood Municipal Code Title 7, Chapter 6, Article C, Section 7-6C-1 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 7-6C-1: - Concealed Weapons. A. No person shall It shall be unlawful for any person, within the limits of Englewood, knowingly to carry on their person any concealed upon his/her person any knife or firearm, except as follows: B. It shall be an affirmative defense that the defendant was: 1. A person in their his/her own dwelling or place of business or on property owned or under theirhis/her control at the time of the act of carrying; or 2. A person in a private automobile or other private means of conveyance who carries a weapon for lawful protection of theirhis/her or another's person or property while traveling; or 3. A person who, prior to the time of carrying a concealed weapon, has been issued a written permit pursuant to Section 18-12-105.1, Colorado Revised Statutes, to carry the weapon by the chief of police of a city or city and county, or the sheriff of a county A person who, at the time of carrying a concealed weapon, was authorized to do so by applicable law; or 4. A peace officer as defined in C.R.S. § 16-2.5-101, or a United States probation officer, pretrial services officer, or member of the armed forces, when carrying a weapon as authorized by the employing agency Section 18-1-901(3)(1), Colorado Revised Statutes; or 5. A member of the Armed Forces of the United States or the Colorado National Guard acting in the lawful discharge of his/her duties Section 6. Amendment of Englewood Municipal Code Title 7, Chapter 6, Article C, Section 7-6C-2 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 7-6C-2: Possession of Illegal Weapons. A. No person shall It shall be unlawful for any person to possess an illegal weapon, unless they are authorized to do so by applicable law; or a peace officer as defined in C.R.S. § 16-2.5- 101, a United States probation officer, pretrial services officer, or member of the armed forces, when carrying the weapon as authorized by the employing agency. B. As used in this Section, the term "illegal weapon" means a blackjack, bomb, gas gun, zip gun, or metallic knuckles., gravity knife, or switchblade knife. C. It shall be an affirmative defense to this Section that a person has a valid permit and license pursuant to the United States Code for such weapon, or that a person is a peace officer, Page 155 of 482 7 or a member of the United States Armed Forces, or the Colorado National Guard acting in the lawful discharge of his/her duties. Section 7. Amendment of Englewood Municipal Code Title 7, Chapter 6, Article C, Section 7-6C-3 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 7-6C-3: - Prohibited Use of Weapons. A. No person shall It shall be illegal for: 1. Any person to Knowingly and unlawfully aim a firearm at another person;. 2. Any person to Recklessly or with criminal negligence discharge a firearm or shoot a bow and arrow or blow-dart weapon;. 3. Any person to Have in his/her possession Possess a firearm while under the influence of intoxicating liquor or of a controlled substance, as defined in C.R.S. § 18-18-102(5);Section 12- 22-303(7), Colorado Revised Statutes. Possession of a permit issued under Section 18-12-105.l, Colorado Revised Statutes no defense to a violation of this subsection A. 4. Knowingly set a loaded gun, trap, or device designed to cause an explosion upon being tripped or approached, and leave it unattended by a competent person immediately present; 4. 5. Any person to Knowingly aim, swing, or throw a nunchaku (nunchakus) or a throwing star, as defined in Section 7-6C-0 of this Chapter, at another person, or any person to knowingly possess a throwing star or nunchaku (nunchakus) in a public place except for a City-authorized the purpose of presenting a public demonstration or exhibition authorized by the City, or for organized school or class pursuant to instruction in conjunction with an organized school or class. When transporting for an authorized purpose, throwing stars or nunchaku (nunchakus) for a public demonstration or exhibition or for a school or class, they shall be transported in a closed, non-accessible container;. 5 6. Any person to Hit, swing, or use any device composed of leather or other materials impregnated with spikes at another person, or any person to knowingly possess any device composed of leather or other material impregnated with spikes as defined in Section 7-6C-0 in a public place except for a City-authorized the purpose of presenting a demonstration or exhibition authorized by the City. When transporting for an authorized purpose, any device composed of leather or other material impregnated with spikes for a public demonstration or exhibition, they shall be transported in a closed, non-accessible container; or. 6 7. Any person to Discharge an air gun anywhere in this City except in a manner that cannot endanger persons or property within a shooting galleryies or on any private grounds or structures in which in any residence where such instrument can be fired, discharged or operated in such a manner that the projectile cannot does not travel beyond the property limits outside the limits of such gallery, grounds, or residence; and, provided further, that the instrument shall not be discharged or operated in such a manner as to endanger persons or property. Nothing herein contained shall be construed to prevent the concealed carrying of any air gun when unloaded and properly cased to and from any range or gallery. B. Possession of a permit authorizing the concealed carry of a firearm issued under Section 18-12-105.l, Colorado Revised Statutes is no defense to a violation of this Sectionsubsection A. Section 8. Amendment of Englewood Municipal Code Page 156 of 482 8 Title 7, Chapter 6, Article D, Section 7-6D-1 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 7-6D-1: - Prostitution. A. Definitions: Anal Intercourse: Contact between human beings of the genital organs of one and the anus of another. Anilingus: Any act of oral stimulation of the anus. Cunnilingus: Any act of oral stimulation of the vulva or clitoris. Fellatio: Any act of oral stimulation of the penis. Masturbation: Stimulation of the genital organs by manual or other bodily contact exclusive of sexual intercourse. Sexual Intercourse: Real or simulated intercourse, whether genital-genital, oral-genital, anal- genital, or oral-anal, between human beings of the opposite or same sex, or with an artificial genital organ. B.A. Prostitution: No person shall 1. Defined: Any person who performs or offers or agrees to perform any act of sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse as defined by C.R.S. § 18-7- 201 (collectively “sexual act”),or anilingus in exchange for money or other thing of value commits prostitution. 2. Prohibited: Prostitution is prohibited and shall be a violation of the Englewood Municipal Code. BC. Soliciting for Prostitution: No person shall, for the purpose of Prostitution, 1. Defined: A person commits soliciting for prostitution if he or she: a. solicits another, for the purpose of prostitution; or b. arranges or offers to arrange a meeting of persons, for the purpose of prostitution; or c. directs another to a place knowing such direction is for the purpose of prostitution,; or d. offers to exchange money or other thing of value for sexual intercourse, fellatio, cunnilingus, masturbation, anal intercourse, or anilingus. 2. Prohibited: Soliciting for prostitution is prohibited and shall be a violation of the Englewood Municipal Code. CD. Pandering: 1. Defined: No person shall Any person who does any of the following knowingly arrange or offer to arrange a situation in which a person may practice Prostitution for money or other thing of value commits pandering:. a. Inducing a person by menacing or criminal intimidation to commit prostitution; or b. Knowingly arranging or offering to arrange a situation in which a person may practice prostitution. 2. Prohibited: Pandering is prohibited and shall be a violation of the Englewood Municipal Code. DE. Keeping a Place of Prostitution: No person, having Page 157 of 482 9 1. Defined: Any person who has or exercisinges control over the use of any place which offers seclusion or shelter for the practice of Prostitution, shall and who performs any one or more of the following commits keeping a place of prostitution if that person: 1a. Knowingly grants or permits the use of such place for the purpose of Prostitution; or 2b. Permits the continued use of such place for the purpose of Prostitution after becoming aware of facts or circumstances from which theyhe/she should reasonably know that the place is being used for purposes of Prostitution. 2. Prohibited: Keeping a place of prostitution is prohibited and shall be a violation of the Englewood Municipal Code. EF. Patronizing a Prostitute: No person shall: 1. Defined: Any person who performs any of the following commits patronizing a prostitute: a. Engages in a sexual act with a person violating subsection A above an act of sexual intercourse, fellatio, cunnilingus, masturbation, anal intercourse, or anilingus with a prostitute; or 2b. Enters or remains in a place of prostitution with intent to engage in a sexual act an act of sexual intercourse, fellatio, cunnilingus, masturbation, anal intercourse, or anilingus. 2. Prohibited: Patronizing a prostitute is prohibited and shall be a violation of the Englewood Municipal Code. FG. Pimping: No person shall 1. Defined: Any person who knowingly lives on or be is supported or maintained in whole or in part by money or other thing of value earned, received, procured, or realized by any other person through Prostitution commits pimping. 2. Prohibited: Pimping is prohibited and shall be a violation of the Englewood Municipal Code. GH. Prostitute Making Display: No person shall, 1. Defined: Any person who by word, gesture, or action, endeavors to further the practice of Prostitution in any public place or within public view. 2. Prohibited: Prostitute making display is prohibited and shall be a violation of the Englewood Municipal Code. HI. Promoting Sexual Immorality: No person shall 1. Defined: Any person who, for pecuniary gain and knowing the intended purpose, furnishes or makes available to another person any place or thing providing seclusion, privacy, opportunity, protection, comfort, or assistance to or for engaging or intending to engage in Prostitution facility, knowing that the same is to be used for prostitution, or who advertises in any manner that they she or he furnishes or areis willing to furnish or make available any such place or thingfacility for Prostitution such purposes, commits promoting sexual immorality. 2. Facility: As used in this subsection, means any place or thing which provides seclusion, privacy, opportunity, protection, comfort, or assistance to or for a person or persons engaging or intending to engage in prostitution. 3. Prohibited: Promoting sexual immorality is prohibited and shall be a violation of the Englewood Municipal Code. Page 158 of 482 10 Section 9. Amendment of Englewood Municipal Code Title 7, Chapter 6, Article D, Section 7-6D-10 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 7-6D-10: - Gambling. A. No person shall Definitions. Gain: The direct realization of winnings; "profit" means any other realized or unrealized benefit, direct or indirect, including without limitation benefits from proprietor-ship, management, or unequal advantage in a series of transactions. Gambling: risking any money, credit, deposit, or other thing of value for gain contingent in whole or in part upon lot, chance, the operation of a gambling device, or the happening or outcome of an event, including a sporting event, over which the person taking a risk has no control, but does not include: 1. Bona fide contests of skill, speed, strength, or endurance in which awards are made only to entrants or the owners of entries; or 2. Bona fide business transactions which are valid under the law of contractors; or 3. Participation in any lottery authorized by the State of Colorado; or 4. Other acts or transactions now or hereafter expressly authorized by law, including lawful sports betting and a crane game under CRS § 44-30-103; or 5. Any game, wager, or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only, and in which no person is participating, directly or indirectly, in professional gambling. Gambling Device: Any device, machine, paraphernalia, or equipment that is used or usable in the playing phases of any prohibited gambling activity, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine. Gambling Information: A communication with respect to any wager made in the course of, and any information intended to be used for, professional gambling. In the application of this definition the following shall be presumed to be intended for use in professional gambling: information as to wagers, betting odds, or changes in betting odds. Legitimate news reporting of an event for public dissemination is not gambling information within the meaning of this Section. Gambling Premises: Any building, room, enclosure, vehicle, vessel, or other place, whether open or enclosed, used or intended to be used for professional gambling. In the application of this definition, any place where a gambling device is found is presumed to be intended to be used for professional gambling. Gambling Proceeds: All money or other things of value at stake or displayed in or in connection with professional gambling. Gambling Record: Any record, receipt, ticket, certificate, token, slip, or notation given, made, used, or intended to be used in connection with professional gambling. Professional Gambling: 1. Aiding or inducing another to engage in gambling, with the intent to derive a profit therefrom; or 2. Participating in gambling and having, other than by virtue of skill or luck, a lesser chance of losing or a greater chance of winning than one or more of the other participants. Page 159 of 482 11 B. It is unlawful for any person to engage in gambling in this City. BC. Gambling Devices. All gambling devices, gambling records, and gambling proceeds are subject to any seizure by any peace officer and may be confiscated and destroyed by order of a court acquiring jurisdiction. CD. Possession of a Gambling Device or Record. Except as specifically authorized by law, no person shall a person who owns, manufactures, sells, transports, possesses, or engages in any transaction designed to affect the ownership, custody, or use of a gambling device or gambling record, knowing that it is to be used for professional gambling., commits possession of a gambling device or record. DE. Gambling Premises. No 1. Whoever as owner, lessee, agent, employee, operator, or occupant shall knowingly maintains, aids, or permits the maintaining of gambling premises commits maintaining gambling premises. 12. All gambling premises are common nuisances which shall be subject to abatement as provided by law. E. For purposes of this section, terms shall be defined as follows: 1. Gain: The direct realization of winnings. 2. Gambling Device: Any device, machine, paraphernalia, or equipment that is used or usable in the playing phases of any prohibited or professional gambling activity, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine, but not including a crane game defined in C.R.S. § 44-30-103(9). 3. Gambling Information: A communication with respect to any wager made in the course of, and any information intended to be used for, professional gambling including information as to wagers, betting odds, or changes in betting odds, but excluding legitimate news reporting of an event for public dissemination. 4. Gambling Premises: Any building, room, enclosure, vehicle, vessel, or other place, whether open or enclosed, used or intended to be used for professional gambling. Any place where a gambling device is found is presumed to be Gambling Premises. 5. Gambling Proceeds: All money or other things of value at stake or displayed in or in connection with professional gambling. 6. Gambling Record: Any record, receipt, ticket, certificate, token, slip, or notation given, made, used, or intended to be used in connection with professional gambling. 7. Professional Gambling: a. Aiding or inducing another to engage in gambling, with the intent to derive a profit therefrom; or b. Participating in gambling and having, other than by virtue of skill or luck, a lesser chance of losing or a greater chance of winning than one or more of the other participants. 8. Profit: any realized or unrealized benefit, direct or indirect, including without limitation benefits from proprietorship, management, or unequal advantage in a series of transactions. Section 10. Amendment of Englewood Municipal Code Page 160 of 482 12 Title 7, Chapter 6, Article D, Section 7-6D-12 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 7-6D-12: - Possession, Use or Consumption of Marijuana Prohibited. A. Definitions. Terms shall be defined in Colorado Constitution Article XVIII, Section 16, the Colorado Marijuana Code, CRS § 44-10-103, and as follows: Any word or term used that is defined in Article XVIII, Sections 14, or 16 of the Colorado Constitution; in § 25-1.5-101 et seq. C.R.S. or in the Colorado Medical Marijuana Code, § 12-43.3-101 et seq. C.R.S. shall have the same meaning that is ascribed to such word or term in those Constitutional provisions or C.R.S. sections unless the definition is amended by this section. 1. Consumption or Use of Marijuana: Shall be deemed possession thereof. Marihuana or Marijuana: All parts of the plant of the genus cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, or preparation of the plant, its seeds, or its resin, including marihuana concentrate. "Marijuana" or "Marihuana" does not include industrial hemp, nor does it include fiber produced from the stalks, oil, or cake made from the seeds of the plant, sterilized seed of the plant which is incapable of germination, or the weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink or other product. Marijuana Accessories: Any equipment, products, or materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, composting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, vaporizing, or containing marijuana, or for ingesting, inhaling, or otherwise introducing marijuana into the human body. Medical Marijuana: means Marijuana that is grown and sold pursuant to the provisions of § 106 of Article 1.5 of Title 12 C.R.S.; Article 43.3 of Title 12 C.R.S. and for a purpose authorized by Section 14 of Article XVIII of the State Constitution. 2. Passenger area: means the area designed to seat the driver and passengers while a motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in theirhis or her seating position, including, but not limited to, the glove compartment. B. No person shall: 1. It is unlawful for any person to Possess, use or consume one ounce or less of Marijuana, except as authorized by law; in accordance with Sections 14, and 16 of Article XVIII of the Colorado Constitution. 1. It shall be unlawful for anyone under twenty-one (21) years of age to possess, use or consume one (1) ounce or less of Marijuana. (a) Exception—Medical Marijuana as authorized by E.M.C. 5-3D-1 2. It shall be unlawful to Sell, distribute or transfer Marijuana to a person except as authorized by law; who is under twenty-one (21) years of age. (a) Exception—Medical Marijuana as authorized by E.M.C. 5-3D-1. 3.C. It shall be unlawful to Cultivate or permit to be cultivated, more than the following maximum number of Marijuana plants authorized by law;: 1. Six (6) Marijuana plants with three (3) or fewer being mature, flowering plants. Page 161 of 482 13 4. Use or consume Marijuana in the passenger area of a motor vehicle that is on a public street, highway or public right-of-way, unless a passenger, other than the driver or a front seat passenger, of: a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation; or in the living quarters of a house coach, house trailer, motor home as defined in C.R.S. § 42-1-102(57), or trailer coach as defined in C.R.S. § 42-1-102(106); or 5. Use or consume Marijuana in any public place. CD. Restrictions on locations for cCultivating Marijuana. 1. Growing of Marijuana shall take place in an enclosed, locked space and shall not be conducted openly or publicly. 2. No person shall cultivate or grow Marijuana: a. openly, publicly, or in the common areas of residential property; b. It shall be unlawful to cultivate Marijuana in an outdoor area or an accessory structure, including but not limited to outdoor gardens, greenhouses, sheds or storage units; c3. It shall be unlawful to cultivate Marijuana within a garage, whether attached or detached, or other structure designed or intended for the keeping or storage of vehicles, equipment or goods; 34. No person shall It shall be unlawful to permit Marijuana plants to be perceptible from the exterior of any structure, including but not limited to: (a) Common visual observation of Marijuana;. (b) Odors, smells, fragrances, or other olfactory stimulus generated by the cultivation, production, possession or processing of Marijuana plants that disturbs the repose of another;. (c) Light pollution, glare, or brightness of artificial illumination associated with the cultivation, of Marijuana plants that disturbs the repose of another; or. (d) Noise from fans in excess of the limits established under EMC § set in Section 6-2-5(F) E.M.C., as amended. 5. It shall be unlawful to cultivate Marijuana in the common areas of residential property; E. Concerning Marijuana in Motor Vehicles: 1. A person while in the passenger area of a motor vehicle that is on a public street, highway or public right-of-way may not use or consume Marijuana. 2. The provisions of this Section (E) shall not apply to: (a) Passengers, other than the driver or a front seat passenger, located in the passenger area of a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation. (b) Marijuana use or consumption by a passenger, other than the driver or front seat passenger, in the living quarters of a house coach, house trailer, motor home, as defined in C.R.S. § 42-1-102(57), or trailer coach, as defined in C.R.S. § 42-1-102(106)(a). F. Restrictions on use or the consumption of Marijuana that is conducted openly and publicly or in a manner that endangers others. 1. It shall be unlawful for any person to use or consume Marijuana in any public place. Section 11. General Provisions Applicable to this Ordinance Page 162 of 482 14 The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Introduced, read in full, and passed on first reading on the 21st day of November, 2022. Page 163 of 482 15 Published by Title as a Bill for an Ordinance in the City’s official newspaper on the ____ day of November, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the ______ day of November, 2022. for thirty (30) days. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Bill for an Ordinance introduced, read in full, and passed on first reading on the 21st day of November, 2022. Stephanie Carlile Page 164 of 482 AN ORDINANCE AMENDING SECTIONS 1-4-1, 1-7- 2, 7-6A-5, 7-6B-10, 7-6C-1, 7-6C-2, 7-6C-3, 7-6D-1, 7-6D- 10, 7-6D-12 OF ENGLEWOOD MUNICIPAL CODE TO ENSURE COMPLIANCE WITH APPLICABLE LAW, CURRENT PRACTICES Tamara Niles, City Attorney Page 165 of 482 •Applies to Municipal Court procedures, criminal offenses •Proposed revisionsRemove felonies and civil offenses (no jurisdiction in municipal court) Mirror statutes Clear,succinct,and consistent Reflect current,best court practices This Powerpoint describes substantive changes only Background Page 166 of 482 Municipal Court can impose jail up to 360 364 days 1-4-1: -General Penalty.Page 167 of 482 Mirrors state law definitions, procedure for contempt Provides more due process to defendants Requires affidavit before warrant issued for failure to appear Order to appear on contempt served 21 days before hearing 1-7-2: -Jurisdiction, Power.Page 168 of 482 Expanded to include EMS, fire, code enforcement, building officials Remaining silent or stating verbal opposition is OK 7-6A-5: -Resist, Interfere With Municipal Officers.Page 169 of 482 Falsely reporting animal cruelty is not a violation 7-6B-10: -False Reports and Alarms.Page 170 of 482 Expands exceptions for concealed weapons prohibition to include the following: United States probation officer Pretrial services officer Member of the armed forces 7-6C-1: -Concealed Weapons.Page 171 of 482 Expands exceptions for illegal weapon prohibition to include the following: United States probation officer Pretrial services officer Removes weapons that can no longer be prosecuted in Municipal Court 7-6C-2: Possession of Illegal Weapons.Page 172 of 482 Adds a new prohibition: 4.Knowingly set a loaded gun, trap, or device designed to cause an explosion upon being tripped or approached, and leave it unattended by a competent person immediately present; 7-6C-3: -Prohibited Use of Weapons.Page 173 of 482 Removes certain acts that can no longer be prosecuted in Municipal Court 7-6D-1: -Prostitution.Page 174 of 482 Provides new exception to prohibition for lawful sports betting and a crane game Lawful possession of a gambling device or record is not prohibited 7-6D-10: -Gambling.Page 175 of 482 State laws on marijuana possession, use, consumption change regularly Amendments mirror current law, but also attempt to reduce likelihood that this section must be changed every year to mirror state law Removes specific ounce measurements for lawful possession 7-6D-12: -Possession,Use or Consumption of Marijuana Page 176 of 482 QUESTIONS?Page 177 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: November 21, 2022 SUBJECT: CB 73 - Approve a bill for an ordinance creating EMC 1-4-4 regarding collection of debts owed to the City DESCRIPTION: CB 73 - Approve a bill for an ordinance creating EMC 1-4-4 authorizing City to recover costs of collection for unpaid debts RECOMMENDATION: Consider council bill creating EMC 1-4-4, authorizing the City to add reasonable costs of collection for unpaid and overdue City debts and utilize an outside debt collection service provider to collect such debts SUMMARY: The City is evaluating many of its practices, to mirror those from other cities and to implement best practices, to maximize its revenue in light of an anticipated budget shortfall in 2024. The City Attorney's Office is drafting a comprehensive collections policy, to guide City staff on the tools, policies, and procedures to impose and collect unpaid and overdue accounts receivable to maximize recovery. As part of that project, the City Attorney's Office evaluated collections practices from various other cities. The City as a whole does not use an outside collections services provider to assist in collecting City debts. The proposed ordinace authorizes staff to add reasonable costs of collection to unpaid and overdue City debts, to send to an outside collections services provider. This proposed ordinance is step one of the City collections project, and lays the groundwork for the City to maximize recovery if and when it chooses to utilize an outside collections provider. The City Attorney's Office anticipates it will propose a comprehensive collections policy to City Council at a future study session; and that City Council will be asked to approve a contract with an outside collection services provider at a later date. Currently, the only City department that utilizes an outside provider is Municipal Court. The proposed ordinance would authorize the Court to add reasonable costs of collection to unpaid fines, costs, restitution, and other amounts assessed by the Court prior to sending those amounts to an outside collector for collection to compensate the Court for the amounts paid to the collector and ensure victim restitution is not reduced by the costs of collection. COUNCIL ACTION REQUESTED: Page 178 of 482 Consider council bill creating EMC 1-4-4, authorizing the City to add reasonable costs of collection for unpaid and overdue City debts and utilize an outside debt collection service provider to collect such debts FINANCIAL IMPLICATIONS: Staff anticipates this will allow the City to collect more of its unpaid and overdue accounts receivable. The exact financial impact is unknown. ATTACHMENTS: Council Bill #73 Page 179 of 482 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 73 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER _________________ A BILL FOR AN ORDINANCE AMENDING ENGLEWOOD MUNICIPAL CODE TITLE 1, CHAPTER 4, SECTION 1-4-4 CONCERNING THE COLLECTION OF UNPAID AND OVERDUE TAXES, DEBTS, FINES, FEES, RESTITUTION, BOND FORFEITURES AND CIVIL PENALTIES IMPOSED BY ENGLEWOOD MUNICIPAL CODE AND ENGLEWOOD MUNICIPAL COURT. WHEREAS, Englewood Municipal Code is silent on collection procedures for the payment of fines, fees, restitution, and other amounts owed to the City of Englewood and Englewood Municipal Court; and WHEREAS, repeated collection efforts by the City or Court can result in multiple attempts to collect, including Municipal Court hearing dates and monitoring compliance with a promised payment plan; and WHEREAS, a survey of other Colorado municipalities indicates the use of outside debt recovery agencies is not uncommon; and WHEREAS, in an effort to limit extensive staff time that impacts their ability to perform their job duties, repeated Court appearances, and a continued threat of criminal prosecution for people that only owe funds to Municipal Court, the City of Englewood desires to amend its Municipal Code to provide for a clear avenue to utilize outside, civil debt recovery services for unpaid and overdue fines, fees, restitution, bond forfeitures, civil penalties, and other amounts owed to the City of Englewood. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Amendment of Englewood Municipal Code Title 1, Chapter 4, Section 1-4-4 of Englewood Municipal Code is hereby created to read as follows (new provision underlined): 1-4-4: Collection of Taxes, Debts, Fines, Fees, Penalties and Restitution. A. The City of Englewood may use any lawful method of collecting overdue and unpaid debts, taxes, fees, fines, costs, court costs, default judgments, bond forfeitures, restitution and civil penalties due to the City, or as assessed by Englewood Municipal Court, plus reasonable costs of collection and interest at the statutory rate for unpaid civil judgments. "Reasonable costs of collection" shall include all out-of-pocket costs expended, plus fees and costs of the City Page 180 of 482 2 Attorney, private counsel retained by the City, and/or a debt recovery agency retained by the City, but not to exceed thirty-three percent (33%) of the initial amount due unless otherwise ordered by a Court of law. B. In the event a defendant fails to pay any fine, fee, penalty, cost, restitution, or other amount assessed by Englewood Municipal Court by the date so ordered, the Court may sua sponte assess and order the defendant to pay an additional amount not to exceed thirty-three percent (33%) of the amount collected as reasonable costs of collection and refer a portion or all of the unpaid amount to a debt recovery agency for collection. Section 2. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Page 181 of 482 3 Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Introduced, read in full, and passed on first reading on the 21st day of November, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 24th day of November, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 23rd day of November, 2022 for thirty (30) days. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Bill for an Ordinance introduced, read in full, and passed on first reading on the 21st day of November, 2022. Stephanie Carlile Page 182 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Jackie Loh DEPARTMENT: Finance DATE: November 21, 2022 SUBJECT: CB 67 - Approve an ordinance to increase the Waste Transfer Surcharge from $.50 per cubic yard to $.63 per cubic yard effective January 1, 2023 DESCRIPTION: CB 67 - Approve an ordinance to increase the Waste Transfer Surcharge from $.50 per cubic yard to $.63 per cubic yard effective January 1, 2023 RECOMMENDATION: Staff requests that City Council consider and approve the attached bill for an ordinance amending 4-7-3 (Surcharge Imposed) of the Englewood Municipal Code to increase the Waste Transfer Surcharge from $.50 per cubic yard to $.63 per cubic yard. PREVIOUS COUNCIL ACTION: • In 1987 the Waste Transfer Surcharge was established at $.20 per cubic yard • In 2012, the Waste Transfer Surcharge was revised from $.20 per cubic yard to $.50 per cubic yard SUMMARY: In 1987, the City of Englewood imposed a surcharge of $.20 per cubic yard of waste to offset the impact of heavy vehicles and other traffic using the waste transfer station on the City of Englewood's streets and bridges. This fee was last revised in 2012 (from $.20 per cubic yard to $.50 per cubic yard); however, the cost of street and bridge repair and replacement continues to increase. ANALYSIS: The Consumer Price Index (CPI) has increased annually on average 2.8% over the past ten years or approximately 30.9% for the ten-year period. The proposed fee increase of $.13 per cubic yard or approximately 26% percent will generate approximately $217,000 which will be used to offset the ongoing cost of street and bridge repair maintenance. Effective Year Measurement Fee $ Change % Change 1987 Cubic Yard $.20 Page 183 of 482 2012 Cubic Yard $.50 $.30 150% 2023 Cubic Yard $.63 $.13 26% COUNCIL ACTION REQUESTED: Staff requests that City Council consider and approve the attached bill for an ordinance amending section 4-7-3 (Surcharge Imposed) of the Englewood Municipal Code. The ordinance will increase the Waste Transfer Surcharge from $.50 per cubic yard to $.63 per cubic yard and is effective January 1, 2023. FINANCIAL IMPLICATIONS: Effective January 1, 2023 is a proposed fee increase to the Waste Transfer Surcharge. The proposed $.13 per cubic yard increase will generate approximately $217,000 and will change the current fee from $.50 per cubic yard to $.63 per cubic yard. CONNECTION TO STRATEGIC PLAN: This resolution for the city's comprehensive 2023 Fee and Rate Schedule is linked to the following Englewood Community outcome: Governance: A city government that is accountable, effective, and efficient OUTREACH/COMMUNICATIONS: Staff has informed Waste Management, the owner of the Englewood waste transfer station of this proposed change. ATTACHMENTS: CB 67 - An Ordinance to amend section 4-7-3 (Surcharge Imposed) of the Englewood Municipal Code EMC Section 4-7-2 defining "person" as used in Chapter 7 (Waste Transfer Surcharge) of the Englewood Municipal Code Page 184 of 482 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 67 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER WARD AN ORDINANCE AMENDING TITLE 4, CHAPTER 7, SECTION 4-7-3 OF ENGLEWOOD MUNICIPAL CODE REGARDING WASTE TRANSFER SURCHARGE WHEREAS, the City Waste Transfer Surcharge imposes a fee on each cubic yard or portion thereof by each person disposing of trash at a waste transfer facility to offset the impact of heavy vehicles and other traffic using the waste transfer station on the City’s streets and bridge; and WHEREAS, the City of Englewood last increased its waste transfer surcharge on January 1, 2012, pursuant to Ordinance No. 56, Series of 2011; and WHEREAS, the cost of street and bridge repairs and replacement have increased significantly since 2012; and WHEREAS, the City is required to increase its Waste Transfer Surcharge to ensure it has sufficient funds to repair and maintain its streets necessitated by heavy vehicles and traffic using the waste transfer station. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Amendment of Englewood Municipal Code Title 4, Chapter 7, Section 4-7-3 of Englewood Municipal Code, is hereby amended as follows (new provisions in italics, deletions struck through): 4-7-3: - Surcharge Imposed. On and after the effective date hereof, there is hereby levied and shall be paid and collected a surcharge of fifty cents ($0.50) on each cubic yard or portion thereof by In addition to all other taxes, surcharges, and fees imposed by law, each person disposing of trash at a waste transfer facility (including any person upon each person disposing of trash by the person’s his own vehicle at theirhis own facility, whether for a charge or not), shall pay to the City of Englewood a Waste Transfer Surcharge in an amount set by City Council. Said surcharge is in addition to all other taxes, surcharges and fees imposed by law. Section 2. Waste Transfer Surcharge Rate Effective January 1, 2023, the City of Englewood Waste Transfer Surcharge shall be sixty-three cents ($0.63) on each cubic yard or portion thereof of trash disposed. The amount of this Surcharge shall be included in the City’s Comprehensive Schedule of Fee and Rates, and paid to the City of Englewood. Section 3. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: Page 185 of 482 2 A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. Introduced, read in full, and passed on first reading on the 7th day of November, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 10th day of November, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 9th day of November, 2022 for thirty (30) days. Page 186 of 482 3 Read by Title and passed on final reading on the 21st day of November, 2022. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2022, on the 24th day of November, 2022. Published by title on the City’s official website beginning on the 23rd day of November, 2022 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. ___, Series of 2022. Stephanie Carlile Page 187 of 482 Page 188 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: November 21, 2022 SUBJECT: CB 68 - Approve an ordinance repealing the Shoplifting and Price Switching Ordinances from Offenses Code DESCRIPTION: CB 68 - Approve an ordinance repealing the Shoplifting and Price Switching Ordinances from Offenses Code RECOMMENDATION: Staff recommends that Council amend Title 7, Chapter 6, Article F of Englewood Municipal Code to remove Shoplifting and Price Switching sections, as those offenses are now contained within the defintion of theft elsewhere in Municipal Code. PREVIOUS COUNCIL ACTION: Ordinance No. 36, Series of 2022 adopted on final reading, August 15, 2022: amending various sections of public offense code, including theft definition. SUMMARY: Ordinance No. 36, Series of 2022 amended EMC § 7-6F-4 expanding its application to various Theft related offenses thus eliminating the need for separate sections of Shoplifting and Price Switching. The proposed council bill repeals those two separate sections. The amendment of Petty Theft in EMC § 7-6F-4 to Theft, and inclusion of additional language to mirror state law expands its application to various theft-related offenses. EMC § 7-6F-4, as amended, and other existing law as it relates to the ability to detain offenders for investigation, eliminates the need for separate Municipal Code sections of Shoplifting and Price Switching in EMC §§ 7-6F-3 and 7-6F-5. ANALYSIS: COUNCIL ACTION REQUESTED: Repeal of Municipal Code sections for Shoplifting and Price Switching in EMC §§ 7-6F-3 and 7- 6F-5. FINANCIAL IMPLICATIONS: There is no fiscal impact associated with this action. Page 189 of 482 CONNECTION TO STRATEGIC PLAN: Simplifies the code making governance more efficient, and also makes implementation of the offense code more effective and clearer. ATTACHMENTS: Council Bill #68 Page 190 of 482 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 68 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER WARD AN ORDINANCE AMENDING TITLE 7, CHAPTER 6 ARTICLE F, OF ENGLEWOOD MUNICIPAL CODE REGARDING SHOPLIFTING AND PRICE SWITCHING WHEREAS, Englewood Municipal Code Title 7, Chapter 6, Article F, provides for offenses relating to property; and WHEREAS, Ordinance No. 36, Series of 2022 amended various sections of the public offense code, including EMC § 7-6F-4; and WHEREAS, amendment of Petty Theft in EMC § 7-6F-4 to Theft, and inclusion of additional language to mirror state law expands its application to various theft-related offenses; and WHEREAS, EMC § 7-6F-4, as amended, and other existing law as it relates to the ability to detain offenders for investigation, eliminates the need for separate Municipal Code sections of Shoplifting and Price Switching in EMC §§ 7-6F-3 and 7-6F-5, and those sections may be repealed. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Repeal of Shoplifting Offense from Englewood Municipal Code Title 7, Chapter 6, Article F, Section 3 of Englewood Municipal Code, Shoplifting, is hereby repealed in full. 7-6F-3: Reserved - Shoplifting. A. Offense Stated. It shall be unlawful for any person to willfully obtain unpurchased goods, wares or merchandise owned or held by and offered or displayed for sale by any store or other mercantile establishment with an intent to avoid payment, which goods, wares or merchandise have a total value of less than five hundred dollars ($500.00). The fact of obtaining unpurchased goods with an intent to avoid payment may be shown by concealment of the goods on one's person or otherwise, whether on or off the premises or by some other conduct of a person which evidences such intent to avoid payment. B. Right to Detain and Question. If any person conceals upon his person or otherwise carries away any unpurchased good, wares or merchandise held or owned by any store or mercantile Page 191 of 482 2 establishment, the merchant or any employee thereof or any peace officer, acting in good faith and upon probable cause based upon reasonable grounds therefor, may detain and question such person, in a reasonable manner, for the purpose of ascertaining whether the person is guilty of shoplifting. It is unlawful for any person to intentionally, knowingly, or recklessly interfere with or obstruct any store or mercantile establishment employee attempting to detain or detaining any person so suspected of shoplifting. Section 2. Repeal of Price Switching Offense from Englewood Municipal Code Title 7, Chapter 6, Article F, Section 5 of Englewood Municipal Code, Price Switching, is hereby repealed in full (new provision in italics; repealed section cross-through). 7-6F-5: Reserved- Price Switching. It shall be unlawful for any person to willfully alter, remove or switch the indicated price of any unpurchased goods, wares or merchandise owned or held by and offered or displayed for sale by any store or other mercantile establishment, with the intent to defraud such store or mercantile establishment; provided, however, that this section shall not apply to goods, wares or merchandise of a value of five hundred dollars ($500.00) or more. Section 3. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. Page 192 of 482 3 The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. Introduced, read in full, and passed on first reading on the 7th day of November, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 10th day of November, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 9th day of November, 2022 for thirty (30) days. Read by Title and passed on final reading on the 21st day of November, 2022. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2022, on the 24th day of November, 2022. Published by title on the City’s official website beginning on the 23rd day of November, 2022 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Othoniel Sierra, Mayor Page 193 of 482 4 ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. ___, Series of 2022. Stephanie Carlile Page 194 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: November 21, 2022 SUBJECT: CB 69 - Approve an ordinance creating Englewood Municipal Code establishing standard provisions for City contracts DESCRIPTION: CB 69 - The City Attorney's Office independently negotiates each contract, often advocating for the same provisions each time. The proposed ordinance establishes these provisions as part of Municipal Code, that can be incorporated by reference in contracts rather than requiring an independent negotiation RECOMMENDATION: Approve an ordinance adding Englewood Municipal Code section 4-1-3-4 to establish municipal contracting processes. PREVIOUS COUNCIL ACTION: None. SUMMARY: Staff recommends Council approve a Bill for an Ordinance amending Englewood Municipal Code to establish municipal contracting processes. The City Attorney's Office independently negotiates each contract, often advocating for the same provisions in accordance with best practices for municipal contracting. Some of the provisions that require negotiation are terms that Courts have held apply to municipal entities or that are required for inclusion under the Colorado Constitution or statute. However, City vendors often challenge inclusion of the provisions. This leads to an extended negotiation requiring significant vendor education and negotiation by City staff. City staff determined the adoption of guidelines and standard contract provisions for all contractual agreements with the City will provide for efficient procurement standards, mitigate risk for the City, reduce the length of contracts and purchase orders, and reduce staff time spent in negotiating contractual terms that are otherwise required by law and generally non-negotiable. ANALYSIS: The proposed Ordinance amends Title 4, Chapter 1, Section 3-4 to include provisions for required contract requirements and provisions as well as to identify prohibited contractual provisions. As set forth in the Ordinance, the following contract provisions will be incorporated into each contract to which the City is a party, unless the provision is specifically waived by the City: • Taxpayer Bill of Rights (TABOR). This provision is included to address contract obligations that cover more than one fiscal period or that includes an option to renew in Page 195 of 482 order to express that the intent of the agreement is not to create a multiple-year financial obligation that would require voter-approval under TABOR. • Taxes. This provision makes clear the City is exempt from certain tax obligations and will not be responsible for any taxes for which is it exempt. • Assignment. This provision includes the procedure for an authorized assignment of a party’s obligation under an agreement with the City. • Contract Binding. This provision requires any successor in interest of a party to honor the agreement with the City. • Force Majeure. This provision provides for circumstances under which the parties will be excused from performing their obligations under a contract. • Independent Contractor. This provision explains the relationship between the City and the contracting party, i.e. an independent contractor, as opposed to an employee. • Cannot Bind City. This provision provides that the contracting party does not have authority to act for or bind the City. • Third Party Beneficiaries. This provision provides that non-contractual parties have no rights to enforce the contract's terms. • No Oral Modification. This provision provides that any amendment to the agreement must be in writing to be enforceable. • Choice of Law. This provision provides that the contract will be interpreted under Colorado law, should there be any disputes regarding the contract, jurisdiction and venue shall be in the District Court sitting in and for the County of Arapahoe, State of Colorado. • Compliances. This provision requires the contracting party to comply with all applicable state, federal and local law, rules and regulations, technical standards or specifications issued by the City. • Response to request for solicitations. This provision incorporates into any agreement the contracting party’s response to a City solicitation. • Indemnification. This provision requires to the fullest extent permitted by law that the contracting party indemnify and hold harmless the City from any and all losses, damages or expenses of any kind arising out of any and all claims, demands, or causes of action initiated against the City and arising out of the agreement. Additionally, the proposed Ordinance will amend Municipal Code to prohibit the inclusion of provisions that expose the City to increased contractual risk and potential liability, including: • Any attempted reallocation of risk contrary to common law or statute; • Any attempt to require the City to indemnify or hold harmless another person or entity, except as otherwise required by law; and • Any attempt to require binding arbitration or any other binding extra-judicial dispute resolution process. COUNCIL ACTION REQUESTED: Approve an ordinance adding Englewood Municipal Code section, 4-1-3-4 to establish municipal contracting processes. FINANCIAL IMPLICATIONS: No financial impact to the City is contemplated. ATTACHMENTS: Council Bill #69 Page 196 of 482 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 69 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER WOODWARD AN ORDINANCE AMENDING ENGLEWOOD MUNICIPAL CODE TO ESTABLISH MUNICIPAL CONTRACTING PROCESSES WHEREAS, the City of Englewood, Colorado, (the “City”), is a home rule municipality, organized and existing under Article XX, Section 6 of the Colorado Constitution; and WHEREAS, pursuant to Article XX, Section 6 of the Colorado Constitution, the right to enact, administer and enforce policies for procurement and contracting processes is within the constitutional grant of power to the City and is necessary to conduct the affairs and render the services performed by the City; and WHEREAS, applicable laws require inclusion of certain provisions in City contracts, but City vendors often challenge inclusion of the provisions which require significant vendor education and negotiation by City staff; and WHEREAS, City staff determined the adoption of guidelines and standard contract provisions for all contractual agreements with the City will provide for efficient procurement standards, mitigate risk for the City, reduce the length of contracts and purchase orders, and reduce staff time spent in negotiating contractual terms that are otherwise required by law and generally non-negotiable; and WHEREAS, the City finds and determines that it is in the best interest of the City to amend Englewood Municipal Code to add Title 4, Chapter 1, Section 3-4 accordingly. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO: Section 1. Amendment of Title 4, Chapter 1, Section 3-4. Title 4, Chapter 1, Section 4-1-3-4 shall be added to Englewood Municipal Code to read as follows (new provisions in italics): 4-1-3-4: Contract Requirements and Provisions. A. No Liability Without Appropriation. Neither City Council, nor the Mayor, nor any administrative officer or employee of the City shall have authority to make any contract involving the expenditure of public money, or impose upon the City any liability to pay money, unless and until a definite amount of money shall have been appropriated for the liquidation of all pecuniary liability of the City under such contract or in consequence thereof to mature during the period covered by the appropriation. Such contract shall be ab initio null and void as to the City for any other or further liability, provided, first, that nothing herein contained shall prevent the Council from providing for payment of any expense, the necessity of which is caused by any casualty, accident, or unforeseen contingency arising after the passage of the annual appropriation ordinance; and, second, that the provisions of this section shall not apply to or limit the authority Page 197 of 482 2 conferred in relation to bonded indebtedness, nor for monies to be collected by special assessments for local improvements. B. Contracting Parties. The City shall not make any contract with any person who is in default to the City. C. Required Contractual Provisions. Unless specifically waived or amended by written agreement with reference to the subsection below, or in the City’s solicitation, or included as alternate provisions to the solicitation, every contract, purchase order, or other agreement purporting to bind the City of Englewood (collectively “Contract”) shall be subject to and include the following provisions, whether or not specifically incorporated by reference in the Contract: 1. Taxpayer Bill of Rights (TABOR). This Contract is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor be deemed to constitute, the creation of a debt or multiyear fiscal obligation or an obligation of future appropriations by the City Council of Englewood contrary to Article X, Section 20 of the Colorado Constitution (“TABOR”), or any other constitutional, statutory, charter, or municipal code debt limitation. Notwithstanding any other provision of this Contract, all payment obligations of the City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of City's current fiscal period ending upon the next succeeding December 31. Financial obligations of the City payable after the current fiscal year are contingent upon funds for the Contract being specifically appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the City and applicable law. Upon the failure to specifically budget and appropriate funds for the Contract, this Contract shall be deemed terminated automatically at the end of the current fiscal year without recourse to the City. 2. Taxes. City is exempt from any taxes levied on real or personal property or on the sale or use as a consumer in its capacity as a governmental entity. Taxes of which the City is exempt shall not be included in the contract price or subsequent charges for additional services, and shall not be chargeable to or paid by the City. 3. Assignment. An attempt to assign any interest in this Contract or any Contract documents, including to moneys due or that may become due, without prior written consent by the City shall be null and void at the City’s sole discretion, unless otherwise authorized by law. Unless specifically authorized by the City’s written consent to assignment, no assignment releases or discharges the Assignor from any duty or responsibility under this Contract or any Contract documents. 4. Contract Binding. This Contract shall be binding on and inure to the benefit of the parties hereto, their heirs, executors, administrators, assigns and successors. 5. Force Majeure. The parties to this Contract shall be excused from performance hereunder during the time and to the extent that they are prevented from obtaining, delivering, or performing by an act of God, fire, strike, loss, shortage of transportation facilities, lock-out, or the commandeering of materials, products, plants or facilities by the Page 198 of 482 3 government when satisfactory evidence thereof is presented to the other party(ies), provided that it is satisfactorily established that the non-performance is not due to the fault or neglect of the party not performing. 6. Independent Contractor. Unless specifically stated otherwise, vendors, entities, individuals, and others contracting with the City (hereafter “Contracting Parties”) are at all times acting and performing as an independent contractor, and the City shall neither have nor exercise any control or direction over the manner and means by which the contracting party performs their obligations under this Contract, except as stated within the Contract terms. Contracting Parties expressly understand and agree: a. They are an independent contractor responsible for knowing how to perform all work or tasks necessary to complete the contractual scope of work; b. Their employees, agents, servants, or other personnel are not City employees; c. They are solely responsible for payment of salaries, wages, payroll taxes, unemployment benefits or any other form of compensation or benefit to Contracting Parties or any of their employees, agents, servants or other personnel performing services or work under this Contract, whether it is of a direct or indirect nature; and d. Neither Contracting Parties nor their employees, agents, servants or other personnel shall be entitled to any City payroll, insurance, unemployment, worker's compensation, retirement or any other benefits whatsoever in excess of the stated amount payable to the Contracting Parties within this Contract. 7. Cannot Bind City. Contracting Parties do not have actual or apparent authority to act for or bind the City in any respect whatsoever, or to incur any debts or liabilities in the name of or on behalf of the City. 8. Third Party Beneficiaries. This Contract 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 Contract. 9. No Oral Modification. Any waiver, amendment, modification, consent or acquiescence with respect to this Contract or any provision of this Contract or with respect to any failure to perform in accordance therewith shall be set forth in writing and duly executed by or on behalf of the party to be bound thereby. 10. Choice of Law. This Contract is subject to and shall be interpreted under the law of the State of Colorado, and the Charter, Municipal Code, Ordinances, Rules and Regulations of the City of Englewood, Colorado, a Colorado Home Rule City. Court jurisdiction and venue shall be exclusively in the District Court sitting in and for the County of Arapahoe, State of Colorado. 11. Compliances. The contracting party shall comply with all applicable state, federal and local law, rules and regulations, technical standards or specifications issued by the Page 199 of 482 4 City. The contracting party must qualify for and obtain any required licenses prior to commencement of work. Each and every provision of law and clause required by law to be inserted into this Contract shall be read and enforced as though it were included as part of the Contract whether or not expressly stated or incorporated by reference. 12. Response to solicitation. For all Contracts following a City solicitation such as an invitation for bids or request for proposals, the solicitation, Contracting Party response, bid, and other related documents are incorporated by reference in this Contract as if fully set forth herein and shall be a binding obligation upon the Contracting Party, unless specifically amended or stated otherwise in the Contract. 13. Indemnification. To the fullest extent permitted by law, Contracting Parties agree to indemnify and hold the City harmless from any and all losses, damages or expenses of any kind arising out of any and all claims, demands, or causes of action initiated against the City and arising out of the Contracting Party’s scope of work, action, or inaction under this Contract. D. Prohibited Contractual Provisions. Unless specifically waived or amended by written agreement with reference to the subsection below, or in the City’s solicitation, or included as alternate provisions to the solicitation, any of the following provisions within a Contract purporting to bind the City shall be null and void: 1. Any diminishment of the common law or statutory standard of care, limitation of liability, or other attempt to reduce responsibility for mistake, error, or negligence of any type on the part of the Contracting Party, its contractors, or any other party working on behalf of the Contracting Party; 2. Attempts to limit liability for breach of contract or negligent performance to the amount of the payment to the Contracting Party by the City; 3. Attempt to claim ownership of intellectual property created during the performance of the contract with the City; 4. Provision for damages for breach by owner contrary to common law or statute including, but not limited to, any attempt to provide for attorney fees as part of recoverable damages; 5. Any other attempted reallocation of risk contrary to common law or statute; 6. Any attempt to eliminate the City's ability to collect consequential, exemplary or punitive damages, or any other measure of damages permitted by law, in an action against the Contracting Party or others arising out of breach of contract or performance of work thereunder; 7. Any attempt to require the City to indemnify or hold harmless another person or entity, except as otherwise required by law; and Page 200 of 482 5 8. Any attempt to require binding arbitration or any other binding extra-judicial dispute resolution process. E. Conflict between Code and Contract. To the extent a provision of any Contract entered into by or on behalf of the City conflicts with any provision of this Section, the provision contained within this Section shall prevail and the conflicting provision in the Contract shall be null and void and unenforceable as to the City. Section 2. The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall Page 201 of 482 6 be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Introduced, read in full, and passed on first reading on the 7th day of November, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 10th day of November, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 9th day of November, 2022 for thirty (30) days. Read by Title and passed on final reading on the 21st day of November, 2022. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2022, on the 24th day of November, 2022. Published by title on the City’s official website beginning on the 23rd day of November, 2022 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. ___, Series of 2022. Stephanie Carlile Page 202 of 482 Ordinance establishing standard provisions for City contracts Victoria McDermott Deputy City Attorney Page 203 of 482 •The City Attorney's Office independently negotiates each contract to which the City is a party. •Certain provisions require vendor education and extended negotiation. Taxpayer Bill of Rights (TABOR) City indemnification Choice of law and venue provision •The proposed ordinance establishes these contract provisions as part of Municipal Code, improving efficiency in the negotiation and drafting process. Background Page 204 of 482 Required provisions: •Taxpayer Bill of Rights (TABOR)•No Oral Modification. •Taxes •Choice of Law •Assignment •Compliances •Contract Binding •Force Majeure •Independent Contractor •Cannot Bind City. •Third Party Beneficiaries. • Indemnification •Response to solicitation Summary Page 205 of 482 Prohibited contractual provisions: • Any attempted reallocation of risk contrary to common law or statute; • Any attempt to require the City to indemnify or hold harmless another person or entity, except as otherwise required by law; and • Any attempt to require binding arbitration or any other binding extra-judicial dispute resolution process. Summary Page 206 of 482 •Improve efficiency •Reduce liability •Reduce length of contracts and terms and conditions “Vendor recognizes and agrees that all provisions applicable to this agreement under law are hereby incorporated by reference as if fully set forth herein, including but not limited to, Englewood Municipal Code 4-1-3-4. To the extent any provision of this agreement and such law are in conflict, the parties recognize and agree that the provisions of applicable law shall prevail.” Impact to Contracting Practice Page 207 of 482 Consider an Ordinance amending Englewood Municipal Code to include section 4-1-3-4 establishing municipal contracting processes. Recommendation Page 208 of 482 QUESTIONS?Page 209 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Darren Hollingsworth DEPARTMENT: Community Development DATE: November 21, 2022 SUBJECT: CB 71 - Approve an ordinance authorizing a 3-year Intergovernmental Agreement (IGA) with the Aurora-South Metro Small Business Development Center DESCRIPTION: CB 71 - Approval of 3-year IGA with the Aurora-South Metro Small Business Development Center RECOMMENDATION: Staff recommends approval of a three-year Intergovernmental Agreement (IGA) with the Aurora- South Metro Small Business Development Center. PREVIOUS COUNCIL ACTION: On November 7, 2016, city council approved Council Bill 41 authorizing an intergovernmental agreement with the Aurora-Small Business Development Center that created the first three-year partnership to support Englewood's entrepreneurs and small business owners through the end of 2019. Subsequently, Council Bill 39, Series 2019 was approved to reauthorize Englewood’s partnership with the Aurora-South Metro Small Business Development Center through 2022. SUMMARY: The SBDC provides technical assistance and advanced small business services at the local level by offering training, seminars, one-on-one consulting, and localized workshops and training for Englewood entrepreneurs. The programs and services offered by the SBDC are interconnected with Englewood’s economic development initiatives and are integral to Englewood’s economic development program. Grant recipients for the city’s business initiation grant and business acceleration grant must participate in the SBDC’s business planning workshops or training to be eligible for funding assistance. ANALYSIS: For the past six years, the City of Englewood has successfully partnered with the Aurora-South Metro Small Business Development Center to perform key services for businesses in Englewood. The existing agreement will expire at the end of 2022. The draft ordinance would approve extending the city's partnership with the SBDC for an additional three years. The Executive Director of the SBDC provides annual updates to city council about the economic impacts of the program in Englewood. This new partnership agreement will provide for enhanced local services, including conducting an annual survey of Englewood businesses that participate in the SBDC program. The SBDC will also provide in-person technical assistance at Page 210 of 482 Englewood Civic Center or virtually, based on demand, for up to eight hours monthly. Finally, the SBDC will also provide specialized small business lender training for banks and financial institutions that provide SBA loans. Approval of the IGA will implement a recommendation in Englewood’s draft strategic economic development plan. COUNCIL ACTION REQUESTED: Staff recommends that city council approve on First Reading an Intergovernmental Agreement with the Aurora-South Metro Small Business Development Center (SBDC) to provide training, business seminars, one-on-one consulting, and specialized small business programs in Englewood all to benefit Englewood's entrepreneurs and small business owners. FINANCIAL IMPLICATIONS: The city provides the use of city facilities to SBDC to host workshops and consulting services at low or no cost to Englewood entrepreneurs. Providing the use of these facilities is a non-cash contribution to the SBDC. Additionally, as a sponsor of the SBDC, the City of Englewood will provide an annual contribution of $20,000 for a three-year sponsorship period to support the program and provide training, business seminars, one-on-one consulting, and specialized small business programming for Englewood. The partnership period is 2023, 2024, and 2025 and may be terminated pursuant to the agreement if annual funding is not allocated for this program. The funding for the three-year annual contribution to SBDC will come from the Economic Development Program GL Code: 02-0801-57301. The 2023 budget for the Economic Development Program line-item is $130,000. CONNECTION TO STRATEGIC PLAN: In the furtherance of the goal of enhancing economic vitality and supporting entrepreneurs in Englewood, contracting with the Aurora-South Metro Small Business Development Center enhances Englewood's economic development offerings to small businesses by providing technical assistance and specialized training to entrepreneurs. ATTACHMENTS: Council Bill #71 IGA with SBDC Page 211 of 482 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 71 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER WARD AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ENGLEWOOD AND AURORA-SOUTH METRO SMALL BUSINESS DEVELOPMENT CENTER TO PERFORM SMALL BUSINESS SEMINARS, ONE-ON-ONE CONSULTING, AND WORKSHOPS IN THE CITY OF ENGLEWOOD. WHEREAS, in the furtherance of enhancing economic vitality and supporting entrepreneurs, the City of Englewood desires to contract with Aurora-South Small Business Development Center (SBDC) to perform a variety of activities that will enhance training opportunities for entrepreneurs and small business owners; and WHEREAS, Englewood previously entered into a three-year sponsorship agreement with the SBDC to provide technical assistance and advanced small business services at the local level under Ordinance No. 44, Series of 2019, and the SBDC performed under the agreement to the satisfaction of City staff; and WHEREAS, the programs and services offered by the SBDC are interconnected with Englewood’s economic development initiatives and continue to be integral to Englewood’s economic development program; and WHEREAS, the SBDC will conduct an annual Small Business Survey of Englewood businesses (zip codes 80110 and 80113) to assess small business needs in order to meet those needs through SBDC services or referring to needed resources; and WHEREAS, the SBDC will provide training, business seminars, one-on-one consulting, and workshops in Englewood, and/or remotely, as requested; and WHEREAS, grant recipients for the City’s business initiation grant and business acceleration grant must participate in the SBDC’s business planning workshops or training to be eligible for funding assistance; and WHEREAS, the City will host these events in municipal facilities at no cost to the Aurora- South Small Business Development Center (SBDC), which is a non-cash contribution; and WHEREAS, as a sponsor of the SBDC, the City of Englewood will provide an annual contribution of $20,000 for a three-year sponsorship period to support the program and the SBDC will provide training, business seminars, one-on-one consulting, conduct an annual survey to assess small business needs, and offer workshops in Englewood and/or remotely, as requested. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Page 212 of 482 2 Section 1. The City Council of the City of Englewood, Colorado hereby authorizes the Intergovernmental Agreement (IGA) between the Aurora-South Metro Small Business Development Center (SBDC) and the City of Englewood, as attached hereto as Exhibit A. Section 2. The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. Page 213 of 482 3 City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Introduced, read in full, and passed on first reading on the 7th day of November, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 10th day of November, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 9th day of November, 2022. for thirty (30) days. Read by Title and passed on final reading on the 21st day of November, 2022. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2022, on the 24th day of November, 2022. Published by title on the City’s official website beginning on the 23rd day of November, 2022 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. ___, Series of 2022. Stephanie Carlile Page 214 of 482 1 INTERGOVERNMENTAL AGREEMENT THIS AGREEMENT is made this ______ day of __________, 2022, by and between the Aurora-South Metro Small Business Development Center (SBDC) and the City of Englewood, Colorado, a municipal corporation. WHEREAS, in furtherance of enhancing economic vitality and supporting entrepreneurs, the City of Englewood, Colorado desires to contract with Aurora-South Small Business Development Center to perform small business consultations, technical assistance, training, and workshops at Englewood Civic Center and/or remotely, as requested; and WHEREAS, the services provided by the Aurora-South Small Business Development Center are integral to Englewood's economic development program; and WHEREAS, participants in the grant initiatives offered by the City of Englewood are required to participate in the workshops, training, or consulting as offered by the Aurora- South Small Business Development Center; and WHEREAS, the parties desire to enter into an agreement by describing the relationship between the Aurora-South Metro Small Business Development Center and the City of Englewood regarding services that the Aurora-South Metro Small Business Development Center will perform for the City; and NOW, THEREFORE, in consideration of the covenants and promises contained herein, the sufficiency of which is acknowledged by the parties, the parties agree as follows: 1. Aurora-South Metro Small Business Development Center will provide quarterly events, workshops or seminars based on local priorities (examples include: Small Business Startup Workshops, Small Business Resource and Lenders Expo, SBA Lenders Training, Succession Planning, Small Business Saturday support, industry/sector focused workshops such as the Annual Manufacturing Day event, Englewood Creates event, or Starting Your Retail Food Establishment workshop). 2. Aurora-South Metro Small Business Development Center will provide free and confidential, individualized, one-on-one Consulting/Technical Assistance (in- person at Englewood Civic Center or virtually, based on demand, up to 8 hours monthly). Consultants/Trainers will inform Englewood citizens of Englewood access to capital/grant programs. 3. Aurora-South Metro Small Business Development Center will provide E xecutive Director Leadership in the following ways: Director will attend meetings, sit on committee/boards for economic development, and attend events and strategy meetings on an as needed basis. Page 215 of 482 2 4. Monthly “Touch Base” calls/meetings will be held with the Englewood Economic Development Manager and the SBDC Executive Director for the following reasons: a. SBDC Executive Director will update on programs, activities and confidential client needs; b. SBDC Executive Director will provide connectivity to the Colorado SBDC Network office, Office of Economic Development and International Trade, and other statewide SBDC Centers to keep Englewood appraised of programs statewide; and c. Englewood Economic Development Manager will provide SBDC with grant recipient information monthly and a list of new businesses in Englewood quarterly. 5. Conduct an annual Small Business Survey of Englewood businesses (zip codes 80110 and 80113) to assess small business needs to meet those needs through SBDC services or refer to needed resources. Report findings annually. 6. The Executive Director of the Aurora-South Metro Small Business Development Center will provide an annual update to the Englewood City Council regarding the goals and economic impacts of the program in Englewood and findings from the annual survey. 7. Aurora-South Metro Small Business Development Center will provide Marketing and Promotion, Press Announcements for new sponsorship, Website presence on both the City of Englewood and Aurora-South Metro Small Business Website (links to each other's website), a monthly e-newsletter presence with one Featured Story annually, and Social Media Presence (stories, social media posts and events information). 8. Economic Development Manager and the Executive Director will sit on the Arapahoe County Small Business Task Force and collaborate on issues that arise on the calls. 9. The Aurora-South Metro SBDC will coordinate with the Englewood Chamber of Commerce and the Englewood Downtown Development Authority to establish and integrate marketing efforts and activities, where appropriate. 10. The City of Englewood will have a Summit Level Sponsorship, which is appropriate for corporate, governmental (city and county level), educational and financial institutions at an investment of $20,000 annually. Reassessment of sponsorship amount will be discussed June 1 annually to determine if increased funding is needed. Any agreed upon changes will be presented in writing and subject to annual budget appropriations. 11. The City of Englewood agrees to a three (3) year commitment for the years 2023, 2024 and 2025 to sponsor the services provided to the City from the Aurora-South Metro SBDC. A three (3) year commitment is required as SBA budgets and capacity building plans cover this time frame. Page 216 of 482 3 The parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution ("Tabor"). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, notwithstanding anything in this Agreement to the contrary, all payment obligations of the City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the City's current fiscal period ending upon the next succeeding December 31. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the City and applicable law. Upon the failure to appropriate such funds, this Agreement shall be deemed terminated. 12. Upon receipt of an invoice from the Aurora-South Metro Small Business Development Center, the City of Englewood agrees to pay their sponsorship funding based on the schedule below. Due Date: $20,000 on January 15th annually Total Annual Sponsorship Level: $20,000 Three-year sponsorship period: 2023, 2024 and 2025. 13. Termination. This Agreement may be terminated by either party with a 30-day written notice, in which case the Aurora-South Metro Small Business Development Center will provide to the City a final billing for time and materials or other related expenses within 30 days of the termination date of this Agreement. Page 217 of 482 4 IN WITNESS WHEREOF, the Aurora-South Metro Small Business Development Center and the City of Englewood, Colorado have executed this Agreement as of the day, month and year first above written. CITY OF ENGLEWOOD By Othoniel Sierra, Mayor ATTEST: By Stephanie Carlile, City Clerk AURORA-SOUTH METRO SMALL BUSINESS DEVELOPMENT CENTER y Marcia McGilley SBDC Executive Director ATTEST: By Frankie Anderson Page 218 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tim Dodd DEPARTMENT: City Manager's Office DATE: November 21, 2022 SUBJECT: Approval of 401(a)/457 Committee DESCRIPTION: Staff requests that Council consider approval by motion of an internal committee to provide advice and guidance on the management of the City's 401(a) and 457 retirement plans RECOMMENDATION: Staff recommends that Council approve, by motion, the creation of a 401(a)/457 Committee ("the Committee") to provide advice and guidance to the Finance Director related to plan investments. The Human Resources Director and City Manager oversee the program management of the 401(a) and 457 retirement plans ("the Plans"). PREVIOUS COUNCIL ACTION: • Resolution adopting the Investment Policy Statement (IPS) for the City's 401(a) and 457 retirement plans (September 6, 2022) • Study Session on possible modifications to the 401(a) vesting schedule SUMMARY: The City provides and coordinates several different retirement programs for employees. The 401(a) is a required, matched retirement program for all Managerial, Supervisory, and Confidential (MSC) employees and all Managerial, Supervisory, and Confidential Hourly (MSCH) employees, and optional for Englewood Employee Association members. The 457 plan is a non-matched, optional retirement savings plan for all full-time and part-time (not including seasonal) employees The City's Finance Director (City Treasurer) is the fiduciary of the plans, and is assisted by Innovest, a contracted investment firm that serves as the co- fiduciary. While an informal advisory committee exists, staff is requesting that Council approve the creation of a formal committee that can provide advice to the Finance Director in the management of the 401(a) and 457 plans. ANALYSIS: Retirement Plans A variety of retirement options are available for City of Englewood employees: Page 219 of 482 Plan Description Eligible Employees Associated Board 401(a) Matched plan where the City contributes a specific amount, and employees are required to pay in a specific amount All members of MSC and MSCH; Members of EEA may select this plan or the Non- Emergency Retirement Plan (NERP) Proposed Committee Non-Emergency Retirement Plan (NERP) Defined benefit plan provided as an option to members of the Englewood Employees Association (EEA) All members of the EEA are eligible Non-Emeregncy Retirement Plan (NERP) Board 457 Optional, non- matched plan established by the Internal Revenue Service (IRS) under IRC 457(b). This plan allows employees to defer income taxation on retirement savings into future years. Employees are limited in the amount that they can add to this plan, with a 2023 limit set by the IRS for $22,500. All employees are eligible for this program Proposed Committee Fire Required defined benefit pension system for former sworn firefighters administered by the Fire and Police Pension Association All employees of the former Englewood Fire Department sworn firefighters are eligible Fire Pension Board Police Required defined benefit pension system for sworn police officers administered by the Fire and Police Pension Association All sworn police officers are eligible Police Pension Board Before 2019, the Finance Director served as the sole decision maker on investment decisions for the City's 401(a) and 457 retirement plans. The City then contracted Innovest to be the co- fiduciary for the Plans. Page 220 of 482 Committee Purpose and Structure The Committee will provide input into the management of the 401(a) and 457 plans, and will serve as advisory body to the City Treasurer (Finance Director) who serves as the fiduciary agent of the plans. A contracted investment firm will serve as the co-fiduciary. If Council approves the creation of the Committee, Committee members will be asked to develop bylaws for the Committee, starting with the draft bylaws attached to this communication. While an informal committee exists, formally creating one will ensure that members understand their role and are able to formally provide advice to the Finance Director. The Committee consists of seven members: • One appointees by the City Manager, representing the City Manager's Office; • Two appointees of the Finance Director (including the Finance Director (or designee) and one other Finance Department employee appointed by the Finance Director; • Two appointees of the Human Resources Director, including the Human Resources Director (or designee) and one other Human Resources employee appointed by the Human Resources Director; and • Two employees who may either be nominated by another employee or self-nominated and appointed by the CIty Manager. The Committee will advise the Finance Director (City Treasurer) on tasks, duties, and responsibilities. Members will: • Know the standards, laws, and trust provisions that impact the administration and investment process of the Plans; • Proactively seek education opportunities provided by the co-fiduciaries and others; • Operate under the guidelines set forth in an Investment Policy Statement approved and adopted by the City Council; • Control and account for all investment-related expenses; • Monitor the activities of all investment-related service vendors; • Avoid conflicts of interest and prohibit transactions; and • Maintain the plan documents. Additionally, members must abide by a code of conduct (Exhibit A in the attached draft bylaws) and, if a Committee member is a participant in the Plans, the member shall have no authority regarding any matter specifically affecting their individual interest in the Plans. COUNCIL ACTION REQUESTED: Staff recommends that Council, by motion, formally establish the City of Englewood 401(a)/457 Retirement Plans Fiduciary Advisory Committee. FINANCIAL IMPLICATIONS: The management of this committee will be accomplished through existing staff resources, with information provided by Innovest, the City's contracted co-fiduciary. CONNECTION TO STRATEGIC PLAN: The establishment of the Committee is not explicitly included in the CIty's strategic plan. However, the establishment of the Committee connects to the Employee Engagement goal in the Governance outcome area by providing employees with an opportunity to engage in an advisory role. Page 221 of 482 OUTREACH/COMMUNICATIONS: If the Committee is established by Council, the Human Resources Department will work with the Communications Department to advertise the opportunity for two employees to volunteer to serve on the Committee. ATTACHMENTS: City of Englewood- 401(a)-457 Committee Bylaws (Draft) Investment Policy Statement Page 222 of 482 1 BY-LAWS OF THE CITY OF ENGLEWOOD 457(b) & 401(a) RETIREMENT PLANS FIDUCIARY ADVISORY COMMITTEE Article I Name The Retirement Plans Fiduciary Advisory Committee (“Committee”) shall advise the City Treasurer in exercising its fiduciary duty for the City of Englewood, Colorado 457(b) & 401(a) retirement plans (“Plans”). Article II Committee Section 1 Purpose: The Committee provides input into the management of the Plans and serves as the advisory body to the City Treasurer, the fiduciary agent of the Plans. The City of Englewood Finance Director and a contracted investment firm will serve as co-fiduciary agents for the Plan. Section 2 Composition: The Committee shall consist of seven members: One appointee of the City Manager, representing the City Manager’s Office; Two appointees of the Finance Department, including the Finance Director (or designee) and one other Finance Department employee appointed by the Finance Director; and Two appointees of the Human Resources Director, including the Human Resources Director (or designee) and one other Human Resources employee appointed by the Human Resources Director; and two employees who may either be nominated by another employee or self -nominated and appointed by the City Manager. Section 3: Term of Office: Members shall serve for a one-year term, beginning on January 1 of each year and ending on December 31 of each year. Appointing authorities may fill vacant seats to complete terms. Section 4 Removal: A member may be removed from the Committee by separating from employment, by resigning from Committee service, or by vote of the Committee. Section 5 Officers: The Committee shall elect a Chairperson at the beginning of each year, or as a vacancy occurs. The Committee shall also, by a majority vote, appoint a Vice Chairperson and a Recording Secretary. Section 6 Powers and Duties: In managing the affairs of the Plans, the Committee will advise the City Treasurer and plan administrator on tasks, duties and responsibilities. In addition, the Committee will: A. Know the standards, laws, and trust provisions that impact the administration and investment process of the Plans B. Proactively seek education opportunities provided by the co-fiduciaries and others C. Operate under the guideline set forth in an Investment Policy Statement approved and adopted by City Council D. Control and account for all investment-related expenses E. Monitor the activities of all investment-related service vendors F. Avoid conflicts of interest and prohibited transactions G. Maintain the Plan Documents Article III Meetings Page 223 of 482 2 Section 1 Frequency: The Committee shall have four scheduled meetings in a calendar year, to be called by the Chairperson. The time and place for each meeting shall be communicated in advance to the Committee. Members may attend a meeting by phone or other electronic means. Section 2 Agenda: The agenda shall be set by the Chairperson of the Committee, in consultation the co- fiduciaries and Human Resources Director Section 3 Minutes: Written minutes of each meeting shall be approved by the Committee, by a Recording Secretary elected by the Committee who may or may not be a member of the Committee. Section 4 Quorum: A quorum shall be a majority of the members of the Committee. A quorum is necessary for any vote by the Committee. A Committee member may vote by proxy on specific issue(s) to be considered in a single meeting if delivered to the Chairperson before the vote(s) are called. Article IV Conduct of Committee Members Section 1 Conflict of Interest: If a Committee member is a participant in the Plans, the member shall have no authority regarding any matter specifically affecting their individual interest in the Plans, for example, such member's claim for benefits under the Plans. As such, the member shall recuse themselves from voting on any such specific matter. This does not preclude a member from acting regarding Plan matters affecting Plan participants generally, even though the member is incidentally affected by such determination, provided that such action must be in accordance with the Plans. Section 2 Gifts: To maintain the integrity of the Committee and to keep their decisions and the reasons for those decisions above reproach, the Committee members shall not solicit donations, gifts, or privileges from any firm or individual that is currently doing business with or is in the selection process to do business with the plans. In addition, please see Exhibit A for a Code of Conduct for Members of the Committee. Article V Amendments These by-laws may be amended by a majority vote of the Committee at any regular meeting provided that the amendment has been submitted to the Committee in writing at least two (2) days prior to the meeting. Page 224 of 482 3 Exhibit A – A Code of Conduct for Members of the Committee Committee Members must: 1. Act in good faith and in the best interest of the plan participants and beneficiaries. 2. Act with prudence and reasonable care. 3. Act with skill, competence, and diligence. 4. Maintain independence and objectivity by, among other actions, avoiding conflicts of interest, refraining from self-dealing, and refusing any gift that could reasonably be expected to affect their loyalty. 5. Abide by all applicable laws, rules, by-laws and regulations, including the terms of the plan documents. 6. Deal fairly, objectively, and impartially with all participants and beneficiaries. 7. Take actions that are consistent with the established mission of the plans and the policies that support that mission. 8. Review the efficiency and effectiveness of the plans’ success in meeting their goals, including assessing the performance and actions of plan service providers including investment managers, auditors and consultants, on a regular basis. 9. Maintain confidentiality of plan, participant, and beneficiary information. 10. Communicate with participants, beneficiaries, as well as plan sponsor(s) including their representatives in a timely, accurate, and transparent manner. Page 225 of 482 1 Investment Policy Statement City of Englewood City of Englewood 401(a) Plan City of Englewood 457 Plan Adopted: 2022 Page 226 of 482 2 Contents I. Basic Information A. Purpose of this Investment Policy Statement B. Policy Objectives II. Responsibilities A. Delegation of Authority by the Committee B. Responsibility of Participants C. Conflicts of Interest III. Investment Policies and Guidelines A. Asset Classes and Investment Style Groups B. Self-Directed Brokerage Accounts C. Performance Expectations D. Selection of Fund Managers and Options E. Ongoing Review IV. Fee Policies and Guidelines A. Monitoring Costs B. Plan Fees Overview V. Adoption of the Investment Policy Statement Exhibits A. Key Information B. Investment Options and Benchmarks Page 227 of 482 3 I. Basic Information This Investment Policy, which was adopted by City of Englewood, acting through the Retirement Plan Committee, applies to the 401a and 457 Plans (“Plans”) sponsored by City of Englewood. As described more fully in the Plans Documents, the purpose of the Plans is to provide eligible employees with long-term accumulation of retirement savings and earnings through employee and, possibly, employer contributions to individual participant accounts. Both the authority and the responsibility for investing and retirement planning belong to the employees. The Plans are a component of an individual’s assets to be used at retirement. Exhibit A details key Plans information. A. Purpose of this Investment Policy Statement The Committee has the authority to select and monitor the investment options of the Plans. The purpose of this Investment Policy Statement (IPS) is to establish guidelines for effectively selecting, monitoring and evaluating the investment options to be made available to participants in the Plans, and setting forth responsibilities of various parties with respect to the investment program for the Plans. The investment program for the Plans is defined in various sections of this IPS by: • Stating in this document the Committee’s expectations, objectives, and guidelines with respect to the investment of Plans assets. • Providing guidelines for assembling the various investment options into an overall structure to include various asset classes, investment management styles and asset allocation portfolios so that, when viewed as a whole, the investment options are expected to allow a participant to achieve a sufficient level of overall diversification. • Establishing formalized criteria to monitor, evaluate and compare the performance results achieved by the fund managers on a regular basis and a method by which changes are made. • Outlining fiduciary responsibility, prudence and due diligence requirements that experienced fund managers and other fiduciaries would utilize in managing and overseeing retirement plan assets. B. Policy Objectives The overall objective of this policy is to establish an investment structure that will meet a broad range and diverse set of current and projected financial needs of the Plans participants. Page 228 of 482 4 Within this overall objective, the Committee has identified the following additional objectives: 1. To design a prudent process for investment selection and ongoing monitoring. 2. To maintain flexibility in meeting the future needs of the participants. 3. To maximize return within reasonable and prudent levels of risk by providing investment options which cover a broad range of risk and return characteristics. 4. To control costs of the administration and investments of the Plans. 5. To undertake all transactions solely in the interest of the participants and beneficiaries. 6. To enable participants to exercise investment control over their individual investments. 7. To make investment education available to participants. In general, the investment policies reflect current and foreseeable economic and market conditions, as well as applicable accounting and statutory requirements. It is intended that this IPS be reviewed periodically and updated as necessary and made available to participants upon request. It is not expected that the IPS will change frequently. In particular, short-term changes in the financial markets should not require adjustments to the IPS. II. Responsibilities The Committee is responsible for the prudent administration of this IPS with specific responsibilities that include design of the Plans investment options; establishing investment policy objectives and guidelines; prudent selection of funds to be offered; and ongoing monitoring. The Committee may contract with a consultant to assist in these responsibilities. A. Delegation of Authority by the Committee The Committee is a fiduciary and is responsible for providing the investment framework and for monitoring the investment management of the Plans. As such, the Committee is authorized to delegate certain responsibilities to professional experts in various fields. These may include, but shall not be limited to: 1. Funds and Fund Managers. Each fund manager will have discretion to purchase, sell, or hold specific securities or products that will be used to meet the investment objectives. The Committee, with the assistance of the Investment Management Consultant, will monitor and review each fund's achievement of the objectives for which it was selected. Page 229 of 482 5 2. Investment Management Consultant. This consultant may assist the Committee in establishing investment policy, objectives, and guidelines; selecting funds and fund managers; reviewing such funds and fund managers over time; measuring and evaluating investment performance; and other tasks as deemed appropriate. The Investment Management Consultant is required to be a co-fiduciary. 3. Recordkeeper / Third Party Administrator (TPA). A recordkeeper will track individual participant balances and process participant contributions, disbursements and transfers. The recordkeeper will reconcile participant balances with trust account balances to maintain alignment. The recordkeeper/TPA will also perform testing and produce management reports that ensure the Plans’ compliance with applicable laws and regulations. These services may be bundled with those of the custodian bank. 4. Custodian Bank. A custodian bank will physically (or through agreement with a sub- custodian) maintain possession of securities owned by the Plans, collect dividends and interest payments, redeem maturing securities, and effect receipt and delivery following purchases and sales. The custodian may also perform regular accounting of all assets owned, purchased or sold, as well as movement of assets into and out of the Plans’ accounts. These services may be bundled with those of the third-party administrator/recordkeeper. 5. Additional specialists. Additional specialists such as attorneys, auditors, actuaries and others may be employed by the Committee to assist in meeting its responsibilities and obligations to administer the Plans assets prudently. Such experts may also be deemed to be fiduciaries; they must acknowledge such in writing either by contract or prospectus. All expenses for such experts must be customary and reasonable, and may be borne by the Plans as deemed appropriate and necessary. B. Responsibility of Participants The Plans grant to each participant the right and responsibility to choose how his/her account is to be allocated among the investment options. Each participant is responsible to seek education and training to be prepared to select a combination of investment options based on the participant’s unique time horizon, risk tolerance, return expectation and asset class preferences. C. Conflicts of Interest All Committee members and the Investment Management Consultant will refrain from personal business activity that could create an appearance of impropriety, that could conflict with the proper execution and management of the retirement plan program, or that could impair their ability to make impartial Plans decisions. Page 230 of 482 6 III. Investment Policies And Guidelines A. Asset Classes and Investment Style Groups Asset classes are chosen because of their long-term return histories that are reasonably useful in evaluating probable future standard deviation and correlation. They are selected to balance the risk and rewards of market behavior. Within each of the broad asset classes, options will be diversified to allow participants to choose from a range of equity capitalization and fixed income maturities. To facilitate diversification within asset classes, various style groups will be made available. The Committee may add, delete, or replace a particular asset class or style of investment management if the Committee deems it appropriate to do so. Exhibit B details the current investment lineup and benchmarks for the Plans. B. Self-Directed Brokerage Accounts The self-directed brokerage option is designed for a sophisticated, experienced and knowledgeable investor. The Plans, Committee, Investment Management Consultant and its recordkeeper have no expressed or implied responsibility for the evaluation, selection and/or monitoring of the continued offering of the investment options in any self-directed brokerage account program by the Plans, including no duty to supervise or monitor the Participants' or Beneficiaries' investment experience in the self-directed brokerage account program(s). C. Performance Expectations Over time, each active investment option's overall annualized total return should perform above their benchmark and at or above the median of portfolios of similar style and passive options should track their respective index. The Committee will continually monitor and review funds against this expectation. D. Selection of Fund Managers and Options The Committee, with the assistance of the Investment Management Consultant, will select appropriate fund managers to manage Plans assets. The following minimum criteria must be met: 1. The fund options will be managed by a bank, insurance company, investment management company or investment adviser as defined by the Registered Investment Advisers Act of 1940. Page 231 of 482 7 2. Historical quarterly performance numbers, calculated on a time-weighted basis based on a composite of all fully discretionary accounts of similar investment style, will be utilized for performance screening. 3. Performance evaluation reports that illustrate the risk/return profile of the manager relative to other managers of like investment style will be utilized. 4. Detailed information on the history of the fund management firm, its key personnel, and associated costs will be analyzed. 5. Each fund's investment strategy must be described, and successful adherence to that strategy over time must be documented. 6. Fund managers must compare favorably against a comparable peer group for selection. 7. Each fund manager will acknowledge, through the fund prospectus, the following duties and responsibilities. a. Exercise investment discretion, including holding cash equivalents as an alternative, within stated investment constraints, objectives and guidelines. b. Promptly inform, by prospectus, all significant and/or material matters and changes pertaining to the investment of assets, especially as they relate to its stated investment philosophy and investment management decision process. These factors include, but are not limited to: • Investment strategy • Portfolio structure • Tactical approaches • Ownership • Organizational structure • Financial condition • Professional staff • Recommendations for guideline changes • Internal expenses and management costs • All legal material, SEC and other regulatory agency proceedings affecting the firm c. Utilize the same care, skill, prudence and due diligence under the circumstances then prevailing that experienced investment professionals acting in a like capacity and fully familiar with such matters would use in like activities with like aims in accordance and compliance with IRS regulations and all applicable laws, rules and Page 232 of 482 8 regulations from local, state, federal and international political entities pertaining to fiduciary duties and responsibilities. 8. The Committee and its Investment Management Consultant will determine the appropriateness of each fund manager based on the objectives and guidelines stated in the IPS. 9. Target-Date Retirement portfolios are subject to additional criteria detailed in Section E. E. Ongoing Review 1. Performance Objectives and Review. Investment performance will be reviewed quarterly to determine the continued feasibility of achieving the investment objectives and the continued appropriateness of the IPS for achieving those objectives. Progress toward attainment of the performance expectations of the IPS will be examined; emphasis will be placed on peer group comparisons with managers employing similar styles. It is understood that there are likely to be short-term periods during which performance deviates from appropriate indices and peer comparisons. The Committee will exercise its prerogative to take corrective action by replacing a fund manager at the appropriate time, if so determined. At the Committee’s quarterly meeting, the Committee will consider: a. Manager's consistency with the style mandate expressed in the prospectus; b. Material changes in the manager's organization, investment philosophy and/or personnel; c. Comparison of the manager's results to the appropriate benchmark outlined in Exhibit B; d. The risk associated with each manager’s portfolio, as measured by the variability of quarterly returns (standard deviation), compared with the benchmark index; e. The manager's performance relative to its peers (managers of like investment style or strategy outlined in Exhibit B). As the Committee becomes aware of major organizational changes, it may warrant immediate review of the fund manager. These include, but are not necessarily limited to, the following events: • Change in management structure Page 233 of 482 9 • Significant account losses • Significant growth of new business • Change in ownership • Change in process/philosophy/style • Change in cost 2. Monitoring and Selecting Target-Date Retirement Portfolios. Target-Date Retirement Portfolios, also known as lifecycle or age-based funds, are designed to provide a simple investment solution through a portfolio whose asset allocation mix becomes more conservative over time. Because of the nature of how such portfolios are designed and allocated, they are not only subject to the selection and monitoring criteria listed in other sections of this IPS, but also the additional criteria listed below. a. Glidepath Evaluation will include an understanding of the Target-Date Retirement Portfolio glidepath, including when the glidepath will reach its most conservative asset allocation and whether that will occur at or after the target date. b. Asset Allocation Evaluation will include understanding the fund’s investments – the allocation in different asset classes and sub-asset classes and how these will change over time. c. Underlying Investments Consideration will be given to the stability and continuity of the underlying investments included in the Target-Date Retirement Portfolio. IV. Fee Policies and Guidelines A. Monitoring Costs The Committee will review the service contracts and costs associated with the Plans on an ongoing basis. Areas to be reviewed include: • Fund Managers • Investment Management Consultant • Custodian Bank • Recordkeeper / Third Party Administrator B. Plan Fees Overview It is the Committee's intention to ensure that any fees paid from Plans assets are reasonable and transparent. The Committee retains all discretion and authority necessary to determine the way Plans fees will be paid, including the extent to which the Plans Sponsor will subsidize the cost of the Plans by directly paying Plans expenses and/or the extent to which Plans expenses will be paid from the Plans participant accounts. Page 234 of 482 Page 235 of 482 11 Exhibit A: Key Information Plan Name(s) City of Englewood 401(a) Plans City of Englewood 457 Plan Plan Sponsor City of Englewood Plan Type(s) 401(a) / 457 Participant Directed Investment Options Yes Frequency to Change Investment Options Generally no restrictions; however, some funds may charge short- term redemption fees. Investment Management Consultant Innovest Portfolio Solutions LLC 4643 South Ulster Street, Suite 1040 Denver, CO 80237 Third Party Administrator MissionSquare Page 236 of 482 12 Exhibit B: Investment Options and Benchmarks Asset Class Style Group Benchmark Peer Group/Style Universe Mutual Fund Name Equity Large Cap Value Equity S&P 500 Value U.S. Large Cap Value Equity MFS Value Equity Large Cap Core Equity S&P 500 Index U.S. Large Cap Core Equity Fidelity 500 Index Equity Large Cap Growth Equity S&P 500 Growth U.S. Large Cap Growth Equity Fidelity Contrafund Equity Mid Cap Value Equity Russell Mid Cap Value Index U.S. Mid Cap Value Equity Victory Sycamore Established Value Equity Mid Cap Growth Equity Russell Mid Cap Growth Index U.S. Mid Cap Growth Equity Hartford Mid Cap Equity Small-Mid Cap Core Equity S&P Completion Index U.S. Small-Mid Cap Core Equity Fidelity Extended Market Index Equity Small Cap Value Equity Russell 2000 Value Index U.S. Small Cap Value Equity Boston Partners Small Cap Value Equity Small Cap Growth Equity Russell 2000 Growth Index U.S. Small Cap Growth Equity Invesco Discovery Equity International Value Equity MSCI EAFE Value Index (Net) International Large Cap Value Equity Dodge & Cox Intl Stock Equity International Core Equity FTSE Global ex USA All Cap Index IM International Multi- Cap Core Equity (MF) Fidelity Total Intl Stock Index Equity International Growth Equity MSCI EAFE Growth Index (Net) International Large Cap Growth Equity Fidelity Diversified International Fixed Income Core Fixed Income Bloomberg U.S. Aggregate Bond Index U.S. Broad Market Core Fixed Income Dodge & Cox Income Fixed Income Core Fixed Income Bloomberg U.S. Aggregate Bond Index U.S. Broad Market Core Fixed Income Fidelity US Bond Index Guaranteed Minimum Withdrawal Benefit N/A N/A N/A MissionSquare Retirement Income Advantage Stable Value Stable Value Ryan 3 Yr GIC Master Index Stable Value MissionSquare PLUS Fund R10 Cash and Equivalents Cash and Equivalents MissionSquare Cash Management Target-Date Retirement Portfolios Target-Date Retirement Portfolios Vanguard Target Composite Index Mixed Asset Target Vanguard Target Retirement Income Vanguard Target Retirement 2015 Vanguard Target Retirement 2020 Vanguard Target Retirement 2025 Vanguard Target Retirement 2030 Vanguard Target Retirement 2035 Vanguard Target Retirement 2040 Vanguard Target Retirement 2045 Vanguard Target Retirement 2050 Vanguard Target Page 237 of 482 13 Retirement 2055 Vanguard Target Retirement 2060 Vanguard Target Retirement 2065 Self-Directed Brokerage Account MissionSquare Brokerage Page 238 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Pieter Van Ry DEPARTMENT: Utilities DATE: November 21, 2022 SUBJECT: Award of Two Professional Services Agreements for Water Rights Legal Support and Water Resources Engineering for Utilities DESCRIPTION: Utilities staff is seeking City Council approval of two Professional Services Agreements (PSAs), one with Berg Hill Greenleaf Ruscitti, LLP (BHGR) for water rights legal support, up to the amount of $450,000; and another with Martin and Wood Water Consultants, Inc (MWWC) for water resources engineering, up to the amount of $400,000. RECOMMENDATION: Utilities staff recommends City Council approve two PSAs for the City of Englewood's (City) water resources contracts with BHGR to provide outside legal representation for water rights support, up to the amount of $450,000; and with MWWC for water resources engineering services, up to the amount of $400,000. The Water and Sewer Board recommended Council approve the PSAs with BHGR and MWWC during its October 11, 2022 meeting. PREVIOUS COUNCIL ACTION: • June 20, 2022 – City Council Approval of 6-Month Renewal No. 2 for PSA-20-35 with BHGR and PSA-20-37 with MWWC • July 19, 2021 – City Council Approval of Renewal No. 1 for PSA-20-35 with BHGR and PSA-20-37 with MWWC • July 6, 2020 – City Council Approval of PSA-20-35 with BHGR and PSA-20-37 with MWWC • May 6, 2019 – City Council Approval of PSA-19-19 with BHGR and PSA-19-16 with MWWC • May 21, 2018 – City Council Approval of Intergovernmental Agreement with Denver Water and MWWC SUMMARY: Successful protection and planning of the City water rights requires additional resources and expertise beyond Utilities staff. For more than 20 years, BHGR and MWWC have assisted the City with water resources legal and engineering support. Work includes protecting existing water rights, optimizing the City’s water resource portfolio, water court application and diligence, litigation activities, and water supply and demand planning. In July 2022, six-month contract renewals were executed with both firms, which aligned future agreements to the calendar year. Page 239 of 482 ANALYSIS: Staff recommends PSAs with MWWC and BHGR due to their strong institutional knowledge, demonstrated successful performance, legal and technical expertise, and regional and statewide experience. Both firms are critical to generating a coordinated approach to planning and protection of the City’s complex water resources portfolio. Retention of other firms may put the City’s water rights at risk in Colorado’s competitive and litigious water court proceedings. Separate justification memos for each recommended contract renewal are provided as attachments. COUNCIL ACTION REQUESTED: Motion to waive competitive bidding and approve two Professional Services Agreements for the City’s water resources contracts with Berg Hill Greenleaf Ruscitti, LLP to provide outside legal representation for water rights support, up to the amount of $450,000; and with Martin and Wood Water Consultants, Inc for water resources engineering services, up to the amount of $400,000. FINANCIAL IMPLICATIONS: Funding for these agreements is included in the 2023 Utilities budget and will not exceed the total Water Fund budget appropriation. Source of Funds Line-Item Description Line-Item Budget YTD Line-Item Expensed Total Proposed PSA Amount 40–1609–54201 Water Fund, Engineering, Professional Services $1,150,000 $0 $850,000 CONNECTION TO STRATEGIC PLAN: Sustainability: • Invest in water infrastructure Infrastructure: • Proactively and in a cost-effective manner invests, maintains, improves, and plans to protect water infrastructure ATTACHMENTS: PSA-22-117 Berg Hill Greenleaf Ruscitti, LLP - Packet PSA-22-118 Martin and Wood Water Consultants, Inc - Packet PowerPoint Presentation Page 240 of 482 TO: Mayor and Council FROM: Pieter Van Ry, Englewood Utilities and South Platte Renew Director DATE: November 21, 2022 Re: Professional Services Agreement with Berg Hill Greenleaf Ruscitti, LLP for Water Rights Legal Support EXECUTIVE SUMMARY Utilities staff is seeking City Council approval of a Professional Services Agreement (PSA) with Berg Hill Greenleaf Ruscitti, LLP (BHGR) to provide outside legal representation for water rights support, up to the amount of $450,000. BACKGROUND Legal protection of City of Englewood’s (City) water rights requires additional resources and expertise beyond Utilities staff. BHGR has provided outside legal representation for the City’s water rights since 2001. BHGR is a highly respected water law firm in the Denver-metro area and provides legal advice to the City regarding the most effective means to protect and utilize the City’s water supply portfolio. BHGR’s strong representation throughout Colorado in water law has often allowed them to work on behalf of the City to resolve water rights conflicts without resorting to litigation. BHGR has effectively litigated several water law matters on behalf of the City in Colorado’s water court, and is actively involved in State legislation concerning water continues to benefit the City. In 2019, the City engaged the first formal agreement with BHGR up to the amount of $600,000 to provide legal support for the City’s water rights between July 2019 and June 2020. In June 2020 and July 2021, Council approved the renewal of this agreement up to the amount of $400,000, which more closely aligned with the historical annual expenses from BHGR. In June 2022, a six-month agreement renewal was approved up to the amount of $350,000, which aligned future agreements to the calendar year. ANALYSIS In order to successfully protect the City’s existing water rights and plan for the future, specialized expertise and knowledge of the City’s water rights is required. Staff is recommending a PSA for water rights legal support up to the amount of $450,000 based on anticipated work in 2023. The following associated activities are also planned for the January – December 2023 PSA: • Prepare and file applications in water court for City water rights, including applications for water right changes and new water rights • Negotiate and settle with opposition parties to water right applications • Prepare and file statements of opposition to parties seeking to claim water rights in which the City has a legal interest • Monitor water case decisions to ensure that all parties to the matter comply with the terms and conditions set forth by the water court Page 241 of 482 • Monitor and understand water court decision scope to protect City’s interests and support City advocates to oppose water rights applications filed by other entities • Provide professional legal disposition in the development of an optimized water supply portfolio • Advising the City on agreements, contracts, and water rights decrees • Legal support in the Centennial Water Sanitation District water appraisal Staff recommends a PSA up to the amount of $450,000 with BHGR because of their extensive institutional knowledge of the City’s water resources portfolio, strong understanding of Colorado water law, prior successful performance and value for the City, and regional and statewide expertise. Retention of another firm without this extensive institutional knowledge and expertise in Colorado water law would put the City’s water rights at risk in Colorado’s competitive and litigious water court proceedings. COUNCIL ACTION REQUESTED Motion to waive competitive bidding and approve a Professional Services Agreements for the City’s water resources contracts with Berg Hill Greenleaf Ruscitti, LLP to provide outside legal representation for water rights support, up to the amount of $450,000. FINANCIAL IMPLICATIONS Funding for water resource legal support is included in the 2023 Utilities budget and will not exceed the total Water Fund budget appropriation. Source of Funds Line-Item Description Line-Item Budget YTD Line-Item Expensed Proposed PSA Amount 40–1609– 54201 Water Fund, Engineering, Professional Services $1,150,000 $0 $450,000 CONNECTION TO STRATEGIC PLAN Sustainability: • Invest in water infrastructure Infrastructure: • Proactively and in a cost-effective manner invests, maintains, improves, and plans to protect water infrastructure ATTACHMENTS Contract Approval Summary PSA-22-117 BHGR / Scope of Work / Estimated Fees and Costs for 2023 Page 242 of 482 Contract Approval Summary March 2019 Update Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: Authorizing Resolution/Ordinance: Recording Information: City Contact Information Staff Contact Person: Stephanie Ellis, PE Phone: office: 303.783.6811 cell: 720.668.1770 Title: Project Engineer Email: SEllis@englewoodco.gov Vendor Contact Information Vendor Name: Berg Hill Greenleaf Ruscitti LLP (BHGR) Vendor Contact: Peter D. Nichols, Partner Vendor Address: 1712 Pearl Street Vendor Phone: 303-402-1600 City: Boulder Vendor Email: pdn@bhgrlaw.com State: CO Zip Code: 80202 Contract Type Contract Type:Professional Services Description of ‘Other’ Contract Type: Description of Contract Work/Services: Attachments: ☒Contract -- ☒Original ☐Copy ☐Addendum(s) ☐Exhibit(s) ☐Certificate of Insurance Summary of Terms: Start Date: January 2023 End Date: December 2023 Total Years of Term: 1 Total Amount of Contract for term (or estimated amount if based on item pricing): $450,000.00 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Yes, renewal options available Payment terms (please describe terms or attach schedule if based on deliverables): City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the deliverables/Milestones set forth in the Payment Schedule. Payments shall be made upon City’s written confirmation to BHGR prepares and files applications in water court for the City’s water rights, including diligence and change applications and applications for new water rights. BHGR works to prosecute these water applications and to negotiate and settle with any opposers, while protecting Englewood’s water rights. BHGR also works to prepare and file statements of opposition, and settle, applications of other rights users in water court in order to protect Englewood’s rights from injury. Page 243 of 482 Contract Approval Summary March 2019 Update Page | 2 Consultant that the Deliverables-Milestones have been satisfied. The 1st or 15th of the month after receiving and reviewing invoice. Attachments: ☐Copy of original Contract if this is an Amendment ☐Copies of related Contracts/Conveyances/Documents Source of Funds (Insert Excel Document Image): Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor (Check Box): ☐Bid: ☐ Bid Evaluation Summary attached ☐ Bid Response of Proposed Awardee ☐RFP: ☐ RFP Evaluation Summary Attached ☐ RFP Response of Proposed Awardee ☐Quotes: Copy of Quotes attached ☐Optimal Source: Provide Detailed Explanation: ☒ Sole Source (Use as much space as necessary for detailed explanation): ☐ Qualification Based Selection / Best Value: In order to successfully protect the City’s existing water rights and plan for the future, specialized expertise and knowledge of the City’s water rights is required. Staff is recommending a PSA for water rights legal support in the amount of $450,000 based on anticipated work in 2023. The following associated activities are also planned for the January – December 2023 PSA: • Prepare and file applications in water court for City water rights, including applications for water right changes and new water rights • Negotiate and settle with opposition parties to water right applications Page 244 of 482 Contract Approval Summary March 2019 Update Page | 3 • Prepare and file statements of opposition to parties seeking to claim water rights in which the City has a legal interest • Monitor water case decisions to ensure that all parties to the matter comply with the terms and conditions set forth by the water court • Monitor and understand water court decision scope to protect City’s interests and support City advocates to oppose water rights applications filed by other entities • Provide professional legal disposition in the development of an optimized water supply portfolio • Advising the City on agreements, contracts, and water rights decrees • Legal support in the Centennial Water Sanitation District water appraisal Staff recommends a PSA in the amount of $450,000 with BHGR because of their extensive institutional knowledge of the City’s water resources portfolio, strong understanding of Colorado water law, prior successful performance and value for the City, and regional and statewide expertise. Retention of another firm without this extensive institutional knowledge and expertise in Colorado water law would put the City’s water rights at risk in Colorado’s competitive and litigious water court proceedings. Page 245 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 1 PSA #22-117 PROFESSIONAL SERVICES AGREEMENT Contract Number PSA-22-117 WATER RIGHTS LEGAL SUPPORT $450,000.00 (not to exceed) This Professional Services Agreement (the “Agreement”) is made effective January 1, 2023 and executed as of this day of________, 2022 (the “Effective Date”) by and between Berg Hill Greenleaf Ruscitti LLP, a Colorado corporation (“Consultant”), and The City of Englewood, Colorado, a municipal corporation organized under the laws of the State of Colorado (“City”). City desires that Consultant, from time to time, provide certain consulting services, systems integration services, data conversion services, training services, and/or related services as described herein, and Consultant desires to perform such services on behalf of City on the terms and conditions set forth herein. In consideration of the foregoing and the terms hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. Definitions. The terms set forth below shall be defined as follows: (a)“Intellectual Property Rights” shall mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (1) rights associate with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask- works, (2) trademark and trade name rights and similar rights, (3) trade secret rights, (4) patents, designs, algorithms and other industrial property rights, (5) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (6) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). (b)“Work Product” shall mean all patents, patent applications, inventions, designs, mask works, processes, methodologies, copyrights and copyrightable works, trade secrets including confidential information, data, designs, manuals, training materials and documentation, formulas, knowledge of manufacturing processes, methods, prices, financial and accounting data, products and product specifications and all other Intellectual Property Rights created, developed or prepared, documented and/or delivered by Consultant, pursuant to the provision of the Services. (c)"Contract" shall mean this instrument, Attachment A the Outline of the Statement of Work, Attachment B Consultant's Proposal, Attachment C Certificate of Insurance and any instruments, drawings and documents which are attached or incorporated by reference. The Consultant, by executing this Contract, agrees to comply with all such terms and conditions and attachments. In addition, any exhibits provided by the Page 246 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 2 PSA #22-117 Consultant, shall be incorporated and made a part of this Contract. 2.Statements of Work. During the term hereof and subject to the terms and conditions contained herein, Consultant agrees to provide, on an as requested basis, the consulting services, systems integration services, data conversion services, training services, and related services (the “Services”) as further described in Attachment A (the “Outline of Statement of Work”) for City, and in such additional Statements of Work as may be executed by each of the parties hereto from time to time pursuant to this Agreement. Each Statement of Work shall specify the scope of work, specifications, basis of compensation and payment schedule, estimated length of time required to complete each Statement of Work, including the estimated start/finish dates, and other relevant information and shall incorporate all terms and conditions contained in this Agreement 3. Performance of Services. (a)Performance. Consultant shall perform the Services necessary to complete all projects outlined in a Statement of Work in a timely and professional manner consistent with the specifications, if any, set forth in the Statement of Work, and in accordance with industry standards. Consultant agrees to exercise the highest degree of professionalism, and to utilize its expertise and creative talents in completing the projects outlined in a Statement of Work. (b)Delays. Consultant agrees to notify City promptly of any factor, occurrence, or event coming to its attention that may affect Consultant’s ability to meet the requirements of the Agreement, or that is likely to occasion any material delay in completion of the projects contemplated by this Agreement or any Statement of Work. Such notice shall be given in the event of any loss or reassignment of key employees, threat of strike, or major 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 conflict, Consultant shall secure written instructions from City’s project director before proceeding with the performance of the Services affected by such omissions or discrepancies. 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 Statement of Work by City. Acceptance procedures shall be outlined in the Statement of Work. If City disputes all or any portion of an invoice for charges, then City shall pay the undisputed portion of the invoice by the due date and shall provide the following notification with respect to the disputed portion of the invoice. City shall notify Consultant as soon as possible of the specific amount disputed and shall provide reasonable detail as to the basis for the dispute. The parties shall then attempt to resolve the disputed portion of such invoice as soon as possible. Upon resolution of the disputed portion, City shall pay to Consultant the resolved amount. 5. Taxes. City is not subject to taxation. No federal or other taxes (excise, luxury, transportation, sales, etc.) shall be included in quoted prices. City shall not be obligated to pay or reimburse Consultant for any taxes attributable to the sale of any Services which are imposed on or measured by net or gross income, capital, net worth, franchise, privilege, any other taxes, or assessments, nor any of the foregoing imposed on or payable by Consultant. Upon written notification by City and subsequent verification by Consultant, Consultant shall reimburse or credit, as applicable, City in a timely manner, for any and all taxes Page 247 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 3 PSA #22-117 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 which are expressly provided for in a Statement of Work or which have been approved in advance in writing by City, provided Consultant has furnished such documentation for authorized expenses as City may reasonably request. 7. Audits. Consultant shall provide such employees and independent auditors and inspectors as City may designate with reasonable access to all sites from which Services are performed for the purposes of performing audits or inspections of Consultant’s operations and compliance with this Agreement. Consultant shall provide such auditors and inspectors any reasonable assistance that they may require. 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 Agreement shall commence on the date when both parties have signed the Agreement, and shall continue for one year, with an option to renew for four (4) additional one-year periods, unless this Agreement is terminated as provided in this Section 8. At the end of the initial one-year period, if the parties desire to extend this Agreement beyond the one-year period, written notice shall be given to the other party no later than thirty (30) days prior to the end of the one- year period. If the parties agree to the request for renewal, the parties shall then enter into a renewal extending this Agreement including a new Statement of Work, if necessary. The parties understand and acknowledge that any renewal of this Agreement may be subject to the approval of the Englewood City Council pursuant to the City's Purchasing Policies. The parties also understand and acknowledge that the extension of this contract beyond the initial one-year period is contingent upon the City appropriating adequate funds for each fiscal year. (a)Convenience. City may, without cause and without penalty, terminate the provision of Services under any or all Statements of Work upon thirty (30) days prior written notice. Upon such termination, City shall, upon receipt of an invoice from Consultant, pay Consultant for Services actually rendered prior to the effective date of such termination. Charges will be based on time expended for all incomplete tasks as listed in the applicable Statement of Work, and all completed tasks will be charged as indicated in the applicable Statement of Work. (b)No Outstanding Statements of Work. Either party may terminate this 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 this Agreement with respect to a specific Statement of Work (other than by nonpayment) and does not substantially cure such default within thirty (30) days after receiving 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 (10) days prior written notice of termination to the defaulting party. (d)Bankruptcy or Insolvency. Either party may terminate this Agreement effective upon written notice stating its intention to terminate in the event the other party: (1) makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (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 consents to or acquiesces in, a petition seeking relief or reorganization under any Page 248 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 4 PSA #22-117 bankruptcy or insolvency laws; or (4) files a petition seeking relief or reorganization under any bankruptcy or insolvency laws is filed against that other party and is not dismissed within sixty (60) days after it was filed. (e)TABOR. The parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution ("TABOR"). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, notwithstanding anything in this Agreement to the contrary, all payment obligations of City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of City's current fiscal period ending upon the next succeeding December 31. Financial obligations of City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of City and applicable law. Upon the failure to appropriate such funds, this Agreement shall be deemed terminated. (f)Return of Property. Upon termination of this Agreement, both parties agree to return to the other all property (including any Confidential Information, as defined in Section 11) of the other party that it may have in its possession or control. 9.City Obligations. City will provide timely access to City personnel, systems and information required for Consultant to perform its obligations hereunder. City shall provide to Consultant’s employees performing its obligations hereunder at City’s premises, without charge, a reasonable work environment in compliance with all applicable laws and regulations, including office space, furniture, telephone service, and reproduction, computer, facsimile, secretarial and other necessary equipment, 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 Consultant, obtain all consents, licenses and sublicenses necessary for Consultant to perform under the Statements of Work and shall pay any fees or other costs associated with obtaining such consents, licenses and sublicenses. 10.Staff. Consultant is an independent consultant and neither Consultant nor Consultant’s staff is, or shall be deemed to be employed by City. City is hereby contracting with Consultant for the Services described in a Statement of Work and Consultant reserves the right to determine the method, manner and means by which the Services will be performed. The Services shall be performed by Consultant or Consultant’s staff, and City shall not be required to hire, supervise or pay any assistants to help Consultant perform the Services under this Agreement. Except to the extent that Consultant’s work must be performed on or with City’s computers or City’s existing software, all materials used in providing the Services shall be provided by Consultant. 11.Confidential Information. (a)Obligations. Each party hereto may receive from the other party information which relates to the other party’s business, research, development, trade secrets or business affairs (“Confidential Information”). Subject to the provisions and exceptions set forth in the Colorado Open Records Act, CRS Section 24- 72-201 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, disclosure, publication or dissemination of its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Without limiting the generality of the foregoing, each party hereto agrees not to disclose or permit any other person or entity access to the other party’s Confidential Page 249 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 5 PSA #22-117 Information except such disclosure or access shall be permitted to an employee, agent, representative or independent consultant of such party requiring access to the same in order to perform his or her employment or services. Each party shall insure that their employees, agents, representatives, and independent consultants are advised of the confidential nature of the Confidential Information and are precluded from taking any action prohibited under this Section 11. Further, each party agrees not to alter or remove any identification, copyright or other proprietary rights notice which indicates the ownership of any part of such Confidential Information by the other party. A party hereto shall undertake to immediately notify the other party in writing of all circumstances surrounding any possession, use or knowledge of Confidential Information at any location or by any person or entity other than those authorized by this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall restrict either party with respect to information or data identical or similar to that contained in the Confidential Information of the other party but which (1) that party rightfully possessed before it received such information from the other as evidenced by written documentation; (2) subsequently becomes publicly available through no fault of that party; (3) is subsequently furnished rightfully to that party by a third party without restrictions on use or disclosure; or (4) is required to be disclosed by law, provided that the disclosing party will exercise reasonable efforts to notify the other party prior to disclosure. (b)Know-How. For the avoidance of doubt neither City nor Consultant shall be prevented from making use of know-how and principles learned or experience gained of a non-proprietary and non-confidential nature. (c)Remedies. Each of the parties hereto agree that if, their officers, employees or anyone obtaining access to the Confidential Information of the other party by, through or under them, breaches any provision of this Section 11, the non-breaching party shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations and benefits which the breaching party, its officers or employees directly or indirectly realize or may realize as a result of or growing out of, or in connection with any such breach. In addition to, and not in limitation of the foregoing, in the event of any breach of this Section 11, the parties agree that the non- breaching party will suffer irreparable harm and that the total amount of monetary damages for any such injury to the non-breaching party arising from a violation of this Section 11 would be impossible to calculate and would therefore be an inadequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to temporary and permanent injunctive relief against the breaching party, its officers or employees and such other rights and remedies to which the non-breaching party may be entitled to at law, in equity or under this Agreement for any violation of this Section 11. The provisions of this Section 11 shall survive the expiration or termination of this Agreement for any reason. 12.Project Managers. Each party shall designate one of its employees to be its Project Manager under each Statement of Work, who shall act for that party on all matters under the Statement of Work. Each party shall notify the other in writing of any replacement of a Project Manager. The Project Managers 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 has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (2) the execution of this Agreement by Consultant, and the performance by Consultant of its obligations and duties hereunder, do not and will not violate any agreement to which Consultant is a party or by Page 250 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 6 PSA #22-117 which it is otherwise bound under any applicable law, rule or regulation; (3) when executed and delivered by Consultant, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (4) Consultant acknowledges that City makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement (b)Service Warranty. Consultant warrants that its employees and consultants shall have sufficient skill, knowledge, and training to perform Services and that the Services shall be performed in a professional and workmanlike manner. (c)Personnel. Unless a specific number of employees is set forth in the Statement of Work, Consultant warrants it will provide sufficient employees to complete the Services ordered within the applicable time frames established 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 replacement of an employee or a proposed employee. In such event, Consultant shall, within five (5) working days of receipt of such request from City, provide a substitute employee of sufficient skill, knowledge, and training to perform the applicable Services. Consultant shall require employees providing Services at a City location to comply with applicable City security and safety regulations and policies. (d)Compensation and Benefits. Consultant shall provide for and pay the compensation of employees and shall pay all taxes, contributions, and benefits (such as, but not limited to, workers’ compensation benefits) which an employer is required to pay relating to the employment of employees. City shall not be liable to Consultant or to any employee for Consultant’s failure to perform its compensation, benefit, or tax obligations. Consultant shall indemnify, defend and hold City harmless from and against all such taxes, contributions and benefits and will comply with all associated governmental regulations, including the filing of all necessary reports and returns. 14.Indemnification. (a) Consultant Indemnification. Consultant shall indemnify, defend and hold harmless City, its directors, officers, employees, and agents and the heirs, executors, successors, and permitted assigns of any of the foregoing (the “City Indemnitees”) only to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the Consultant, from and against all losses, claims, obligations, demands, assessments, fines and penalties (whether civil or criminal), liabilities, expenses and costs (including reasonable fees and disbursements of legal counsel and accountants), bodily and other personal injuries, damage to tangible property, and other damages, of any kind or nature, suffered or incurred by a City Indemnitee directly or indirectly arising from or related to: (1) any negligent or intentional act or omission by Consultant or its representatives in the performance of Consultant’s obligations under this Agreement, or (2) any material breach in a representation, warranty, covenant or obligation of Consultant contained in this Agreement. (b)Infringement. Consultant will indemnify, defend, and hold City harmless from all Indemnifiable Losses arising from any third party claims that any Work Product or methodology supplied by Consultant infringes or misappropriates any Intellectual Property rights of any third party; provided, however, that the foregoing indemnification obligation shall not apply to any alleged infringement or misappropriation based on: (1) use of the Work Product in combination with products or Page 251 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 7 PSA #22-117 services not provided by Consultant to the extent that such infringement or misappropriation would have been avoided if such other products or services had not been used; (2) any modification or enhancement to the Work Product made by City or anyone other than Consultant or its sub-consultants; or (3)use of the Work Product other than as permitted under this Agreement. (c) Indemnification Procedures. Notwithstanding anything else contained in this Agreement, no obligation to indemnify which is set forth in this Section 14 shall apply unless the party claiming indemnification notifies the other party as soon as practicable to avoid any prejudice in the claim, suit or proceeding of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the other party the opportunity to control the response thereto and the defense thereof; provided, however, that the party claiming indemnification shall have the right to participate in any legal proceedings to contest and defend a claim for indemnification involving a third party and to be represented by its own attorneys, all at such party’s cost and expense; provided further, however, that no settlement or compromise of an asserted third-party claim other than the payment/money may be made without the prior written consent of the party claiming indemnification. (d)Immunity. City, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-10-101 et seq., as from time to time amended, or otherwise available to City, its officers, or its employees. 15.Insurance. (a)Requirements. Consultant agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance during the term of this Agreement: (1)The Consultant shall comply with the Workers’ Compensation Act of Colorado and shall provide compensation insurance to protect the City from and against any and all Workers’ Compensation claims arising from performance of the work under this contract. Workers’ Compensation insurance must cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, as well as the Employers’ Liability within the minimum statutory limits. (2)Commercial General Liability Insurance and auto liability insurance (including contractual liability insurance) providing coverage for bodily injury and property damage with a combined single limit of not less than three million dollars ($3,000,000) per occurrence. (3)Professional Liability/Errors and Omissions Insurance covering acts, errors and omissions arising out of Consultant’s operations or Services in an amount not less than one million dollars ($1,000,000) per occurrence. (4)Employee Dishonesty and Computer Fraud Insurance covering losses arising out of or in connection with any fraudulent or dishonest acts committed by Consultant personnel, acting alone or with others, in an amount not less than one million dollars ($1,000,000) per occurrence. (b)Approved Companies. All such insurance shall be procured with such insurance companies of good standing, permitted to do business in the country, state or territory where the Services are being performed. (c)Certificates. Consultant shall provide City with certificates of insurance evidencing compliance with this Section 15 Page 252 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 8 PSA #22-117 (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 will list the City of Englewood as an additional insured. Each certificate of insurance shall provide that the issuing company shall not cancel, reduce, or otherwise materially change the insurance afforded under the above policies unless thirty (30) days’ notice of such cancellation, reduction or material change has been provided 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 Statement 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 Intellectual Property Rights, a non- exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such Intellectual property Rights. (b)Know-How. Notwithstanding 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 expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment, so long as it or they acquire and apply such information without disclosure of any Confidential Information of the other party. 17.Relationship of Parties. Consultant is acting only as an independent consultant and does not undertake, by this Agreement, any Statement of Work or otherwise, to perform any obligation of City, whether regulatory or contractual, or to assume any responsibility for City’s business or operations. Neither party shall act or represent itself, directly or by implication, as an agent of the other, except as expressly authorized in a Statement of Work. 18.Complete Agreement. This Agreement contains the entire agreement, including all Exhibits, Statements of Work and other Attachments that have been executed by the parties, and are attached hereto and made a part of this Agreement. 19.Applicable Law. Consultant shall comply with all applicable 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 applicable 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 the provisions of this Agreement shall be brought before the state or federal court situated in Arapahoe County, Colorado and each party hereto consents to jurisdiction and venue before such courts. (a)Attorney Fees. In the event that either party to this Agreement shall commence any action against the other party arising out of or in connection with this Agreement, or contesting the validity of the Agreement or any provision of this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorney’s fees and related costs, fees and expenses incurred by the prevailing party in connection with such action or proceeding. 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 parties hereto consent to and agree that such scope may be judicially modified accordingly and that the Page 253 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 9 PSA #22-117 whole of such provision of this Agreement shall not thereby fail, but that the scope of such provision shall be curtailed only to the extent necessary to conform to law. 21.Additional Work. After receipt of a Statement of Work, City, with Consultant’s consent, may request Consultant to undertake additional work with respect to such Statement of Work. In such event, City and Consultant shall execute an addendum to the Statement of Work specifying such additional work and the compensation to be paid to Consultant for such additional work. 22.Sub-consultants. Consultant may not subcontract any of the Services to be provided hereunder without the prior written consent of City. In the 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 prepaid, certified mail, return receipt requested or (3) one (1) day after deposit with a nationally- recognized overnight courier, specifying overnight priority delivery. Either 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 assigned by Consultant without the prior written consent of City. Except for the prohibition of an assignment contained in the preceding sentence, this Agreement 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 considered in its interpretation. The recitals 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 conformance with this Agreement are incorporated into this Agreement. 27.Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not affect in any way the full right to require such performance 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 waiver of the provision itself. 28.Force Majeure. If performance 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 communications 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 governmental or judicial authority or representative of any such government, or any other act whether similar or dissimilar to those referred to in this clause, which are beyond the reasonable control of Consultant, then Consultant shall be excused from such performance to the extent of such prevention, restriction, delay or interference. If the period of such delay exceeds thirty (30) days, City may, without liability, terminate the affected Statement of Work(s) upon written notice to Consultant. Page 254 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 10 PSA #22-117 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 statute, ordinance or regulation for the performance of the Services under the Agreement. Consultant shall also comply with the provisions of all Applicable Laws in performing the Services under the Agreement. At its own expense and at no cost to City, Consultant shall make any change, alteration or modification that may be necessary to comply with any Applicable Laws that Consultant failed to comply with at the time of performance 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, public announcements, or public disclosures (including, but not limited to, promotional 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 symbol 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, trademark, 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 shall neither restrict the right of City to cease acquiring nor require City to continue any level of such acquisitions. Estimates or forecasts furnished by City to Consultant prior to or during the term of this Agreement shall not constitute commitments. 33.Survival. The provisions of Sections 5, 8, 10, 11, 13, 14, 16, 17, 19, 23, 25 and 31 shall survive any expiration or termination for any reason of this Agreement. 34.Verification of Compliance with C.R.S. 8- 17.5-101 ET.SEQ. Regarding Hiring of Workers without Authorization: (a)Employees, Consultants and Sub-consultants: Consultant shall not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. Consultant shall not contract with a sub-consultant that fails to certify to the Consultant that the sub-consultant will not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. [CRS 8-17.5-102(2)(a)(I) & (II).] (b)Verification: Consultant will participate in either the E-Verify program or the Department program, as defined 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 hired for employment to perform work under this public contract for services. Consultant is prohibited from using the E-Verify program or the Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed. (c)Duty to Terminate a Subcontract: If Consultant obtains actual knowledge that a sub-consultant performing work under this Contract knowingly employs or contracts with a Worker without Authorization, the Consultant shall; Page 255 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 11 PSA #22-117 (1)notify the sub-consultant and the City within three days that the Consultant has actual knowledge that the sub-consultant is employing or contracting with a Worker without Authorization; and (2)terminate the subcontract with the sub-consultant if, within three days of receiving notice required pursuant to this paragraph the sub- consultant does not stop employing or contracting with the Worker without Authorization; except that the Consultant shall not terminate the contract with the sub-consultant if during such three days the sub- consultant provides information to establish that the sub-consultant has not knowingly employed or contracted with Worker without Authorization. (d)Duty to Comply with State Investigation: Consultant shall comply with any reasonable request of the Colorado Department of Labor and Employment made in the course of an investigation by that the Department is undertaking pursuant to C.R.S. 8-17.5-102 (5) (e)Damages for Breach of Contract: The City may terminate this contract for a breach of contract, in whole or in part, due to Consultant’s breach of any section of this paragraph or provisions required pursuant to CRS 8-17.5-102. Consultant shall be liable for actual and consequential damages to the City in addition to any other legal or equitable remedy the City may be entitled to for a breach of this Contract under this Paragraph 34. Page 256 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 12 PSA #22-117 IN WITNESS WHEREOF, the parties to this Agreement have caused it to be executed by their authorized officers as of the day and year first above written. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. CITY OF ENGLEWOOD, COLORADO By: Date: (Department Director) By: Date: (City manager) By: Date: (Mayor) ATTEST: City Clerk BERG HILL GREENLEAF RUSCITTI LLP (Consultant Name) Address City, State, Zip Code By: (Signature) (Print Name) Title: Date: Peter D. Nichols 1712 Pearl Street Boulder, CO 80302 Partner 10/05/2022 Page 257 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 13 PSA #22-117 ATTACHMENT A OUTLINE OF STATEMENT OF WORK 1.GENERAL: Berg Hill Greenleaf Ruscitti LLP (BHGR) prepares and files applications in water court for the City’s water rights, including diligence and change applications and applications for new water rights. BHGR works to prosecute these water applications and to negotiate and settle with any opposers, while protecting Englewood’s water rights. BHGR also works to prepare and file statements of opposition, and settle, applications of other rights users in water court in order to protect Englewood’s rights from injury. Amount not to exceed $450,000.00 for the contract term (January 1, 2023 – December 31, 2023) 2.NAMES, PHONE NUMBERS AND EMAILS OF KEY PERSONNEL Dave Chapman, Water Production Administrator 303-762-2650 Dchapman@englewoodco.gov Stephanie Ellis, Engineer II 303-783-6811 sellis@englewoodco.gov Peter D. Nichols, Partner 303-402-1600 pdn@bhgrlaw.com Geoff M. Williamson, Partner 303-402-1600 gmw@bhgrlaw.com 3.SUMMARY OF PURPOSE FOR STATEMENT OF WORK: BHGR prepares and files applications in water court for the City’s water rights, including diligence and change applications and applications for new water rights. BHGR works to prosecute these water applications and to negotiate and settle with any opposers, while protecting Englewood’s water rights. BHGR also works to prepare and file statements of opposition, and settle, applications of other rights users in water court in order to protect Englewood’s rights from injury. 4.EQUIPMENT AND PROGRAMMING TO BE PROVIDED BY CITY (IF ANY) Water rights data and updated spreadsheets. 5.OTHER CONSULTANT RESOURCES Martin and Wood Water Consultants, Inc. (M&W) Page 258 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 14 PSA #22-117 6.DESCRIPTION OF WORK PRODUCT AND DELIVERABLES Task 1: Advising the City on general legal matters involving the City’s water rights. BHGR prepares for and participates in bi-weekly meetings with the City’s water staff and water engineers concerning the use of the City’s water rights to meet current demands, and strategic planning to meet future demands. BHGR also works the City’s water engineers on in depth topics relevant to maximizing the current and future value of the City’s water rights portfolio. In addition, BHGR responds to discreet legal questions relating to the City’s rights that come up from time to time. Attend meetings of the Colorado Water Congress’ State Affairs Committee, as appropriate, to monitor and influence lobbying positions on behalf of water rights owners on legislation that could affect the City’s water rights. Prepare and transmit monthly legal reports to the City Attorney. Task 2: Advising the City on agreements, contracts, and decrees. The City is party to numerous easements, rights-of-way, agreements, contracts, permits and water court decrees that affect, and in some instances control, the City’s use of its water rights. Many of these legally significant documents are old, long, and complex, and contain vague and ambiguous provisions. BHGR interprets and advises the City’s water staff on the City’s rights and obligations under these documents, as well as possible courses of action and their probable legal consequences. Task 3: Statement of Opposition Support Review legal issues related to M&W's recommendations for statements of opposition regarding water rights applications published in the water courts resumes. If approved by the City, draft statements of opposition to water court applications to protect Englewood’s water rights from injury. Obtain verification of statements of opposition from M&W. File and serve statements of opposition. Participate as an objector in water court cases pending before the water referee(s). Represent the City’s interests in pre-trial proceedings and trial when applications are re-referred to the water judge or if the deadline on the referee’s docket passes. Participate in hearings regarding bills of costs. Monitor implementation of decrees for compliance with terms and conditions of Englewood’s settlements. Task 4: Centennial lease prices Work with counsel for Centennial to select a single appraiser to value the surplus water and facilities that the City leases to Centennial. Work with M&W to provide relevant information to the appraiser for the valuations. 7.SPECIAL TERMS, IF ANY Not Applicable 8.MODE OF PAYMENT: Check or Electronic Transfer. City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the Deliverables/Milestones set forth in the Payment Schedule. Payments shall be made upon City’s written confirmation to Consultant that the Deliverables- Milestones have been satisfied. 9.PAYMENT SCHEDULE Page 259 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 15 PSA #22-117 The 1st or 15th of the month after receiving and reviewing invoice. 10.SCHEDULE AND PERFORMANCE MILESTONES Coordinators set the schedule and target dates and performance milestones for the preparation and delivery of the Deliverables by Consultant. 11.ACCEPTANCE AND TESTING PROCEDURES Not Applicable 12.LOCATION OF WORK FACILITIES Substantially all of the work will be conducted by Consultant at its regular office located at 1712 Pearl Street, Boulder, CO 80202 or remotely, as appropriate. 13.FEES Peter D. Nichols $310.00 / hour Geoff M. Williamson $300.00 / hour Partners / Special Counsel $280.00 / hour Associates $260.00 / hour Paralegals / Legal Assistants $150.00 / hour Law Clerks $120.00 / hour IN WITNESS WHEREOF, pursuant and in accordance with the Professional Services Agreement between the parties hereto dated _______________, 2022, the parties have executed this Statement of Work as of this ______ day of ________________, 2022. CITY OF ENGLEWOOD, COLORADO By: (Signature) _________________________________ (Print Name) Title: Date: _______________________________ Page 260 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 16 PSA #22-117 BERG HILL GREENLEAF RUSCITTI LLP Consultant Name By: (Signature) Peter D. Nichols (Print Name) Title: Partner Date: 10/05/2022 Page 261 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 17 PSA #22-117 ATTACHMENT B CONSULTANT'S PROPOSAL Page 262 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303)762-2300 www.englewoodgov.org 18 PSA #22-117 ATTACHMENT C CERTIFICATE OF INSURANCE Page 263 of 482 Privileged and Confidential Attorney-Client Communication Attorney Work Product Legal Memorandum To: Pieter van Ry From: Peter D. Nichols Date: 21 September 2022 RE: Estimate of Fees and Costs for 2023 The legal services provided by Berg Hill Greenleaf Ruscitti LLP (BHGR) to the City of Englewood relate primarily to the use and protection of the City’s extensive portfolio of water rights to serve its residents and contractees. These services fall generally into six categories, described below with an estimate of fees and costs for 2023, which total $450,000. 1. Advising the City on general legal matters involving the City’s water rights BHGR prepares for and participates in bi-weekly meetings with the City’s water staff and water engineers concerning the use of the City’s water rights to meet current demands, and strategic planning to meet future demands and maximize the current and future value of the City’s water rights portfolio. In addition, BHGR responds to discreet legal questions relating to the City’s rights that come up from time to time. Estimated fees and costs: $75,000. 2. Advising the City on agreements, contracts, and decrees The City is party to numerous easements, rights-of-way, agreements, contracts and water court decrees that affect, and in some instances control, the City’s use of its water rights. Many of these legally significant documents are old, long, and complex, and contain vague and ambiguous provisions. BHGR interprets and advises the City’s water staff on the City’s rights and obligations under these documents, as well as possible courses of action and their probable legal consequences. Estimated fees and costs: $40,000. 3. Prosecuting water rights applications BHGR files applications in water court for the City’s water rights, including diligence and change applications and applications for new water rights. BHGR works to prosecute these water applications and to negotiate and settle with any opposers, or try the applications before Page 264 of 482 Privileged and Confidential Attorney-Client Communication Attorney Work Product Page 2 of 2 the water judge if necessary. There are three diligence deadlines in the coming year for the City’s conditional water rights. There are but no anticipated applications to change the City’s existing rights or apply for new rights. BHGR will be working strategically with the City’s water staff and water engineers to prepare for the diligence applications. Estimated fees and costs: $45,000. 4.Representing the City in routine water court proceedings There are an average of two to three water court applications filed each month by other parties that pose potential threats to the City’s portfolio of water rights. BHGR files statements of opposition on applications identified by the City’s water engineers that pose significant practical threats to the yield of the City’s rights, as well as applications that BHGR identifies that could become legal precedents that could injure the City’s interests. BHGR is typically representing the City in approximately 60 open cases in water court, seeking protective terms and conditions in stipulated settlements that protect the City’s rights. BHGR is also monitoring retained jurisdiction provisions in an additional 80 decreed cases to ensure compliance with terms and conditions that protect the City’s rights from injury. Estimated fees and costs: $120,000. 5.Representing the City in water court trials Most water court applications are settled out of court. Some, however, go to trial. BHGR represents the City in trial when the threat of injury or legal issues cannot be settled on terms and conditions that protect the City’s interests. Although seven of the applications in which the City is an active opposer are set for trial in the coming year, BHGR anticipates six will settle on terms and conditions protective of the City and only one will go to trial. Estimated fees and costs: $140,000. 6.Representing the City in Englewood v. Centennial Englewood invoked a never before used provision of its Agreement to lease surplus water and facilities to Centennial Water & Sanitation District early in 2021. The provision calls for using an appraisal method of valuation to adjust the annual lease prices, rather than the CPI, as previously used. Centennial in response asserted that the appraisal should consider water quality. BHGR filed a lawsuit against Centennial last fall over the appropriate standard to be used in the appraisal. Although the court ruled that the Agreement does not preclude consideration of water quality in an appraisal, it did not rule that water quality is a required element of value. Rather, the court ruling left it up to the appraiser(s) to use their professional judgment. BHGR is working with counsel for Centennial to hire a single appraiser to update the lease values and will be working with the appraiser to prepare the valuations. Estimated fees and costs: $30,000. Page 265 of 482 TO: Mayor and Council FROM: Pieter Van Ry, Englewood Utilities and South Platte Renew Director DATE: November 21, 2022 Re: Professional Services Agreement with Martin and Wood Water Consultants, Inc for Water Resources Engineering EXECUTIVE SUMMARY Utilities staff is seeking City Council approval of a Professional Services Agreement (PSA) with Martin and Wood Water Consultants, Inc (MWWC) for water resources engineering services, up to the amount of $400,000. BACKGROUND Successful protection and planning of the City of Englewood’s (City) water rights requires additional resources and expertise beyond Utilities staff. MWWC has provided water resources engineering services to the City since the early 1990s, and has an extensive understanding of Englewood’s water rights portfolio and Colorado water law. In 2019, the City engaged the first formal agreement with MWWC up to the amount of $400,000 for services provided between July 2019 and June 2020. In July 2020, Council approved PSA 20-37 up to the amount of $300,000. In July 2021, the Water and Sewer Board recommended, and Council approved the renewal of PSA 20-37 up to the amount of $350,000. These amounts closely aligned with historical annual spend from MWWC. In June 2022, a six-month agreement renewal was approved up to the amount of $225,000, which aligned future agreement renewals to the calendar year. Primary services rendered under a PSA with MWWC include protection of the City’s water rights through engineering support and litigation assistance of water court proceedings. Additional services include water right planning to meet future demands, operations, optimization of existing water rights, and water demand and supply modeling, and evaluations related to the City’s water contracts and agreements. ANALYSIS Staff recommends a PSA for water resources engineering services from January – December 2023, up to the amount of $400,000 with MWWC. The increase compared to past contracts will account for potential preparation of trial exhibits and/or participation in dispositions and trials next year. The following associated activities are planned for the January – December 2023 PSA: • Engineering support for water court proceedings related to water supply development and water supply protection • Engineering or litigation assistance to City staff and legal counsel concerning future applications to water court • Engineering or litigation assistance to City staff and outside legal counsel in review of pending water court applications filed by other parties Page 266 of 482 • Develop operations accounting and related tasks specific to the City’s raw water operations and revisions to these tasks as needed • Perform feasibility studies, master plans, and associated engineering analysis for raw water projects or raw water supplies, including evaluation of future water supplies to support findings and recommended projects contained in the City’s Water Master Plan and other planning documents • Support negotiations for potential future water supply acquisitions Staff recommends a PSA up to the amount of $400,000 with MWWC because of their extensive institutional knowledge of the City’s water resources portfolio, strong understanding of Colorado water law, prior successful performance and value for the City, and regional and statewide expertise. Retention of another firm may put the City’s water rights at risk in Colorado’s competitive and litigious water court proceedings. COUNCIL ACTION REQUESTED Motion to waive competitive bidding and approve a Professional Services Agreements for the City’s water resources contracts with Martin and Wood Water Consultants, Inc for water resource engineering services, up to the amount of $400,000. FINANCIAL IMPLICATIONS Funding for water resource engineering support is included in the 2023 Utilities budget and will not exceed the total Water Fund budget appropriation. Source of Funds Line-Item Description Line-Item Budget YTD Line-Item Expensed Proposed PSA Amount 40–1609– 54201 Water Fund, Engineering, Professional Services $1,150,000 $0 $400,000 CONNECTION TO STRATEGIC PLAN Sustainability: • Invest in water infrastructure Infrastructure: • Proactively and in a cost-effective manner invests, maintains, improves, and plans to protect water infrastructure ATTACHMENTS Contract Approval Summary PSA-22-118 MWWC / Scope of Work / Estimated Fees and Costs for 2023 Page 267 of 482 Contract Approval Summary March 2019 Update Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: Authorizing Resolution/Ordinance: Recording Information: City Contact Information Staff Contact Person: Stephanie Ellis, Engineer II Phone: office: 303.783.6811 cell: 720.668.1770 Title: Project Engineer Email: SEllis@englewoodco.gov Vendor Contact Information Vendor Name: Martin and Wood Water Consultants, Inc. (MWWC) Vendor Contact: Cristyn R. Radabaugh, Vice President Vendor Address: 538 Commons Drive Vendor Phone: 720-836-6566 City: Golden Vendor Email: cradabaugh@martinandwood.com State: CO Zip Code: 80401 Contract Type Contract Type:Professional Services Description of ‘Other’ Contract Type: Description of Contract Work/Services: Attachments: ☒Contract -- ☒Original ☐Copy ☐Addendum(s) ☐Exhibit(s) ☐Certificate of Insurance Summary of Terms: Start Date: January 2023 End Date: December 2023 Total Years of Term: 1 year Total Amount of Contract for term (or estimated amount if based on item pricing): $400,000.00 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Yes, renewal options available Payment terms (please describe terms or attach schedule if based on deliverables): The 1st or 15th of the month after receiving and reviewing invoice. City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the deliverables / Milestones set forth in the Payment Schedule. Payments shall be made upon City’s written confirmation to General engineering services associated with Water Court proceedings, water supply development, water supply planning, and water supply protection. Page 268 of 482 Contract Approval Summary March 2019 Update Page | 2 Consultant that the Deliverables-Milestones have been satisfied. Attachments: ☐Copy of original Contract if this is an Amendment ☐Copies of related Contracts/Conveyances/Documents Source of Funds (Insert Excel Document Image): Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor (Check Box): ☐Bid: ☐ Bid Evaluation Summary attached ☐ Bid Response of Proposed Awardee ☐RFP: ☐ RFP Evaluation Summary Attached ☐ RFP Response of Proposed Awardee ☐Quotes: Copy of Quotes attached ☐Optimal Source: Provide Detailed Explanation: ☒ Sole Source (Use as much space as necessary for detailed explanation): ☐ Qualification Based Selection / Best Value: Staff recommends a PSA for water resources engineering services from January – December 2023, in the amount of $400,000 with MWWC. The increase compared to past contracts will account for potential preparation of trial exhibits and/or participation in dispositions and trials next year. The following associated activities are planned for the January – December 2023 PSA: • Engineering support for water court proceedings related to water supply development and water supply protection • Engineering or litigation assistance to City staff and legal counsel concerning future applications to water court • Engineering or litigation assistance to City staff and outside legal counsel in review of pending water court applications filed by other parties Page 269 of 482 Contract Approval Summary March 2019 Update Page | 3 • Develop operations accounting and related tasks specific to the City’s raw water operations and revisions to these tasks as needed • Perform feasibility studies, master plans, and associated engineering analysis for raw water projects or raw water supplies, including evaluation of future water supplies to support findings and recommended projects contained in the City’s Water Master Plan and other planning documents • Support negotiations for potential future water supply acquisitions Staff recommends a PSA in the amount of $400,000 with MWWC because of their extensive institutional knowledge of the City’s water resources portfolio, strong understanding of Colorado water law, prior successful performance and value for the City, and regional and statewide expertise. Retention of another firm may put the City’s water rights at risk in Colorado’s competitive and litigious water court proceedings. Page 270 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 1 PSA #22-118 PROFESSIONAL SERVICES AGREEMENT Contract Number PSA-22-118 WATER RESOURCES ENGINEERING $400,000.00 (not to exceed) This Professional Services Agreement (the “Agreement”) is made effective January 1, 2023 and executed as of this day of________, 2022, (the “Effective Date”) by and between Martin and Wood Water Consultants, Inc., a Colorado corporation (“Consultant”), and The City of Englewood, Colorado, a municipal corporation organized under the laws of the State of Colorado (“City”). City desires that Consultant, from time to time, provide certain consulting services, systems integration services, data conversion services, training services, and/or related services as described herein, and Consultant desires to perform such services on behalf of City on the terms and conditions set forth herein. In consideration of the foregoing and the terms hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. Definitions. The terms set forth below shall be defined as follows: (a) “Intellectual Property Rights” shall mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (1) rights associate with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask- works, (2) trademark and trade name rights and similar rights, (3) trade secret rights, (4) patents, designs, algorithms and other industrial property rights, (5) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (6) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). (b) “Work Product” shall mean all patents, patent applications, inventions, designs, mask works, processes, methodologies, copyrights and copyrightable works, trade secrets including confidential information, data, designs, manuals, training materials and documentation, formulas, knowledge of manufacturing processes, methods, prices, financial and accounting data, products and product specifications and all other Intellectual Property Rights created, developed or prepared, documented and/or delivered by Consultant, pursuant to the provision of the Services. (c) "Contract" shall mean this instrument, Attachment A the Outline of the Statement of Work, Attachment B Consultant's Proposal, Attachment C Certificate of Insurance and any instruments, drawings and documents which are attached or incorporated by reference. The Consultant, by executing this Contract, agrees to comply with all such terms and conditions and attachments. In addition, any exhibits provided by the Page 271 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 2 PSA #22-118 Consultant, shall be incorporated and made a part of this Contract. 2. Statements of Work. During the term hereof and subject to the terms and conditions contained herein, Consultant agrees to provide, on an as requested basis, the consulting services, systems integration services, data conversion services, training services, and related services (the “Services”) as further described in Attachment A (the “Outline of Statement of Work”) for City, and in such additional Statements of Work as may be executed by each of the parties hereto from time to time pursuant to this Agreement. Each Statement of Work shall specify the scope of work, specifications, basis of compensation and payment schedule, estimated length of time required to complete each Statement of Work, including the estimated start/finish dates, and other relevant information and shall incorporate all terms and conditions contained in this Agreement 3. Performance of Services. (a) Performance. Consultant shall perform the Services necessary to complete all projects outlined in a Statement of Work in a timely and professional manner consistent with the specifications, if any, set forth in the Statement of Work, and in accordance with industry standards. Consultant agrees to exercise professionalism, and to utilize its expertise and creative talents in completing the projects outlined in a Statement of Work. (b) Delays. Consultant agrees to notify City promptly of any factor, occurrence, or event coming to its attention that may affect Consultant’s ability to meet the requirements of the Agreement, or that is likely to occasion any material delay in completion of the projects contemplated by this Agreement or any Statement of Work. Such notice shall be given in the event of any loss or reassignment of key employees, threat of strike, or major equipment failure. . (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 conflict, Consultant shall secure written instructions from City’s project director before proceeding with the performance of the Services affected by such omissions or discrepancies. 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 Statement of Work by City. Acceptance procedures shall be outlined in the Statement of Work. If City disputes all or any portion of an invoice for charges, then City shall pay the undisputed portion of the invoice by the due date and shall provide the following notification with respect to the disputed portion of the invoice. City shall notify Consultant as soon as possible of the specific amount disputed and shall provide reasonable detail as to the basis for the dispute. The parties shall then attempt to resolve the disputed portion of such invoice as soon as possible. Upon resolution of the disputed portion, City shall pay to Consultant the resolved amount. 5. Taxes. City is not subject to taxation. No federal or other taxes (excise, luxury, transportation, sales, etc.) shall be included in quoted prices. City shall not be obligated to pay or reimburse Consultant for any taxes attributable to the sale of any Services which are imposed on or measured by net or gross income, capital, net worth, franchise, privilege, any other taxes, or assessments, nor any of the foregoing imposed on or payable by Consultant. Upon written notification by City and subsequent verification by Consultant, Consultant shall reimburse or credit, as applicable, City in a timely manner, for any and all taxes Page 272 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 3 PSA #22-118 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 which are expressly provided for in a Statement of Work or which have been approved in advance in writing by City, provided Consultant has furnished such documentation for authorized expenses as City may reasonably request. 7. Audits. Consultant shall provide such employees and independent auditors and inspectors as City may designate with reasonable access to all sites from which Services are performed for the purposes of performing audits or inspections of Consultant’s operations and compliance with this Agreement. Consultant shall provide such auditors and inspectors any reasonable assistance that they may require. 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 Agreement shall commence on the date when both parties have signed the Agreement, and shall continue for one year, with an option to renew for four (4) additional one-year periods, unless this Agreement is terminated as provided in this Section 8. At the end of the initial one-year period, if the parties desire to extend this Agreement beyond the one-year period, written notice shall be given to the other party no later than thirty (30) days prior to the end of the one- year period. If the parties agree to the request for renewal, the parties shall then enter into a renewal extending this Agreement including a new Statement of Work, if necessary. The parties understand and acknowledge that any renewal of this Agreement may be subject to the approval of the Englewood City Council pursuant to the City's Purchasing Policies. The parties also understand and acknowledge that the extension of this contract beyond the initial one-year period is contingent upon the City appropriating adequate funds for each fiscal year. (a) Convenience. City may, without cause and without penalty, terminate the provision of Services under any or all Statements of Work upon thirty (30) days prior written notice. Upon such termination, City shall, upon receipt of an invoice from Consultant, pay Consultant for Services actually rendered prior to the effective date of such termination. Charges will be based on time expended for all incomplete tasks as listed in the applicable Statement of Work, and all completed tasks will be charged as indicated in the applicable Statement of Work. (b) No Outstanding Statements of Work. Either party may terminate this 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 this Agreement with respect to a specific Statement of Work (other than by nonpayment) and does not substantially cure such default within thirty (30) days after receiving 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 (10) days prior written notice of termination to the defaulting party. (d) Bankruptcy or Insolvency. Either party may terminate this Agreement effective upon written notice stating its intention to terminate in the event the other party: (1) makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (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 consents to or acquiesces in, a petition seeking relief or reorganization under any Page 273 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 4 PSA #22-118 bankruptcy or insolvency laws; or (4) files a petition seeking relief or reorganization under any bankruptcy or insolvency laws is filed against that other party and is not dismissed within sixty (60) days after it was filed. (e) TABOR. The parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution ("TABOR"). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, notwithstanding anything in this Agreement to the contrary, all payment obligations of City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of City's current fiscal period ending upon the next succeeding December 31. Financial obligations of City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of City and applicable law. Upon the failure to appropriate such funds, this Agreement shall be deemed terminated. (f) Return of Property. Upon termination of this Agreement, both parties agree to return to the other all property (including any Confidential Information, as defined in Section 11) of the other party that it may have in its possession or control. 9. City Obligations. City will provide timely access to City personnel, systems and information required for Consultant to perform its obligations hereunder. City shall provide to Consultant’s employees performing its obligations hereunder at City’s premises, without charge, a reasonable work environment in compliance with all applicable laws and regulations, including office space, furniture, telephone service, and reproduction, computer, facsimile, secretarial and other necessary equipment, 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 Consultant, obtain all consents, licenses and sublicenses necessary for Consultant to perform under the Statements of Work and shall pay any fees or other costs associated with obtaining such consents, licenses and sublicenses. 10. Staff. Consultant is an independent consultant and neither Consultant nor Consultant’s staff is, or shall be deemed to be employed by City. City is hereby contracting with Consultant for the Services described in a Statement of Work and Consultant reserves the right to determine the method, manner and means by which the Services will be performed. The Services shall be performed by Consultant or Consultant’s staff, and City shall not be required to hire, supervise or pay any assistants to help Consultant perform the Services under this Agreement. Except to the extent that Consultant’s work must be performed on or with City’s computers or City’s existing software, all materials used in providing the Services shall be provided by Consultant. 11. Confidential Information. (a) Obligations. Each party hereto may receive from the other party information which relates to the other party’s business, research, development, trade secrets or business affairs (“Confidential Information”). Subject to the provisions and exceptions set forth in the Colorado Open Records Act, CRS Section 24- 72-201 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, disclosure, publication or dissemination of its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Without limiting the generality of the foregoing, each party hereto agrees not to disclose or permit any other person or entity access to the other party’s Confidential Page 274 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 5 PSA #22-118 Information except such disclosure or access shall be permitted to an employee, agent, representative or independent consultant of such party requiring access to the same in order to perform his or her employment or services. Each party shall insure that their employees, agents, representatives, and independent consultants are advised of the confidential nature of the Confidential Information and are precluded from taking any action prohibited under this Section 11. Further, each party agrees not to alter or remove any identification, copyright or other proprietary rights notice which indicates the ownership of any part of such Confidential Information by the other party. A party hereto shall undertake to immediately notify the other party in writing of all circumstances surrounding any possession, use or knowledge of Confidential Information at any location or by any person or entity other than those authorized by this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall restrict either party with respect to information or data identical or similar to that contained in the Confidential Information of the other party but which (1) that party rightfully possessed before it received such information from the other as evidenced by written documentation; (2) subsequently becomes publicly available through no fault of that party; (3) is subsequently furnished rightfully to that party by a third party without restrictions on use or disclosure; or (4) is required to be disclosed by law, provided that the disclosing party will exercise reasonable efforts to notify the other party prior to disclosure. (b) Know-How. For the avoidance of doubt neither City nor Consultant shall be prevented from making use of know-how and principles learned or experience gained of a non-proprietary and non-confidential nature. (c) Remedies. Each of the parties hereto agree that if, their officers, employees or anyone obtaining access to the Confidential Information of the other party by, through or under them, breaches any provision of this Section 11, the non-breaching party shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations and benefits which the breaching party, its officers or employees directly or indirectly realize or may realize as a result of or growing out of, or in connection with any such breach. In addition to, and not in limitation of the foregoing, in the event of any breach of this Section 11, the parties agree that the non- breaching party will suffer irreparable harm and that the total amount of monetary damages for any such injury to the non-breaching party arising from a violation of this Section 11 would be impossible to calculate and would therefore be an inadequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to temporary and permanent injunctive relief against the breaching party, its officers or employees and such other rights and remedies to which the non-breaching party may be entitled to at law, in equity or under this Agreement for any violation of this Section 11. The provisions of this Section 11 shall survive the expiration or termination of this Agreement for any reason. 12. Project Managers. Each party shall designate one of its employees to be its Project Manager under each Statement of Work, who shall act for that party on all matters under the Statement of Work. Each party shall notify the other in writing of any replacement of a Project Manager. The Project Managers 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 that: (1) Consultant has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (2) the execution of this Agreement by Consultant, and the performance by Consultant of its obligations Page 275 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 6 PSA #22-118 and duties hereunder, do not and will not violate any agreement to which Consultant is a party or by which it is otherwise bound under any applicable law, rule or regulation; (3) when executed and delivered by Consultant, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (4) Consultant acknowledges that City makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement (b) Service Warranty. Consultant warrants that its employees and consultants shall have sufficient skill, knowledge, and training to perform Services and that the Services shall be performed in a professional and workmanlike manner. (c) Personnel. Unless a specific number of employees is set forth in the Statement of Work, Consultant warrants it will provide sufficient employees to complete the Services ordered within the applicable time frames established 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 replacement of an employee or a proposed employee. In such event, Consultant shall, within five (5) working days of receipt of such request from City, provide a substitute employee of sufficient skill, knowledge, and training to perform the applicable Services. Consultant shall require employees providing Services at a City location to comply with applicable City security and safety regulations and policies. (d) Compensation and Benefits. Consultant shall provide for and pay the compensation of employees and shall pay all taxes, contributions, and benefits (such as, but not limited to, workers’ compensation benefits) which an employer is required to pay relating to the employment of employees. City shall not be liable to Consultant or to any employee for Consultant’s failure to perform its compensation, benefit, or tax obligations. Consultant shall indemnify, defend and hold City harmless from and against all such taxes, contributions and benefits and will comply with all associated governmental regulations, including the filing of all necessary reports and returns. 14. Indemnification. (a) Consultant Indemnification. Consultant shall indemnify, defend and hold harmless City, its directors, officers, employees, and agents and the heirs, executors, successors, and permitted assigns of any of the foregoing (the “City Indemnitees”) only to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the Consultant, from and against all losses, claims, obligations, demands, assessments, fines and penalties (whether civil or criminal), liabilities, expenses and costs (including reasonable fees and disbursements of legal counsel and accountants), bodily and other personal injuries, damage to tangible property, and other damages, of any kind or nature, suffered or incurred by a City Indemnitee to the extent caused by: (1) any negligent or intentional act or omission by Consultant or its representatives in the performance of Consultant’s obligations under this Agreement, or (2) any material breach in a representation, warranty, covenant or obligation of Consultant contained in this Agreement. In no event shall the indemnification obligation extend beyond the date when the institution of legal or equitable proceedings for professional negligence would be barred by any applicable statue of repose or statute of limitations. (b) Infringement. Consultant will indemnify, defend, and hold City harmless from all Indemnifiable Losses arising from any third party claims that any Work Product or methodology supplied by Consultant infringes or misappropriates any Intellectual Property rights of any third party; provided, however, that the foregoing indemnification obligation shall not apply to any alleged infringement or Page 276 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 7 PSA #22-118 misappropriation based on: (1) use of the Work Product in combination with products or services not provided by Consultant to the extent that such infringement or misappropriation would have been avoided if such other products or services had not been used; (2) any modification or enhancement to the Work Product made by City or anyone other than Consultant or its sub-consultants; or (3) use of the Work Product other than as permitted under this Agreement. (c) Indemnification Procedures. Notwithstanding anything else contained in this Agreement, no obligation to indemnify which is set forth in this Section 14 shall apply unless the party claiming indemnification notifies the other party as soon as practicable to avoid any prejudice in the claim, suit or proceeding of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the other party the opportunity to control the response thereto and the defense thereof; provided, however, that the party claiming indemnification shall have the right to participate in any legal proceedings to contest and defend a claim for indemnification involving a third party and to be represented by its own attorneys, all at such party’s cost and expense; provided further, however, that no settlement or compromise of an asserted third-party claim other than the payment/money may be made without the prior written consent of the party claiming indemnification. (d) Immunity. City, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-10-101 et seq., as from time to time amended, or otherwise available to City, its officers, or its employees. 15. Insurance. (a) Requirements. Consultant agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance during the term of this Agreement: (1) The Consultant shall comply with the Workers’ Compensation Act of Colorado and shall provide compensation insurance to protect the City from and against any and all Workers’ Compensation claims made by employees of Consultant arising from performance of the work under this contract. Workers’ Compensation insurance must cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, as well as the Employers’ Liability within the minimum statutory limits. (2) Commercial General Liability Insurance and auto liability insurance (including contractual liability insurance) providing coverage for bodily injury and property damage with a combined single limit of not less than two million dollars ($2,000,000) per occurrence. (3) Professional Liability/Errors and Omissions Insurance covering acts, errors and omissions arising out of Consultant’s operations or Services in an amount not less than one million dollars ($1,000,000) per claim. (b) Approved Companies. All such insurance shall be procured with such insurance companies of good standing, permitted to do business in the country, state or territory where the Services are being performed. (c) Certificates. Consultant shall provide City with certificates of insurance evidencing compliance with this Section 15 Page 277 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 8 PSA #22-118 (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 will list the City of Englewood as an additional insured. Each certificate of insurance shall provide that the issuing company shall not cancel, reduce, or otherwise materially change the insurance afforded under the above policies unless thirty (30) days’ notice of such cancellation, reduction or material change has been provided 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 Statement 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 Intellectual Property Rights, a non- exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such Intellectual property Rights. (b) Know-How. Notwithstanding 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 expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment, so long as it or they acquire and apply such information without disclosure of any Confidential Information of the other party. 17. Relationship of Parties. Consultant is acting only as an independent consultant and does not undertake, by this Agreement, any Statement of Work or otherwise, to perform any obligation of City, whether regulatory or contractual, or to assume any responsibility for City’s business or operations. Neither party shall act or represent itself, directly or by implication, as an agent of the other, except as expressly authorized in a Statement of Work. 18. Complete Agreement. This Agreement contains the entire agreement, including all Exhibits, Statements of Work and other Attachments that have been executed by the parties, and are attached hereto and made a part of this Agreement. 19. Applicable Law. Consultant shall comply with all applicable 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 applicable 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 the provisions of this Agreement shall be brought before the state or federal court situated in Arapahoe County, Colorado and each party hereto consents to jurisdiction and venue before such courts. (a) Attorney Fees. In the event that either party to this Agreement shall commence any action against the other party arising out of or in connection with this Agreement, or contesting the validity of the Agreement or any provision of this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorney’s fees and related costs, fees and expenses incurred by the prevailing party in connection with such action or proceeding. 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 parties hereto consent to and agree that such scope may be judicially modified accordingly and that the Page 278 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 9 PSA #22-118 whole of such provision of this Agreement shall not thereby fail, but that the scope of such provision shall be curtailed only to the extent necessary to conform to law. 21. Additional Work. After receipt of a Statement of Work, City, with Consultant’s consent, may request Consultant to undertake additional work with respect to such Statement of Work. In such event, City and Consultant shall execute an addendum to the Statement of Work specifying such additional work and the compensation to be paid to Consultant for such additional work. 22. Sub-consultants. Consultant may not subcontract any of the Services to be provided hereunder without the prior written consent of City. In the 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 prepaid, certified mail, return receipt requested or (3) one (1) day after deposit with a nationally- recognized overnight courier, specifying overnight priority delivery. Either 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 assigned by Consultant without the prior written consent of City. Except for the prohibition of an assignment contained in the preceding sentence, this Agreement 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 considered in its interpretation. The recitals 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 conformance with this Agreement are incorporated into this Agreement. 27. Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not affect in any way the full right to require such performance 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 waiver of the provision itself. 28. Force Majeure. If performance 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, epidemic, pandemic, quarantine, floods, lightning, severe weather, shortages of materials, rationing, utility or communications 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 governmental or judicial authority or representative of any such government, or any other act whether similar or dissimilar to those referred to in this clause, which are beyond the reasonable control of Consultant, then Consultant shall be excused from such performance to the extent of such prevention, restriction, delay or interference. If the period of such delay exceeds thirty (30) days, City may, without liability, terminate the affected Statement of Work(s) upon written notice to Consultant. Page 279 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 10 PSA #22-118 29. Time of Performance. The City and Consultant are aware that many factors outside the Consultant’s control may affect the Consultant’s ability to complete the services to be provided under this agreement. The Consultant will perform these services with reasonable diligence and expediency consistent with sound professional practices. If the Consultant becomes aware of delays due to time allowances for review and approval being exceeded, delay by the Contractor, the City, the City’s consultants or any other cause beyond the control of the Consultant, which will result in the schedule for performance of the Consultant’s services not being met, the Consultant shall promptly notify the City. If the City becomes aware of any delays or other causes that will affect the Consultant’s schedule, the City shall promptly notify the Consultant.. 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 statute, ordinance or regulation for the performance of the Services under the Agreement. Consultant shall also comply with the provisions of all Applicable Laws in performing the Services under the Agreement. At its own expense and at no cost to City, Consultant shall make any change, alteration or modification that may be necessary to comply with any Applicable Laws that Consultant failed to comply with at the time of performance 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, public announcements, or public disclosures (including, but not limited to, promotional 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 symbol 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, trademark, 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 shall neither restrict the right of City to cease acquiring nor require City to continue any level of such acquisitions. Estimates or forecasts furnished by City to Consultant prior to or during the term of this Agreement shall not constitute commitments. 33. Survival. The provisions of Sections 5, 8, 10, 11, 13, 14, 16, 17, 19, 23, 25 and 31 shall survive any expiration or termination for any reason of this Agreement. 34. Verification of Compliance with C.R.S. 8- 17.5-101 ET.SEQ. Regarding Hiring of Workers without Authorization: (a) Employees, Consultants and Sub-consultants: Consultant shall not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. Consultant shall not contract with a sub-consultant that fails to certify to the Consultant that the sub-consultant will not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. [CRS 8-17.5-102(2)(a)(I) & (II).] (b) Verification: Consultant will participate in either the E-Verify program or the Department program, as defined 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 hired for employment to perform work under this public contract for services. Consultant is Page 280 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 11 PSA #22-118 prohibited from using the E-Verify program or the Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed. (c) Duty to Terminate a Subcontract: If Consultant obtains actual knowledge that a sub-consultant performing work under this Contract knowingly employs or contracts with a Worker without Authorization, the Consultant shall; Page 281 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 12 PSA #22-118 (1) notify the sub-consultant and the City within three days that the Consultant has actual knowledge that the sub-consultant is employing or contracting with a Worker without Authorization; and (2) terminate the subcontract with the sub-consultant if, within three days of receiving notice required pursuant to this paragraph the sub- consultant does not stop employing or contracting with the Worker without Authorization; except that the Consultant shall not terminate the contract with the sub-consultant if during such three days the sub- consultant provides information to establish that the sub-consultant has not knowingly employed or contracted with Worker without Authorization. (d) Duty to Comply with State Investigation: Consultant shall comply with any reasonable request of the Colorado Department of Labor and Employment made in the course of an investigation by that the Department is undertaking pursuant to C.R.S. 8-17.5-102 (5) (e) Damages for Breach of Contract: The City may terminate this contract for a breach of contract, in whole or in part, due to Consultant’s breach of any section of this paragraph or provisions required pursuant to CRS 8-17.5-102. Consultant shall be liable for actual and consequential damages to the City in addition to any other legal or equitable remedy the City may be entitled to for a breach of this Contract under this Paragraph 34. Page 282 of 482 Page 283 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org ATTACHMENT A OUTLINE OF STATEMENT OF WORK 1. GENERAL: • City of Englewood and Martin and Wood Water Consultants, Inc.; • Amount of $400,000.00 for the contract term (January 1, 2023 – December 31, 2023); • For general engineering services associated with Water Court proceedings, water supply development, water supply planning, and water supply protection. 2. NAMES, PHONE NUMBERS AND EMAILS OF PROJECT COORDINATORS Stephanie Ellis, Engineer II 303-783-6811 sellis@englewoodco.gov Dave Chapman, Water Production Administrator 303-762-2650 Dchapman@englewoodco.gov Cristyn R. Radabaugh, Vice President 720-836-6566 cradabaugh@martinandwood.com Michelle Cunico Johnson, President 720-836-6569 www.martinandwood.com 3. SUMMARY OF PURPOSE FOR STATEMENT OF SERVICES: General engineering services associated with Water Court proceedings, water supply development, water supply planning, and water supply protection. 4. EQUIPMENT AND PROGRAMMING TO BE PROVIDED BY CITY (IF ANY) Water rights data and updated spreadsheets. 5. OTHER CONSULTANT RESOURCES Berg Hill Greenleaf Ruscitti LLP (BHGR) Page 284 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 6. DESCRIPTION OF GENERAL ENGINEERING SERVICES Task 1: Meeting and Workshop Participation Participating in two meetings per month with the water resource stakeholder group, having up to two additional 1-hour meetings per month with City staff, and attending and/or leading up to three 3-hour workshops. Task 2: General Engineering Services Providing general engineering services associated with water demand and supply modeling, development of or revisions to operations accounting or related tasks specific to the City’s raw water operations, evaluation and assessment of groundwater and surface water resources, evaluating potential capital improvement projects and project prioritization, conducting yield analyses, raw water planning, and support on various water projects or activities as requested. Task 3: External Contracts and Agreements Conducting quantifications and evaluations related to the City’s water contracts, leases, and agreements. May include participation in discussion related to existing contracts and agreements or potential negotiations with respect to future water acquisitions or agreements. Task 4: Water Court Applications Support Providing engineering and expert witness services to City Staff and City’s legal counsel concerning the City’s current and future applications to the Water Court, including the diligence cases expected to be filed in 2023. Task 5: Water Rights Protection Support Providing engineering, technical, and expert witness services to City staff and City’s legal counsel for water supply protection including review of pending Water Court applications and case materials filed by other parties, review of water rights accounting of other parties, recommendations on filing statements of oppositions, preparation of expert reports, preparation of trial exhibits, potential participation in depositions and trials, and related activities. 7. SPECIAL TERMS, IF ANY N/A 8. CONSULTANT FEES AND EXPENSES The services provided under this Agreement will be billed by a Time and Materials basis in accordance with the attached rate and fee table in effect as of January 1, 2023, or as scheduled effective January of each calendar year this Agreement is in effect. The attached SCHEDULE OF HOURLY RATES AND EXPENSES includes Other Charges that the Consultant may incur as out-of-pocket costs while engaged in various tasks under the Statement of Work and may request the City for reimbursement. Page 285 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org Engineer or Hydrogeologist Classification Hourly Rate Principal $220 Senior $200 Senior Project $185 Project $165 Staff II $150 Staff I $140 Tech/Admin $95 9. MODE OF PAYMENT Check or Electronic Transfer. City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the Deliverables/Milestones set forth in the Payment Schedule. Payments shall be made upon City’s written confirmation to Consultant that the instruments of service have been satisfied. 10. PAYMENT SCHEDULE The 1st or 15th of the month after receiving and reviewing invoice. Task Cost Task 1: Meeting and Workshop Participation $21,110.00 Task 2: General Engineering Services $189,180.00 Task 3: External Contracts and Agreements $10,100.00 Task 4: Water Court Applications Support $12,660.00 Task 5: Water Rights Protection Support $166,950 11. SCHEDULE AND PERFORMANCE MILESTONES Not Applicable 12. ACCEPTANCE AND TESTING PROCEDURES Not Applicable 13. LOCATION OF WORK FACILITIES Substantially all of the work will be conducted by Consultant at its regular office located at: 538 Commons Drive, Golden, Colorado 80401. Page 286 of 482 Page 287 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org ATTACHMENT B CONSULTANT'S PROPOSAL Page 288 of 482 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org ATTACHMENT C CERTIFICATE OF INSURANCE Page 289 of 482 Memorandum To: Stephanie Ellis, Englewood Utilities From: Cristy Radabaugh Date: September 23, 2022 Subject: Martin and Wood Scope and Fee for Contract Renewal Martin and Wood Water Consultants, Inc. (Martin and Wood) submits the following scope and fee for renewal of the Professional Service Agreement for water rights engineering support services for January 2023 through December 2023. The services provided generally include water rights engineering support for water court proceedings, water supply development and related evaluations, water supply planning, and water supply protection. Task 1: Meeting and Workshop Participation Participating in two meetings per month with the water resource stakeholder group, having up to two additional 1-hour meetings per month with City staff, and attending and/or leading up to three 3-hour workshops. Fee: $21,110 Task 2: General Engineering Services Providing general engineering services associated with water demand and supply modeling, development of or revisions to operations accounting or related tasks specific to the City’s raw water operations, evaluation and assessment of groundwater and surface water resources, evaluating potential capital improvement projects and project prioritization, conducting yield analyses, raw water planning, and support on various water projects or activities as requested. Fee: $189,180 Martin and Wood Water Consultants, Inc. 538 Commons Drive, Golden, CO 80401 Phone: (303) 526-2600 Fax: (303) 526-2624 www.martinandwood.com Page 290 of 482 Martin and Wood Scope and Fee for Contract Renewal September 23, 2022 Page 2 Task 3: External Contracts and Agreements Conducting quantifications and evaluations related to the City’s water contracts, leases, and agreements. May include participation in discussion related to existing contracts and agreements or potential negotiations with respect to future water acquisitions or agreements. Fee: $10,100 Task 4: Water Court Applications Support Providing engineering and expert witness services to City Staff and City’s legal counsel concerning the City’s current and future applications to the Water Court, including the diligence cases expected to be filed in 2023. Fee: $12,660 Task 5: Water Rights Protection Support Providing engineering, technical, and expert witness services to City staff and City’s legal counsel for water supply protection including review of pending Water Court applications and case materials filed by other parties, review of water rights accounting of other parties, recommendations on filing statements of oppositions, preparation of expert reports, preparation of trial exhibits. potential participation in depositions and trials, and related activities. Fee: $166,950 Total Fee: $400,000 Page 291 of 482 Rate and Fee Schedule 2023 Martin and Wood Water Consultants Contract Renewal Principal Senior Senior Project Project Staff II Staff I Tech/Admin Task Hourly Rate $220 $200 $185 $165 $150 $140 $95 Task 1: Meeting and Workshop Participation 75 0 16 10 0 0 0 Subtask 1.1: Regular Meetings 60 0 6 6 0 0 0 Subtask 1.2: Workshops 15 0 10 4 0 0 0 Task 2: General Engineering Services 540 0 200 200 0 0 4 Task 3: External Contracts and Agreements 30 0 10 10 0 0 0 Task 4: Water Court Application Support 24 0 20 20 0 0 4 Task 5: Water Rights Protection 400 0 160 260 43 0 0 TOTAL HOURS 1069 0 406 500 43 0 8 TOTAL LABOR $235,180 $0 $75,110 $82,500 $6,450 $0 $760 Engineer or Hydrogeologist Classification Page 292 of 482 Anticipated 2023 Costs $400,000.00 $21,110 $15,300 $5,810 $189,180 $10,100 $12,660 $166,950 Page 293 of 482 Page 294 of 482 Water Resource PSAs City Council, Regular Meeting Pieter Van Ry, Englewood Utilities and South Platte Renew Director November 21, 2022 Page 295 of 482 Raw Water System •Englewood water rights •Interagency agreements •Water exchanges •Water court proceedings •Water supply planning Page 296 of 482 Engineering and Legal Support •Protect existing water rights •Optimize portfolio •Supply and demand planning Page 297 of 482 •Decades of experience with City •Strong institutional knowledge •Resources to monitor water court proceedings •Demonstrated successful performance •Regional and statewide water law expertise Engineering and Legal Support Page 298 of 482 •Previous Renewal: July –December 2022 •Future contracts and purchase orders to match calendar year Revised Contract Cycle Page 299 of 482 •Strategic planning •Demand analysis •Capital planning •Yield optimization •Water quality •Water court application/diligence •Litigation activities Planned Jan–Dec 2023 Work Page 300 of 482 Budget Martin and Wood Berg Hill Greenleaf Ruscitti July –December 2022 Contract $225,000 $350,000 January –December 2022 Request $400,000 $450,000 Page 301 of 482 Questions?Page 302 of 482 Thank you Page 303 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: November 21, 2022 SUBJECT: Resolution increasing City Manager, City Attorney salaries, effective January 2023 DESCRIPTION: The 2023 City budget includes a 5 percent salary increase for all City employees. In order for this increase to be effective for the City Manager, City Council must specifically authorize the salary increase. City Council further desires to increase the City Attorney's salary to reflect current market conditions. RECOMMENDATION: Consider resolution increasing City Manager salary by 5 percent, to receive the same city-wide compensation increase as other City employees; and increase the City Attorney's salary to reflect current market conditions. It is anticipated the City Manager's market adjustment will coincide with the Compensation & Classification Study results after the first of the year. PREVIOUS COUNCIL ACTION: City Council annually adopts a Resolution establishing the City Manager, City Attorney compensation for the following calendar year. SUMMARY: The City 2023 budget contains a 5 percent increase for all City employees effective the first payroll in January, 2023. In order to apply that city-wide increase to the City Manager, however, City Council must specifically adopt a Resolution approving it. In addition, the City Attorney's salary is significantly below market rate, and therefore this Resolution raises that compensation to the appropriate rate. ANALYSIS: City Council independently evaluated compensation paid to City Attorneys in peer cities, and hiring ranges offered for current City Attorney/County Attorney vacant positions. The City Attorney's salary is significantly below market rate, and therefore this Resolution raises that compensation to the appropriate level. The City Attorney has implemented processes and procedures to realize savings, and therefore no budget amendment is anticipated to fund the increase. All other City employees (except the elected Municipal Court Judge) will receive a 5 percent salary increase automatically as of January 1. Market rates for all other City employees not directly appointed by City Council are currently being studied, and the City anticipates Page 304 of 482 increasing (where appropriate) employee compensation when that study is complete, retroactive to January 1. The Municipal Court Judge's 2023 compensation will be the subject of a separate resolution. COUNCIL ACTION REQUESTED: Consider resolution increasing City Manager, City Attorney salary, effective January 2023 FINANCIAL IMPLICATIONS: Total financial impact is $81,150, and is contained within the 2023 City budget. ATTACHMENTS: Resolution Page 305 of 482 1 RESOLUTION NO. ___ SERIES OF 2022 A RESOLUTION ESTABLISHING THE ANNUAL SALARY FOR THE CITY MANAGER AND CITY ATTORNEY OF THE CITY OF ENGLEWOOD, COLORADO. WHEREAS, Article VII, Section 49 of the Englewood Home Rule Charter places responsibility for establishing the salary for the City Manager with the City Council; and WHEREAS, Article IX, Part I, Section 64 of the Englewood Home Rule Charter places responsibility for establishing the salary of the City Attorney with the City Council; and WHEREAS, City Council approved the 2023 City of Englewood budget, which included a 5 percent increase in City employee salaries; and WHEREAS, in order to increase the salary of the City Manager in accordance with the approved budget as it applies to the salaries of all City employees, City Council must specifically authorize the salary increase; and WHEREAS, the City Attorney compensation is well below market rate, and City Council desires to increase compensation to current market. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The annual salary for the City Manager shall be increased by 5 percent to $192,151.24, commencing with the first pay period of January, 2023. Section 2. The annual salary for the City Attorney shall be increased to $255,000, commencing with the first pay period of January, 2023. ADOPTED AND APPROVED this 21st day of November, 2022. _______________________________ Othoniel Sierra, Mayor ATTEST: __________________________________ Stephanie Carlile, City Clerk Page 306 of 482 2 I, Stephanie Carlile, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution No. _____, Series of 2022. ___________________________ Stephanie Carlile Page 307 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: November 21, 2022 SUBJECT: CB 39 - Approve a bill for an Ordinance Amending Title 7, Chapter 1A, Sections 7-1A-5, 7-1A-9 and 7-1A-16 Of Englewood Municipal Code Regarding Animal Impoundment. DESCRIPTION: CB 39 - City staff requested an ordinance amending Sections 7-1A-5, 7-1A-9 and 7-1A-16 to resolve ambiguity in prior language, to mirror state law provisions for animal impoundment, and to provide a single, consistent section of Municipal Code regarding animal impoundment. RECOMMENDATION: Approve a bill for an ordinance amending EMC Sections 7-1A-5, 7-1A-9 and 7-1A-16 to resolve ambiguity in prior language, to mirror state law provisions for animal impoundment to ensure compliance, and to provide a single municipal code section for animal impoundment. Should City Council have any questions regarding this council bill, staff requests it be tabled until November 21, 2022--the City Attorney worked with staff to draft the council bill, and will be available to answer all questions at that time. PREVIOUS COUNCIL ACTION: City Council previously requested this be tabled to November 7, 2022 to allow time for the Code Enforcement Advisory Committee to review the proposed ordinance and provide comment. The Code Enforcement Advisory Committee met on October 26, 2022, reviewed the proposal, and approved it for Council consideration. SUMMARY: Englewood Police Department Code Enforcement division requested this revision to Englewood Municipal Code regarding animal impoundment. The proposed bill for an ordinance amends Englewood Municipal Code on animal impoundments for clarity and brevity, mirrors state law on animal impoundment time frames and procedures, and implements amendments to accomplish the following: removes requirement that payment of fines be made to Municipal Court for an owner to get an animal back, which would prohibit retrieving an animal after business hours on Friday until court opens on Monday (thus increasing the shelter costs and delaying reuniting the owner and animal even though the shelter is open 7 days per week); shortens the time frame to claim an animal to mirror state law to 5 days when the shelter is open instead of 6 days; provides a framework for an impound hearing; provides a framework to pre-pay care costs when an animal is held pending disposition of criminal charges, mirroring state law; authorizes a veterinarian to euthanize terminal animals without court order, to mirror state law; clarifies when impound fees and costs are and are not Page 308 of 482 payable by the defendant; and removes impound provisions from two additional sections of municipal code to provide a single, consistent section that governs all animal impoundments. Municipal Court Administrator Kennetha Julien requested the opportunity to review and provide comment on the proposed draft ordinance regarding animal impound. A draft version of the ordinance was provided to her on August 25, 2022, with comments requested within a week. She provided comments at end of day on Friday, September 2, 2022, and requested her comments be provided to City Council when considering this proposed ordinance. The City Attorney provided those comments to Englewood Police Department Code Enforcement division and the City Prosecutor for review and response the next business day. Below are the five comments received by Julien, immediately followed in italics by staff's response and direction regarding the proposed ordinance: 1) Potential confusion between the term “Impound Fee” (city) of $254.58 per animal that exists in current code to cover flat rate of securing animal and transporting to HSSPV and the new proposed “Impound Cost” (shelter or daily Boarding Rate plus other expenses like rabies or vet care) so we suggest a new term if imposing a new cost like “shelter fee”. After forwarding this concern to the requesting department, the proposed term "shelter fee" was inserted to replace the prior term "impound cost". 2) Does the proposed language contemplate release prior to or only after payment of specific costs? Does this contemplate they pay to HSSPV or to the Court? Maybe this should be detailed given that many will not be able to pay, including the forfeiture of ownership if unpaid for some specified time if contemplating no release prior to payment in full? If to be collected by the Court, what are the costs contemplated to be imposed and how will that be memorialized and updated? The proposed ordinance provides for the payment of shelter fees to the shelter. The City Attorney requested clarification from Code Enforcement regarding this process, given it is currently in effect and followed: when a person appears at the shelter to pay the shelter's incurred fees for food, shelter, and care and thereby recover an impounded animal, the shelter contacts Code Enforcement to determine if a citation is appropriate. If Code Enforcement has issued a citation, it appears at the shelter and serves the citation to the person when they retrieve their animal. The Court is not otherwise involved in this process, unless (a) the owner requests a hearing with the Court , or (b) the owner appears in court on a citation. If a citation, the Court follows its established process for all citations: arraignment, plea, imposing fines, court costs, and if appropriate, the impoundment fee set by City Council. 3) We have concerns regarding proper equal protections and due process for what is proposed as an extrajudicial and not specifically legislated in muni code process for the release of some animals to their identified owner but not all, and the claim and ultimate forfeiture of property rights on an action initiated by a municipal summons and complaint. After the dog is gone, the Court has no remedy and limited ability to verify the actions of the government are appropriate under the law so the defendant’s only potential recourse may be civil litigation? The City Attorney's office consulted with the department that requested this code revision, to determine if they request further revision in response to this concern. They did not request further revisions for the following reasons: Current Municipal Code, EMC Section 7-1A-5(B), already allows the shelter to release animals without a judicial order if impounded for certain reasons, such as running at large. As currently written though, EMC Section 7-1A-5(B) requires payment of "fines and fees" at municipal court to get their animal back, but this can extend the time an animal is impounded and thus, extend the accrual of shelter fees. The proposed revisions benefit the owner, because they can recover possession of their animal at nights and on the weekends Page 309 of 482 when the court is closed by paying only the costs of care directly to the shelter, thus expediting the return, reducing the amount of costs incurred by the shelter and required to be reimbursed by the owner, and allowing the owner to delay paying court costs and fines if a court citation has been issued. For dangerous dogs, rabies, or cruelty/neglect cases, the proposed revisions require the owner to make a claim for the animal within five days, otherwise the shelter may adopt out the animal. This is current state law, CRS Section 35-80-106.3, which states "any pet animal held by or in the custody of a licensed animal shelter ... and not reclaimed by the owner shall be held by the animal shelter for a minimum of five days ... before it may become available for adoption." If the owner makes a claim for the animal within five days, the Court must then schedule a hearing to determine whether the animal should be returned to the owner or continue to be held by the shelter. CRS Section 35-80-106.3 further immunizes the shelter from liability for adopting out an animal after five days, if the owner does not make a claim of ownership. Finally, CRS Section 18-9-202.5 also provide provisions for disposition of animals by a shelter for neglect, cruelty and dangerous dogs, and require the owner to request a hearing or pre-pay all costs of care to avoid adopting out by the shelter (except that the statute requires requesting a hearing or payment within 10 days, and the proposed ordinance changes that from the current Municipal Code's 6 days to 5 days for consistency with CRS Section 35-80-106.3). Because the proposed ordinance provisions mirror established state law (and also would apply to provide immunity for the shelter's actions), the potential of a successful civil action to challenge the ordinance on this basis is low. 4) We have concern about fundamental fairness of forfeiting a pet for conviction under the Care and Maintenance portions of Cruelty/Neglect as these can be minor offences like hot car for a few minutes. Maybe consider those as separate offences or clarify if no judicial discretion on that conviction? This section basically makes owning a dog and being homeless difficult and we think the Council should reconsider the appropriate policy on that and release considerations back into those conditions. The proposed ordinance as written provided an avenue to alleviate this concern. It authorizes the Court to order a pre-trial release of the animal back to the owner “upon a finding that neither the animal nor the public is endangered by the release”. If an animal was temporarily left in a car on a single occasion, the judge could conclude neither the animal nor the public faces danger if the owner receives custody, and order the return of the animal. 5) The recent issues you are raising are due to how the city wants to handle dog impounds and forfeitures on homeless defendants and their inability to pay costs and that is pretty clear on day 1. We think more detailed legislation on these issues would be helpful regarding the mandatory payment and forfeiture or if judicial discretion on these issues is more appropriate given the unique circumstances of each defendant and animal in each case. The City Attorney's office consulted with the department that requested this code revision, to determine if they request further revision in response to this concern. The required payment provisions are also required by state law, specifically CRS Section 18-9-202.5, without reference to ability to pay--so the proposed ordinance mirrors established state law on this issue. In addition, if the animal owner does not pay for the costs of the animal's care, either the non-profit shelter has to raise funds to feed, care, and house the animal, or City taxpayers are required to pay it. Therefore, the originating department did not support a revision to the proposed ordinance. COUNCIL ACTION REQUESTED: Approve a bill for an ordinance amending EMC 7-1A-5 7-1A-9 and 7-1A-16 to resolve ambiguity in prior language, and to mirror state law provisions for animal impoundment. If City Council has Page 310 of 482 questions for legal, staff requests the matter be tabled to November 21 agenda to allow the City Attorney to answer any questions in person, given she worked closely with Code Enforcement and the City Prosecutor to draft the council bill. FINANCIAL IMPLICATIONS: None anticipated. ATTACHMENTS: Council Bill #39 Page 311 of 482 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 39 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER _________________ A BILL FOR AN ORDINANCE AMENDING TITLE 7, CHAPTER 1A, SECTIONS 7-1A- 5, 7-1A-9, AND 7-1A-16 OF ENGLEWOOD MUNICIPAL CODE REGARDING ANIMAL IMPOUNDMENT. WHEREAS, Englewood Municipal Code establishes procedures and costs for animal impoundment and release in Sections § 7-1A-5, 7-1A-9 and 7-1A-16; and WHEREAS, Englewood Police Department’s Code Enforcement Department requests revision to ensure statutory consistency and compliance, specifically with CRS § 18-9-202 et seq. and CRS § 35-80-106.3 et seq., and to consolidate various and inconsistent impound provisions into a single code section; and WHEREAS, in a continuing effort to update Municipal Code sections for clarity and brevity, and to comport with best practices, in addition to amendments to mirror state impound laws and payment of required impound costs, Municipal Code amendments contained herein establish expedited procedures whereby animal owners may recover possession to reduce the amount of shelter cost accruals; and WHEREAS, the City contracts with Humane Society of the South Platte Valley, Inc. (the “shelter”) to house impounded animals; and WHEREAS, the shelter—a non-profit organization—occasionally incurs significant costs housing animals pending extended disposition of cases in Englewood Municipal Court, and the Municipal Code revisions herein are intended to ensure the shelter is reimbursed for those costs; and WHEREAS, under the City’s contract with the shelter, the City is required to pay an owner’s shelter costs if they fail to do so; and WHEREAS, the proposed municipal code provisions provide clarity to ensure shelter costs are paid by the owner when an animal was impounded upon probable cause, rather than requiring payment of those costs by taxpayer funds; and WHEREAS, on the 27th day of October, 2022, the City of Englewood Code Enforcement Advisory Committee reviewed and approved this proposed Council Bill. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Amendment of Englewood Municipal Code Title 7, Chapter 1A, Section 7-1A-5 of Englewood Municipal Code is hereby amended to read as follows (new provisions bold/italics, deleted provisions struck through): Page 312 of 482 2 7-1A-5: Impoundment of Animals; Notice, Disposition. A. Any domesticated animal found running at large, subjected to cruelty or neglect (EMC § 7 1A-9), that are dangerous (EMC § 7-1A-16), suspected of rabies infection (EMC § 7- 1A-11), caused injury to any person or domestic animal, or animal kept in violation of this Code may be taken by the City and impounded in a City-designated animal shelter designated by the City. B. Except for domesticated animals subjected to cruelty or neglect (EMC 7-1A-9), or that are dangerous or caused injury to any person or domestic animal (EMC 7-1A-16), or suspected of rabies infection (EMC 7-1A-11), any impounded domesticated animal may be claimed by and released to its owner by the shelter upon production of proof of ownership and rabies vaccination, and payment in full to the shelter of the shelter’s daily costs associated with the animal’s impoundment, care and provision (collectively “shelter costs”).payment of fines and fees at the Violations Bureau. C. Impounded domesticated animals voluntarily surrendered by the owner or not claimed by the owner within fivesix (56) business days in which the shelter is open to the public or may be disposed of by the City in any suitable manner. may become available for adoption or subject to other disposition at the shelter’s discretion. D. Evidence of current rabies vaccination is required prior to release of impounded dogs or cats. E. When a domesticated animal is found running at large and If ownership of an such animal is known to City personnel, the City may return the animal to its owner in lieu of impoundmentsuch animal need not be impounded, but such personnel may cite and return the animal to the owner. If not returned to its owner, F. Immediately upon impounding a domesticated animal, the City shall make a reasonable effort to notify the owner of impoundment and how to recover custody.such animal and inform such owner of the conditions whereby the owner may retain custody of such animal. G. Impoundment fees for domesticated animal(s) shall be set by City Council Resolution. E. If an owner makes a claim of ownership within five days but is not entitled to a release of the animal under sub-section B, notice of the claim shall be forwarded to Englewood Municipal Court for an expedited hearing. 1. If the owner fails to appear at the hearing, regardless of filing a claim of ownership, the animal shall be subject to immediate disposition as provided in sub-section C without further notice to the defendant or owner. 2. If the owner appears at the hearing, the court shall determine: a. Whether there was sufficient probable cause for the underlying charge leading to impoundment; and b. Whether the animal should be released to the owner’s custody. Page 313 of 482 3 3. If probable cause is found at the hearing: a. And the court orders the animal may be released to the owner, the owner shall pay to the shelter within five days all incurred shelter costs before the animal is released to the owner, or if not paid, the shelter may adopt or take other disposition action without further notice to the owner or defendant. b. If impounded for cruelty or neglect, dangerous animal, or rabies, the Court may order the animal released to the owner only upon a finding that neither the animal nor the public is endangered by the release; alternatively, the Court may order the shelter continue to hold the animal pending disposition of charges, as long as the owner or defendant pre-pays to the Court 30 days’ of shelter costs at the hearing, and at subsequent 30-day intervals until final disposition of charges. Failure to pay such shelter costs when due will result in the shelter adopting out or taking other disposition action without further notice to the owner or defendant. 4. If probable cause is not found at the hearing, the court may order the animal be immediately released to the owner or defendant. If not claimed by the owner or defendant within five days, the shelter may adopt or take other disposition action without further notice to the owner or defendant. F. If a licensed veterinarian determines an impounded animal is experiencing extreme pain or suffering or is severely injured, disabled, or diseased past recovery, the animal may be euthanized without a court order. G. Regardless of any other provision herein, the Court shall order the defendant to pay all shelter costs incurred while the shelter was required to impound an animal under this code, unless the court finds the impoundment lacked probable cause in a hearing under sub-section E. H. Upon a finding or plea of guilty or no contest: 1. the ownership rights to an animal shall be permanently severed if impounded for EMC § 7-1A-9(A); 2. the ownership rights to an animal shall be permanently severed for other sub- sections of EMC § 7-1A-9, EMC § 7-1A-16, or EMC § 7-1A-11, unless the Court specifically finds that neither the animal nor the public is endangered by releasing the animal to the defendant; 3. the Court shall assess the City impoundment fee, fines, and court costs against the defendant; and 4. the Court further may consider destruction of the animal pursuant to EMC § 7- 1A-17. Section 2. Amendment of Englewood Municipal Code Page 314 of 482 4 Title 7, Chapter 1A, Section 7-1A-9 of Englewood Municipal Code is hereby amended to read as follows (new provisions bold/italics, deleted provisions struck through): 7-1A-9: Cruelty to or Neglect of Domesticated Animals. A. No person shall It shall be unlawful for any person to kill, maim, disfigure, torture, torment, neglect, beat, burn or scald with any substance a domesticated animal, or cause a domesticated animal to endure unreasonable or unjustifiable pain, suffering or injury. B. No person shall It shall be unlawful for any person to antagonize, intimidate, threaten, abuse or verbally harass any domesticated animal. C. Care and Maintenance. No person It shall be unlawful for any person keeping or harboring any domesticated animal shallto fail or refuse to provide such domesticated animal with proper food, drink, shade and shelter. Proper food, drink, shade and shelter shall require that: 1. Each domesticated animal shall receive an adequate daily supply of clean, fresh food suitable for its physical condition and age sufficient to maintain a healthy level of nutrition. 2. Each domesticated animal shall, at all times, have an adequate and accessible supply of clean, fresh, potable water and such water shall be provided either free-flowing or in a clean, stable receptacle. 3. Each domesticated animal housed outdoors or tethered outdoors shall have convenient access to appropriate weather and temperature resistant shelter throughout the year. Any shelter shall be structurally sound, clean, adequately sized, and maintained in good repair to protect the domesticated animal from injury and from the elements. 4. The living area for the domesticated animal shall have adequate drainage such that domesticated animal shall be free to walk, sit, stretch or lie down on a dry surface. 5. If a domesticated animal is housed outdoors, in addition to a shelter, it shall be provided with an enclosure to minimize risk of injury and to provide sufficient space to enable freedom of movement and exercise. 6. A domesticated animal may not be placed or confined, or allowed to be placed or confined or allowed to remain in an unattended vehicle without sufficient ventilation or under conditions or for such period of time as may be expected to endanger the health or well-being of [the] domesticated animal due to heat, lack of water or such other circumstances as may be expected to cause suffering, injury or death. A Code Enforcement Officer or Police Officer who finds a domesticated animal in a vehicle in violation of this Section may enter the vehicle by using the amount of force reasonably necessary to remove the domesticated animal. D. The City may take and impound any domesticated animal found to be subjected to prohibited treatment described in this Section. If the owner has not submitted a request to reclaim the domesticated animal within six (6) business days, the City may dispose of the domesticated animal in any suitable manner. If a claim is made by the Municipal Court for Page 315 of 482 5 the domesticated animal, the domesticated animal shall be held by the City or by a shelter designated by the City until the Municipal Court enters an order finding either: 1. Charges under this Section cannot be proven beyond a reasonable doubt, or 2. The Municipal Court finds that care and maintenance issues under Paragraphs B and C above have been satisfactorily remedied. The domesticated animal may be released upon payment of any fines, fees and shelter costs. A domesticated animal impounded under the provisions of Paragraph A of this Section shall not be returned to its owner, but may be disposed of in any suitable manner at the discretion of the City. Section 3. Amendment of Englewood Municipal Code Title 7, Chapter 1, Article A, Section 7-1A-16 of Englewood Municipal Code is hereby amended to read as follows (new provisions in italics, deleted provisions struck through): 7-1A-16: - “Dangerous” Animals Prohibited. A. No person shall It shall be unlawful for any person to own or harbor a "Dangerous" animal, except as provided in Subsection F belowH of this Section. B. An owner of a domesticated animal that has been adjudicated as having committed acts that would be deemed "dangerous" as set forth in this Chapter in any other jurisdiction shall register said animal with the City as a "dangerous animal." C. The owner of any domesticated animal shall be responsible for any damage committed by that domesticated animal against any property, real or personal, live or inanimate, or any person or domesticated animal. D. It is an affirmative defense to the charge of "At-Risk" or "Dangerous" animal that the person or animal that was attacked by the "Dangerous" animal was: 1. Other than in self-defense or defense of others, attacking the animal or engaging in conduct reasonably calculated to provoke the animal to attack or bite; or 2. Unlawfully engaging in entry into or upon the premises or containment within which the animal was lawfully kept; or 3. Unlawfully engaging in entry into or in or upon a vehicle in which the animal was confined; or 4. Harassing the animal; or 5. Assaulting another person; or 6. Attempting to stop a fight between the animal and any other animal; or 7. Attempting to aid the animal when it was injured; or 8. Attempting to capture the animal in the absence of the owner; or 9. A veterinary health care worker, dog groomer, humane agency staff person, professional dog handler, trainer, Code Enforcement or Police Officer or other professional acting in the performance of his or her respective duties. Page 316 of 482 6 E. Exemption. Employees or agents of the City or any local, state or federal governmental entity, using animals within the course of their duties or employment shall be exempt from the provisions of Paragraphs A, B and C above. F. Impoundment. Any animal which has caused injury to any person or domestic animal or which has committed any behavior defined as "Dangerous" herein, may be seized and impounded as provided for in this Chapter. G. Impoundment Hearing. Any animal impounded pursuant to this Chapter may be held for a hearing before the Municipal Court to determine the disposition of such animal. Domesticated animal(s) not claimed by their owners before the expiration of six (6) business days may be disposed of at the discretion of the City. The City shall notify, when ascertainable, the owner of the animal in writing of the date, time, place and purpose of the hearing. The Court may conduct such hearing at the earliest date available to the Court. If, on the date of the hearing, the duly notified owner does not appear, the Court may proceed with the hearing. The hearing may take place regardless of any pending municipal charge pertaining to the animal. The Court may order the animal to remain impounded at the owner's expense until final disposition of any pending municipal charges. The owner shall bear all costs of impounding the animal regardless of the results of any municipal charges. If the Court determines that it is not appropriate to order the animal impounded the Court may order the animal returned to the owner and to be kept under such circumstances as will ensure the safety of persons, property or other animals. FH. Conditions for Keeping an Animal Classified as "Dangerous." 1. The owner of the classified animal shall comply with all of the following conditions: a. The owner of the "Dangerous" animal shall pay a permit fee to be set by City Council Resolution. Said permit shall not be issued until inspection and approval of the Escape-Proof Enclosure. b. Only one (1) "Dangerous" animal may be permitted, per residence. c. The owner of the "Dangerous" animal shall keep current the permit for such "Dangerous" animal through annual renewal. Such permit is not transferable or renewable except by the holder of the permit or by a member of the immediate family of such permitee. A "Dangerous" animal permit tag will be issued to the owner at the time of issuance of the permit. Such permit tag shall be attached to the "Dangerous" animal by means of a collar or harness which must be worn by the animal at all times. It should be clearly visible, and shall not be attached to any "Dangerous" animal other than the "Dangerous" animal for which the permit was issued. d. The owner of a "Dangerous" animal must be at least eighteen (18) years of age. e. The Court may require proof of liability coverage which will cover any damage or injury caused by a "Dangerous" animal. f. The owner of a "Dangerous" animal shall, at the owner's own expense, have the "Dangerous" animal spayed or neutered and shall present to the City Manager or designee documentary proof from a licensed veterinarian that this sterilization has been performed. g. The owner of a "Dangerous" animal shall, at the owner's own expense, within ten (10) business days, have a microchip containing an identification number implanted into the "Dangerous" animal. The City Manager or designee shall maintain a file containing the Page 317 of 482 7 registration numbers and shall coordinate that list with the State. The owner shall notify the City Manager or designee of any change of address within fifteen (15) working days. h. The owner must confine the "Dangerous" animal in a building or enclosure designed to be escape-proof and, whenever the animal is outside of the building or enclosure, keep the animal under the owner's control by use of a leash. The owner shall post a conspicuous warning sign on the building or enclosure notifying others that a "Dangerous" animal is housed in the building or enclosure. In addition, if the conviction is for a second or subsequent offense, the "Dangerous" animal shall also be muzzled whenever it is outside of the building or enclosure. i. The owner shall immediately notify the City Manager or designee in the event that the "Dangerous" animal is loose, stolen, at large, unconfined, has mauled, bitten, attacked, threatened, or in any way menaced another domesticated animal or human. The owner shall also notify the City Manager or designee in the event the "Dangerous" animal is sold, disposed of, or has died. j. Failure to comply with any of these conditions may result in the impoundment of the animal, subject to disposition pursuant to EMC § 7-1A-16(F)., Section F, EMC GI. Declassification. A declassification fee in an amount to be set by City Council Resolution will be assessed when the classification period begins. Declassification shall occur pursuant to this Chapter. The following conditions must be met: 1. Animals that have been classified as "At-Risk" for one (1) year without further violation, and two (2) years without further violation for any animal classified as "Dangerous", since the most recent citation by such animal, and 2. Written certification of satisfactory completion of approved obedience training, AKC "Canine Good Citizen" program or equivalent for the classified animal, with the owner, and 3. Any additional condition ordered by the City Manager or his designee or the Municipal Court. HJ. Euthanization. Upon a classification of "Dangerous" animal, the Court, in addition to the requirements set forth in this Chapter and the penalties set forth in the Code, may hold a hearing to determine if the animal should be euthanized, and, if so, the animal shall be euthanized under the supervision of a veterinarian. IK. Authority for Immediate Destruction. After making reasonable attempts to control an animal, if a Code Enforcement Officer or Police Officer determines that the animal presents a danger to any person or domestic animal, it shall be lawful for the officer to destroy the animal without notice to the animal owner. Section 4. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. Page 318 of 482 8 B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Introduced, read in full, and passed on first reading on the 21st day of November, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 24th day of November, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 23rd day of November, 2022 for thirty (30) days. Page 319 of 482 9 Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Bill for an Ordinance introduced, read in full, and passed on first reading on the 21st day of November, 2022. Stephanie Carlile Page 320 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: November 21, 2022 SUBJECT: CB 70 - Approve a bill for an ordinance amending EMC 7-6C-6 to update municipal code to reflect current City property ownership. DESCRIPTION: CB 70 - This council bill proposes amendments to municipal code's open firearm prohibition on City facilities, to reflect current city facilities and for clarity regarding firearms definition and exceptions. RECOMMENDATION: Consider council bill amending EMC 7-6C-6 PREVIOUS COUNCIL ACTION: At its October 17, 2022 meeting, City Council considered a Council Bill amending EMC 7-6C-6. That Council Bill accomplished three things: amending code to mirror the Colorado Vote Without Fear Act, accurately reflect City property, and revise for clarity by referencing a clear definition in state law and clarifying exceptions. Council did not move forward with the proposed bill, but on October 26, 2022, Mayor Pro Tem Ward requested a Council Bill be drafted to ensure code accurately reflects current City property and provides clarity. SUMMARY: Englewood Municipal Code regarding open carry of firearms refers to City facilities and parks that are no longer existing, and it omits some current City facilities and parks. The proposed council bill is a municipal code clean-up effort, to refer to current City facilities and parks, and to provide additional updates for clarity by referring to the statutory definition of firearms and to specifically exempt peace officers and uniformed security guards while on duty. COUNCIL ACTION REQUESTED: Consider council bill amending EMC 7-6C-6 FINANCIAL IMPLICATIONS: None anticipated ATTACHMENTS: Council Bill #70 Page 321 of 482 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 70 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER _________________ A BILL FOR AN ORDINANCE AMENDING TITLE 7, CHAPTER 6C, SECTION 7-6C-6 OF ENGLEWOOD MUNICIPAL CODE TO ADD AND REMOVE CITY FACILITIES FOR OPEN CARRY OF FIREARMS ON CITY PROPERTY. WHEREAS, Englewood Municipal Code regarding open carry of firearms refers to City facilities and parks that are no longer existing; and WHEREAS, Englewood Municipal Code regarding open carry of firearms omits some current City facilities and parks; and WHEREAS, Englewood Municipal Code requires updating to refer to current City facilities and parks, and to provide additional updates for clarity by referring to the statutory definition of firearms and to specifically exempt peace officers and uniformed security guards while on duty. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Amendment of Englewood Municipal Code Title 7, Chapter 6C, Section 7-6C-6 of Englewood Municipal Code is hereby amended to read as follows (new provisions underlined, deleted provisions struck through): 7-6C-6: Prohibition on the Open Carrying of Firearms. A. No person shall openly carry a firearm as defined by C.R.S. § 18-1-901(3)(h) The ope carrying of firearms is prohibited in the following public areas within the City of Englewood: except for on-duty Police Department personnel. 1A. All City-owned structures, including CityCenter, excluding the Alexan Apartment Complex and the Wal-Mart property; Bi-City Wastewater Treatment Plant; Allen Water Treatment Plant and Reservoir; Miller Building ServiCenter; Englewood Police Department; Safety Services Center (Police-Fire Building) Englewood Police Substation; Fox Street Safety Services Building; Acoma Street Fire Station; Tejon Street Fire Station; Malley Senior Center; Englewood Recreation Center; Englewood Housing Authority Housing Offices; 3460 S. Sherman; Englewood Housing Authority Simon Center; and Englewood Housing Authority Orchard Place. 2B. All City owned or operated parks, trails, recreational facilities, and greenspaces, including Belleview Park; Cushing Park; Centennial Park; Brent Mayne Field; Jason Park; Romans Park; Bates/Logan Park; Cornerstone Park; Rotolo Park; Duncan Park; Barde Park; Emerson Park; Clarkson/Amherst Park; Baker Park; Miller Field; Depot Park Page 322 of 482 2 Property; Sinclair Pool; Pirates CoveAquatic Center at Belleview; Mary Carter Greenway and Trail; Little Dry Creek Greenway and Trail; Big Dry Creek Greenway and Trail; Northwest Greenbelt and Trail; Southwest Greenbelt and Trail; Hosanna Athletic Complex. B. This section shall not apply to the open carrying of firearms by: 1. A uniformed security guard acting within their scope of duties pursuant to contract with the owner of property described above; and 2. On-duty peace officers, acting within their scope of authority and in the performance of their duties. Section 2. General Provisions Applicable to this Ordinance The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. Page 323 of 482 3 F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Introduced, read in full, and passed on first reading on the 21st day of November, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper the ___ day of November, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the ___ day of November, 2022 for thirty (30) days. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Bill for an Ordinance introduced, read in full, and passed on first reading on the ___ day of November, 2022. Stephanie Carlile Page 324 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Kennetha Julien DEPARTMENT: Municipal Court DATE: November 21, 2022 SUBJECT: Resolution regarding Municipal Judges, Appointing Judge Vincent Atencio As Municipal Court Judge and Establishing Compensation for Municipal Judges DESCRIPTION: Resolution to appoint Vincent Atencio as Associate Municipal Court Judge and Establish Compensation for Municipal Judges. RECOMMENDATION: Appoint Judge Vincent Atencio as Associate Municipal Judge, Establish the compensation for the Associate Judges at the rate of $80 per hour, and Establish Judge Jefferson's compensation at $166,624.42 PREVIOUS COUNCIL ACTION: Judge Vincent Atencio was previously appointed in 2018. City Council approved the 2023 City of Englewood budget which included a 5.0 percent salary increase for all City employees. SUMMARY: Judge Atencio has ben serving as Associate Judge from 2018 to present. His term expired and City Council need to reappoint for him to conduct business of the bench. The City of Englewood Council Policies and Procedures places responsibility for establishing the salary of the Presiding Municipal Judge with the City Council. City Council approved the 2023 City of Englewood Budget allowing a 5% increase for all employees. ANALYSIS: Court Appointed Council of Englewood have not had a pay rate increase for over 5 years. This requested increase would increase the current $75 per hour rate to $80 per hour for court appointed counsel who provide legal assistance for our indigent clients. Pursuant to the City of Englewood Council Policies and Procedures, Human Resources conducted an annual salary survey of the Presiding Municipal Court Judge classification. The resultsofthesalarysurveysupport asalaryincreaseof5.0percentforthePresidingMunicipal Court Judge classification, which is consistent with Council's approval of a 5.0 percent salary increase for all City employees in the 2023 budget. This will result in a salary increase from $158,689.93 annually to $166,624.42. COUNCIL ACTION REQUESTED: 1. Appoint Judge Atencio as Associate Judge for four year term expiring December 31, 2026. 2. Increase the hourly rate for court appointed counsel from $75 per hour to $80 per hour. Page 325 of 482 3. Establish the annual salary of Presiding Judge Jefferson in accordance with the annual salary results and the City Council approved 2023 budget. FINANCIAL IMPLICATIONS: The funding sources for this resolution are budgeted in the 2023 budget from the General Fund. CONNECTION TO STRATEGIC PLAN: This action will support Governance and ensure salary competitiveness in the market. ATTACHMENTS: Resolution Salary Survey Page 326 of 482 RESOLUTION NO. ____ SERIES OF 2022 A RESOLUTION REGARDING MUNICIPAL JUDGES, APPOINTING VINCENT R. ATENCIO AS ASSOCIATE MUNICIPAL JUDGE FOR THE CITY OF ENGLEWOOD, COLORADO, AND ESTABLISHING COMPENSATION FOR MUNICIPAL JUDGES. WHEREAS, pursuant to Article IX, Part II, Section 68, of the Englewood Home Rule Charter, "Council may appoint one or more associate judges, who shall sit at such times and upon such causes as shall be determined by the presiding municipal judge;" and WHEREAS, Associate Judges are appointed for four-year staggered term, and Vincent Atencio’s term will expire January 16, 2023; and WHEREAS, Presiding Municipal Court Judge Joe Jefferson requests City Council appoint Vincent Atencio to a four-year term as an Associate Judge for the City of Englewood; and WHEREAS, Presiding Municipal Court Judge Joe Jefferson further requests City Council establish compensation for Municipal Court Associate Judges to match the rate of Court-appointed defense counsel; and WHEREAS, City Council annually surveys compensation paid to Municipal Court judges, and at the request of Judge Joe Jefferson surveyed the following cities: Arvada, Aurora, Boulder, Broomfield, Denver, Fort Collins, Greeley, Lakewood, Longmont, Thornton, and Westminster. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. Vincent Atencio shall be and hereby is appointed as Associate Municipal Judge in and for the City of Englewood, Colorado, for a term commencing January 17, 2023 and expiring January 16, 2026. Section 2. Effective January 1, 2023, Englewood Municipal Court Associate Judges shall be compensated at the rate of $80 per hour (or an increase of $5 per hour), to match the rate paid to the City’s Court-Appointed Counsel. Section 3. The annual salary for the Municipal Court Judge shall be increased by from $158,689.93 to $166,624.42, commencing with the first pay period of January, 2023. Page 327 of 482 ADOPTED AND APPROVED this __________ day of ___________________, 2022. Othoniel Sierra, Mayor ATTEST: __________________________________ Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution No. , Series of 2022. ______________________________ Stephanie Carlile Page 328 of 482 PRESIDING MUNICIPAL JUDGE SALARY SURVEY 2022 Salary info provided from survey conducted in October and November of 2022 by HR, with available info to date. City Salary Comments Arvada $190,000 Aurora $175,176 Boulder $136,000, $176,800, $217,776 Only the range was provided. Midpoint was used for Market Average. Broomfield $171,922 Midpoint of the range was provided Colorado Springs $147,517 Did not respond to inquiry for 2022 survey. Data is from 2021 survey. Denver $191,445 Fort Collins $171,600 Lakewood $168,685 Did not respond to inquiry for 2022 survey. Data is from 2021 survey. Littleton $105/hr Did not respond to inquiry for 2022 survey. Data is from 2021 survey. Excluded from Average Market Salary due to insufficient information regarding annual hours worked and average annual salary. Included for reference purposes only. Thornton $180,000 Plus $4400 annual auto allowance Westminster $175,000 Did not respond to inquiry for 2022 survey. Data is from 2021 survey. Average Market Salary $174,815 Current Englewood Salary $158,689.93 Last pay rate change: 01/03/2022 Percent change: 3.50 % Page 329 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Pieter Van Ry DEPARTMENT: Utilities DATE: November 21, 2022 SUBJECT: On-Call Engineering Professional Service Agreements DESCRIPTION: Award of Professional Service Agreements (PSAs) with Carollo Engineers, Inc (Carollo), Hazen and Sawyer (Hazen), HDR, Inc (HDR), and Jacobs Engineering Group, Inc (Jacobs) to provide on-call engineering support services for the Utilities department up to an amount of $200,000 each, for a total authorization of $800,000. RECOMMENDATION: Utilities staff recommends City Council approve four (4) PSAs for on-call engineering support services with Carollo, Hazen, HDR, and Jacobs up to an amount of $200,000 each, for a total authorization of $800,000. The Water and Sewer Board recommended Council approve the four PSAs with Carollo, Hazen, HDR, and Jacobs during its November 8, 2022, meeting. PREVIOUS COUNCIL ACTION: None. SUMMARY: On-call PSAs for engineering services were competitively solicited in 2021 through RFP#21-013 to execute work more efficiently and reduce staff time necessary to procure multiple engineering contracts. These agreements proved valuable in 2021 and 2022 as the Utilities department ramped up its capital improvement program, development reviews, and engineering support of various operations and maintenance division initiatives. Work under the 2023 PSAs may include water distribution system modeling and assessments, regulatory and compliance support, dam safety program assistance, a biofilm community characterization, and third-party construction inspections. ANALYSIS: Staff recommends awarding four (4) PSAs with Carollo, Hazen, HDR, and Jacobs for work in 2023. City procurement policies allow for four (4) one (1) year renewal terms or new contracts following the initial contract created under an RFP. The proposed PSAs would be the third contract term with each firm from RFP#21-013, and the City has one (1) more option to renew in 2024. Staff recommends contracts with four (4) firms due to their strong institutional knowledge, demonstrated successful performance, and technical expertise in the municipal water and Page 330 of 482 wastewater sector. The proposed agreement amounts of $200,000 for each of the four (4) firms provide Utilities staff with the flexibility to select the most qualified firm for each project and utilize the on-call engineering firms for additional projects, if necessary. While these on-call agreements are being executed, it does not guarantee that each consultant will receive a project. Staff will evaluate the firm’s proposals for each project on a case-by-case basis and will consider the workload of each firm before task orders are issued to ensure the project obtains adequate priority from the selected firm. COUNCIL ACTION REQUESTED: Motion to approve four (4) PSAs for on-call engineering support services with Carollo, Hazen, HDR, and Jacobs up to an amount of $200,000 each, for a total authorization of $800,000. FINANCIAL IMPLICATIONS: Funding for these four (4) agreements is included in the 2023 Utilities budget and will not exceed the total Water and Sewer Fund budget appropriations. Even though each PSA authorizes up to $200,000, staff will manage the four (4) PSAs to not exceed the 2023 budgeted line-item amount of $400,000 for On-Call Engineering. Authorizing up to $200,000 for each contract allows staff more flexibility when selecting the most qualified engineering firm for specialized projects. Source of Funds Line-Item Description 2023 Line-Item Budget YTD Line Item Expensed Total Proposed PSA Amount 40–1609–54201 Water Fund, Engineering, Professional Services $1,150,000 $0 $800,000 CONNECTION TO STRATEGIC PLAN: Sustainability: • Invest in water infrastructure Infrastructure: • Proactively and in a cost-effective manner invests, maintains, improves, and plans to protect water infrastructure ATTACHMENTS: PSA with Carollo PSA with Hazen PSA with HDR PSA with Jacobs PowerPoint Presentation Page 331 of 482 TO: Mayor and Council FROM: Pieter Van Ry, Englewood Utilities and South Platte Renew Director DATE: November 21, 2022 RE: Professional Services Agreement with Carollo Engineers, Inc for On-Call Engineering Services EXECUTIVE SUMMARY Utilities staff is seeking City Council approval of a Professional Services Agreement (PSA) with Carollo Engineers, Inc (Carollo) for on-call engineering services for the Utilities Department, up to an amount of $200,000. BACKGROUND Carollo is an engineering firm that specializes in municipal water and wastewater. Beginning in 2021, staff utilized on-call contracts to execute work more efficiently and reduce staff time necessary to procure multiple engineering contracts. These contracts proved valuable in 2021 and 2022 as the Utilities department ramped up its capital improvement program, development reviews, and engineering support of various Operations and Maintenance division initiatives. In 2021, staff competitively solicited on-call engineering services through a Request for Proposals (RFP) on BidNet. Eleven (11) proposals were received in response to the original RFP. A selection panel reviewed, scored, and ranked the proposals based on the engineering firm’s experience and capabilities, management approach, overall proposal quality, and value provided. The top four (4) ranked firms by the selection panel were Carollo, Hazen and Sawyer, HDR, Inc, and Jacobs Engineering Group, Inc. Staff recommends new PSAs for each of these firms to support the Utilities staff to efficiently implement the recommendations of the 2020 water and sewer master plans. ANALYSIS City procurement policies allow for four (4) one (1) year renewal terms or new contracts following the initial contract created under an RFP. The proposed PSAs would be the third contract-term with each firm from RFP#21-013, and the City has one (1) more option to renew in 2024. Work under the proposed 2023 PSAs may include water distribution system modeling and assessments, regulatory and compliance support, dam safety program assistance, a biofilm community characterization, and third-party construction inspections. The proposed contract amount of $200,000 for each of the four (4) firms will provide Utilities staff with the flexibility to select the most qualified firm for each project and utilize the on-call engineering firms for additional projects if necessary. Page 332 of 482 Each of the four (4) firms have a similar scope of work. While these on-call contracts are being executed, it does not guarantee that each firm will receive a project. Utilities staff will evaluate the firm’s proposals for each project on a case-by-case basis. Staff will consider the workload of each firm before task orders are issued to ensure the project obtains adequate priority from the selected firm. COUNCIL ACTION REQUESTED Motion to approve a Professional Services Agreement with Carollo Engineers, Inc for on-call engineering services for the Utilities Department, up to an amount of $200,000. FINANCIAL IMPLICATIONS Funding for this PSA is included in the 2023 Utilities budget. Four (4) separate $200,000 contracts are proposed to be executed with Carollo, Hazen and Sawyer, HDR, Inc., and Jacobs Engineering Group, Inc. Source of Funds Line-Item Description 2023 Line-Item Budget YTD Line Item Expensed Purchase Amount 40-1609- 54201 Water Fund, Engineering, Professional Services $1,150,000 $0 $200,000 PROCUREMENT INFORMATION Account Number: 40-1609-54201 CONNECTION TO STRATEGIC PLAN Sustainability: • Infrastructure designed and maintained in an economic, equitable, and ecological manner Infrastructure: • Proactively in a cost-effective manner invests, maintains, improves, and plans to protect water infrastructure ATTACHMENTS Contract Approval Summary (CAS) PSA-22-130 with Carollo / Schedule A / Carollo Rate Sheet Page 333 of 482 Contract Approval Summary March 2019 Update Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: Authorizing Resolution/Ordinance: Recording Information: City Contact Information Staff Contact Person: Ashley Waldron Phone: 720-753-2514 Title: Engineer III Email: awaldron@englewoodco.gov City Contact Information Staff Contact Person: Kimberly Ramuno Phone: 303-762-2640 Title: Engineer I Email: Kramuno@englewoodco.gov Vendor Contact Information Vendor Name: Carollo Engineers, Inc (Carollo) Vendor Contact: David Pier, Vice President Vendor Address: 10922 West Toller Dr, Ste 200 Vendor Phone: (303) 551 – 2532 City: Littleton Vendor Email: dpier@carollo.com State: CO Zip Code: 80127 Contract Type Contract Type:Professional Services Description of ‘Other’ Contract Type: Description of Contract Work/Services: Attachments: ☒Contract -- ☐Original ☐Copy ☐Addendum(s) ☐Exhibit(s) ☒Certificate of Insurance Summary of Terms: Start Date: January 2023 End Date: December 2023 Total Years of Term: 1 year Total Amount of Contract for term (or estimated amount if based on item pricing): $200,000 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Four, one-year renewals from 2021-RFP-21-013 Payment terms (please describe terms or attach schedule if based on deliverables): Check or Electronic Transfer. City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the Deliverables/Milestones set forth in the Task Order. Provide on-call engineering support services to City of Englewood Utilities supporting the planning, management, design, construction, and operations of water and wastewater infrastructure. Page 334 of 482 Contract Approval Summary March 2019 Update Page | 2 City will pay Consultant for authorized work in accordance with the approved scope within 30 days of invoice receipt. Payments shall be made upon City’s confirmation to Consultant that the Deliverables-Milestones have been satisfied. Invoices shall be submitted electronically to UtilitiesAP@englewoodco.gov. Consultant shall copy Project Manager on all invoice submittals. The PO number, PSA/contract number, and task order number shall be included on the invoice. Attachments: ☐Copy of original Contract if this is an Amendment ☐Copies of related Contracts/Conveyances/Documents Source of Funds (Insert Excel Document Image): Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor (Check Box): ☐Bid: ☐ Bid Evaluation Summary attached ☐ Bid Response of Proposed Awardee ☒RFP: ☐ RFP Evaluation Summary Attached ☐ RFP Response of Proposed Awardee In 2021, staff competitively solicited on-call engineering services through a Request for Proposals (RFP) on BidNet. Eleven (11) proposals were received in response to the original RFP. A selection panel reviewed, scored, and ranked the proposals based on the engineering firm’s experience and capabilities, management approach, overall proposal quality, and value provided. The top four (4) ranked firms by the selection panel were Carollo Engineers, Inc, Page 335 of 482 Contract Approval Summary March 2019 Update Page | 3 Hazen and Sawyer, HDR, Inc, and Jacobs Engineering Group, Inc. Staff recommends new PSAs for each of these firms to support the Utilities staff to efficiently implement the recommendations of the 2020 water and sewer master plans. City procurement policies allow for four (4) one (1) year renewal terms or new contracts following the initial contract created under an RFP. The proposed PSAs would be the third contract-term with each firm from RFP#21-013, and the City has one (1) more option to renew in 2024. Work under the proposed 2023 PSAs may include water distribution system modeling and assessments, regulatory and compliance support, dam safety program assistance, a biofilm community characterization, and third-party construction inspections. The proposed contract amount of $200,000 for each of the four (4) firms will provide Utilities staff with the flexibility to select the most qualified firm for each project and utilize the on-call engineering firms for additional projects if necessary. Each of the four (4) firms have a similar scope of work. While these on-call contracts are being executed, it does not guarantee that each firm will receive a project. Utilities staff will evaluate the firm’s proposals for each project on a case-by-case basis. Staff will consider the workload of each firm before task orders are issued to ensure the project obtains adequate priority from the selected firm. Page 336 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 1 PSA #22-130 PROFESSIONAL SERVICES AGREEMENT Contract Number PSA-22-130 ON-CALL ENGINEERING SUPPORT SERVICES - UTILITIES Not to exceed $200,000.00 This Professional Services Agreement (the “Agreement”) is made as of this _____ day of ____________, 20__, (the “Effective Date”) by and between Carollo Engineers, Inc., a Colorado corporation (“Consultant”), and The City of Englewood, Colorado, a municipal corporation organized under the laws of the State of Colorado (“City”). City desires that Consultant, from time to time, provide certain consulting services, systems integration services, data conversion services, training services, and/or related services as described herein, and Consultant desires to perform such services on behalf of City on the terms and conditions set forth herein. In consideration of the foregoing and the terms hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. Definitions. The terms set forth below shall be defined as follows: (a) “Intellectual Property Rights” shall mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (1) rights associate with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask- works, (2) trademark and trade name rights and similar rights, (3) trade secret rights, (4) patents, designs, algorithms and other industrial property rights, (5) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (6) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). (b) “Work Product” shall mean all patents, patent applications, inventions, designs, mask works, processes, methodologies, copyrights and copyrightable works, trade secrets including confidential information, data, designs, manuals, training materials and documentation, formulas, knowledge of manufacturing processes, methods, prices, financial and accounting data, products and product specifications and all other Intellectual Property Rights created, developed or prepared, documented and/or delivered by Consultant, pursuant to the provision of the Services. 2. Statements of Work. During the term hereof and subject to the terms and conditions contained herein, Consultant agrees to provide, on an as requested basis, the consulting services, systems integration services, data conversion services, training services, and related services (the “Services”) as further described in Attachment A (the “Statement of Work”) for City, and in such Page 337 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 2 PSA #22-130 additional Statements of Work as may be executed by each of the parties hereto from time to time pursuant to this Agreement. Each Statement of Work shall specify the scope of work, specifications, basis of compensation and payment schedule, estimated length of time required to complete each Statement of Work, including the estimated start/finish dates, and other relevant information and shall incorporate all terms and conditions contained in this Agreement 3. Performance of Services. (a) Performance. Consultant shall perform the Services necessary to complete all projects outlined in a Statement of Work in a timely and professional manner consistent with the specifications, if any, set forth in the Statement of Work, and in accordance with the prevailing engineering standard of care by exercising the skill and ability ordinarily required of engineers performance the same or similar services in the State of Colorado. Consultant agrees to exercise of professionalism, and to utilize its expertise and creative talents in completing the projects outlined in a Statement of Work. (b) Delays. Consultant agrees to notify City promptly of any factor, occurrence, or event coming to its attention that may affect Consultant’s ability to meet the requirements of the Agreement, or that is likely to occasion any material delay in completion of the projects contemplated by this Agreement or any Statement of Work. Such notice shall be given in the event of any loss or reassignment of key employees, threat of strike, or major 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 conflict, Consultant shall secure written instructions from City’s project director before proceeding with the performance of the Services affected by such omissions or discrepancies. 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 Statement of Work by City. Acceptance procedures shall be outlined in the Statement of Work. If City disputes all or any portion of an invoice for charges, then City shall pay the undisputed portion of the invoice by the due date and shall provide the following notification with respect to the disputed portion of the invoice. City shall notify Consultant as soon as possible of the specific amount disputed and shall provide reasonable detail as to the basis for the dispute. The parties shall then attempt to resolve the disputed portion of such invoice as soon as possible. Upon resolution of the disputed portion, City shall pay to Consultant the resolved amount. 5. Taxes. City is not subject to taxation. No federal or other taxes (excise, luxury, transportation, sales, etc.) shall be included in quoted prices. City shall not be obligated to pay or reimburse Consultant for any taxes attributable to the sale of any Services which are imposed on or measured by net or gross income, capital, net worth, franchise, privilege, any other taxes, or assessments, nor any of the foregoing imposed on or payable by Consultant. Upon written notification by City and subsequent verification by Consultant, Consultant shall reimburse or credit, as applicable, City in a timely manner, for any 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 which are expressly provided for in a Statement of Work or which have been approved in advance Page 338 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 3 PSA #22-130 in writing by City, provided Consultant has furnished such documentation for authorized expenses as City may reasonably request. 7. Audits. Consultant shall provide such employees and independent auditors and inspectors as City may designate with reasonable access to all sites from which Services are performed for the purposes of performing audits or inspections of Consultant’s operations and compliance with this Agreement. Consultant shall provide such auditors and inspectors any reasonable assistance that they may require. 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 Agreement shall commence on the date when both parties have signed the Agreement, and shall continue for one year with an option to renew for three (3) one-year periods, unless this Agreement is terminated as provided in this Section 8. At the end of the initial one-year period, if the parties desire to extend this Agreement beyond the one-year period, written notice shall be given to the other party no later than thirty (30) days prior to the end of the one- year period. If the parties agree to the request for renewal, the parties shall then enter into a renewal extending this Agreement including a new Statement of Work, if necessary. The parties understand and acknowledge that any renewal of this Agreement may be subject to the approval of the Englewood City Council pursuant to the City's Purchasing Policies. The parties also understand and acknowledge that the extension of this contract beyond the initial one-year period is contingent upon the City appropriating adequate funds for each fiscal year. (a) Convenience. City may, without cause and without penalty, terminate the provision of Services under any or all Statements of Work upon thirty (30) days prior written notice. Upon such termination, City shall, upon receipt of an invoice from Consultant, pay Consultant for Services actually rendered prior to the effective date of such termination. Charges will be based on time expended for all incomplete tasks as listed in the applicable Statement of Work, and all completed tasks will be charged as indicated in the applicable Statement of Work. (b) No Outstanding Statements of Work. Either party may terminate this 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 this Agreement with respect to a specific Statement of Work (other than by nonpayment) and does not substantially cure such default within thirty (30) days after receiving 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 (10) days prior written notice of termination to the defaulting party. (d) Bankruptcy or Insolvency. Either party may terminate this Agreement effective upon written notice stating its intention to terminate in the event the other party: (1) makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (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 consents to or acquiesces in, a petition seeking relief or reorganization under any bankruptcy or insolvency laws; or (4) files a petition seeking relief or reorganization under any bankruptcy or insolvency laws is filed against that other party and is not dismissed within sixty (60) days after it was filed. (e) TABOR. The parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution Page 339 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 4 PSA #22-130 ("TABOR"). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, notwithstanding anything in this Agreement to the contrary, all payment obligations of City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of City's current fiscal period ending upon the next succeeding December 31. Financial obligations of City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of City and applicable law. Upon the failure to appropriate such funds, this Agreement shall be deemed terminated. (f) Return of Property. Upon termination of this Agreement, both parties agree to return to the other all property (including any Confidential Information, as defined in Section 11) of the other party that it may have in its possession or control. However, Consultant shall be entitled to keep one (1) copy of any such property, including Confidential Information, that Consultant used and relied upon in undertaking the services required hereunder. 9. City Obligations. City will provide timely access to City personnel, systems and information required for Consultant to perform its obligations hereunder. City shall provide to Consultant’s employees performing its obligations hereunder at City’s premises, without charge, a reasonable work environment in compliance with all applicable laws and regulations, including office space, furniture, telephone service, and reproduction, computer, facsimile, secretarial and other necessary equipment, 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 Consultant, obtain all consents, licenses and sublicenses necessary for Consultant to perform under the Statements of Work and shall pay any fees or other costs associated with obtaining such consents, licenses and sublicenses. City shall furnish Consultant available studies, reports and other data pertinent to Consultant's services; obtain or authorize Consultant to obtain or provide additional reports and data as required; furnish to Consultant services of others required for the performance of Consultant's services hereunder, and Consultant shall be entitled to use and rely upon all such information and services provided by City or others in performing Consultant's services under this Agreement. 10. Staff. Consultant is an independent consultant and neither Consultant nor Consultant’s staff is, or shall be deemed to be employed by City. City is hereby contracting with Consultant for the Services described in a Statement of Work and Consultant reserves the right to determine the method, manner and means by which the Services will be performed. The Services shall be performed by Consultant or Consultant’s staff, and City shall not be required to hire, supervise or pay any assistants to help Consultant perform the Services under this Agreement. Except to the extent that Consultant’s work must be performed on or with City’s computers or City’s existing software, all materials used in providing the Services shall be provided by Consultant. 11. Confidential Information. (a) Obligations. Each party hereto may receive from the other party information which relates to the other party’s business, research, development, trade secrets or business affairs (“Confidential Information”). Subject to the provisions and exceptions set forth in the Colorado Open Records Act, CRS Section 24-72-201 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, disclosure, Page 340 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 5 PSA #22-130 publication or dissemination of its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Without limiting the generality of the foregoing, each party hereto agrees not to disclose or permit any other person or entity access to the other party’s Confidential Information except such disclosure or access shall be permitted to an employee, agent, representative or independent consultant of such party requiring access to the same in order to perform his or her employment or services. Each party shall insure that their employees, agents, representatives, and independent consultants are advised of the confidential nature of the Confidential Information and are precluded from taking any action prohibited under this Section 11. Further, each party agrees not to alter or remove any identification, copyright or other proprietary rights notice which indicates the ownership of any part of such Confidential Information by the other party. A party hereto shall undertake to immediately notify the other party in writing of all circumstances surrounding any possession, use or knowledge of Confidential Information at any location or by any person or entity other than those authorized by this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall restrict either party with respect to information or data identical or similar to that contained in the Confidential Information of the other party but which (1) that party rightfully possessed before it received such information from the other as evidenced by written documentation; (2) subsequently becomes publicly available through no fault of that party; (3) is subsequently furnished rightfully to that party by a third party without restrictions on use or disclosure; or (4) is required to be disclosed by law, provided that the disclosing party will exercise reasonable efforts to notify the other party prior to disclosure. (b) Know-How. For the avoidance of doubt neither City nor Consultant shall be prevented from making use of know-how and principles learned or experience gained of a non-proprietary and non-confidential nature. (c) Remedies. Each of the parties hereto agree that if, their officers, employees or anyone obtaining access to the Confidential Information of the other party by, through or under them, breaches any provision of this Section 11, the non-breaching party shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations and benefits which the breaching party, its officers or employees directly or indirectly realize or may realize as a result of or growing out of, or in connection with any such breach. In addition to, and not in limitation of the foregoing, in the event of any breach of this Section 11, the parties agree that the non-breaching party will suffer irreparable harm and that the total amount of monetary damages for any such injury to the non-breaching party arising from a violation of this Section 11 would be impossible to calculate and would therefore be an inadequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to temporary and permanent injunctive relief against the breaching party, its officers or employees and such other rights and remedies to which the non-breaching party may be entitled to at law, in equity or under this Agreement for any violation of this Section 11. The provisions of this Section 11 shall survive the expiration or termination of this Agreement for any reason. 12. Project Managers. Each party shall designate one of its employees to be its Project Manager under each Statement of Work, who shall act for that party on all matters under the Statement of Work. Each party shall notify the other in writing of any replacement of a Project Manager. The Project Managers for each Statement of Work shall meet as often as either one requests to review the status of the Statement of Work. 13. Warranties. Page 341 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 6 PSA #22-130 (a) Authority. Consultant represents and warrants that: (1) Consultant has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (2) the execution of this Agreement by Consultant, and the performance by Consultant of its obligations and duties hereunder, do not and will not violate any agreement to which Consultant is a party or by which it is otherwise bound under any applicable law, rule or regulation; (3) when executed and delivered by Consultant, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (4) Consultant acknowledges that City makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement (b) Service Warranty. Consultant warrants that its employees and consultants shall have sufficient skill, knowledge, and training to perform Services and that the Services shall be performed in accordance with the standard of care delineated in Section 3 (a). (c) Personnel. Unless a specific number of employees is set forth in the Statement of Work, Consultant warrants it will provide sufficient employees to complete the Services ordered within the applicable time frames established 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 replacement of an employee or a proposed employee. In such event, Consultant shall, within five (5) working days of receipt of such request from City, provide a substitute employee of sufficient skill, knowledge, and training to perform the applicable Services. Consultant shall require employees providing Services at a City location to comply with applicable City security and safety regulations and policies. (d) Compensation and Benefits. Consultant shall provide for and pay the compensation of employees and shall pay all taxes, contributions, and benefits (such as, but not limited to, workers’ compensation benefits) which an employer is required to pay relating to the employment of employees. City shall not be liable to Consultant or to any employee for Consultant’s failure to perform its compensation, benefit, or tax obligations. Consultant shall indemnify, defend and hold City harmless from and against all such taxes, contributions and benefits and will comply with all associated governmental regulations, including the filing of all necessary reports and returns. 14. Indemnification. (a) Consultant Indemnification. Consultant shall indemnify, defend and hold harmless City, its directors, officers, employees, and agents and the heirs, executors, successors, and permitted assigns of any of the foregoing (the “City Indemnitees”) only to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the Consultant, from and against all losses, claims, obligations, demands, assessments, fines and penalties (whether civil or criminal), liabilities, expenses and costs (including reasonable fees and disbursements of legal counsel and accountants), bodily and other personal injuries, damage to tangible property, and other damages, of any kind or nature, suffered or incurred by a City Indemnitee to the extent caused by: (1) any negligent or intentional act or omission by Consultant or its representatives in the performance of Consultant’s obligations under this Agreement, or (2) any material breach in a representation, warranty, covenant or obligation of Consultant contained in this Agreement. Notwithstanding the foregoing, in the event the subject action alleges negligence on the part of Consultant and/or City, or any third party not under contract with Consultant, Consultant’s obligations regarding City’s defense under this Page 342 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 7 PSA #22-130 paragraph include only the reimbursement of the City’s reasonable defense costs incurred to the extent of Consultant’s negligence as expressly determined by a final judgment, arbitration, award, order, settlement, or other final resolution. Consultant shall not be responsible for breach of fiduciary duty, loss of anticipated profits or for economic, incidental or consequential damages to City or any third party arising out of breach of contract, termination, or for any other reason whatsoever. Additionally, Consultant shall not be responsible for acts and decisions of third parties, including governmental agencies, other than Consultant’s subconsultants, that impact project completion and/or success. (b) Infringement. Consultant will indemnify, defend, and hold City harmless from all Indemnifiable Losses arising from any third party claims that any Work Product or methodology supplied by Consultant infringes or misappropriates any Intellectual Property rights of any third party; provided, however, that the foregoing indemnification obligation shall not apply to any alleged infringement or misappropriation based on: (1) use of the Work Product in combination with products or services not provided by Consultant to the extent that such infringement or misappropriation would have been avoided if such other products or services had not been used; (2) any modification or enhancement to the Work Product made by City or anyone other than Consultant or its sub-consultants; or (3) use of the Work Product other than as permitted under this Agreement. (c) Indemnification Procedures. Notwith-standing anything else contained in this Agreement, no obligation to indemnify which is set forth in this Section 14 shall apply unless the party claiming indemnification notifies the other party as soon as practicable to avoid any prejudice in the claim, suit or proceeding of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the other party the opportunity to control the response thereto and the defense thereof; provided, however, that the party claiming indemnification shall have the right to participate in any legal proceedings to contest and defend a claim for indemnification involving a third party and to be represented by its own attorneys, all at such party’s cost and expense; provided further, however, that no settlement or compromise of an asserted third- party claim other than the payment/money may be made without the prior written consent of the party claiming indemnification. (d) Immunity. City, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-10-101 et seq., as from time to time amended, or otherwise available to City, its officers, or its employees. 15. Insurance. (a) Requirements. Consultant agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance during the term of this Agreement: (1) The Consultant shall comply with the Workers’ Compensation Act of Colorado and shall provide compensation insurance to protect the City from and against any and all Workers’ Compensation claims arising from performance of the work under this contract. Workers’ Compensation insurance must cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, as well as the Employers’ Liability within the minimum statutory limits. (2) Commercial General Liability Insurance (including contractual liability insurance) providing coverage for bodily injury and property damage limit of not less than three million ($3,000,000) per occurrence and Page 343 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 8 PSA #22-130 three million dollars ($3,000,00) general aggregate. (3) Professional Liability/Errors and Omissions Insurance covering acts, errors and omissions arising out of Consultant’s operations or Services in an amount not less than one million dollars ($1,000,000) per claim. (4) Auto Liability Insurance (including contractual liability) providing coverage for bodily injury and property damage with a combined single limit of not less than three million dollars ($3,000,000) per accident. (5) An Umbrella Insurance policy may be utilized to meet required general & auto liability insurance limits (6) Employee Dishonesty and Computer Fraud Insurance covering losses arising out of or in connection with any fraudulent or dishonest acts committed by Consultant personnel, acting alone or with others, in an amount not less than one million dollars ($1,000,000) per occurrence. (b) Approved Companies. All such insurance shall be procured with such insurance companies of good standing, permitted to do business in the country, state or territory where the Services are being performed. (c) Certificates. Consultant shall provide City with certificates of insurance evidencing compliance with this 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 will list the City of Englewood as an additional insured, except as to Worker’s Compensation and Professional Liability/Errors and Omissions Insurance . Each certificate of insurance shall provide that the issuing company shall not cancel, or reduce, the insurance afforded under the above policies unless thirty (30) days’ notice of such cancellation, or reduction has been provided 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 Statement 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 Intellectual Property Rights, a non-exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such Intellectual property Rights. (b) Know-How. Notwithstanding 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 expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment, so long as it or they acquire and apply such information without disclosure of any Confidential Information of the other party. (c) Document Use and Reuse. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others for this Project or on any other project. Any reuse of completed documents or use of partially completed documents without written verification or concurrence by Consultant for the specific purpose intended will be at City's sole risk and without liability or legal exposure to Consultant. Page 344 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 9 PSA #22-130 17. Relationship of Parties. Consultant is acting only as an independent consultant and does not undertake, by this Agreement, any Statement of Work or otherwise, to perform any obligation of City, whether regulatory or contractual, or to assume any responsibility for City’s business or operations. Neither party shall act or represent itself, directly or by implication, as an agent of the other, except as expressly authorized in a Statement of Work. 18. Complete Agreement. This Agreement contains the entire agreement, including all Exhibits, Statements of Work and other Attachments that have been executed by the parties, and are attached hereto and made a part of this Agreement. 19. Applicable Law. Consultant shall comply with all applicable 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 applicable 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 the provisions of this Agreement shall be brought before the state or federal court situated in Arapahoe County, Colorado and each party hereto consents to jurisdiction and venue before such courts. (a) Attorney Fees. In the event that either party to this Agreement shall commence any action against the other party arising out of or in connection with this Agreement, or contesting the validity of the Agreement or any provision of this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorney’s fees and related costs, fees and expenses incurred by the prevailing party in connection with such action or proceeding. 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 parties hereto consent to and agree that such scope may be judicially modified accordingly and that the whole of such provision of this Agreement shall not thereby fail, but that the scope of such provision shall be curtailed only to the extent necessary to conform to law. 21. Additional Work. After receipt of a Statement of Work, City, with Consultant’s consent, may request Consultant to undertake additional work with respect to such Statement of Work. In such event, City and Consultant shall execute an addendum to the Statement of Work specifying such additional work and the compensation to be paid to Consultant for such additional work. 22. Sub-consultants. Consultant may not subcontract any of the Services to be provided hereunder without the prior written consent of City. In the 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 prepaid, certified mail, return receipt requested or (3) one (1) day after deposit with a nationally-recognized overnight courier, specifying overnight priority delivery. Either 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. Page 345 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 10 PSA #22-130 24. Assignment. This Agreement may not be assigned by Consultant without the prior written consent of City. Except for the prohibition of an assignment contained in the preceding sentence, this Agreement 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. No person or entity not a signatory to this Agreement shall be entitled to rely on Consultant's performance of its services hereunder, and no right to assert a claim against Consultant by assignment of indemnity rights or otherwise shall accrue to a third party as a result of this Agreement or the performance of Consultant's services hereunder. 26. Headings. The section headings in this Agreement are solely for convenience and shall not be considered in its interpretation. The recitals 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 conformance with this Agreement are incorporated into this Agreement. 27. Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not effect in any way the full right to require such performance 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 waiver of the provision itself. 28. Force Majeure. If performance 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 communications 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 governmental or judicial authority or representative of any such government, or any other act whether similar or dissimilar to those referred to in this clause, which are beyond the reasonable control of Consultant, then Consultant shall be excused from such performance to the extent of such prevention, restriction, delay or interference. If the period of such delay exceeds thirty (30) days, City may, without liability, terminate the affected Statement of Work(s) upon written notice to Consultant. 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 statute, ordinance or regulation for the performance of the Services under the Agreement. Consultant shall also comply with the provisions of all Applicable Laws in performing the Services under the Agreement. At its own expense and at no cost to City, Consultant shall make any change, alteration or modification that may be necessary to comply with any Applicable Laws that Consultant failed to comply with at the time of performance 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, public announcements, or public disclosures (including, but not limited to, promotional or marketing material) by Consultant or its employees or agents relating to this Agreement or its subject matter, or including Page 346 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 11 PSA #22-130 the name, trade mark, or symbol 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 shall neither restrict the right of City to cease acquiring nor require City to continue any level of such acquisitions. Estimates or forecasts furnished by City to Consultant prior to or during the term of this Agreement shall not constitute commitments. 33. Survival. The provisions of Sections 5, 8(g), 10, 11, 13, 14, 16, 17, 19, 23, 25 and 31 shall survive any expiration or termination for any reason of this Agreement. 34. Verification of Compliance with C.R.S. 8-17.5-101 ET.SEQ. Regarding Hiring of Workers without Authorization: (a) Employees, Consultants and Sub-consultants: Consultant shall not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. Consultant shall not contract with a sub-consultant that fails to certify to the Consultant that the sub-consultant will not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. [CRS 8-17.5-102(2)(a)(I) & (II).] (b) Verification: Consultant will participate in either the E-Verify program or the Department program, as defined 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 hired for employment to perform work under this public contract for services. Consultant is prohibited from using the E-Verify program or the Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed. (c) Duty to Terminate a Subcontract: If Consultant obtains actual knowledge that a sub-consultant performing work under this Contract knowingly employs or contracts with a Worker without Authorization, the Consultant shall; (1) notify the sub-consultant and the City within three days that the Consultant has actual knowledge that the sub-consultant is employing or contracting with a Worker without Authorization; and (2) terminate the subcontract with the sub-consultant if, within three days of receiving notice required pursuant to this paragraph the sub- consultant does not stop employing or contracting with the Worker without Authorization; except that the Consultant shall not terminate the contract with the sub-consultant if during such three days the sub- consultant provides information to establish that the sub-consultant has not knowingly employed or contracted with a Worker without Authorization. (d) Duty to Comply with State Investigation: Consultant shall comply with any reasonable request of the Colorado Department of Labor and Employment made in the course of an investigation by that the Department is undertaking pursuant to C.R.S. 8-17.5-102 (5) Page 347 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 12 PSA #22-130 (e) Damages for Breach of Contract: The City may terminate this contract for a breach of contract, in whole or in part, due to Consultant’s breach of any section of this paragraph or provisions required pursuant to CRS 8-17.5-102. Consultant shall be liable for actual and consequential damages to the City in addition to any other legal or equitable remedy the City may be entitled to for a breach of this Contract under this Paragraph 34. 35. Provisions Required by Law Deemed Inserted. Each and every provision of law and clause required by law to be inserted in this contract shall be deemed to be inserted herein and this contract shall be read and enforced as though it were included therein. 36. Personnel and Civil Rights. (a) Colorado Labor (C.R.S. § 8-17- 101): If this project is for a public works project or public project, the Contractor shall comply with 8-17-101 C.R.S. which requires the Consultant to use at least eighty percent (80%) Colorado labor for any public works project financed in whole or part by State, counties, school district, or municipal monies. (b) Anti-Discrimination: While engaged in the performance of the Work, Consultant shall maintain employment practices consistent with the Colorado Antidiscrimination Act, C.R.S. § 24-34-301 through § 24-34-804, as amended. The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Consultant will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. (c) Civil Rights: In compliance with the Civil Rights Act of 1964, coupled with the Colorado Governor’s Executive Order dated July 6, 1972, Consultant, for itself and its assignees and successors in interest, agree as follows: (1) When applicable, the Consultant shall comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the “Regulations”), which are herein incorporated by reference and made a part of this Contract. Consultant shall not participate either directly or indirectly in discrimination prohibited by Section 21.5 of the Regulations including employment practices when the Contract covers a program set forth in Appendix “C” of the Regulations. (2) The Consultant, with regard to the Work performed by it after award and prior to completion of the Work, shall not discriminate on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry in the selection and retention of Subcontractors, including procurements of materials and leases of equipment. (3) In all solicitations either by competitive Bid or negotiation made by Consultant for work to be performed under a subcontract, including procurements of materials or equipment, each potential Subcontractor or Supplier shall be notified by Consultant of Consultant’s Page 348 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 13 PSA #22-130 obligations under this Contract and the regulations related to nondiscrimination on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry. (4) The Consultant shall take all affirmative actions necessary and appropriate to implement, not only the letter but also the spirit, of the policy of equality of opportunity as enunciated in the Constitution and the laws of the State of Colorado and as construed by the courts to prevent discrimination because of race, creed, color, gender or sex, age, religion, handicap, veteran’s status, national origin or ancestry. (5) The Consultant shall include the provisions of these subsections 1 through 5 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, orders or instructions issued pursuant thereto. The Consultant shall take such action with respect to any subcontract or procurement as the City may direct as a means of enforcing such provisions; provided, however, that in the event the Consultant becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Consultant may request the City to enter into such litigation to protect the interest(s) of the City. (d) Americans with Disabilities Act: The City makes every attempt to comply with the Americans with Disabilities Act and requires all contractors to be aware of this law and to report immediately to the Project Engineer, or Project Manager, any requests or complaints based upon the Americans with Disabilities Act. This requirement applies to persons or groups who have identified themselves as disabled, or as someone with whom they associate as disabled, and who require a special accommodation. 37. State Requirements. Per the Intergovernmental Agreement between the State of Colorado and the City of Englewood, the following provisions are incorporated herein and made a part of this Agreement. (a) The design work under this Agreement shall be compatible with the requirements of the contract between the Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third-party beneficiary of this agreement for that purpose. (b) Upon the advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction project. (c) The consultant shall review the construction Consultant's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, Standard Specifications for Road and Bridge Construction, in connection with this work. (d) The State, in its sole discretion, may review construction plans, special provisions and estimates and may require Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. 38. Federal Aid Provisions: When the United States of America, acting through any of its duly constituted departments or agencies, provides funds to pay for any portion of the costs of Work performed under the Contract, the provisions of the Constitution, Laws of the United States and the rules and regulations Page 349 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 14 PSA #22-130 promulgated by the department or agency thereof, pertaining to the utilization of such funds, shall be incorporated by reference as a part of the terms and conditions of the Contract and shall be observed by the Consultant. When the United States of America is involved as a result of providing funds to support the Work of the Contract, it may assign observers or inspectors as it deems necessary to ensure that purposes for which the funds were provided are achieved. However, such activity by the United States does not make it a party to the Contract and shall not interfere with the rights of either the City or the Consultant. 39. Estimates and Projections. In providing opinions of cost, financial analyses, economic feasibility projections, and schedules for potential projects, Consultant has no control over cost or price of labor and material; unknown or latent conditions of existing equipment or structures that may affect operation and maintenance costs; competitive bidding procedures and market conditions; time or quality of performance of third parties; quality, type, management, or direction of operating personnel; and other economic and operational factors that may materially affect the ultimate project cost or schedule. Therefore, Consultant makes no warranty that the City’s actual project costs, financial aspects, economic feasibility, or schedules will not vary from Consultant’s opinions, analyses, projections, or estimates. 40. Services During Construction. (a) The parties agree that in the City's contract with the construction contractor, Consultant shall be indemnified by the construction contractor to the fullest extent permitted by law for all claims, damages, losses and expense including attorney's fees arising out of or resulting from the construction contractor's performance of work including injury to any worker on the job site. Additionally, Consultant shall be named as additional primary insured(s) by the construction contractor's General Liability and Builders All Risk insurance policies without offset and be included in any waivers of subrogation, and all construction documents and insurance certificates shall include wording acceptable to the parties herein with reference to such provisions. (b) Consultant shall not be responsible for the means, methods, techniques, sequences, or procedures of construction selected by construction contractors or the safety precautions and programs incident to the work of construction contractors and will not be responsible for construction contractors' failure to carry out work in accordance with the construction documents. Page 350 of 482 Page 351 of 482 SCHEDULE A OUTLINE OF STATEMENT OF WORK 1. GENERAL This Schedule A is attached to and made part of the Professional Services Agreement (PSA) dated _______________, 20__, between the City of Englewood (CITY) and Carollo Engineers, Inc (CONSULTANT) for On-Call Engineering Services supporting the City of Englewood, Utilities Department. 2. NAMES, PHONE NUMBERS AND EMAILS OF PROJECT COORDINATORS 3. SUMMARY OF PURPOSE FOR STATEMENT OF WORK Provide on-call engineering support services to City of Englewood Utilities supporting the planning, management, design, construction, and operations of water and wastewater infrastructure. Per RFP-21-013. 4. EQUIPMENT AND PROGRAMMING TO BE PROVIDED BY CITY (IF ANY) None anticipated. If City-provided resources are required they will be identified at the time of each task order. 5. OTHER CONSULTANT RESOURCES Depending on the project assignments, Carollo has agreements with the following subconsultants to provide necessary services: 1. Farnsworth Group 2. Precision Survey 3. Lithos 4. Olsson 6. DESCRIPTION OF WORK PRODUCT AND DELIVERABLES Provide all labor and equipment necessary to support City-requested engineering services supporting the planning, design, construction, and operations of water and wastewater infrastructure. Individual Task Orders will be issued with detailed scopes of work and associated deliverables. Include as Deliverables copies of the reports of all project reviews, inspections, and tests conducted during the course of performance. 7. SPECIAL TERMS, IF ANY Carollo Engineers City of Englewood City of Englewood David Pier, Vice President Ashley Waldron, Engineer III Kimberly Ramuno, Engineer I 10922 West Toller Dr, Ste 200 1500 West Layton Avenue 1500 West Layton Avenue Littleton, CO 80127 Englewood, CO 80110 Englewood, CO 80110 (303) 551 – 2532 720-753-2514 303-762-2640 dpier@carollo.com awaldron@englewoodco.gov Kramuno@englewoodco.gov Page 352 of 482 Not applicable. 8. MODE OF PAYMENT Check or Electronic Transfer. City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the Deliverables/Milestones set forth in the Task Order. 9. PAYMENT SCHEDULE City will pay Consultant for authorized work in accordance with the approved scope within 30 days of invoice receipt. Payments shall be made upon City’s confirmation to Consultant that the Deliverables-Milestones have been satisfied. Invoices shall be submitted electronically to UtilitiesAP@englewoodco.gov. Consultant shall copy Project Manager on all invoice submittals. The PO number, PSA/contract number, and task order number shall be included on the invoice. 10. SCHEDULE AND PERFORMANCE MILESTONES Work will be conducted on an as-needed basis. Schedule for discrete work tasks will be established at the time the work is requested. 11. ACCEPTANCE AND TESTING PROCEDURES Not applicable. 12. LOCATION OF WORK FACILITIES Substantially all of the work will be conducted by Consultant at its regular office located in Denver-Broomfield or Denver-Littleton offices depending on the assignments. City will provide the City office space and support as it agrees may be appropriate, at its Allen Water Treatment Plant facility and at other Utilities department facilities/assets. IN WITNESS WHEREOF, pursuant and in accordance with the Professional Services Agreement between the parties hereto dated _______________, 20__, the parties have executed this Statement of Work as of this ______ day of ________________, 20__. CITY OF ENGLEWOOD, COLORADO By: (Signature) _________________________________ (Print Name) Title: Date: _______________________________ Page 353 of 482 Page 354 of 482 ATTACHMENT B CONTRACTORS PROPOSAL Page 355 of 482 CAROLLO ENGINEERS, INC. FEE SCHEDULE As of January 1, 2023 Hourly Rate Engineers/Scientists Assistant Professional I 160.00 Assistant Professional II 180.00 Professional 200.00 Project Professional 220.00 Lead Project Professional 250.00 Senior Project Professional 285.00 Technicians Technicians 135.00 Senior Technicians 185.00 Support Staff Document Processing/Clerical 120.00 Project Equipment Communication Expense (PECE) Per DL Hour 13.75 Other Direct Expenses Travel and Subsistence at cost Mileage at IRS Reimbursement Rate Subconsultant cost + 10% Other Direct Cost cost + 10% Expert Witness Rate x 2.0 This fee schedule is subject to annual revisions due to labor adjustments. Page 356 of 482 TO: Mayor and Council FROM: Pieter Van Ry, Englewood Utilities and South Platte Renew Director DATE: November 21, 2022 RE: Professional Services Agreement with Hazen and Sawyer for On-Call Engineering Services EXECUTIVE SUMMARY Utilities staff is seeking City Council approval of a Professional Services Agreement (PSA) with Hazen and Sawyer (Hazen) for on-call engineering services for the Utilities Department, up to an amount of $200,000. BACKGROUND Hazen is an engineering firm that specializes in municipal water and wastewater. Beginning in 2021, staff utilized on-call contracts to execute work more efficiently and reduce staff time necessary to procure multiple engineering contracts. These contracts proved valuable in 2021 and 2022 as the Utilities department ramped up its capital improvement program, development reviews, and engineering support of various Operations and Maintenance division initiatives. In 2021, staff competitively solicited on-call engineering services through a Request for Proposals (RFP) on BidNet. Eleven (11) proposals were received in response to the original RFP. A selection panel reviewed, scored, and ranked the proposals based on the engineering firm’s experience and capabilities, management approach, overall proposal quality, and value provided. The top four (4) ranked firms by the selection panel were Carollo Engineers, Inc, Hazen, HDR, Inc, and Jacobs Engineering Group, Inc. Staff recommends new PSAs for each of these firms to support the Utilities staff to efficiently implement the recommendations of the 2020 water and sewer master plans. ANALYSIS City procurement policies allow for four (4) one (1) year renewal terms or new contracts following the initial contract created under an RFP. The proposed PSAs would be the third contract-term with each firm from RFP#21-013, and the City has one (1) more option to renew in 2024. Work under the proposed 2023 PSAs may include water distribution system modeling and assessments, regulatory and compliance support, dam safety program assistance, a biofilm community characterization, and third-party construction inspections. The proposed contract amount of $200,000 for each of the four (4) firms will provide Utilities staff with the flexibility to select the most qualified firm for each project and utilize the on-call engineering firms for additional projects if necessary. Page 357 of 482 Each of the four (4) firms have a similar scope of work. While these on-call contracts are being executed, it does not guarantee that each firm will receive a project. Utilities staff will evaluate the firm’s proposals for each project on a case-by-case basis. Staff will consider the workload of each firm before task orders are issued to ensure the project obtains adequate priority from the selected firm. COUNCIL ACTION REQUESTED Motion to approve a Professional Services Agreement with Hazen and Sawyer for on-call engineering services for the Utilities Department, up to an amount of $200,000. FINANCIAL IMPLICATIONS Funding for this PSA is included in the 2023 Utilities budget. Four (4) separate $200,000 contracts are proposed to be executed with Carollo Engineers, Inc, Hazen, HDR, Inc., and Jacobs Engineering Group, Inc. Source of Funds Line-Item Description 2023 Line-Item Budget YTD Line Item Expensed Purchase Amount 40-1609- 54201 Water Fund, Engineering, Professional Services $1,150,000 $0 $200,000 PROCUREMENT INFORMATION Account Number: 40-1609-54201 CONNECTION TO STRATEGIC PLAN Sustainability: • Infrastructure designed and maintained in an economic, equitable, and ecological manner Infrastructure: • Proactively in a cost-effective manner invests, maintains, improves, and plans to protect water infrastructure ATTACHMENTS Contract Approval Summary (CAS) PSA-22-129 with Hazen / Schedule A / Hazen Rate Sheet Page 358 of 482 Contract Approval Summary March 2019 Update Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: Authorizing Resolution/Ordinance: Recording Information: City Contact Information Staff Contact Person: Ashley Waldron Phone: 720-753-2514 Title: Engineer III Email: awaldron@englewoodco.gov City Contact Information Staff Contact Person: Stephanie Ellis Phone: 303.783.6811 Title: Engineer II Email: SEllis@englewoodco.gov Vendor Contact Information Vendor Name: Hazen and Sawyer (Hazen) Vendor Contact: Steve Price, Associate Vice President Vendor Address: 143 Union Blvd., Suite 200 Vendor Phone: 303-829-6157 (c) 720-647-5541 (d) City: Lakewood Vendor Email: SPrice@HazenandSawyer.com State: CO Zip Code: 80228 Contract Type Contract Type:Professional Services Description of ‘Other’ Contract Type: Description of Contract Work/Services: Attachments: ☒Contract -- ☐Original ☐Copy ☐Addendum(s) ☐Exhibit(s) ☒Certificate of Insurance Summary of Terms: Start Date: January 2023 End Date: December 2023 Total Years of Term: 1 year Total Amount of Contract for term (or estimated amount if based on item pricing): $200,000 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Four, one-year renewals from 2021-RFP-21-013 Payment terms (please describe terms or attach schedule if based on deliverables): Check or Electronic Transfer. City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the Deliverables/Milestones set forth in the Task Order. Provide on-call engineering support services to City of Englewood Utilities supporting the planning, management, design, construction, and operations of water and wastewater infrastructure. Page 359 of 482 Contract Approval Summary March 2019 Update Page | 2 City will pay Consultant for authorized work in accordance with the approved scope within 30 days of invoice receipt. Payments shall be made upon City’s confirmation to Consultant that the Deliverables-Milestones have been satisfied. Invoices shall be submitted electronically to UtilitiesAP@englewoodco.gov. Consultant shall copy Project Manager on all invoice submittals. The PO number, PSA/contract number, and task order number shall be included on the invoice. Attachments: ☐Copy of original Contract if this is an Amendment ☐Copies of related Contracts/Conveyances/Documents Source of Funds (Insert Excel Document Image): Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor (Check Box): ☐Bid: ☐ Bid Evaluation Summary attached ☐ Bid Response of Proposed Awardee ☒RFP: ☐ RFP Evaluation Summary Attached ☐ RFP Response of Proposed Awardee In 2021, staff competitively solicited on-call engineering services through a Request for Proposals (RFP) on BidNet. Eleven (11) proposals were received in response to the original RFP. A selection panel reviewed, scored, and ranked the proposals based on the engineering firm’s experience and capabilities, management approach, overall proposal quality, and value provided. The top four (4) ranked firms by the selection panel were Carollo Engineers, Inc, Page 360 of 482 Contract Approval Summary March 2019 Update Page | 3 Hazen and Sawyer, HDR, Inc, and Jacobs Engineering Group, Inc. Staff recommends new PSAs for each of these firms to support the Utilities staff to efficiently implement the recommendations of the 2020 water and sewer master plans. City procurement policies allow for four (4) one (1) year renewal terms or new contracts following the initial contract created under an RFP. The proposed PSAs would be the third contract-term with each firm from RFP#21-013, and the City has one (1) more option to renew in 2024. Work under the proposed 2023 PSAs may include water distribution system modeling and assessments, regulatory and compliance support, dam safety program assistance, a biofilm community characterization, and third-party construction inspections. The proposed contract amount of $200,000 for each of the four (4) firms will provide Utilities staff with the flexibility to select the most qualified firm for each project and utilize the on-call engineering firms for additional projects if necessary. Each of the four (4) firms have a similar scope of work. While these on-call contracts are being executed, it does not guarantee that each firm will receive a project. Utilities staff will evaluate the firm’s proposals for each project on a case-by-case basis. Staff will consider the workload of each firm before task orders are issued to ensure the project obtains adequate priority from the selected firm. Page 361 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 1 PSA #22-129 PROFESSIONAL SERVICES AGREEMENT Contract Number PSA-22-129 ON-CALL ENGINEERING SUPPORT SERVICES - UTILITIES Not to exceed $200,000.00 This Professional Services Agreement (the “Agreement”) is made as of this _____ day of ____________, 20__, (the “Effective Date”) by and between Hazen and Sawyer, a Colorado corporation (“Consultant”), and The City of Englewood, Colorado, a municipal corporation organized under the laws of the State of Colorado (“City”). City desires that Consultant, from time to time, provide certain consulting services, systems integration services, data conversion services, training services, and/or related services as described herein, and Consultant desires to perform such services on behalf of City on the terms and conditions set forth herein. In consideration of the foregoing and the terms hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. Definitions. The terms set forth below shall be defined as follows: (a) “Intellectual Property Rights” shall mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (1) rights associate with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask- works, (2) trademark and trade name rights and similar rights, (3) trade secret rights, (4) patents, designs, algorithms and other industrial property rights, (5) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (6) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). (b) “Work Product” shall mean all patents, patent applications, inventions, designs, mask works, processes, methodologies, copyrights and copyrightable works, trade secrets including confidential information, data, designs, manuals, training materials and documentation, formulas, knowledge of manufacturing processes, methods, prices, financial and accounting data, products and product specifications and all other Intellectual Property Rights created, developed or prepared, documented and/or delivered by Consultant, pursuant to the provision of the Services. 2. Statements of Work. During the term hereof and subject to the terms and conditions contained herein, Consultant agrees to provide, on an as requested basis, the consulting services, systems integration services, data conversion services, training services, and related services (the “Services”) as further described in Attachment A (the “Statement of Work”) for City, and in such Page 362 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 2 PSA #22-129 additional Statements of Work as may be executed by each of the parties hereto from time to time pursuant to this Agreement. Each Statement of Work shall specify the scope of work, specifications, basis of compensation and payment schedule, estimated length of time required to complete each Statement of Work, including the estimated start/finish dates, and other relevant information and shall incorporate all terms and conditions contained in this Agreement 3. Performance of Services. (a) Performance. Consultant shall perform the Services necessary to complete all projects outlined in a Statement of Work in a timely and professional manner consistent with the specifications, if any, set forth in the Statement of Work, and in accordance with industry standards. Consultant agrees to exercise the highest degree of professionalism, and to utilize its expertise and creative talents in completing the projects outlined in a Statement of Work. (b) Delays. Consultant agrees to notify City promptly of any factor, occurrence, or event coming to its attention that may affect Consultant’s ability to meet the requirements of the Agreement, or that is likely to occasion any material delay in completion of the projects contemplated by this Agreement or any Statement of Work. Such notice shall be given in the event of any loss or reassignment of key employees, threat of strike, or major 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 conflict, Consultant shall secure written instructions from City’s project director before proceeding with the performance of the Services affected by such omissions or discrepancies. 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 Statement of Work by City. Acceptance procedures shall be outlined in the Statement of Work. If City disputes all or any portion of an invoice for charges, then City shall pay the undisputed portion of the invoice by the due date and shall provide the following notification with respect to the disputed portion of the invoice. City shall notify Consultant as soon as possible of the specific amount disputed and shall provide reasonable detail as to the basis for the dispute. The parties shall then attempt to resolve the disputed portion of such invoice as soon as possible. Upon resolution of the disputed portion, City shall pay to Consultant the resolved amount. 5. Taxes. City is not subject to taxation. No federal or other taxes (excise, luxury, transportation, sales, etc.) shall be included in quoted prices. City shall not be obligated to pay or reimburse Consultant for any taxes attributable to the sale of any Services which are imposed on or measured by net or gross income, capital, net worth, franchise, privilege, any other taxes, or assessments, nor any of the foregoing imposed on or payable by Consultant. Upon written notification by City and subsequent verification by Consultant, Consultant shall reimburse or credit, as applicable, City in a timely manner, for any 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 which are expressly provided for in a Statement of Work or which have been approved in advance in writing by City, provided Consultant has furnished such documentation for authorized expenses as City may reasonably request. Page 363 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 3 PSA #22-129 7. Audits. Consultant shall provide such employees and independent auditors and inspectors as City may designate with reasonable access to all sites from which Services are performed for the purposes of performing audits or inspections of Consultant’s operations and compliance with this Agreement. Consultant shall provide such auditors and inspectors any reasonable assistance that they may require. 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 Agreement shall commence on the date when both parties have signed the Agreement, and shall continue for one year with an option to renew for three (3) one-year periods, unless this Agreement is terminated as provided in this Section 8. At the end of the initial one-year period, if the parties desire to extend this Agreement beyond the one-year period, written notice shall be given to the other party no later than thirty (30) days prior to the end of the one- year period. If the parties agree to the request for renewal, the parties shall then enter into a renewal extending this Agreement including a new Statement of Work, if necessary. The parties understand and acknowledge that any renewal of this Agreement may be subject to the approval of the Englewood City Council pursuant to the City's Purchasing Policies. The parties also understand and acknowledge that the extension of this contract beyond the initial one-year period is contingent upon the City appropriating adequate funds for each fiscal year. (a) Convenience. City may, without cause and without penalty, terminate the provision of Services under any or all Statements of Work upon thirty (30) days prior written notice. Upon such termination, City shall, upon receipt of an invoice from Consultant, pay Consultant for Services actually rendered prior to the effective date of such termination. Charges will be based on time expended for all incomplete tasks as listed in the applicable Statement of Work, and all completed tasks will be charged as indicated in the applicable Statement of Work. (b) No Outstanding Statements of Work. Either party may terminate this 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 this Agreement with respect to a specific Statement of Work (other than by nonpayment) and does not substantially cure such default within thirty (30) days after receiving 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 (10) days prior written notice of termination to the defaulting party. (d) Bankruptcy or Insolvency. Either party may terminate this Agreement effective upon written notice stating its intention to terminate in the event the other party: (1) makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (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 consents to or acquiesces in, a petition seeking relief or reorganization under any bankruptcy or insolvency laws; or (4) files a petition seeking relief or reorganization under any bankruptcy or insolvency laws is filed against that other party and is not dismissed within sixty (60) days after it was filed. (e) TABOR. The parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution ("TABOR"). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement Page 364 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 4 PSA #22-129 does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, notwithstanding anything in this Agreement to the contrary, all payment obligations of City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of City's current fiscal period ending upon the next succeeding December 31. Financial obligations of City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of City and applicable law. Upon the failure to appropriate such funds, this Agreement shall be deemed terminated. (f) Return of Property. Upon termination of this Agreement, both parties agree to return to the other all property (including any Confidential Information, as defined in Section 11) of the other party that it may have in its possession or control. 9. City Obligations. City will provide timely access to City personnel, systems and information required for Consultant to perform its obligations hereunder. City shall provide to Consultant’s employees performing its obligations hereunder at City’s premises, without charge, a reasonable work environment in compliance with all applicable laws and regulations, including office space, furniture, telephone service, and reproduction, computer, facsimile, secretarial and other necessary equipment, 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 Consultant, obtain all consents, licenses and sublicenses necessary for Consultant to perform under the Statements of Work and shall pay any fees or other costs associated with obtaining such consents, licenses and sublicenses. 10. Staff. Consultant is an independent consultant and neither Consultant nor Consultant’s staff is, or shall be deemed to be employed by City. City is hereby contracting with Consultant for the Services described in a Statement of Work and Consultant reserves the right to determine the method, manner and means by which the Services will be performed. The Services shall be performed by Consultant or Consultant’s staff, and City shall not be required to hire, supervise or pay any assistants to help Consultant perform the Services under this Agreement. Except to the extent that Consultant’s work must be performed on or with City’s computers or City’s existing software, all materials used in providing the Services shall be provided by Consultant. 11. Confidential Information. (a) Obligations. Each party hereto may receive from the other party information which relates to the other party’s business, research, development, trade secrets or business affairs (“Confidential Information”). Subject to the provisions and exceptions set forth in the Colorado Open Records Act, CRS Section 24-72-201 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, disclosure, publication or dissemination of its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Without limiting the generality of the foregoing, each party hereto agrees not to disclose or permit any other person or entity access to the other party’s Confidential Information except such disclosure or access shall be permitted to an employee, agent, representative or independent consultant of such party requiring access to the same in order to perform his or her employment or services. Each party shall insure that their employees, agents, representatives, and independent consultants are advised of the confidential nature of the Confidential Information and are precluded from taking any action prohibited under this Section 11. Further, each party agrees not to alter or remove any identification, copyright or other Page 365 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 5 PSA #22-129 proprietary rights notice which indicates the ownership of any part of such Confidential Information by the other party. A party hereto shall undertake to immediately notify the other party in writing of all circumstances surrounding any possession, use or knowledge of Confidential Information at any location or by any person or entity other than those authorized by this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall restrict either party with respect to information or data identical or similar to that contained in the Confidential Information of the other party but which (1) that party rightfully possessed before it received such information from the other as evidenced by written documentation; (2) subsequently becomes publicly available through no fault of that party; (3) is subsequently furnished rightfully to that party by a third party without restrictions on use or disclosure; or (4) is required to be disclosed by law, provided that the disclosing party will exercise reasonable efforts to notify the other party prior to disclosure. (b) Know-How. For the avoidance of doubt neither City nor Consultant shall be prevented from making use of know-how and principles learned or experience gained of a non-proprietary and non-confidential nature. (c) Remedies. Each of the parties hereto agree that if, their officers, employees or anyone obtaining access to the Confidential Information of the other party by, through or under them, breaches any provision of this Section 11, the non-breaching party shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations and benefits which the breaching party, its officers or employees directly or indirectly realize or may realize as a result of or growing out of, or in connection with any such breach. In addition to, and not in limitation of the foregoing, in the event of any breach of this Section 11, the parties agree that the non-breaching party will suffer irreparable harm and that the total amount of monetary damages for any such injury to the non-breaching party arising from a violation of this Section 11 would be impossible to calculate and would therefore be an inadequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to temporary and permanent injunctive relief against the breaching party, its officers or employees and such other rights and remedies to which the non-breaching party may be entitled to at law, in equity or under this Agreement for any violation of this Section 11. The provisions of this Section 11 shall survive the expiration or termination of this Agreement for any reason. 12. Project Managers. Each party shall designate one of its employees to be its Project Manager under each Statement of Work, who shall act for that party on all matters under the Statement of Work. Each party shall notify the other in writing of any replacement of a Project Manager. The Project Managers 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 has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (2) the execution of this Agreement by Consultant, and the performance by Consultant of its obligations and duties hereunder, do not and will not violate any agreement to which Consultant is a party or by which it is otherwise bound under any applicable law, rule or regulation; (3) when executed and delivered by Consultant, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (4) Consultant acknowledges that City makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement Page 366 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 6 PSA #22-129 (b) Service Warranty. Consultant warrants that its employees and consultants shall have sufficient skill, knowledge, and training to perform Services and that the Services shall be performed in a professional and workmanlike manner. (c) Personnel. Unless a specific number of employees is set forth in the Statement of Work, Consultant warrants it will provide sufficient employees to complete the Services ordered within the applicable time frames established 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 replacement of an employee or a proposed employee. In such event, Consultant shall, within five (5) working days of receipt of such request from City, provide a substitute employee of sufficient skill, knowledge, and training to perform the applicable Services. Consultant shall require employees providing Services at a City location to comply with applicable City security and safety regulations and policies. (d) Compensation and Benefits. Consultant shall provide for and pay the compensation of employees and shall pay all taxes, contributions, and benefits (such as, but not limited to, workers’ compensation benefits) which an employer is required to pay relating to the employment of employees. City shall not be liable to Consultant or to any employee for Consultant’s failure to perform its compensation, benefit, or tax obligations. Consultant shall indemnify, defend and hold City harmless from and against all such taxes, contributions and benefits and will comply with all associated governmental regulations, including the filing of all necessary reports and returns. 14. Indemnification. (a) Consultant Indemnification. Consultant shall indemnify, defend and hold harmless City, its directors, officers, employees, and agents and the heirs, executors, successors, and permitted assigns of any of the foregoing (the “City Indemnitees”) only to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the Consultant, from and against all losses, claims, obligations, demands, assessments, fines and penalties (whether civil or criminal), liabilities, expenses and costs (including reasonable fees and disbursements of legal counsel and accountants), bodily and other personal injuries, damage to tangible property, and other damages, of any kind or nature, suffered or incurred by a City Indemnitee directly or indirectly arising from or related to: (1) any negligent or intentional act or omission by Consultant or its representatives in the performance of Consultant’s obligations under this Agreement, or (2) any material breach in a representation, warranty, covenant or obligation of Consultant contained in this Agreement. (b) Infringement. Consultant will indemnify, defend, and hold City harmless from all Indemnifiable Losses arising from any third party claims that any Work Product or methodology supplied by Consultant infringes or misappropriates any Intellectual Property rights of any third party; provided, however, that the foregoing indemnification obligation shall not apply to any alleged infringement or misappropriation based on: (1) use of the Work Product in combination with products or services not provided by Consultant to the extent that such infringement or misappropriation would have been avoided if such other products or services had not been used; (2) any modification or enhancement to the Work Product made by City or anyone other than Consultant or its sub-consultants; or (3) use of the Work Product other than as permitted under this Agreement. (c) Indemnification Procedures. Notwith-standing anything else contained in this Agreement, no obligation to indemnify which is set forth in this Section 14 shall apply Page 367 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 7 PSA #22-129 unless the party claiming indemnification notifies the other party as soon as practicable to avoid any prejudice in the claim, suit or proceeding of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the other party the opportunity to control the response thereto and the defense thereof; provided, however, that the party claiming indemnification shall have the right to participate in any legal proceedings to contest and defend a claim for indemnification involving a third party and to be represented by its own attorneys, all at such party’s cost and expense; provided further, however, that no settlement or compromise of an asserted third- party claim other than the payment/money may be made without the prior written consent of the party claiming indemnification. (d) Immunity. City, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-10-101 et seq., as from time to time amended, or otherwise available to City, its officers, or its employees. 15. Insurance. (a) Requirements. Consultant agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance during the term of this Agreement: (1) The Consultant shall comply with the Workers’ Compensation Act of Colorado and shall provide compensation insurance to protect the City from and against any and all Workers’ Compensation claims arising from performance of the work under this contract. Workers’ Compensation insurance must cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, as well as the Employers’ Liability within the minimum statutory limits. (2) Commercial General Liability Insurance and auto liability insurance (including contractual liability insurance) providing coverage for bodily injury and property damage with a combined single limit of not less than three million dollars ($3,000,000) per occurrence. (3) Professional Liability/Errors and Omissions Insurance covering acts, errors and omissions arising out of Consultant’s operations or Services in an amount not less than one million dollars ($1,000,000) per occurrence. (4) Employee Dishonesty and Computer Fraud Insurance covering losses arising out of or in connection with any fraudulent or dishonest acts committed by Consultant personnel, acting alone or with others, in an amount not less than one million dollars ($1,000,000) per occurrence. (b) Approved Companies. All such insurance shall be procured with such insurance companies of good standing, permitted to do business in the country, state or territory where the Services are being performed. (c) Certificates. Consultant shall provide City with certificates of insurance evidencing compliance with this 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 will list the City of Englewood as an additional insured. Each certificate of insurance shall provide that the issuing company shall not cancel, reduce, or otherwise materially change the insurance afforded under the above policies unless thirty (30) days’ notice of such cancellation, reduction or material change has been provided to City. 16. Rights in Work Product. Page 368 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 8 PSA #22-129 (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 Statement 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 Intellectual Property Rights, a non-exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such Intellectual property Rights. (b) Know-How. Notwithstanding 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 expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment, so long as it or they acquire and apply such information without disclosure of any Confidential Information of the other party. 17. Relationship of Parties. Consultant is acting only as an independent consultant and does not undertake, by this Agreement, any Statement of Work or otherwise, to perform any obligation of City, whether regulatory or contractual, or to assume any responsibility for City’s business or operations. Neither party shall act or represent itself, directly or by implication, as an agent of the other, except as expressly authorized in a Statement of Work. 18. Complete Agreement. This Agreement contains the entire agreement, including all Exhibits, Statements of Work and other Attachments that have been executed by the parties, and are attached hereto and made a part of this Agreement. 19. Applicable Law. Consultant shall comply with all applicable 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 applicable 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 the provisions of this Agreement shall be brought before the state or federal court situated in Arapahoe County, Colorado and each party hereto consents to jurisdiction and venue before such courts. (a) Attorney Fees. In the event that either party to this Agreement shall commence any action against the other party arising out of or in connection with this Agreement, or contesting the validity of the Agreement or any provision of this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorney’s fees and related costs, fees and expenses incurred by the prevailing party in connection with such action or proceeding. 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 parties hereto consent to and agree that such scope may be judicially modified accordingly and that the whole of such provision of this Agreement shall not thereby fail, but that the scope of such provision shall be curtailed only to the extent necessary to conform to law. 21. Additional Work. After receipt of a Statement of Work, City, with Consultant’s consent, may request Consultant to undertake additional work with respect to such Statement of Work. In such event, City and Consultant shall execute an addendum to the Statement of Work specifying such additional work and the compensation to be paid to Consultant for such additional work. Page 369 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 9 PSA #22-129 22. Sub-consultants. Consultant may not subcontract any of the Services to be provided hereunder without the prior written consent of City. In the 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 prepaid, certified mail, return receipt requested or (3) one (1) day after deposit with a nationally-recognized overnight courier, specifying overnight priority delivery. Either 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 assigned by Consultant without the prior written consent of City. Except for the prohibition of an assignment contained in the preceding sentence, this Agreement 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 considered in its interpretation. The recitals 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 conformance with this Agreement are incorporated into this Agreement. 27. Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not effect in any way the full right to require such performance 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 waiver of the provision itself. 28. Force Majeure. If performance 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 communications 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 governmental or judicial authority or representative of any such government, or any other act whether similar or dissimilar to those referred to in this clause, which are beyond the reasonable control of Consultant, then Consultant shall be excused from such performance to the extent of such prevention, restriction, delay or interference. If the period of such delay exceeds thirty (30) days, City may, without liability, terminate the affected Statement of Work(s) upon written notice to Consultant. 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 statute, ordinance or regulation for the performance of the Services under the Agreement. Consultant shall also comply with the provisions of all Applicable Laws in performing the Services under the Page 370 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 10 PSA #22-129 Agreement. At its own expense and at no cost to City, Consultant shall make any change, alteration or modification that may be necessary to comply with any Applicable Laws that Consultant failed to comply with at the time of performance 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, public announcements, or public disclosures (including, but not limited to, promotional 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 symbol 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 shall neither restrict the right of City to cease acquiring nor require City to continue any level of such acquisitions. Estimates or forecasts furnished by City to Consultant prior to or during the term of this Agreement shall not constitute commitments. 33. Survival. The provisions of Sections 5, 8(g), 10, 11, 13, 14, 16, 17, 19, 23, 25 and 31 shall survive any expiration or termination for any reason of this Agreement. 34. Verification of Compliance with C.R.S. 8-17.5-101 ET.SEQ. Regarding Hiring of Workers without Authorization: (a) Employees, Consultants and Sub-consultants: Consultant shall not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. Consultant shall not contract with a sub-consultant that fails to certify to the Consultant that the sub-consultant will not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. [CRS 8-17.5-102(2)(a)(I) & (II).] (b) Verification: Consultant will participate in either the E-Verify program or the Department program, as defined 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 hired for employment to perform work under this public contract for services. Consultant is prohibited from using the E-Verify program or the Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed. (c) Duty to Terminate a Subcontract: If Consultant obtains actual knowledge that a sub-consultant performing work under this Contract knowingly employs or contracts with a Worker without Authorization, the Consultant shall; (1) notify the sub-consultant and the City within three days that the Consultant has actual knowledge that the sub-consultant is employing or contracting with a Worker without Authorization; and (2) terminate the subcontract with the sub-consultant if, within three days of receiving notice required pursuant to this paragraph the sub- consultant does not stop employing or Page 371 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 11 PSA #22-129 contracting with the Worker without Authorization; except that the Consultant shall not terminate the contract with the sub-consultant if during such three days the sub- consultant provides information to establish that the sub-consultant has not knowingly employed or contracted with a Worker without Authorization. (d) Duty to Comply with State Investigation: Consultant shall comply with any reasonable request of the Colorado Department of Labor and Employment made in the course of an investigation by that the Department is undertaking pursuant to C.R.S. 8-17.5-102 (5) (e) Damages for Breach of Contract: The City may terminate this contract for a breach of contract, in whole or in part, due to Consultant’s breach of any section of this paragraph or provisions required pursuant to CRS 8-17.5-102. Consultant shall be liable for actual and consequential damages to the City in addition to any other legal or equitable remedy the City may be entitled to for a breach of this Contract under this Paragraph 34. 35. Provisions Required by Law Deemed Inserted. Each and every provision of law and clause required by law to be inserted in this contract shall be deemed to be inserted herein and this contract shall be read and enforced as though it were included therein. 36. Personnel and Civil Rights. (a) Colorado Labor (C.R.S. § 8-17- 101): If this project is for a public works project or public project, the Contractor shall comply with 8-17-101 C.R.S. which requires the Consultant to use at least eighty percent (80%) Colorado labor for any public works project financed in whole or part by State, counties, school district, or municipal monies. (b) Anti-Discrimination: While engaged in the performance of the Work, Consultant shall maintain employment practices consistent with the Colorado Antidiscrimination Act, C.R.S. § 24-34-301 through § 24-34-804, as amended. The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Consultant will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. (c) Civil Rights: In compliance with the Civil Rights Act of 1964, coupled with the Colorado Governor’s Executive Order dated July 6, 1972, Consultant, for itself and its assignees and successors in interest, agree as follows: (1) When applicable, the Consultant shall comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the “Regulations”), which are herein incorporated by reference and made a part of this Contract. Consultant shall not participate either directly or indirectly in discrimination prohibited by Section 21.5 of the Regulations including employment practices when the Contract covers a program set forth in Appendix “C” of the Regulations. Page 372 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 12 PSA #22-129 (2) The Consultant, with regard to the Work performed by it after award and prior to completion of the Work, shall not discriminate on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry in the selection and retention of Subcontractors, including procurements of materials and leases of equipment. (3) In all solicitations either by competitive Bid or negotiation made by Consultant for work to be performed under a subcontract, including procurements of materials or equipment, each potential Subcontractor or Supplier shall be notified by Consultant of Consultant’s obligations under this Contract and the regulations related to nondiscrimination on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry. (4) The Consultant shall take all affirmative actions necessary and appropriate to implement, not only the letter but also the spirit, of the policy of equality of opportunity as enunciated in the Constitution and the laws of the State of Colorado and as construed by the courts to prevent discrimination because of race, creed, color, gender or sex, age, religion, handicap, veteran’s status, national origin or ancestry. (5) The Consultant shall include the provisions of these subsections 1 through 5 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, orders or instructions issued pursuant thereto. The Consultant shall take such action with respect to any subcontract or procurement as the City may direct as a means of enforcing such provisions; provided, however, that in the event the Consultant becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Consultant may request the City to enter into such litigation to protect the interest(s) of the City. (d) Americans with Disabilities Act: The City makes every attempt to comply with the Americans with Disabilities Act and requires all contractors to be aware of this law and to report immediately to the Project Engineer, or Project Manager, any requests or complaints based upon the Americans with Disabilities Act. This requirement applies to persons or groups who have identified themselves as disabled, or as someone with whom they associate as disabled, and who require a special accommodation. 37. State Requirements. Per the Intergovernmental Agreement between the State of Colorado and the City of Englewood, the following provisions are incorporated herein and made a part of this Agreement. (a) The design work under this Agreement shall be compatible with the requirements of the contract between the Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third-party beneficiary of this agreement for that purpose. (b) Upon the advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction project. (c) The consultant shall review the construction Consultant's shop drawings for conformance with the contract documents and Page 373 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 13 PSA #22-129 compliance with the provisions of the State's publication, Standard Specifications for Road and Bridge Construction, in connection with this work. (d) The State, in its sole discretion, may review construction plans, special provisions and estimates and may require Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. 38. Federal Aid Provisions: When the United States of America, acting through any of its duly constituted departments or agencies, provides funds to pay for any portion of the costs of Work performed under the Contract, the provisions of the Constitution, Laws of the United States and the rules and regulations promulgated by the department or agency thereof, pertaining to the utilization of such funds, shall be incorporated by reference as a part of the terms and conditions of the Contract and shall be observed by the Consultant. When the United States of America is involved as a result of providing funds to support the Work of the Contract, it may assign observers or inspectors as it deems necessary to ensure that purposes for which the funds were provided are achieved. However, such activity by the United States does not make it a party to the Contract and shall not interfere with the rights of either the City or the Consultant. Page 374 of 482 Page 375 of 482 SCHEDULE A OUTLINE OF STATEMENT OF WORK 1. GENERAL This Schedule A is attached to and made part of the Professional Services Agreement (PSA) dated _______________, 20__, between the City of Englewood (CITY) and Hazen and Sawyer (Hazen) (CONSULTANT) for On-Call Engineering Services supporting the City of Englewood, Utilities Department. 2. NAMES, PHONE NUMBERS AND EMAILS OF PROJECT COORDINATORS Hazen and Sawyer (Hazen) City of Englewood City of Englewood Steve Price, Associate Vice President Ashley Waldron, Engineer III Stephanie Ellis, Engineer II 143 Union Blvd., Suite 200 1500 West Layton Avenue 1500 West Layton Avenue Lakewood, CO 80228 Englewood, CO 80110 Englewood, CO 80110 303-829-6157 (c) 720-647-5541 (d) 720-753-2514 303-783-6811 SPrice@HazenandSawyer.com awaldron@englewoodco.gov sellis@englewoodco.gov 3. SUMMARY OF PURPOSE FOR STATEMENT OF WORK Provide on-call engineering support services to City of Englewood Utilities supporting the planning, management, design, construction, and operations of water and wastewater infrastructure. 4. EQUIPMENT AND PROGRAMMING TO BE PROVIDED BY CITY (IF ANY) None anticipated. If City-provided resources are required they will be identified at the time of each task order. 5. OTHER CONSULTANT RESOURCES Hazen will team with Bai Engineers and Pinyon Environmental when and if applicable for specific tasks to be determined at a later date. Hazen will coordinate with the City of Englewood if these sub-consultants are required. 6. DESCRIPTION OF WORK PRODUCT AND DELIVERABLES Provide all labor and equipment necessary to support City-requested engineering services supporting the planning, design, construction, and operations of water and wastewater infrastructure. Individual Task Orders will be issued with detailed scopes of work and associated deliverables. Include as Deliverables copies of the reports of all project reviews, inspections, and tests conducted during the course of performance. 7. SPECIAL TERMS, IF ANY Page 376 of 482 Not applicable. 8. MODE OF PAYMENT Check or Electronic Transfer. City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the Deliverables/Milestones set forth in the Task Order. 9. PAYMENT SCHEDULE City will pay Consultant for authorized work in accordance with the approved scope within 30 days of invoice receipt. Payments shall be made upon City’s confirmation to Consultant that the Deliverables-Milestones have been satisfied. Invoices shall be submitted electronically to UtilitiesAP@englewoodco.gov. Consultant shall copy Project Manager on all invoice submittals. The PO number, PSA/contract number, and task order number shall be included on the invoice. 10. SCHEDULE AND PERFORMANCE MILESTONES Work will be conducted on an as-needed basis. Schedule for discrete work tasks will be established at the time the work is requested. 11. ACCEPTANCE AND TESTING PROCEDURES Not applicable. 12. LOCATION OF WORK FACILITIES Substantially all of the work will be conducted by Consultant at its regular office located in Lakewood, Colorado. Hazen will notify the City if the address of the office location changed during the tenure of this agreement. City will provide the City office space and support as it agrees may be appropriate, at its Allen Water Treatment Plant facility and at other Utilities department facilities/assets. IN WITNESS WHEREOF, pursuant and in accordance with the Professional Services Agreement between the parties hereto dated _______________, 20__, the parties have executed this Statement of Work as of this ______ day of ________________, 20__. CITY OF ENGLEWOOD, COLORADO By: (Signature) _________________________________ (Print Name) Title: Date: _______________________________ Page 377 of 482 Page 378 of 482 Labor Classifications Code Rate ($/hr.) Sr Principal Consultant / PIC/ Sr Advisor/VP/AVP SPC $270 Sr Associate / Project Manager / QA/QC SA $235 Associate / Task Lead A $205 Senior Principal Engineer / Scientist SPE $190 Project Engineer / Scientist PE $170 Assistant Engineer / Scientist II AE2 $150 Assistant Engineer / Scientist I AE1 $135 Technician / Designer / Admin 2 Tech2 $150 Technician / Designer / Admin 1 Tech1 $120 Admin 1 Admin1 $115 Notes: Expenses Mileage rate IRS rate Travel, Tolls, Consumables (e.g., field equipment), Postage, ect.Actual rate Subcontractors Subcontractors Actual rate 1. Rates are valid through the end of 2023. Rates are subject to an increase in the event of extensions or amendments. 2. Staff labor classifications may be revised based on promotions. Hazen and Sawyer - 2023 Labor Rates Page 379 of 482 TO: Mayor and Council FROM: Pieter Van Ry, Englewood Utilities and South Platte Renew Director DATE: November 21, 2022 RE: Professional Services Agreement with HDR, Inc for On-Call Engineering Services EXECUTIVE SUMMARY Utilities staff is seeking City Council approval of a Professional Services Agreement (PSA) with HDR, Inc (HDR) for on-call engineering services for the Utilities Department, up to an amount of $200,000. BACKGROUND HDR is an engineering firm that specializes in municipal water and wastewater. Beginning in 2021, staff utilized on-call contracts to execute work more efficiently and reduce staff time necessary to procure multiple engineering contracts. These contracts proved valuable in 2021 and 2022 as the Utilities department ramped up its capital improvement program, development reviews, and engineering support of various Operations and Maintenance division initiatives. In 2021, staff competitively solicited on-call engineering services through a Request for Proposals (RFP) on BidNet. Eleven (11) proposals were received in response to the original RFP. A selection panel reviewed, scored, and ranked the proposals based on the engineering firm’s experience and capabilities, management approach, overall proposal quality, and value provided. The top four (4) ranked firms by the selection panel were Carollo Engineers, Inc, Hazen and Sawyer, HDR, and Jacobs Engineering Group, Inc. Staff recommends new PSAs for each of these firms to support the Utilities staff to efficiently implement the recommendations of the 2020 water and sewer master plans. ANALYSIS City procurement policies allow for four (4) one (1) year renewal terms or new contracts following the initial contract created under an RFP. The proposed PSAs would be the third contract-term with each firm from RFP#21-013, and the City has one (1) more option to renew in 2024. Work under the proposed 2023 PSAs may include water distribution system modeling and assessments, regulatory and compliance support, dam safety program assistance, a biofilm community characterization, and third-party construction inspections. The proposed contract amount of $200,000 for each of the four (4) firms will provide Utilities staff with the flexibility to select the most qualified firm for each project and utilize the on-call engineering firms for additional projects if necessary. Page 380 of 482 Each of the four (4) firms have a similar scope of work. While these on-call contracts are being executed, it does not guarantee that each firm will receive a project. Utilities staff will evaluate the firm’s proposals for each project on a case-by-case basis. Staff will consider the workload of each firm before task orders are issued to ensure the project obtains adequate priority from the selected firm. COUNCIL ACTION REQUESTED Motion to approve a Professional Services Agreement with HDR, Inc for on-call engineering services for the Utilities Department, up to an amount of $200,000. FINANCIAL IMPLICATIONS Funding for this PSA is included in the 2023 Utilities budget. Four (4) separate $200,000 contracts are proposed to be executed with Carollo Engineers, Inc, Hazen and Sawyer, HDR, and Jacobs Engineering Group, Inc. Source of Funds Line-Item Description 2023 Line-Item Budget YTD Line Item Expensed Purchase Amount 40-1609- 54201 Water Fund, Engineering, Professional Services $1,150,000 $0 $200,000 PROCUREMENT INFORMATION Account Number: 40-1609-54201 CONNECTION TO STRATEGIC PLAN Sustainability: • Infrastructure designed and maintained in an economic, equitable, and ecological manner Infrastructure: • Proactively in a cost-effective manner invests, maintains, improves, and plans to protect water infrastructure ATTACHMENTS Contract Approval Summary (CAS) PSA-22-131 with HDR / Schedule A / HDR Rate Sheet Page 381 of 482 Contract Approval Summary March 2019 Update Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: Authorizing Resolution/Ordinance: Recording Information: City Contact Information Staff Contact Person: Ashley Waldron Phone: 720-753-2514 Title: Engineer III Email: awaldron@englewoodco.gov City Contact Information Staff Contact Person: Kimberly Ramuno Phone: 303-762-2640 Title: Engineer I Email: Kramuno@englewoodco.gov Vendor Contact Information Vendor Name: HDR, Inc. (HDR) Vendor Contact: Kevin H. Bergschneider, Vice President Vendor Address: 1670 Broadway, Ste 3400 Vendor Phone: 720-317-7286 City: Denver Vendor Email: kevin.bergschneider@hdrinc.com State: CO Zip Code: 80202 Contract Type Contract Type:Professional Services Description of ‘Other’ Contract Type: Description of Contract Work/Services: Attachments: ☒Contract -- ☐Original ☐Copy ☐Addendum(s) ☐Exhibit(s) ☒Certificate of Insurance Summary of Terms: Start Date: January 2023 End Date: December 2023 Total Years of Term: 1 year Total Amount of Contract for term (or estimated amount if based on item pricing): $200,000 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Four, one-year renewals from 2021-RFP-21-013 Payment terms (please describe terms or attach schedule if based on deliverables): Check or Electronic Transfer. City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the Deliverables/Milestones set forth in the Task Order. Provide on-call engineering support services to City of Englewood Utilities supporting the planning, management, design, construction, and operations of water and wastewater infrastructure. Page 382 of 482 Contract Approval Summary March 2019 Update Page | 2 City will pay Consultant for authorized work in accordance with the approved scope within 30 days of invoice receipt. Payments shall be made upon City’s confirmation to Consultant that the Deliverables-Milestones have been satisfied. Invoices shall be submitted electronically to UtilitiesAP@englewoodco.gov. Consultant shall copy Project Manager on all invoice submittals. The PO number, PSA/contract number, and task order number shall be included on the invoice. Attachments: ☐Copy of original Contract if this is an Amendment ☐Copies of related Contracts/Conveyances/Documents Source of Funds (Insert Excel Document Image): Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor (Check Box): ☐Bid: ☐ Bid Evaluation Summary attached ☐ Bid Response of Proposed Awardee ☒RFP: ☐ RFP Evaluation Summary Attached ☐ RFP Response of Proposed Awardee In 2021, staff competitively solicited on-call engineering services through a Request for Proposals (RFP) on BidNet. Eleven (11) proposals were received in response to the original RFP. A selection panel reviewed, scored, and ranked the proposals based on the engineering firm’s experience and capabilities, management approach, overall proposal quality, and value provided. The top four (4) ranked firms by the selection panel were Carollo Engineers, Inc, Page 383 of 482 Contract Approval Summary March 2019 Update Page | 3 Hazen and Sawyer, HDR, Inc, and Jacobs Engineering Group, Inc. Staff recommends new PSAs for each of these firms to support the Utilities staff to efficiently implement the recommendations of the 2020 water and sewer master plans. City procurement policies allow for four (4) one (1) year renewal terms or new contracts following the initial contract created under an RFP. The proposed PSAs would be the third contract-term with each firm from RFP#21-013, and the City has one (1) more option to renew in 2024. Work under the proposed 2023 PSAs may include water distribution system modeling and assessments, regulatory and compliance support, dam safety program assistance, a biofilm community characterization, and third-party construction inspections. The proposed contract amount of $200,000 for each of the four (4) firms will provide Utilities staff with the flexibility to select the most qualified firm for each project and utilize the on-call engineering firms for additional projects if necessary. Each of the four (4) firms have a similar scope of work. While these on-call contracts are being executed, it does not guarantee that each firm will receive a project. Utilities staff will evaluate the firm’s proposals for each project on a case-by-case basis. Staff will consider the workload of each firm before task orders are issued to ensure the project obtains adequate priority from the selected firm. Page 384 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 1 PSA #22-131 PROFESSIONAL SERVICES AGREEMENT Contract Number PSA-22-131 ON-CALL ENGINEERING SUPPORT SERVICES - UTILITIES Not to exceed $200,000.00 This Professional Services Agreement (the “Agreement”) is made as of this _____ day of ____________, 20__, (the “Effective Date”) by and between HDR Engineering, Inc., a Nebraska corporation (“Consultant”), and The City of Englewood, Colorado, a municipal corporation organized under the laws of the State of Colorado (“City”). City desires that Consultant, from time to time, provide certain consulting services, systems integration services, data conversion services, training services, and/or related services as described herein, and Consultant desires to perform such services on behalf of City on the terms and conditions set forth herein. In consideration of the foregoing and the terms hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. Definitions. The terms set forth below shall be defined as follows: (a) “Intellectual Property Rights” shall mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (1) rights associate with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask- works, (2) trademark and trade name rights and similar rights, (3) trade secret rights, (4) patents, designs, algorithms and other industrial property rights, (5) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (6) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). (b) “Work Product” shall mean all patents, patent applications, inventions, designs, mask works, processes, methodologies, copyrights and copyrightable works, trade secrets including confidential information, data, designs, manuals, training materials and documentation, formulas, knowledge of manufacturing processes, methods, prices, financial and accounting data, products and product specifications and all other Intellectual Property Rights created, developed or prepared, documented and/or delivered by Consultant, pursuant to the provision of the Services. 2. Statements of Work. During the term hereof and subject to the terms and conditions contained herein, Consultant agrees to provide, on an as requested basis, the consulting services, systems integration services, data conversion services, training services, and related services (the “Services”) as further described in Attachment A (the “Statement of Work”) for City, and in such Page 385 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 2 PSA #22-131 additional Statements of Work as may be executed by each of the parties hereto from time to time pursuant to this Agreement. Each Statement of Work shall specify the scope of work, specifications, basis of compensation and payment schedule, estimated length of time required to complete each Statement of Work, including the estimated start/finish dates, and other relevant information and shall incorporate all terms and conditions contained in this Agreement 3. Performance of Services. (a) Performance. Consultant shall perform the Services necessary to complete all projects outlined in a Statement of Work in a timely and professional manner consistent with the specifications, if any, set forth in the Statement of Work, and in accordance with industry standards. Consultant agrees to exercise the highest degree of professionalism, and to utilize its expertise and creative talents in completing the projects outlined in a Statement of Work. (b) Delays. Consultant agrees to notify City promptly of any factor, occurrence, or event coming to its attention that may affect Consultant’s ability to meet the requirements of the Agreement, or that is likely to occasion any material delay in completion of the projects contemplated by this Agreement or any Statement of Work. Such notice shall be given in the event of any loss or reassignment of key employees, threat of strike, or major 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 conflict, Consultant shall secure written instructions from City’s project director before proceeding with the performance of the Services affected by such omissions or discrepancies. 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 Statement of Work by City. Acceptance procedures shall be outlined in the Statement of Work. If City disputes all or any portion of an invoice for charges, then City shall pay the undisputed portion of the invoice by the due date and shall provide the following notification with respect to the disputed portion of the invoice. City shall notify Consultant as soon as possible of the specific amount disputed and shall provide reasonable detail as to the basis for the dispute. The parties shall then attempt to resolve the disputed portion of such invoice as soon as possible. Upon resolution of the disputed portion, City shall pay to Consultant the resolved amount. 5. Taxes. City is not subject to taxation. No federal or other taxes (excise, luxury, transportation, sales, etc.) shall be included in quoted prices. City shall not be obligated to pay or reimburse Consultant for any taxes attributable to the sale of any Services which are imposed on or measured by net or gross income, capital, net worth, franchise, privilege, any other taxes, or assessments, nor any of the foregoing imposed on or payable by Consultant. Upon written notification by City and subsequent verification by Consultant, Consultant shall reimburse or credit, as applicable, City in a timely manner, for any 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 which are expressly provided for in a Statement of Work or which have been approved in advance in writing by City, provided Consultant has furnished such documentation for authorized expenses as City may reasonably request. Page 386 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 3 PSA #22-131 7. Audits. Consultant shall provide such employees and independent auditors and inspectors as City may designate with reasonable access to all sites from which Services are performed for the purposes of performing audits or inspections of Consultant’s operations and compliance with this Agreement. Consultant shall provide such auditors and inspectors any reasonable assistance that they may require. 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 Agreement shall commence on the date when both parties have signed the Agreement, and shall continue for one year with an option to renew for three (3) one-year periods, unless this Agreement is terminated as provided in this Section 8. At the end of the initial one-year period, if the parties desire to extend this Agreement beyond the one-year period, written notice shall be given to the other party no later than thirty (30) days prior to the end of the one- year period. If the parties agree to the request for renewal, the parties shall then enter into a renewal extending this Agreement including a new Statement of Work, if necessary. The parties understand and acknowledge that any renewal of this Agreement may be subject to the approval of the Englewood City Council pursuant to the City's Purchasing Policies. The parties also understand and acknowledge that the extension of this contract beyond the initial one-year period is contingent upon the City appropriating adequate funds for each fiscal year. (a) Convenience. City may, without cause and without penalty, terminate the provision of Services under any or all Statements of Work upon thirty (30) days prior written notice. Upon such termination, City shall, upon receipt of an invoice from Consultant, pay Consultant for Services actually rendered prior to the effective date of such termination. Charges will be based on time expended for all incomplete tasks as listed in the applicable Statement of Work, and all completed tasks will be charged as indicated in the applicable Statement of Work. (b) No Outstanding Statements of Work. Either party may terminate this 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 this Agreement with respect to a specific Statement of Work (other than by nonpayment) and does not substantially cure such default within thirty (30) days after receiving 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 (10) days prior written notice of termination to the defaulting party. (d) Bankruptcy or Insolvency. Either party may terminate this Agreement effective upon written notice stating its intention to terminate in the event the other party: (1) makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (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 consents to or acquiesces in, a petition seeking relief or reorganization under any bankruptcy or insolvency laws; or (4) files a petition seeking relief or reorganization under any bankruptcy or insolvency laws is filed against that other party and is not dismissed within sixty (60) days after it was filed. (e) TABOR. The parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution ("TABOR"). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement Page 387 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 4 PSA #22-131 does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, notwithstanding anything in this Agreement to the contrary, all payment obligations of City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of City's current fiscal period ending upon the next succeeding December 31. Financial obligations of City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of City and applicable law. Upon the failure to appropriate such funds, this Agreement shall be deemed terminated. (f) Return of Property. Upon termination of this Agreement, both parties agree to return to the other all property (including any Confidential Information, as defined in Section 11) of the other party that it may have in its possession or control. 9. City Obligations. City will provide timely access to City personnel, systems and information required for Consultant to perform its obligations hereunder. City shall provide to Consultant’s employees performing its obligations hereunder at City’s premises, without charge, a reasonable work environment in compliance with all applicable laws and regulations, including office space, furniture, telephone service, and reproduction, computer, facsimile, secretarial and other necessary equipment, 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 Consultant, obtain all consents, licenses and sublicenses necessary for Consultant to perform under the Statements of Work and shall pay any fees or other costs associated with obtaining such consents, licenses and sublicenses. 10. Staff. Consultant is an independent consultant and neither Consultant nor Consultant’s staff is, or shall be deemed to be employed by City. City is hereby contracting with Consultant for the Services described in a Statement of Work and Consultant reserves the right to determine the method, manner and means by which the Services will be performed. The Services shall be performed by Consultant or Consultant’s staff, and City shall not be required to hire, supervise or pay any assistants to help Consultant perform the Services under this Agreement. Except to the extent that Consultant’s work must be performed on or with City’s computers or City’s existing software, all materials used in providing the Services shall be provided by Consultant. 11. Confidential Information. (a) Obligations. Each party hereto may receive from the other party information which relates to the other party’s business, research, development, trade secrets or business affairs (“Confidential Information”). Subject to the provisions and exceptions set forth in the Colorado Open Records Act, CRS Section 24-72-201 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, disclosure, publication or dissemination of its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Without limiting the generality of the foregoing, each party hereto agrees not to disclose or permit any other person or entity access to the other party’s Confidential Information except such disclosure or access shall be permitted to an employee, agent, representative or independent consultant of such party requiring access to the same in order to perform his or her employment or services. Each party shall insure that their employees, agents, representatives, and independent consultants are advised of the confidential nature of the Confidential Information and are precluded from taking any action prohibited under this Section 11. Further, each party agrees not to alter or remove any identification, copyright or other Page 388 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 5 PSA #22-131 proprietary rights notice which indicates the ownership of any part of such Confidential Information by the other party. A party hereto shall undertake to immediately notify the other party in writing of all circumstances surrounding any possession, use or knowledge of Confidential Information at any location or by any person or entity other than those authorized by this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall restrict either party with respect to information or data identical or similar to that contained in the Confidential Information of the other party but which (1) that party rightfully possessed before it received such information from the other as evidenced by written documentation; (2) subsequently becomes publicly available through no fault of that party; (3) is subsequently furnished rightfully to that party by a third party without restrictions on use or disclosure; or (4) is required to be disclosed by law, provided that the disclosing party will exercise reasonable efforts to notify the other party prior to disclosure. (b) Know-How. For the avoidance of doubt neither City nor Consultant shall be prevented from making use of know-how and principles learned or experience gained of a non-proprietary and non-confidential nature. (c) Remedies. Each of the parties hereto agree that if, their officers, employees or anyone obtaining access to the Confidential Information of the other party by, through or under them, breaches any provision of this Section 11, the non-breaching party shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations and benefits which the breaching party, its officers or employees directly or indirectly realize or may realize as a result of or growing out of, or in connection with any such breach. In addition to, and not in limitation of the foregoing, in the event of any breach of this Section 11, the parties agree that the non-breaching party will suffer irreparable harm and that the total amount of monetary damages for any such injury to the non-breaching party arising from a violation of this Section 11 would be impossible to calculate and would therefore be an inadequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to temporary and permanent injunctive relief against the breaching party, its officers or employees and such other rights and remedies to which the non-breaching party may be entitled to at law, in equity or under this Agreement for any violation of this Section 11. The provisions of this Section 11 shall survive the expiration or termination of this Agreement for any reason. 12. Project Managers. Each party shall designate one of its employees to be its Project Manager under each Statement of Work, who shall act for that party on all matters under the Statement of Work. Each party shall notify the other in writing of any replacement of a Project Manager. The Project Managers 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 has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (2) the execution of this Agreement by Consultant, and the performance by Consultant of its obligations and duties hereunder, do not and will not violate any agreement to which Consultant is a party or by which it is otherwise bound under any applicable law, rule or regulation; (3) when executed and delivered by Consultant, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (4) Consultant acknowledges that City makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement Page 389 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 6 PSA #22-131 (b) Service Warranty. Consultant warrants that its employees and consultants shall have sufficient skill, knowledge, and training to perform Services and that the Services shall be performed in a professional manner in accordance with the standard of care set forth in Section 3(a) of this Agreement. (c) Personnel. Unless a specific number of employees is set forth in the Statement of Work, Consultant warrants it will provide sufficient employees to complete the Services ordered within the applicable time frames established 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 replacement of an employee or a proposed employee. In such event, Consultant shall, within five (5) working days of receipt of such request from City, provide a substitute employee of sufficient skill, knowledge, and training to perform the applicable Services. Consultant shall require employees providing Services at a City location to comply with applicable City security and safety regulations and policies. (d) Compensation and Benefits. Consultant shall provide for and pay the compensation of employees and shall pay all taxes, contributions, and benefits (such as, but not limited to, workers’ compensation benefits) which an employer is required to pay relating to the employment of employees. City shall not be liable to Consultant or to any employee for Consultant’s failure to perform its compensation, benefit, or tax obligations. Consultant shall indemnify, defend and hold City harmless from and against all such taxes, contributions and benefits and will comply with all associated governmental regulations, including the filing of all necessary reports and returns. 14. Indemnification. (a) Consultant Indemnification. Consultant shall indemnify, defend and hold harmless City, its directors, officers, employees, and agents and the heirs, executors, successors, and permitted assigns of any of the foregoing (the “City Indemnitees”) only to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the Consultant, from and against all losses, claims, obligations, demands, assessments, fines and penalties (whether civil or criminal), liabilities, expenses and costs (including reasonable fees and disbursements of legal counsel and accountants), bodily and other personal injuries, damage to tangible property, and other damages, of any kind or nature, suffered or incurred by a City Indemnitee directly or indirectly arising from or related to: (1) any negligent or wrongful act or omission by Consultant or its representatives in the performance of Consultant’s obligations under this Agreement, or (2) any material breach in a representation, warranty, covenant or obligation of Consultant contained in this Agreement. (b) Infringement. Consultant will indemnify, defend, and hold City harmless from all Indemnifiable Losses arising from any third party claims that any Work Product or methodology supplied by Consultant infringes or misappropriates any Intellectual Property rights of any third party; provided, however, that the foregoing indemnification obligation shall not apply to any alleged infringement or misappropriation based on: (1) use of the Work Product in combination with products or services not provided by Consultant to the extent that such infringement or misappropriation would have been avoided if such other products or services had not been used; (2) any modification or enhancement to the Work Product made by City or anyone other than Consultant or its sub-consultants; or (3) use of the Work Product other than as permitted under this Agreement. Page 390 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 7 PSA #22-131 (c) Indemnification Procedures. Notwith-standing anything else contained in this Agreement, no obligation to indemnify which is set forth in this Section 14 shall apply unless the party claiming indemnification notifies the other party as soon as practicable to avoid any prejudice in the claim, suit or proceeding of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the other party the opportunity to control the response thereto and the defense thereof; provided, however, that the party claiming indemnification shall have the right to participate in any legal proceedings to contest and defend a claim for indemnification involving a third party and to be represented by its own attorneys, all at such party’s cost and expense; provided further, however, that no settlement or compromise of an asserted third- party claim other than the payment/money may be made without the prior written consent of the party claiming indemnification. (d) Immunity. City, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-10-101 et seq., as from time to time amended, or otherwise available to City, its officers, or its employees. 15. Insurance. (a) Requirements. Consultant agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance during the term of this Agreement: (1) The Consultant shall comply with the Workers’ Compensation Act of Colorado and shall provide compensation insurance to protect the City from and against any and all Workers’ Compensation claims arising from performance of the work under this contract. Workers’ Compensation insurance must cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, as well as the Employers’ Liability within the minimum statutory limits. (2) Commercial General Liability Insurance and auto liability insurance (including contractual liability insurance) providing coverage for bodily injury and property damage with a combined single limit of not less than three million dollars ($3,000,000) per occurrence. (3) Professional Liability/Errors and Omissions Insurance covering negligent acts, errors and omissions arising out of Consultant’s operations or Services in an amount not less than one million dollars ($1,000,000) per claim and in the aggregate. (4) Employee Dishonesty and Computer Fraud Insurance covering losses arising out of or in connection with any fraudulent or dishonest acts committed by Consultant personnel, acting alone or with others, in an amount not less than one million dollars ($1,000,000) per occurrence. (b) Approved Companies. All such insurance shall be procured with such insurance companies of good standing, permitted to do business in the country, state or territory where the Services are being performed. (c) Certificates. Consultant shall provide City with certificates of insurance evidencing compliance with this 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 will list the City of Englewood as an additional insured. Each certificate of insurance shall provide that the issuing company shall not cancel or materially change the insurance afforded under the above policies unless thirty (30) days’ notice of such Page 391 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 8 PSA #22-131 cancellation or material change has been provided 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 Statement 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 Intellectual Property Rights, a non-exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such Intellectual property Rights. (b) Know-How. Notwithstanding 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 expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment, so long as it or they acquire and apply such information without disclosure of any Confidential Information of the other party. 17. Relationship of Parties. Consultant is acting only as an independent consultant and does not undertake, by this Agreement, any Statement of Work or otherwise, to perform any obligation of City, whether regulatory or contractual, or to assume any responsibility for City’s business or operations. Neither party shall act or represent itself, directly or by implication, as an agent of the other, except as expressly authorized in a Statement of Work. 18. Complete Agreement. This Agreement contains the entire agreement, including all Exhibits, Statements of Work and other Attachments that have been executed by the parties, and are attached hereto and made a part of this Agreement. 19. Applicable Law. Consultant shall comply with all applicable 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 applicable 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 the provisions of this Agreement shall be brought before the state or federal court situated in Arapahoe County, Colorado and each party hereto consents to jurisdiction and venue before such courts. (a) Attorney Fees. In the event that either party to this Agreement shall commence any action against the other party arising out of or in connection with this Agreement, or contesting the validity of the Agreement or any provision of this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorney’s fees and related costs, fees and expenses incurred by the prevailing party in connection with such action or proceeding. 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 parties hereto consent to and agree that such scope may be judicially modified accordingly and that the whole of such provision of this Agreement shall not thereby fail, but that the scope of such provision shall be curtailed only to the extent necessary to conform to law. 21. Additional Work. After receipt of a Statement of Work, City, with Consultant’s consent, may request Consultant to undertake additional work with respect to such Statement of Work. In such event, City and Consultant Page 392 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 9 PSA #22-131 shall execute an addendum to the Statement of Work specifying such additional work and the compensation to be paid to Consultant for such additional work. 22. Sub-consultants. Consultant may not subcontract any of the Services to be provided hereunder without the prior written consent of City. In the 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 prepaid, certified mail, return receipt requested or (3) one (1) day after deposit with a nationally-recognized overnight courier, specifying overnight priority delivery. Either 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 assigned by Consultant without the prior written consent of City. Except for the prohibition of an assignment contained in the preceding sentence, this Agreement 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 considered in its interpretation. The recitals 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 conformance with this Agreement are incorporated into this Agreement. 27. Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not effect in any way the full right to require such performance 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 waiver of the provision itself. 28. Force Majeure. If performance 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 communications 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 governmental or judicial authority or representative of any such government, or any other act whether similar or dissimilar to those referred to in this clause, which are beyond the reasonable control of Consultant, then Consultant shall be excused from such performance to the extent of such prevention, restriction, delay or interference. If the period of such delay exceeds thirty (30) days, City may, without liability, terminate the affected Statement of Work(s) upon written notice to Consultant. 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 statute, ordinance or Page 393 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 10 PSA #22-131 regulation for the performance of the Services under the Agreement. Consultant shall also comply with the provisions of all Applicable Laws in performing the Services under the Agreement. At its own expense and at no cost to City, Consultant shall make any change, alteration or modification that may be necessary to comply with any Applicable Laws that Consultant failed to comply with at the time of performance 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, public announcements, or public disclosures (including, but not limited to, promotional 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 symbol 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 shall neither restrict the right of City to cease acquiring nor require City to continue any level of such acquisitions. Estimates or forecasts furnished by City to Consultant prior to or during the term of this Agreement shall not constitute commitments. 33. Survival. The provisions of Sections 5, 8(g), 10, 11, 13, 14, 16, 17, 19, 23, 25 and 31 shall survive any expiration or termination for any reason of this Agreement. 34. Verification of Compliance with C.R.S. 8-17.5-101 ET.SEQ. Regarding Hiring of Workers without Authorization: (a) Employees, Consultants and Sub-consultants: Consultant shall not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. Consultant shall not contract with a sub-consultant that fails to certify to the Consultant that the sub-consultant will not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. [CRS 8-17.5-102(2)(a)(I) & (II).] (b) Verification: Consultant will participate in either the E-Verify program or the Department program, as defined 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 hired for employment to perform work under this public contract for services. Consultant is prohibited from using the E-Verify program or the Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed. (c) Duty to Terminate a Subcontract: If Consultant obtains actual knowledge that a sub-consultant performing work under this Contract knowingly employs or contracts with a Worker without Authorization, the Consultant shall; (1) notify the sub-consultant and the City within three days that the Consultant has actual knowledge that the sub-consultant is employing or contracting with a Worker without Authorization; and (2) terminate the subcontract with the sub-consultant if, within three Page 394 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 11 PSA #22-131 days of receiving notice required pursuant to this paragraph the sub- consultant does not stop employing or contracting with the Worker without Authorization; except that the Consultant shall not terminate the contract with the sub-consultant if during such three days the sub- consultant provides information to establish that the sub-consultant has not knowingly employed or contracted with a Worker without Authorization. (d) Duty to Comply with State Investigation: Consultant shall comply with any reasonable request of the Colorado Department of Labor and Employment made in the course of an investigation by that the Department is undertaking pursuant to C.R.S. 8-17.5-102 (5) (e) Damages for Breach of Contract: The City may terminate this contract for a breach of contract, in whole or in part, due to Consultant’s breach of any section of this paragraph or provisions required pursuant to CRS 8-17.5-102. Consultant shall be liable for actual and consequential damages to the City in addition to any other legal or equitable remedy the City may be entitled to for a breach of this Contract under this Paragraph 34. 35. Provisions Required by Law Deemed Inserted. Each and every provision of law and clause required by law to be inserted in this contract shall be deemed to be inserted herein and this contract shall be read and enforced as though it were included therein. 36. Personnel and Civil Rights. (a) Colorado Labor (C.R.S. § 8-17- 101): If this project is for a public works project or public project, the Contractor shall comply with 8-17-101 C.R.S. which requires the Consultant to use at least eighty percent (80%) Colorado labor for any public works project financed in whole or part by State, counties, school district, or municipal monies. (b) Anti-Discrimination: While engaged in the performance of the Work, Consultant shall maintain employment practices consistent with the Colorado Antidiscrimination Act, C.R.S. § 24-34-301 through § 24-34-804, as amended. The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Consultant will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. (c) Civil Rights: In compliance with the Civil Rights Act of 1964, coupled with the Colorado Governor’s Executive Order dated July 6, 1972, Consultant, for itself and its assignees and successors in interest, agree as follows: (1) When applicable, the Consultant shall comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the “Regulations”), which are herein incorporated by reference and made a part of this Contract. Consultant shall not participate either directly or indirectly in discrimination prohibited by Section 21.5 of the Regulations including employment practices when Page 395 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 12 PSA #22-131 the Contract covers a program set forth in Appendix “C” of the Regulations. (2) The Consultant, with regard to the Work performed by it after award and prior to completion of the Work, shall not discriminate on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry in the selection and retention of Subcontractors, including procurements of materials and leases of equipment. (3) In all solicitations either by competitive Bid or negotiation made by Consultant for work to be performed under a subcontract, including procurements of materials or equipment, each potential Subcontractor or Supplier shall be notified by Consultant of Consultant’s obligations under this Contract and the regulations related to nondiscrimination on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry. (4) The Consultant shall take all affirmative actions necessary and appropriate to implement, not only the letter but also the spirit, of the policy of equality of opportunity as enunciated in the Constitution and the laws of the State of Colorado and as construed by the courts to prevent discrimination because of race, creed, color, gender or sex, age, religion, handicap, veteran’s status, national origin or ancestry. (5) The Consultant shall include the provisions of these subsections 1 through 5 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, orders or instructions issued pursuant thereto. The Consultant shall take such action with respect to any subcontract or procurement as the City may direct as a means of enforcing such provisions; provided, however, that in the event the Consultant becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Consultant may request the City to enter into such litigation to protect the interest(s) of the City. (d) Americans with Disabilities Act: The City makes every attempt to comply with the Americans with Disabilities Act and requires all contractors to be aware of this law and to report immediately to the Project Engineer, or Project Manager, any requests or complaints based upon the Americans with Disabilities Act. This requirement applies to persons or groups who have identified themselves as disabled, or as someone with whom they associate as disabled, and who require a special accommodation. 37. State Requirements. Per the Intergovernmental Agreement between the State of Colorado and the City of Englewood, the following provisions are incorporated herein and made a part of this Agreement. (a) The design work under this Agreement shall be compatible with the requirements of the contract between the Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third-party beneficiary of this agreement for that purpose. (b) Upon the advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction project. Page 396 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 13 PSA #22-131 (c) The consultant shall review the construction Consultant's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, Standard Specifications for Road and Bridge Construction, in connection with this work. (d) The State, in its sole discretion, may review construction plans, special provisions and estimates and may require Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. (e) Consultant's observation or monitoring portions of the work performed under construction contracts shall not relieve construction contractor(s) from responsibility for performing work in accordance with applicable contract documents. Consultant shall not control or have charge of, and shall not be responsible for, construction means, methods, techniques, sequences, procedures of construction, health or safety programs or precautions connected with the work and shall not manage, supervise, control or have charge of construction. Consultant shall not be responsible for the acts or omissions of construction contractor(s) or other parties on the project. The City agrees to contractually require its construction contractor(s) to include both the City and Consultant as additional insureds on the construction contractor(s') general liability insurance. 38. Federal Aid Provisions: When the United States of America, acting through any of its duly constituted departments or agencies, provides funds to pay for any portion of the costs of Work performed under the Contract, the provisions of the Constitution, Laws of the United States and the rules and regulations promulgated by the department or agency thereof, pertaining to the utilization of such funds, shall be incorporated by reference as a part of the terms and conditions of the Contract and shall be observed by the Consultant. When the United States of America is involved as a result of providing funds to support the Work of the Contract, it may assign observers or inspectors as it deems necessary to ensure that purposes for which the funds were provided are achieved. However, such activity by the United States does not make it a party to the Contract and shall not interfere with the rights of either the City or the Consultant. 39. Mutual Waiver of Consequential Damages. Notwithstanding anything to the contrary, on behalf of themselves, their governing officers and employees, the Parties waive all claims against each other for consequential losses or damages, and punitive damages, whether arising in contract, warranty, tort (including negligence), strict liability or otherwise, including but not limited to losses of use, excess construction costs, alternative construction means or methods, or losses of funding. Page 397 of 482 Page 398 of 482 SCHEDULE A OUTLINE OF STATEMENT OF WORK 1. GENERAL This Schedule A is attached to and made part of the Professional Services Agreement (PSA) dated _______________, 20__, between the City of Englewood (CITY) and HDR, Inc. (CONSULTANT) for On-Call Engineering Services supporting the City of Englewood, Utilities Department. 2. NAMES, PHONE NUMBERS AND EMAILS OF PROJECT COORDINATORS 3. SUMMARY OF PURPOSE FOR STATEMENT OF WORK Provide on-call engineering support services to City of Englewood Utilities supporting the planning, management, design, construction, and operations of water and wastewater infrastructure. 4. EQUIPMENT AND PROGRAMMING TO BE PROVIDED BY CITY (IF ANY) None anticipated. If City-provided resources are required they will be identified at the time of each task order. 5. OTHER CONSULTANT RESOURCES King Surveyors. 6. DESCRIPTION OF WORK PRODUCT AND DELIVERABLES Provide all labor and equipment necessary to support City-requested engineering services supporting the planning, design, construction, and operations of water and wastewater infrastructure. Include as Deliverables copies of the reports of all project reviews, inspections, and tests conducted during the course of performance. 7. SPECIAL TERMS, IF ANY Not applicable. 8. MODE OF PAYMENT HDR Engineering, Inc. City of Englewood City of Englewood Kevin H. Bergschneider, Vice President Ashley Waldron, Engineer III Kimberly Ramuno, Engineer 1670 Broadway, Ste 3400 1500 West Layton Avenue 1500 West Layton Avenue Denver CO 80202 Englewood, CO 80110 Englewood, CO 80110 720-317-7286 720-753-2514 720-584-4509 kevin.bergschneider@hdrinc.com awaldron@englewoodco.gov kramuno@englewoodco.gov Page 399 of 482 Hardcopy check will be mailed per the delivery terms in the contract. 9. PAYMENT SCHEDULE City will pay Consultant for authorized work in accordance with the approved scope within 30 days of invoice receipt. Payments shall be made upon City’s confirmation to Consultant that the Deliverables-Milestones have been satisfied. Invoices shall be submitted electronically to UtilitiesAP@englewoodco.gov. Consultant shall copy Project Manager on all invoice submittals. The PO number, PSA/contract number, and task order number shall be included on the invoice. 10. SCHEDULE AND PERFORMANCE MILESTONES Work will be conducted on an as-needed basis. Schedule for discrete work tasks will be established at the time the work is requested. 11. ACCEPTANCE AND TESTING PROCEDURES Not applicable. 12. LOCATION OF WORK FACILITIES Substantially all of the work will be conducted by Consultant at its regular office located in 1670 Broadway, Ste 3400, Denver, CO 80202. City will provide the City office space and support as it agrees may be appropriate, at its Allen Water Treatment Plant facility and at other Utilities department facilities/assets. IN WITNESS WHEREOF, pursuant and in accordance with the Professional Services Agreement between the parties hereto dated _______________, 20__, the parties have executed this Statement of Work as of this ______ day of ________________, 20__. CITY OF ENGLEWOOD, COLORADO By: (Signature) _________________________________ (Print Name) Title: Date: _______________________________ HDR ENGINEERING, INC. Consultant Name By: (Signature) _________________________________ Kenneth J. Lowrey Jr. Page 400 of 482 (Print Name) Title: Date: _______________________________ Vice President 11 Nov 2022 Page 401 of 482 ATTACHMENT B CONTRACTORS PROPOSAL Page 402 of 482 LABOR CATEGORY HOURLY BILLING RATE Management Principal $290 Senior Project Manager $270 Project Manager, Level III $255 Project Manager, Level II $225 Project Manager, Level I $200 Technical Staff Senior Engineer, Level V $300 Senior Engineer, Level IV $265 Senior Engineer, Level III $250 Senior Engineer, Level II $230 Senior Engineer, Level I $210 Project Engineer, Level V $195 Project Engineer, Level IV $185 Project Engineer, Level III $176 Project Engineer, Level II $165 Project Engineer, Level I $155 Design Engineer, Level III $150 Design Engineer, Level II $136 Design Engineer, Level I $125 Senior CAD Designer/GIS Data Analyst $190 GIS Data Analyst $157 CAD Designer, Level III $155 CAD Designer, Level II $135 CAD Designer, Level I $122 CAD Technician, Level III $108 CAD Technician, Level II $98 CAD Technician, Level I $87 Environmental Specialist III $167 Environmental Specialist II $135 Environmental Specialist I $110 Communication Coordinator/Public Outreach, Level III $150 Communication Coordinator/Public Outreach, Level II $125 Communication Coordinator/Public Outreach, Level I $110 Communication Coordinator/Public Outreach, Graphic Artist $120 Communication/Public Outreach Manager $180 Senior Project Professional III $255 Senior Project Professional II $220 Senior Project Professional I $190 Planner III $160 Planner II $133 Planner I $110 Junior Planner $98 ROW Manager $195 ROW Lead $180 ROW Agent III $160 ROW Agent II $141 ROW Agent I $115 Construction Sr. Construction Manager $244 Construction Manager I $215 Construction Engineer II $182 Construction Engineer I $163 Construction Inspector III $150 Construction Inspector II $130 Construction Inspector I $110 Junior Construction Inspector $95 Administrative and Support Staff Accounting Manager $155 Project Accountant III $125 Project Accountant II $115 Project Accountant I $95 Project Assistant $98 Administrative Support $89 Direct Expenses Mileage (Personal Auto)at current IRS Rate Mileage (Company Vehicle)$0.75/mile Copies (8.5x11 and 11x17)at cost Prints (24x36)at cost Travel (Airfare, Meals, Lodging)at cost Subconsultants cost + 7.5% City of Englewood Consulting Services Agreement - 2022 & 2023 Rates Utilities Division - Engineering Services Page 403 of 482 TO: Mayor and Council FROM: Pieter Van Ry, Englewood Utilities and South Platte Renew Director DATE: November 21, 2022 RE: Professional Services Agreement with Jacobs Engineering Group, Inc for On-Call Engineering Services EXECUTIVE SUMMARY Utilities staff is seeking City Council approval of a Professional Services Agreement (PSA) with Jacobs Engineering Group, Inc (Jacobs) for on-call engineering services for the Utilities Department, up to an amount of $200,000. BACKGROUND Jacobs is an engineering firm that specializes in municipal water and wastewater. Beginning in 2021, staff utilized on-call contracts to execute work more efficiently and reduce staff time necessary to procure multiple engineering contracts. These contracts proved valuable in 2021 and 2022 as the Utilities department ramped up its capital improvement program, development reviews, and engineering support of various Operations and Maintenance division initiatives. In 2021, staff competitively solicited on-call engineering services through a Request for Proposals (RFP) on BidNet. Eleven (11) proposals were received in response to the original RFP. A selection panel reviewed, scored, and ranked the proposals based on the engineering firm’s experience and capabilities, management approach, overall proposal quality, and value provided. The top four (4) ranked firms by the selection panel were Carollo Engineers, Inc, Hazen and Sawyer, HDR, Inc, and Jacobs. Staff recommends new PSAs for each of these firms to support the Utilities staff to efficiently implement the recommendations of the 2020 water and sewer master plans. ANALYSIS City procurement policies allow for four (4) one (1) year renewal terms or new contracts following the initial contract created under an RFP. The proposed PSAs would be the third contract-term with each firm from RFP#21-013, and the City has one (1) more option to renew in 2024. Work under the proposed 2023 PSAs may include water distribution system modeling and assessments, regulatory and compliance support, dam safety program assistance, a biofilm community characterization, and third-party construction inspections. The proposed contract amount of $200,000 for each of the four (4) firms will provide Utilities staff with the flexibility to select the most qualified firm for each project and utilize the on-call engineering firms for additional projects if necessary. Page 404 of 482 Each of the four (4) firms have a similar scope of work. While these on-call contracts are being executed, it does not guarantee that each firm will receive a project. Utilities staff will evaluate the firm’s proposals for each project on a case-by-case basis. Staff will consider the workload of each firm before task orders are issued to ensure the project obtains adequate priority from the selected firm. COUNCIL ACTION REQUESTED Motion to approve a Professional Services Agreement with Jacobs Engineering Group, Inc for on-call engineering services for the Utilities Department, up to an amount of $200,000. FINANCIAL IMPLICATIONS Funding for this PSA is included in the 2023 Utilities budget. Four (4) separate $200,000 contracts are proposed to be executed with Carollo Engineers, Inc, Hazen and Sawyer, HDR, Inc., and Jacobs. Source of Funds Line-Item Description 2023 Line-Item Budget YTD Line Item Expensed Purchase Amount 40-1609- 54201 Water Fund, Engineering, Professional Services $1,150,000 $0 $200,000 PROCUREMENT INFORMATION Account Number: 40-1609-54201 CONNECTION TO STRATEGIC PLAN Sustainability: • Infrastructure designed and maintained in an economic, equitable, and ecological manner Infrastructure: • Proactively in a cost-effective manner invests, maintains, improves, and plans to protect water infrastructure ATTACHMENTS Contract Approval Summary (CAS) PSA-22-132 with Jacobs / Schedule A / Jacobs Rate Sheet Page 405 of 482 Contract Approval Summary March 2019 Update Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: Authorizing Resolution/Ordinance: Recording Information: City Contact Information Staff Contact Person: Ashley Waldron Phone: 720-753-2514 Title: Engineer III Email: awaldron@englewoodco.gov City Contact Information Staff Contact Person: Kimberly Ramuno Phone: 303-762-2640 Title: Engineer I Email: Kramuno@englewoodco.gov Vendor Contact Information Vendor Name: Jacobs Engineering Group, Inc. (Jacobs) Vendor Contact: Al Paquet, Project Manager Vendor Address: 2725 Rocky Mountain Avenue Suite 330 Vendor Phone: 970-215-9115 City: Loveland Vendor Email: al.paquet@jacobs.com State: CO Zip Code: 80538 Contract Type Contract Type:Professional Services Description of ‘Other’ Contract Type: Description of Contract Work/Services: Attachments: ☒Contract -- ☐Original ☐Copy ☐Addendum(s) ☐Exhibit(s) ☒Certificate of Insurance Summary of Terms: Start Date: January 2023 End Date: December 2023 Total Years of Term: 1 year Total Amount of Contract for term (or estimated amount if based on item pricing): $200,000 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Four, one-year renewals from 2021-RFP-21-013 Payment terms (please describe terms or attach schedule if based on deliverables): Check or Electronic Transfer. City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the Deliverables/Milestones set forth in the Task Order. Provide on-call engineering support services to City of Englewood Utilities supporting the planning, management, design, construction, and operations of water and wastewater infrastructure. Page 406 of 482 Contract Approval Summary March 2019 Update Page | 2 City will pay Consultant for authorized work in accordance with the approved scope within 30 days of invoice receipt. Payments shall be made upon City’s confirmation to Consultant that the Deliverables-Milestones have been satisfied. Invoices shall be submitted electronically to UtilitiesAP@englewoodco.gov. Consultant shall copy Project Manager on all invoice submittals. The PO number, PSA/contract number, and task order number shall be included on the invoice. Attachments: ☐Copy of original Contract if this is an Amendment ☐Copies of related Contracts/Conveyances/Documents Source of Funds (Insert Excel Document Image): Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor (Check Box): ☐Bid: ☐ Bid Evaluation Summary attached ☐ Bid Response of Proposed Awardee ☒RFP: ☐ RFP Evaluation Summary Attached ☐ RFP Response of Proposed Awardee In 2021, staff competitively solicited on-call engineering services through a Request for Proposals (RFP) on BidNet. Eleven (11) proposals were received in response to the original RFP. A selection panel reviewed, scored, and ranked the proposals based on the engineering firm’s experience and capabilities, management approach, overall proposal quality, and value provided. The top four (4) ranked firms by the selection panel were Carollo Engineers, Inc, Page 407 of 482 Contract Approval Summary March 2019 Update Page | 3 Hazen and Sawyer, HDR, Inc, and Jacobs Engineering Group, Inc. Staff recommends new PSAs for each of these firms to support the Utilities staff to efficiently implement the recommendations of the 2020 water and sewer master plans. City procurement policies allow for four (4) one (1) year renewal terms or new contracts following the initial contract created under an RFP. The proposed PSAs would be the third contract-term with each firm from RFP#21-013, and the City has one (1) more option to renew in 2024. Work under the proposed 2023 PSAs may include water distribution system modeling and assessments, regulatory and compliance support, dam safety program assistance, a biofilm community characterization, and third-party construction inspections. The proposed contract amount of $200,000 for each of the four (4) firms will provide Utilities staff with the flexibility to select the most qualified firm for each project and utilize the on-call engineering firms for additional projects if necessary. Each of the four (4) firms have a similar scope of work. While these on-call contracts are being executed, it does not guarantee that each firm will receive a project. Utilities staff will evaluate the firm’s proposals for each project on a case-by-case basis. Staff will consider the workload of each firm before task orders are issued to ensure the project obtains adequate priority from the selected firm. Page 408 of 482 Page 409 of 482 Page 410 of 482 Page 411 of 482 Page 412 of 482 Page 413 of 482 Page 414 of 482 Page 415 of 482 Page 416 of 482 Page 417 of 482 Page 418 of 482 Page 419 of 482 Page 420 of 482 Page 421 of 482 Page 422 of 482 Page 423 of 482 Page 424 of 482 Page 425 of 482 Page 426 of 482 Page 427 of 482 Page 428 of 482 Page 429 of 482 Page 430 of 482 On-Call Engineering PSAs City Council, Regular Session Pieter Van Ry, Englewood Utilities and South Platte Renew Director November 21, 2022 Page 431 of 482 Background •RFP released March 2021 •11 Proposals submitted •4 Consultants selected Page 432 of 482 2021 and 2022 On-Call Tasks •Single point of failure analysis •Drawings and specifications •Development review support •Water and sanitary sewer design standards •Boreas Ditch infrastructure evaluation Page 433 of 482 •Existing contract dates vary •Future contracts and purchase orders to match calendar year Revised Contract Cycle Page 434 of 482 •Construction administration & inspection •Modeling and hydraulic analysis •Design and specifications •Regulatory and compliance support •General engineering support 2023 Planned Work Page 435 of 482 Budget Carollo Hazen & Sawyer HDR Jacobs 2022 Contract $90,000 $92,010 $90,000 $90,000 January – December 2023 Request $200,000 $200,000 $200,000 $200,000 Page 436 of 482 Questions?Page 437 of 482 Thank you Page 438 of 482 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Pieter Van Ry DEPARTMENT: Utilities DATE: November 21, 2022 SUBJECT: Award of a Professional Services Agreement with Johnson, Mirmiran and Thompson, Inc. for Water Main Replacement Design DESCRIPTION: Professional Services Agreement (PSA) with Johnson, Mirmiran and Thompson, Inc (JMT) for Water Main Replacement Design, in the amount of $258,880 including approval to execute any change order(s) to expend a 10% staff-managed contingency amount of $25,888, for a total project authorization of $284,768. RECOMMENDATION: Utilities staff is seeking City Council approval of a PSA with JMT for water main replacement design, in the amount of $258,880 including approval to execute any change order(s) to expend a 10% staff-managed contingency amount of $25,888, for a total project authorization of $284,768. The Water and Sewer Board recommended Council approve the PSA with JMT during its November 8, 2022 meeting. PREVIOUS COUNCIL ACTION: July 25, 2022 – Council approval of a Contract for Services with Blackeagle Energy Services for water main replacement construction in the amount of $1,112,000, including approval to execute any change order(s) if necessary to expend a 10% staff-managed contingency amount of $111,200, for a total project authorization of $1,223,200. SUMMARY: In 2020, Utilities completed a comprehensive Master Plan of the water system, which identified a need to develop an annual water main replacement program to address aging distribution system infrastructure. In 2021, the City of Englewood (City) started an annual water main replacement program to reduce water main failures that are expected as pipes approach their end of useful life. The majority of the water mains and valves in the City’s distribution system were installed between 1950–1965. These pipes are expected to reach their useful life within the next 20–30 years. The City is programmatically replacing water mains over time, and prioritizing water mains with the highest risk of failure or largest impact to customers. The 2023 Water Main Replacement Program includes design of the 16-inch steel water main located on West Union Avenue and South Hawthorne Street between the South Platte River and West Chenango Avenue. Design also includes the 14-inch and 12-inch water mains located on South Irving Street between West Chenango Avenue and West Belleview Avenue, as shown in Figure 1. Construction of this design is planned for 2024. These water mains were installed in Page 439 of 482 1955 and are approximately 6,700 feet in length. These water mains act as the primary point of connection between the City’s main service area and the area near Centennial Park. Utilities staff has identified the risk of a water main break on these pipes having the potential to disrupt service to nearly 1,000 City residents. Within the last 20 years, the City has recorded more than 22 breaks on this line. Figure 1: Proposed Water Mains for Replacement ANALYSIS: In March 2021, Utilities staff competitively selected JMT for water main design and construction services. A Request for Proposal (RFP) was advertised on the Rocky Mountain E-Purchasing System (BidNet). JMT was identified as the highest-ranking firm by the selection panel based on the firm’s demonstrated understanding of the project scope, management approach, team and firm experience, price proposal, and overall responsiveness and quality of the proposal. Utilities staff and JMT completed the scope of work under PSA 21-62 from June 2021 through June 2022. The proposed new contract with JMT will include design and bid services for the steel water main on West Union Avenue, South Hawthorne Street, and South Irving Street. Page 440 of 482 Continuing the annual water main replacement program ensures the City is addressing aging infrastructure concerns in the years to come. JMT’s extensive knowledge and experience with the project scope make them a valuable resource for Utilities staff. Under the current and previous contracts, JMT has performed high-quality work and has been responsive to all the City’s requests. COUNCIL ACTION REQUESTED: Motion to approve a Professional Services Agreement with Johnson, Mirmiran and Thompson, Inc for Water Main Replacement Design, in the amount of $258,880 including approval to execute any change order(s) to expend a 10% staff-managed contingency amount of $25,888, for a total project authorization of $284,768. FINANCIAL IMPLICATIONS: Funding for this contract is included in the Utilities 2022 and 2023 budgets. Source of Funds Line-Item Description 2022 Line- Item Budget YTD Line- Item Expensed 2023 Line- Item Budget Purchase Amount 40-1609- 61264 Water Fund, Engineering, Annual Asset Renewal $2,000,000 $0 N/A $25,888 40-1609- 61262 Water Fund, Engineering, Water Distribution System N/A N/A $8,150,000 $232,992 PROCUREMENT INFORMATION Account Number: 40–1609–61264 Project Number: 40 30004 Util. Waterline & Valve Replacement Task Number: 002 Util. AW&VR Eng. CONNECTION TO STRATEGIC PLAN: Infrastructure: • Ensure protection of the City's water infrastructure Sustainability: • Maintaining infrastructure Safety: • Ensure safe drinking water is delivered to customers ATTACHMENTS: Contract Approval Summary (CAS) PSA-22-133 / Schedule A / Johnson, Mirmiran and Thompson, Inc. Proposal PowerPoint Presentation Page 441 of 482 Contract Approval Summary March 2019 Update Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: Authorizing Resolution/Ordinance: Recording Information: City Contact Information Staff Contact Person: John McCarl, PE Phone: 303.783.6853 (office) 720.392.5316 (mobile) Title: Project Engineer Email: JMccarl@englewoodco.gov Vendor Contact Information Vendor Name: Johnson, Mirmiran & Thompson, Inc. Vendor Contact: David Berry Vendor Address: 8310 S Valley Hwy Suite 300 Vendor Phone: O: 303.481.1703 C: 609.558.2956 City: Englewood Vendor Email: dberry@jmt.com State: CO Zip Code: 80112 Contract Type Contract Type:Professional Services Description of ‘Other’ Contract Type: Description of Contract Work/Services: Attachments: ☒Contract -- ☐Original ☐Copy ☐Addendum(s) ☐Exhibit(s) ☒Certificate of Insurance Summary of Terms: Start Date: November 2022 End Date: November 2023 Total Years of Term: 1 year Total Amount of Contract for term (or estimated amount if based on item pricing): $ 258,880 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Renewal options available based off RFP-21-014, for up to three, one-year renewals. Payment terms (please describe terms or attach schedule if based on deliverables): JMT will provide monthly invoices and progress reports that indicate the percent complete of each task listed in the payment schedule. The work consists of designing and preparing contract documents (plans and specifications) for bidding and construction of approximately 6,700 linear feet of 16-inch 14-inch and 12-inch water main replacement/relocation and water service line reconnections/replacements. The project is located in and near the City of Englewood, Colorado. Page 442 of 482 Contract Approval Summary March 2019 Update Page | 2 The Contractor can accept either a mailed check or a direct deposit ACH method. Payment for awarded task orders shall be handled in accordance with the City’s normal process. Once the payment application has been submitted to and approved by the City’s Project Coordinator who is assigned to oversee the completion of the task order project, the City will, within 30 calendar days, issue payment. City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the Deliverables/Milestones set forth in the Payment Schedule. Payments shall be made upon City’s written confirmation to Consultant that the Deliverables-Milestones have been satisfied based on the percent complete of each task below. Further detail of the payment schedule is shown in the attached 2022 Water Main Replacement Project – Price Proposal Attachments: ☐Copy of original Contract if this is an Amendment ☐Copies of related Contracts/Conveyances/Documents Source of Funds (Insert Excel Document Image): Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☒Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor (Check Box): ☐Bid: ☐ Bid Evaluation Summary attached Page 443 of 482 Contract Approval Summary March 2019 Update Page | 3 ☐ Bid Response of Proposed Awardee ☒RFP: ☒ RFP Evaluation Summary Attached ☒ RFP Response of Proposed Awardee In March 2021, Utilities staff competitively selected JMT for water main design and construction services. A Request for Proposal (RFP) was advertised on the Rocky Mountain E-Purchasing System (BidNet). JMT was identified as the highest-ranking firm by the selection panel based on the firm’s demonstrated understanding of the project scope, management approach, team and firm experience, price proposal, and overall responsiveness and quality of the proposal. Utilities staff and JMT completed the scope of work under PSA 21-62 from June 2021 through June 2022. The proposed new contract with JMT will include design and bid services for the steel water main on West Union Avenue, South Hawthorne Street, and South Irving Street. Continuing the annual water main replacement program ensures the City is addressing aging infrastructure concerns in the years to come. JMT’s extensive knowledge and experience with the project scope make them a valuable resource for Utilities staff. Under the current and previous contracts, JMT has performed high-quality work and has been responsive to all the City’s requests. Page 444 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 1 PSA #22-133 PROFESSIONAL SERVICES AGREEMENT Contract Number PSA-22-133 WATER MAIN REPLACEMENT DESIGN Not to exceed $258,880.00 This Professional Services Agreement (the “Agreement”) is made as of this _____ day of ____________, 20__, (the “Effective Date”) by and between Johnson, Mirmiran and Thompson, Inc. (JMT), a Colorado corporation (“Consultant”), and The City of Englewood, Colorado, a municipal corporation organized under the laws of the State of Colorado (“City”). City desires that Consultant, from time to time, provide certain consulting services, systems integration services, data conversion services, training services, and/or related services as described herein, and Consultant desires to perform such services on behalf of City on the terms and conditions set forth herein. In consideration of the foregoing and the terms hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. Definitions. The terms set forth below shall be defined as follows: (a) “Intellectual Property Rights” shall mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (1) rights associate with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask- works, (2) trademark and trade name rights and similar rights, (3) trade secret rights, (4) patents, designs, algorithms and other industrial property rights, (5) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (6) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). (b) “Work Product” shall mean all patents, patent applications, inventions, designs, mask works, processes, methodologies, copyrights and copyrightable works, trade secrets including confidential information, data, designs, manuals, training materials and documentation, formulas, knowledge of manufacturing processes, methods, prices, financial and accounting data, products and product specifications and all other Intellectual Property Rights created, developed or prepared, documented and/or delivered by Consultant, pursuant to the provision of the Services. 2. Statements of Work. During the term hereof and subject to the terms and conditions contained herein, Consultant agrees to provide, on an as requested basis, the consulting services, systems integration services, data conversion services, training services, and related services (the “Services”) as further described in Attachment A (the “Statement of Work”) for City, and in such Page 445 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 2 PSA #22-133 additional Statements of Work as may be executed by each of the parties hereto from time to time pursuant to this Agreement. Each Statement of Work shall specify the scope of work, specifications, basis of compensation and payment schedule, estimated length of time required to complete each Statement of Work, including the estimated start/finish dates, and other relevant information and shall incorporate all terms and conditions contained in this Agreement 3. Performance of Services. (a) Performance. Consultant shall perform the Services necessary to complete all projects outlined in a Statement of Work in a timely and professional manner consistent with the specifications, if any, set forth in the Statement of Work, and in accordance with industry standards. Consultant agrees to exercise the highest degree of professionalism, and to utilize its expertise and creative talents in completing the projects outlined in a Statement of Work. (b) Delays. Consultant agrees to notify City promptly of any factor, occurrence, or event coming to its attention that may affect Consultant’s ability to meet the requirements of the Agreement, or that is likely to occasion any material delay in completion of the projects contemplated by this Agreement or any Statement of Work. Such notice shall be given in the event of any loss or reassignment of key employees, threat of strike, or major 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 conflict, Consultant shall secure written instructions from City’s project director before proceeding with the performance of the Services affected by such omissions or discrepancies. 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 Statement of Work by City. Acceptance procedures shall be outlined in the Statement of Work. If City disputes all or any portion of an invoice for charges, then City shall pay the undisputed portion of the invoice by the due date and shall provide the following notification with respect to the disputed portion of the invoice. City shall notify Consultant as soon as possible of the specific amount disputed and shall provide reasonable detail as to the basis for the dispute. The parties shall then attempt to resolve the disputed portion of such invoice as soon as possible. Upon resolution of the disputed portion, City shall pay to Consultant the resolved amount. 5. Taxes. City is not subject to taxation. No federal or other taxes (excise, luxury, transportation, sales, etc.) shall be included in quoted prices. City shall not be obligated to pay or reimburse Consultant for any taxes attributable to the sale of any Services which are imposed on or measured by net or gross income, capital, net worth, franchise, privilege, any other taxes, or assessments, nor any of the foregoing imposed on or payable by Consultant. Upon written notification by City and subsequent verification by Consultant, Consultant shall reimburse or credit, as applicable, City in a timely manner, for any 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 which are expressly provided for in a Statement of Work or which have been approved in advance in writing by City, provided Consultant has furnished such documentation for authorized expenses as City may reasonably request. Page 446 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 3 PSA #22-133 7. Audits. Consultant shall provide such employees and independent auditors and inspectors as City may designate with reasonable access to all sites from which Services are performed for the purposes of performing audits or inspections of Consultant’s operations and compliance with this Agreement. Consultant shall provide such auditors and inspectors any reasonable assistance that they may require. 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 Agreement shall commence on the date when both parties have signed the Agreement, and shall continue for one year with an option to renew for three (3) one-year periods, unless this Agreement is terminated as provided in this Section 8. At the end of the initial one-year period, if the parties desire to extend this Agreement beyond the one-year period, written notice shall be given to the other party no later than thirty (30) days prior to the end of the one- year period. If the parties agree to the request for renewal, the parties shall then enter into a renewal extending this Agreement including a new Statement of Work, if necessary. The parties understand and acknowledge that any renewal of this Agreement may be subject to the approval of the Englewood City Council pursuant to the City's Purchasing Policies. The parties also understand and acknowledge that the extension of this contract beyond the initial one-year period is contingent upon the City appropriating adequate funds for each fiscal year. (a) Convenience. City may, without cause and without penalty, terminate the provision of Services under any or all Statements of Work upon thirty (30) days prior written notice. Upon such termination, City shall, upon receipt of an invoice from Consultant, pay Consultant for Services actually rendered prior to the effective date of such termination. Charges will be based on time expended for all incomplete tasks as listed in the applicable Statement of Work, and all completed tasks will be charged as indicated in the applicable Statement of Work. (b) No Outstanding Statements of Work. Either party may terminate this 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 this Agreement with respect to a specific Statement of Work (other than by nonpayment) and does not substantially cure such default within thirty (30) days after receiving 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 (10) days prior written notice of termination to the defaulting party. (d) Bankruptcy or Insolvency. Either party may terminate this Agreement effective upon written notice stating its intention to terminate in the event the other party: (1) makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (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 consents to or acquiesces in, a petition seeking relief or reorganization under any bankruptcy or insolvency laws; or (4) files a petition seeking relief or reorganization under any bankruptcy or insolvency laws is filed against that other party and is not dismissed within sixty (60) days after it was filed. (e) TABOR. The parties understand and acknowledge that each party is subject to Article X, § 20 of the Colorado Constitution ("TABOR"). The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement Page 447 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 4 PSA #22-133 does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, notwithstanding anything in this Agreement to the contrary, all payment obligations of City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of City's current fiscal period ending upon the next succeeding December 31. Financial obligations of City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of City and applicable law. Upon the failure to appropriate such funds, this Agreement shall be deemed terminated. (f) Return of Property. Upon termination of this Agreement, both parties agree to return to the other all property (including any Confidential Information, as defined in Section 11) of the other party that it may have in its possession or control. 9. City Obligations. City will provide timely access to City personnel, systems and information required for Consultant to perform its obligations hereunder. City shall provide to Consultant’s employees performing its obligations hereunder at City’s premises, without charge, a reasonable work environment in compliance with all applicable laws and regulations, including office space, furniture, telephone service, and reproduction, computer, facsimile, secretarial and other necessary equipment, 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 Consultant, obtain all consents, licenses and sublicenses necessary for Consultant to perform under the Statements of Work and shall pay any fees or other costs associated with obtaining such consents, licenses and sublicenses. 10. Staff. Consultant is an independent consultant and neither Consultant nor Consultant’s staff is, or shall be deemed to be employed by City. City is hereby contracting with Consultant for the Services described in a Statement of Work and Consultant reserves the right to determine the method, manner and means by which the Services will be performed. The Services shall be performed by Consultant or Consultant’s staff, and City shall not be required to hire, supervise or pay any assistants to help Consultant perform the Services under this Agreement. Except to the extent that Consultant’s work must be performed on or with City’s computers or City’s existing software, all materials used in providing the Services shall be provided by Consultant. 11. Confidential Information. (a) Obligations. Each party hereto may receive from the other party information which relates to the other party’s business, research, development, trade secrets or business affairs (“Confidential Information”). Subject to the provisions and exceptions set forth in the Colorado Open Records Act, CRS Section 24-72-201 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, disclosure, publication or dissemination of its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Without limiting the generality of the foregoing, each party hereto agrees not to disclose or permit any other person or entity access to the other party’s Confidential Information except such disclosure or access shall be permitted to an employee, agent, representative or independent consultant of such party requiring access to the same in order to perform his or her employment or services. Each party shall insure that their employees, agents, representatives, and independent consultants are advised of the confidential nature of the Confidential Information and are precluded from taking any action prohibited under this Section 11. Further, each party agrees not to alter or remove any identification, copyright or other Page 448 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 5 PSA #22-133 proprietary rights notice which indicates the ownership of any part of such Confidential Information by the other party. A party hereto shall undertake to immediately notify the other party in writing of all circumstances surrounding any possession, use or knowledge of Confidential Information at any location or by any person or entity other than those authorized by this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall restrict either party with respect to information or data identical or similar to that contained in the Confidential Information of the other party but which (1) that party rightfully possessed before it received such information from the other as evidenced by written documentation; (2) subsequently becomes publicly available through no fault of that party; (3) is subsequently furnished rightfully to that party by a third party without restrictions on use or disclosure; or (4) is required to be disclosed by law, provided that the disclosing party will exercise reasonable efforts to notify the other party prior to disclosure. (b) Know-How. For the avoidance of doubt neither City nor Consultant shall be prevented from making use of know-how and principles learned or experience gained of a non-proprietary and non-confidential nature. (c) Remedies. Each of the parties hereto agree that if, their officers, employees or anyone obtaining access to the Confidential Information of the other party by, through or under them, breaches any provision of this Section 11, the non-breaching party shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations and benefits which the breaching party, its officers or employees directly or indirectly realize or may realize as a result of or growing out of, or in connection with any such breach. In addition to, and not in limitation of the foregoing, in the event of any breach of this Section 11, the parties agree that the non-breaching party will suffer irreparable harm and that the total amount of monetary damages for any such injury to the non-breaching party arising from a violation of this Section 11 would be impossible to calculate and would therefore be an inadequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to temporary and permanent injunctive relief against the breaching party, its officers or employees and such other rights and remedies to which the non-breaching party may be entitled to at law, in equity or under this Agreement for any violation of this Section 11. The provisions of this Section 11 shall survive the expiration or termination of this Agreement for any reason. 12. Project Managers. Each party shall designate one of its employees to be its Project Manager under each Statement of Work, who shall act for that party on all matters under the Statement of Work. Each party shall notify the other in writing of any replacement of a Project Manager. The Project Managers 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 has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (2) the execution of this Agreement by Consultant, and the performance by Consultant of its obligations and duties hereunder, do not and will not violate any agreement to which Consultant is a party or by which it is otherwise bound under any applicable law, rule or regulation; (3) when executed and delivered by Consultant, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (4) Consultant acknowledges that City makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement Page 449 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 6 PSA #22-133 (b) Personnel. Unless a specific number of employees is set forth in the Statement of Work, Consultant warrants it will provide sufficient employees to complete the Services ordered within the applicable time frames established 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 replacement of an employee or a proposed employee. In such event, Consultant shall, within five (5) working days of receipt of such request from City, provide a substitute employee of sufficient skill, knowledge, and training to perform the applicable Services. Consultant shall require employees providing Services at a City location to comply with applicable City security and safety regulations and policies. (c) Compensation and Benefits. Consultant shall provide for and pay the compensation of employees and shall pay all taxes, contributions, and benefits (such as, but not limited to, workers’ compensation benefits) which an employer is required to pay relating to the employment of employees. City shall not be liable to Consultant or to any employee for Consultant’s failure to perform its compensation, benefit, or tax obligations. Consultant shall indemnify, defend and hold City harmless from and against all such taxes, contributions and benefits and will comply with all associated governmental regulations, including the filing of all necessary reports and returns. 14. Indemnification. (a) Consultant Indemnification. Consultant shall indemnify, and hold harmless City, its directors, officers, employees, and agents and the heirs, executors, successors, and permitted assigns of any of the foregoing (the “City Indemnitees”) only to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the Consultant, from and against all losses, claims, obligations, demands, assessments, fines and penalties (whether civil or criminal), liabilities, expenses and costs (including reasonable fees and disbursements of legal counsel and accountants), bodily and other personal injuries, damage to tangible property, and other damages, of any kind or nature, suffered or incurred by a City Indemnitee directly or indirectly arising from or related to: (1) any negligent act or omission by Consultant or its representatives in the performance of Consultant’s obligations under this Agreement, or (2) any material breach in a representation, warranty, covenant or obligation of Consultant contained in this Agreement. (b) Infringement. Consultant will indemnify, defend, and hold City harmless from all Indemnifiable Losses arising from any third party claims that any Work Product or methodology supplied by Consultant infringes or misappropriates any Intellectual Property rights of any third party; provided, however, that the foregoing indemnification obligation shall not apply to any alleged infringement or misappropriation based on: (1) use of the Work Product in combination with products or services not provided by Consultant to the extent that such infringement or misappropriation would have been avoided if such other products or services had not been used; (2) any modification or enhancement to the Work Product made by City or anyone other than Consultant or its sub-consultants; or (3) use of the Work Product other than as permitted under this Agreement. (c) Indemnification Procedures. Notwith-standing anything else contained in this Agreement, no obligation to indemnify which is set forth in this Section 14 shall apply unless the party claiming indemnification notifies the other party as soon as practicable to avoid any prejudice in the claim, suit or proceeding of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the other party the opportunity to control the response thereto and the defense thereof; provided, however, that the party claiming Page 450 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 7 PSA #22-133 indemnification shall have the right to participate in any legal proceedings to contest and defend a claim for indemnification involving a third party and to be represented by its own attorneys, all at such party’s cost and expense; provided further, however, that no settlement or compromise of an asserted third- party claim other than the payment/money may be made without the prior written consent of the party claiming indemnification. (d) Immunity. City, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-10-101 et seq., as from time to time amended, or otherwise available to City, its officers, or its employees. 15. Insurance. (a) Requirements. Consultant agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance during the term of this Agreement: (1) The Consultant shall comply with the Workers’ Compensation Act of Colorado and shall provide compensation insurance to protect the City from and against any and all Workers’ Compensation claims arising from performance of the work under this contract. Workers’ Compensation insurance must cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, as well as the Employers’ Liability within the minimum statutory limits. (2) Commercial General Liability Insurance and auto liability insurance (including contractual liability insurance) providing coverage for bodily injury and property damage with a combined single limit of not less than three million dollars ($3,000,000) per occurrence. (3) Professional Liability/Errors and Omissions Insurance covering acts, errors and omissions arising out of Consultant’s operations or Services in an amount not less than one million dollars ($1,000,000) per claim. (4) Employee Dishonesty and Computer Fraud Insurance covering losses arising out of or in connection with any fraudulent or dishonest acts committed by Consultant personnel, acting alone or with others, in an amount not less than one million dollars ($1,000,000) per occurrence. (b) Approved Companies. All such insurance shall be procured with such insurance companies of good standing, permitted to do business in the country, state or territory where the Services are being performed. (c) Certificates. Consultant shall provide City with certificates of insurance evidencing compliance with this 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 will list the City of Englewood as an additional insured. Each certificate of insurance shall provide that the issuing company shall not cancel, reduce, or otherwise materially change the insurance afforded under the above policies unless thirty (30) days’ notice of such cancellation, reduction or material change has been provided 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 Statement 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 Intellectual Property Rights, a non-exclusive, irrevocable, perpetual, Page 451 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 8 PSA #22-133 worldwide, fully paid and royalty-free license, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such Intellectual property Rights. (b) Know-How. Notwithstanding 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 expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment, so long as it or they acquire and apply such information without disclosure of any Confidential Information of the other party. 17. Relationship of Parties. Consultant is acting only as an independent consultant and does not undertake, by this Agreement, any Statement of Work or otherwise, to perform any obligation of City, whether regulatory or contractual, or to assume any responsibility for City’s business or operations. Neither party shall act or represent itself, directly or by implication, as an agent of the other, except as expressly authorized in a Statement of Work. 18. Complete Agreement. This Agreement contains the entire agreement, including all Exhibits, Statements of Work and other Attachments that have been executed by the parties, and are attached hereto and made a part of this Agreement. 19. Applicable Law. Consultant shall comply with all applicable 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 applicable 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 the provisions of this Agreement shall be brought before the state or federal court situated in Arapahoe County, Colorado and each party hereto consents to jurisdiction and venue before such courts. (a) Attorney Fees. In the event that either party to this Agreement shall commence any action against the other party arising out of or in connection with this Agreement, or contesting the validity of the Agreement or any provision of this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorney’s fees and related costs, fees and expenses incurred by the prevailing party in connection with such action or proceeding. 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 parties hereto consent to and agree that such scope may be judicially modified accordingly and that the whole of such provision of this Agreement shall not thereby fail, but that the scope of such provision shall be curtailed only to the extent necessary to conform to law. 21. Additional Work. After receipt of a Statement of Work, City, with Consultant’s consent, may request Consultant to undertake additional work with respect to such Statement of Work. In such event, City and Consultant shall execute an addendum to the Statement of Work specifying such additional work and the compensation to be paid to Consultant for such additional work. 22. Sub-consultants. Consultant may not subcontract any of the Services to be provided hereunder without the prior written consent of City. In the 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. Page 452 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 9 PSA #22-133 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 prepaid, certified mail, return receipt requested or (3) one (1) day after deposit with a nationally-recognized overnight courier, specifying overnight priority delivery. Either 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 assigned by Consultant without the prior written consent of City. Except for the prohibition of an assignment contained in the preceding sentence, this Agreement 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 considered in its interpretation. The recitals 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 conformance with this Agreement are incorporated into this Agreement. 27. Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not effect in any way the full right to require such performance 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 waiver of the provision itself. 28. Force Majeure. If performance 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 communications 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 governmental or judicial authority or representative of any such government, or any other act whether similar or dissimilar to those referred to in this clause, which are beyond the reasonable control of Consultant, then Consultant shall be excused from such performance to the extent of such prevention, restriction, delay or interference. If the period of such delay exceeds thirty (30) days, City may, without liability, terminate the affected Statement of Work(s) upon written notice to Consultant. 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 statute, ordinance or regulation for the performance of the Services under the Agreement. Consultant shall also comply with the provisions of all Applicable Laws in performing the Services under the Agreement. At its own expense and at no cost to City, Consultant shall make any change, alteration or modification that may be necessary to comply with any Applicable Laws that Consultant failed to comply with at the time of performance 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 Page 453 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 10 PSA #22-133 Consultant, all media releases, public announcements, or public disclosures (including, but not limited to, promotional 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 symbol 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 shall neither restrict the right of City to cease acquiring nor require City to continue any level of such acquisitions. Estimates or forecasts furnished by City to Consultant prior to or during the term of this Agreement shall not constitute commitments. 33. Survival. The provisions of Sections 5, 8(g), 10, 11, 13, 14, 16, 17, 19, 23, 25 and 31 shall survive any expiration or termination for any reason of this Agreement. 34. Verification of Compliance with C.R.S. 8-17.5-101 ET.SEQ. Regarding Hiring of Workers without Authorization: (a) Employees, Consultants and Sub-consultants: Consultant shall not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. Consultant shall not contract with a sub-consultant that fails to certify to the Consultant that the sub-consultant will not knowingly employ or contract with a Worker without Authorization to perform work under this Contract. [CRS 8-17.5-102(2)(a)(I) & (II).] (b) Verification: Consultant will participate in either the E-Verify program or the Department program, as defined 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 hired for employment to perform work under this public contract for services. Consultant is prohibited from using the E-Verify program or the Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed. (c) Duty to Terminate a Subcontract: If Consultant obtains actual knowledge that a sub-consultant performing work under this Contract knowingly employs or contracts with a Worker without Authorization, the Consultant shall; (1) notify the sub-consultant and the City within three days that the Consultant has actual knowledge that the sub-consultant is employing or contracting with a Worker without Authorization; and (2) terminate the subcontract with the sub-consultant if, within three days of receiving notice required pursuant to this paragraph the sub- consultant does not stop employing or contracting with the Worker without Authorization; except that the Consultant shall not terminate the contract with the sub-consultant if during such three days the sub- consultant provides information to establish that the sub-consultant has not knowingly employed or contracted with a Worker without Authorization. (d) Duty to Comply with State Investigation: Consultant shall comply with Page 454 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 11 PSA #22-133 any reasonable request of the Colorado Department of Labor and Employment made in the course of an investigation by that the Department is undertaking pursuant to C.R.S. 8-17.5-102 (5) (e) Damages for Breach of Contract: The City may terminate this contract for a breach of contract, in whole or in part, due to Consultant’s breach of any section of this paragraph or provisions required pursuant to CRS 8-17.5-102. Consultant shall be liable for actual and consequential damages to the City in addition to any other legal or equitable remedy the City may be entitled to for a breach of this Contract under this Paragraph 34. 35. Provisions Required by Law Deemed Inserted. Each and every provision of law and clause required by law to be inserted in this contract shall be deemed to be inserted herein and this contract shall be read and enforced as though it were included therein. 36. Personnel and Civil Rights. (a) Colorado Labor (C.R.S. § 8-17- 101): If this project is for a public works project or public project, the Contractor shall comply with 8-17-101 C.R.S. which requires the Consultant to use at least eighty percent (80%) Colorado labor for any public works project financed in whole or part by State, counties, school district, or municipal monies. (b) Anti-Discrimination: While engaged in the performance of the Work, Consultant shall maintain employment practices consistent with the Colorado Antidiscrimination Act, C.R.S. § 24-34-301 through § 24-34-804, as amended. The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Consultant will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. (c) Civil Rights: In compliance with the Civil Rights Act of 1964, coupled with the Colorado Governor’s Executive Order dated July 6, 1972, Consultant, for itself and its assignees and successors in interest, agree as follows: (1) When applicable, the Consultant shall comply with the Regulations of the Department of Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the “Regulations”), which are herein incorporated by reference and made a part of this Contract. Consultant shall not participate either directly or indirectly in discrimination prohibited by Section 21.5 of the Regulations including employment practices when the Contract covers a program set forth in Appendix “C” of the Regulations. (2) The Consultant, with regard to the Work performed by it after award and prior to completion of the Work, shall not discriminate on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry in the selection and retention of Subcontractors, including procurements of materials and leases of equipment. (3) In all solicitations either by competitive Bid or negotiation made by Consultant for work to be performed Page 455 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 12 PSA #22-133 under a subcontract, including procurements of materials or equipment, each potential Subcontractor or Supplier shall be notified by Consultant of Consultant’s obligations under this Contract and the regulations related to nondiscrimination on the grounds of race, creed, color, gender or sex, age, religion, veteran status, national origin or ancestry. (4) The Consultant shall take all affirmative actions necessary and appropriate to implement, not only the letter but also the spirit, of the policy of equality of opportunity as enunciated in the Constitution and the laws of the State of Colorado and as construed by the courts to prevent discrimination because of race, creed, color, gender or sex, age, religion, handicap, veteran’s status, national origin or ancestry. (5) The Consultant shall include the provisions of these subsections 1 through 5 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, orders or instructions issued pursuant thereto. The Consultant shall take such action with respect to any subcontract or procurement as the City may direct as a means of enforcing such provisions; provided, however, that in the event the Consultant becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Consultant may request the City to enter into such litigation to protect the interest(s) of the City. (d) Americans with Disabilities Act: The City makes every attempt to comply with the Americans with Disabilities Act and requires all contractors to be aware of this law and to report immediately to the Project Engineer, or Project Manager, any requests or complaints based upon the Americans with Disabilities Act. This requirement applies to persons or groups who have identified themselves as disabled, or as someone with whom they associate as disabled, and who require a special accommodation. 37. State Requirements. Per the Intergovernmental Agreement between the State of Colorado and the City of Englewood, the following provisions are incorporated herein and made a part of this Agreement. (a) The design work under this Agreement shall be compatible with the requirements of the contract between the Local Agency and the State (which is incorporated herein by this reference) for the design/construction of the project. The State is an intended third-party beneficiary of this agreement for that purpose. (b) Upon the advertisement of the project work for construction, the consultant shall make available services as requested by the State to assist the State in the evaluation of construction and the resolution of construction problems that may arise during the construction project. (c) The consultant shall review the construction Consultant's shop drawings for conformance with the contract documents and compliance with the provisions of the State's publication, Standard Specifications for Road and Bridge Construction, in connection with this work. (d) The State, in its sole discretion, may review construction plans, special provisions and estimates and may require Local Agency to make such changes therein as the State determines necessary to comply with State and FHWA requirements. 38. Federal Aid Provisions: When the United States of America, acting through any Page 456 of 482 ___________________________________________________________________________________________________ 1000 Englewood Parkway, Englewood, Colorado 80110-2373 (303) 762-2300 www.englewoodgov.org 13 PSA #22-133 of its duly constituted departments or agencies, provides funds to pay for any portion of the costs of Work performed under the Contract, the provisions of the Constitution, Laws of the United States and the rules and regulations promulgated by the department or agency thereof, pertaining to the utilization of such funds, shall be incorporated by reference as a part of the terms and conditions of the Contract and shall be observed by the Consultant. When the United States of America is involved as a result of providing funds to support the Work of the Contract, it may assign observers or inspectors as it deems necessary to ensure that purposes for which the funds were provided are achieved. However, such activity by the United States does not make it a party to the Contract and shall not interfere with the rights of either the City or the Consultant. Page 457 of 482 IN WITNESS WHEREOF, the parties to this Agreement have caused it to be executed by their authorized officers as of the day and year first above written. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. CITY OF ENGLEWOOD, COLORADO By: ___________________________________Date:___________ (Department Director) By: ___________________________________Date:___________ (City manager) _JOHNSON, MIRMIRAN & THOMPSON, INC. (Consultant Name) ___________________________________ Address ___________________________________ City, State, Zip C By: (Signature) _____________________________ (Print Name) Title: ______________________________ Date: ______________________________ Page 458 of 482 SCHEDULE A OUTLINE OF STATEMENT OF WORK 1. GENERAL This Schedule A is attached to and made part of the Professional Services Agreement (PSA) dated _______________, 2022, between the City of Englewood (City) and Johnson, Mirmiran & Thompson, Inc. (Consultant) for water main replacement design and bid services for the City of Englewood, Utilities Department. 2. NAMES, PHONE NUMBERS AND EMAILS OF PROJECT COORDINATORS Johnson, Mirmiran & Thompson, Inc. City of Englewood David Berry Stephanie Ellis 8310 S Valley Hwy Suite 300 1500 W Layton Avenue Englewood, CO 80112 Englewood, CO 80202 O: 303.481.1703 C: 609.558.2956 O: 303.783.6811 C: 720.668.1770 dberry@jmt.com SEllis@englewoodco.gov 3. SUMMARY OF PURPOSE FOR STATEMENT OF WORK The work consists of designing and preparing contract documents (plans and specifications) for bidding and construction of approximately 6,700 linear feet of 16-inch 14-inch and 12-inch water main replacement/relocation and water service line reconnections/replacements. The project is located in and near the City of Englewood, Colorado. Per RFP-21-014 4. EQUIPMENT AND PROGRAMMING TO BE PROVIDED BY CITY (IF ANY) The City will provide project management, project oversight, coordination, etc. The City will provide as-builts, GIS data, and standard specifications. The City will provide location of streets (areas) in the replacement project. 5. OTHER CONSULTANT RESOURCES Prime: Johnson, Mirmiran & Thompson, Inc. Sub: HCL Engineering & Surveying JMT understands the nature of this project and the City’s desire to ensure technically proficient, program continuity with very little downtime for project startup. JMT has assembled a team with a deep bench of water distribution specialists that bring extensive past experience with the design and planning of water main replacement projects, as well as technical expertise with many challenges the City may face during the construction of the Water Line Replacement Project. 6. DESCRIPTION OF WORK PRODUCT AND DELIVERABLES 6.1 Design and Bid Services See Exhibit 1 6.1.1 Task 101: Project Management Administration and Coordination 6.1.2 Task 201: Rehabilitation Analysis 6.1.3 Task 301: 30% Submittal Package Page 459 of 482 6.1.4 Task 401: 60% Submittal Package 6.1.2 Task 501: Subsurface Utility Engineering Plans 6.1.5 Task 601: 90% Submittal Package 6.1.6 Task 701: Bid Ready Submittal Package 6.1.7 Task 801: Post Bid Ready Submittal 7. SPECIAL TERMS, IF ANY None 8. MODE OF PAYMENT JMT will provide monthly invoices and progress reports that indicate the percent complete of each task listed in the payment schedule. The Contractor can accept either a mailed check or a direct deposit ACH method. Payment for awarded task orders shall be handled in accordance with the City’s normal process. Once the payment application has been submitted to and approved by the City’s Project Coordinator who is assigned to oversee the completion of the task order project, the City will, within 30 calendar days, issue payment. 9. PAYMENT SCHEDULE City will pay Consultant for the work in accordance with the following payment schedule. All payments to Consultant are contingent on Consultant’s satisfying the Deliverables/Milestones set forth in the Payment Schedule. Payments shall be made upon City’s written confirmation to Consultant that the Deliverables-Milestones have been satisfied based on the percent complete of each task below. Further detail of the payment schedule is shown in the attached 2022 Water Main Replacement Project – Price Proposal Base Bid Responsible Party Total Task JMT HCL Task 101: Project Management $3,160.00 $0.00 $13,160.00 Task 201: Rehabilitation Analysis $13,360.00 $0.00 $13,360.00 Task 301: 30% Percent Design Package $18,690.00 $59,500.00 $78,190.00 Task 401: 60% Design Package $29,770.00 $30,000.00 $59,770.00 Task 501: SUE Plans $320.00 $42,500.00 $42,820.00 Task 601: 90% Design Package $32,370.00 $0.00 $32,370.00 Task 701: Bid Ready Design Package $14,210.00 $0.00 $14,210.00 Task 801: Post Bid-Ready Submittal $5,000.00 $0.00 $5,000.00 Total Fee $126,880.00 $132,000.00 $258,880.00 10. SCHEDULE AND PERFORMANCE MILESTONES This schedule sets for the target dates and performance milestones for the preparation and delivery of the Deliverables by Consultant. Page 460 of 482 Performance Responsible Target Date Milestone Party (Calendar Days after NTP) Rehabilitation Analysis JMT 42 30% Submittal Package JMT 161 60% Submittal Package JMT 252 Subsurface Utility Engineering JMT 280 90% Submittal Package JMT 315 Bid Ready Submittal Package JMT 357 Post Bid Ready Submittal JMT 469 11. ACCEPTANCE AND TESTING PROCEDURES None 12. LOCATION OF WORK FACILITIES Substantially all of the work will be conducted by Consultant at its regular office located at 8310 S Valley Hwy Suite 300 Englewood, CO 80112 City will provide the City office space and support as it agrees may be appropriate, at its _____NA_________ facility. IN WITNESS WHEREOF, pursuant and in accordance with the Professional Services Agreement between the parties hereto dated _______________, 20__, the parties have executed this Statement of Work as of this ______ day of ________________, 20__. CITY OF ENGLEWOOD, COLORADO By: (Signature) _________________________________ (Print Name) Title: Date: _______________________________ JOHNSON, MIRMIRAN & THOMPSON, INC. Consultant Nam By: (Signature) _________________________________ (Print Name) Title: Date: _______________________________ Page 461 of 482 ATTACHMENT B CONTRACTORS PROPOSAL Page 462 of 482 EXHIBIT 1 Engineering Services Scope of Work for Water Main Replacement Design and Preparing Contract Documents This Scope of Work is attached to and made part of the Professional Services Agreement (PSA) between the City of Englewood (City) and Johnson, Mirmiran & Thompson, Inc. (Consultant) Description This project consists of performing design, and bid, services for the replacement/relocation of approximately 6,700 feet of 16-inch, 14-inch and 12-inch water mains and associated water service lines as shown in Attachment 1. The project is located in and near the City of Englewood, Colorado. Project Details 1. Alignment Approval 1.1. The consultant shall walk the project preliminary alignment with the City Project Manager or designee. 1.2. Consideration shall be given to ensure proper clearance between existing underground utilities, as well as the City of Englewood’s preference that new water/sewer mains should be located under pavement. 1.3. Suggested criteria for making the rehabilitation/replacement method designations are provided in the City’s most recent design and construction standards. However, the Consultant must use sound engineering judgment, general engineering practice, and the requirements of permitting agencies to select the optimal rehabilitation method for each section. 2. Rehabilitation Analysis 2.1. The consultant shall evaluate alternative methods for water main rehabilitation beyond open-cut water main replacement. These shall include lining of the water main with CIPP, slip lining, or similar technologies. 2.2. A memo shall be submitted to the City recommending the best replacement or rehabilitation method. 3. Data Accumulation and Evaluation 3.1. Secure permission to perform subsurface utility locating, surveys, test pits, and all other activities on private, local, County, State, or Federal property. 3.2. Accumulate and review applicable data, criteria, standards, regulations, and other information pertinent to the work described hereunder. Such data shall include, but not be limited to, relevant site plans, topographic maps, tax maps, aerial photographs, available geotechnical information, record drawings, existing utilities, and applicable Federal, State, and local regulations and guidelines. 3.3. Accumulate and review applicable standard Englewood design procedures and guidelines including, but not limited to, City of Englewood design standards, Denver Water standards, Southgate Sanitation standards, and Englewood City code, as well as all applicable state and federal requirements. 3.4. Verification of existing conditions Page 463 of 482 3.4.1. During the development of the 30% Design Submittal, verify existing conditions that may affect or be affected by design and construction, even if as-builts exist. Perform a walk-through with the as-builts in hand and note on them all relevant differences between existing and recorded conditions. 3.4.2. Review the as-built drawings (if available). Identify existing pipe materials, horizontal and vertical bends and other fittings to be replaced. Where asbestos cement pipe (transite pipe) is indicated on the as-builts or in other Englewood records, the preferred replacement method is relocation or offset, as appropriate. 3.5. Locating Existing Utilities/Subsurface Utility Engineering 3.5.1. Mark the location of existing water/sewer house connections along the water/sewer main replacement alignment. 3.5.2. Perform subsurface utility designating as required to mark all existing buried utilities on the ground surface along the proposed alignment. At a minimum, use magnetic sensing equipment (or similar technology) to locate buried water/sewer and gas utilities. 3.5.3. Markings shall be placed on the surface in twenty-five (25) foot intervals and at every change in direction and shall be in accordance with Colorado 811 color codes. Marks shall be placed as closely over the existing utility line as possible. 3.5.4. Subsurface Utility Engineering 3.5.4.1.1. Prepare a test pit plan and submit one digital copy in PDF format with the 30% design Package. 3.5.4.1.2. Prepare SUE Plans as specified in Colorado Revised Statutes Title 9 Article 1.5. 3.6. Surveys 3.6.1. Perform ground level surveys as required for detailed design of water/sewer mains including: topographical surveys, surveys for connections to existing utilities or surveys to specifically locate and define existing conditions that may affect the design. 3.6.2. It is anticipated that new water/sewer mains will be constructed within existing public road rights-of-way. No boundary survey will be required. 3.7. Test Pits 3.7.1. Test pits are required at critical tie-ins and may also be needed at underground utility crossings to assure proper design and to avoid conflicts during construction. Assume 20 test pits. 3.7.2. Traffic Control Plan as required by permitting agencies to perform test pits. 3.7.3. Submit one digital copy in PDF format of the Test Pit Results to the City Project Manager with the 60% Design Package submittal. 3.8. Identify all permits required to complete the task and list them in the 30% Design Package. 3.8.1. CDOT permits, including development of the requisite traffic control plans, will be the responsibility of the Contractor. 4. General Design and Submittal Requirements: Specific elements of the design shall include, but not be limited to, the following: 4.1. General Plan Requirements 4.1.1. Ensure information is clear and legible. 4.1.2. Size: ANSI D (22 inches by 34 inches). 4.1.3. Include a title block with the project title, preparation date, and revision block. 4.1.4. Plans must be prepared by or under direct P.E. supervision. Final civil plans must bear the seal and signature of a P.E. and the date. 4.1.5. Scale blocks and north arrows on all sheets. Page 464 of 482 4.1.6. Surface features must be equated to NAD83 for horizontal datum and NAVD-88 for vertical datum. 4.1.7. Show sufficient adjacent area to demonstrate the relationship between proposed and existing facilities. 4.1.8. Cover sheet containing the following information: a. Project name b. Name of engineering firm c. General vicinity map showing major roads and the project location d. Index of the sheets within the plan set e. A list of abbreviations and symbols 4.1.9. Address(s) of premises to be served with property lines shown based on GIS data. 4.1.10. Key maps when applicable. 4.1.11. Clear indication of areas that are paved (i.e., walks, parking lots, driveways, and patios) and those that are landscaped (i.e., grass, flowers, and tree squares). 4.1.12. Right of Way (ROW), property lines, and easements. 4.1.13. Existing and proposed curb, gutter, and sidewalks. 4.1.14. Existing or proposed obstructions (i.e., vaults, catch basins, traffic islands, retaining walls, detention ponds, foundations, etc.). 4.1.15. Existing and proposed utilities and related appurtenances (i.e., valves, meters, curb stops, hydrants, manholes/vaults). 4.1.16. Inverts and elevations 4.1.17. Utility crossings with required minimum clearances to avoid conflicts. 4.1.18. At all major utility crossings, all invert elevations and out-to-out vertical separations shall be called-out. The plans shall identify if elevations of existing utilities are not known. 4.1.19. Proposed connection(s) to city utility mains. 4.1.20. Profiles and separate water plans are required for all new water or sanitary mains. 4.1.20.1. If proposed alignment is outside of the roadway, label out-distances from the property/easement line to the proposed main. 4.1.21. Distances/lengths and dimensions of proposed water/sewer infrastructure. 4.1.22. Pipe sizes, pipe materials, and slopes (slopes for sanitary only). 4.1.23. Stations labeled at every 100’. 4.1.24. Stakeout tables shall be provided to show horizontal control by means of Northing/Easting for all utility connections, valves, hydrants, meter vaults/manholes, fittings, and other proposed features. 4.1.25. All relevant Denver Water or Southgate Sanitation standard details must be included as a reference in the plan set. 4.1.26. Label dimensions from existing valves or service lines to proposed connections to aid Contractors with isolating mains during construction. 4.1.27. Label fire, domestic, and irrigation service lines to differentiate between them. 4.1.28. Label general location(s) for Backflow Prevention Assemblies (BFPA). Include standard detail for backflow if device type is known. Configuration will be verified by City inspector during construction. 4.1.29. Englewood Standard Utility Notes must be added to plan set. 4.2. Special structural and thrust restraint designs not covered by Denver Water Standard Details. 4.3. Mandatory detailed sequence of construction is required. The sequence must minimize disruption of the domestic and fire suppression service during construction. For commercial/large/critical customers, the consultant needs to prescribe the size of the bypass pipe required to provide adequate domestic and fire service. A separate pay item for bypass service shall be included in the bid schedule. Page 465 of 482 4.3.1. It is understood that the proposed construction involves operational pipelines owned and operated by the City. As such, the contract documents must reflect the necessary coordination and/or sequence of construction to be followed by the contractor in order to maintain the operational integrity of the pipelines and continuous water service supply and sewer collection to/from customers. Shutdowns for tie-ins and connections, lasting a maximum of 8 hours each, will be allowed for tie-ins and connections. 4.4. Pipe materials shall conform to the most recent version of the City of Englewood’s Design and Construction Standards and Specifications. 4.5. A fire hydrant table indicating proposed fire hydrant information (lead length, elbow elevation, hydrant height, etc.). 4.6. A table of existing mains to be renewed, indicating their diameter, lengths, and the renewal method (same trench or relocation). 4.7. Restoration schedules, including trench details for pavement restoration. 4.8. Stormwater management of drainage, requisite sediment and erosion control devices and any requisite site grading plans. 4.9. Develop Project Specifications referencing the relevant City of Englewood, Denver Water, Southgate Sanitation, and CDOT Standards and Specifications. Where necessary, Special Provisions to these Standards and Specifications shall be developed. Detailed Measurement and Payment sections shall be developed. 4.10. Engineering estimates of cost of construction. Submit estimates signed and dated by a Professional Engineer registered in the State of Colorado. 4.11. Deliverables shall be submitted for Englewood Utilities review in 3 stages: 30%, 60% and 90%. Englewood Utilities’ review of the Bid-Ready package submittal shall be conducted if such is deemed necessary by the City Project Manager depending on project requirements. The Bid-Ready Package submittal shall be signed and sealed by a Professional Engineer registered in the State of Colorado. 4.11.1. For all submittals, the consultant shall upload one full-size (22”x34”) set of PDF plans along with one copy of all required documents to the Englewood SharePoint, or via email. No hardcopy submissions are required. 4.11.2. Englewood Utilities will review all submittals and provide comments. Design Review Workshops will be held following each review period to discuss all comments and comment responses. The consultant shall incorporate all comments into the next submittal. The consultant shall submit one copy of responses to Englewood comments marked on the previous submittal drawings and/or the comment-response table with the next submittal. 5. Intake and Review Process 5.1. Pre-screen Review 5.1.1. City Project Manager initially reviews the submitted package for acceptance or rejection and provides comments as applicable. Each submission must include all items listed on the Intake Submittal Checklists (Attachment 2). 5.1.2. City Project Manager rejects submittal if the package is incomplete and/or contains incorrect information. 5.1.3. If a submittal is rejected, the City Project Manager notifies the Consultant that the submittal was rejected by, at a minimum, sending an email notification including all relevant information required for acceptance. 5.1.4. City Project Manager communicates to the Consultant the issues that affect the submittal and provides supporting documentation as needed. 5.2. Rejected Submittals Page 466 of 482 5.2.1. When a submittal is rejected, the Consultant is required to re-submit the initial package within five (5) business days and ensure the project schedule is not impacted. 5.2.2. Re-submittals are not allowed to impact the milestone schedule. Therefore, the Consultant must absorb the impact on the schedule in the development of future submittals. 5.2.3. Re-submittals will re-start the Submittal Intake Process. 5.3. Late Submittals 5.3.1. Late submittals are not acceptable without prior approval from the City’s Project Manager. If the Consultant provides the package after the approved milestone date in the baseline project schedule, the City Project Manager will not accept the late submittal. Therefore, a Corrective Action Plan (CAP) will be required from the Consultant for approval by the City Project Manager to monitor progress. 5.4. Accepted Submittals 5.4.1. If the City Project Manager reviews the submittal and deems the submittal to meet the criteria, the City Project Manager will accept the submittal and proceed to the next phase or to completion, as applicable. 6. Customer Notifications 6.1. The Consultant shall prepare an Excel file including all customer addresses impacted by the project construction activities to help facilitate the City’s customer notifications, including customers who may be impacted by shutdowns. 7. Deliverables 7.1. Task 101 – Project Management Administration and Coordination 7.1.1. Schedule 7.1.1.1. Prepare a project schedule showing the milestones listed below and submit it to the City for approval. At a minimum and as required herein, the schedule shall include the following: a. Notice to Proceed b. Project Schedule Submittal c. Rehabilitation Analysis Memo d. 30% Design Submittal e. 60% Design Submittal f. SUE Submittal g. 90% Design Submittal h. Bid-Ready Package Submittal 7.1.1.2. Assume a 3-week period for the City to review the submittals listed above. 7.1.1.3. Update the project progress monthly and submit it with the Monthly Status Report to the City Project Manager. 7.1.2. Monthly Status Report and Invoicing 7.1.2.1. Prepare a monthly status report and email it to the City Project Manager. Monthly Status Reports shall describe the project activities undertaken during the month, provide an overall status of the project through said month, indicate whether or not the project is on track financially and on schedule, and describe measures to be taken or that are being undertaken to bring the project back on track and/or to schedule. The required format for the Monthly Status Report is provided in Attachment 3. 7.1.2.2. Each invoice shall cover a period of one calendar month. Invoices shall be submitted in PDF form and emailed to the City Project Manager and Utilitiesap@englewoodco.gov. Invoices shall be submitted within six weeks after the end of each billing cycle, and at a minimum shall include the following: a. Project title Page 467 of 482 b. Invoice date c. Invoice number and billing period d. PO Number e. Summary of work performed during invoice period, broken down and detailed by task and subtask f. Cost of each task and subtask, with current balances g. Scope of work percent complete by task and for the total project as estimated by Consultant independent of expenditure percent complete. h. Remaining funds by task and for the total project shall be clearly presented. 7.1.3. Meetings and Presentations 7.1.3.1. Assume 30-minute weekly status meetings will be held throughout the duration of the project. When additional presentations are needed the weekly status meeting will be waived. 7.1.3.2. As necessary and when authorized by the City Project Manager, attend and assist with meetings as may be required in the performance of the work defined herein. Such meetings may include but are not limited to, coordination with the City, presentations of data, technical analyses, evaluations and design criteria, progress reporting, responding to review comments (outside of Design Submittal Review Workshops), and meetings to establish preferences and promote informed selections and decisions. 7.1.3.3. Prepare and submit agendas and any reference material at least 24 hours prior to meetings and presentations. Prepare and submit final draft minutes after meetings and presentations. The 30-minute weekly status meetings do not require an agenda or minutes to be submitted. 7.2. Task 201 – Rehabilitation Analysis 7.2.1. Rehabilitation Analysis 7.2.1.1. Prior to starting work on the 30% Submittal Package, the Consultant shall perform an analysis of the feasibility of rehabilitating the existing pipeline via CIPP, slip lining, or other similar construction methods. 7.2.1.2. The Consultant shall provide a memo to the City which analyzes rehabilitation alternatives for this project. The Consultant shall then provide a recommendation and justification for replacing or rehabilitating the pipeline for the City’s review. 7.3. Task 301 – 30% Submittal Package The 30% Design package submittal shall include the following in accordance with Attachment 2: 7.3.1. Alignment Design 7.3.1.1. Provide plans with existing utility, survey data, and proposed water main horizontal alignment for approval by the City Project Manager. All plan sheets are to be prepared in 1” = 30’ scale. The City Project Manager may request that a higher resolution scale be applied to areas that contain high utility densities. 7.3.1.1.1. Perform ground level surveys as required for detailed design of water/sewer mains including: topographical surveys, surveys for connections to existing utilities or surveys to specifically locate and define existing conditions that may affect the design. 7.3.1.1.2. Perform subsurface utility designating as required to mark all existing buried utilities on the ground surface along the proposed alignment. 7.3.1.2. Evaluate the adequacy of fire hydrant coverage. If additional fire hydrants are needed, provide design recommendations for new fire hydrant locations. 7.3.2. Test Pit Plan (20 test pits) Page 468 of 482 7.3.3. Portfolio of Existing Conditions (Photographic Record) 7.3.3.1. The Consultant shall provide photographs of the project area clearly showing the condition prior to construction activities organized by street. 7.3.4. Signed Rights of Entry agreements (as needed for design). 7.3.4.1. Permissions must be obtained prior to advancement to the 60% design package. 7.3.5. Community Outreach 7.3.5.1. The Consultant shall submit documentation of research effort for identifying Municipalities, Home Owner’s Associations, Neighborhood Associations, and Civic Associations affected by the project. 7.3.6. Completed Intake Submittal Checklist 7.4. Task 401 – 60% Submittal Package The 60% Design package submittal shall include the following in accordance with Attachment 2: 7.4.1. Alignment Design 7.4.1.1. Submit drawings complete with horizontal alignments, vertical alignments (as needed for >12” diameter mains), site plans, civil designs, traffic control plans, mill and overlay limits, and other portions of the design exclusive of design details. The contractor is responsible for determining the location of all staging areas. The 60% Design drawings shall be submitted to County or other required jurisdictions for permit review. 7.4.2. Submitted permits applications. 7.4.3. Responses to the City’s comments received at 30% Design Package Submittal. 7.4.4. A constructability field review shall be held through the entire alignment with the 60% design plans (for distribution main) or 90% design plans (for transmission mains >16” diameter) to verify/confirm the proposed Fire Hydrant locations, WSL connections, Tree impact and overall constructability. 7.4.5. Community Outreach 7.4.5.1. Project location map (in jpg or pdf). 7.4.6. Completed Intake Submittal Checklist 7.5. Task 501 – Subsurface Utility Engineering (SUE) Plans 7.5.1. The Consultant shall submit SUE plans according to the requirements specified in Colorado Revised Statutes Title 9 Article 1.5. 7.6. Task 601 – 90% Submittal Package The 90% Design package submittal shall include the following in accordance with Attachment 2: 7.6.1. Alignment Design 7.6.1.1. Design drawings complete with all design details, exclusive of incorporation of final City of Englewood and regulatory agency review comments - one digital copy in full-size PDF format. 7.6.1.2. Mandatory sequence of construction. 7.6.2. Develop Project Specifications referencing the relevant City of Englewood, Denver Water, Southgate Sanitation, and CDOT Standards and Specifications. Where necessary, Special Provisions to these Standards and Specifications shall be developed. Detailed Measurement and Payment sections shall be developed. 7.6.3. Design calculations (restrained joints and others, as applicable). 7.6.4. Responses to the City’s comments on the 60% Design package submittal. 7.6.5. Community Outreach 7.6.5.1. A mailing list of all customers affected by construction and shutdowns required for replacing the water mains. 7.6.6. Cost Estimate 7.6.6.1. Engineer’s Construction Cost Estimate with supporting calculations – one digital copy (pdf). Page 469 of 482 7.7. Task 701 – Bid-Ready Submittal Package The Bid-Ready package submittal shall include the following in accordance with Attachment 2: 7.7.1. 100%/Bid-Ready Alignment Design 7.7.1.1. Design drawings signed and sealed by a Professional Engineer registered in the State of Colorado complete with all design details, incorporating all City of Englewood and regulatory agency review comments - one digital copy in full- size PDF format. 7.7.1.2. Final mandatory sequences of construction shall be included on the plans. 7.7.2. Additional or revised design calculations (as applicable), signed and sealed by a Professional Engineering registered in the State of Colorado - one digital copy. 7.7.3. Responses to the City’s comments on the 90% Design package submittal. 7.7.4. Digital files in full-size PDF and AutoCAD (*.dwg) format (verify that CAD files are stand-alone, i.e. files can be opened without needing to redirect links for xrefs, and fonts and styles are included). 7.7.5. Cost Estimate 7.7.5.1. Engineer’s Construction Cost Estimate signed and dated with supporting calculations – one digital copy. 7.8. Task 801 – Bid Services 7.8.1. Attend pre-bid construction Invitation to Bid (ITB) meeting 7.8.1.1. For pre-bid meeting, prepare and submit final draft minutes. No meeting agenda is required. 7.8.2. Respond to bidder questions and provide required addenda. 7.8.3. Evaluate bids received from the ITB and provide a bid evaluation memo verifying the bid tabulation, apparent low bidder, and reviewing the qualifications of bidders evaluating their work experience with similar projects. Page 470 of 482 ASSUMPTIONS AND EXCLUSIONS The following assumptions and exclusions have been made while developing the price proposal for the 2022 Water Main Replacement Project: • The project duration (NTP through submission of bid ready documents) will be 12 months. • 40 30-minute status meetings will be held over the course of the project. No agenda or minutes will be developed for these weekly meetings. • 4 additional meetings/presentations may occur over the course of the project. JMT will prepare an agenda and minutes for these meetings/presentations. • Survey and utility designation will be limited to the extents shown in red below: • JMT will utilize standard City of Englewood and appropriate Denver Water specifications and details. JMT will develop additional details as-needed. • Corrosion analysis/design services will not be required. • Erosion and Sediment Control design will be limited to specifying the location of E&SC devices on the plans and inclusion of standard details as necessary. • Water mains will be constructed within the right-of-way (ROW) • Soil borings, pavement cores, and similar geotechnical work will not be provided. • The Contractor will be responsible for CDOT permitting and development of traffic control plans required to obtain the required permit(s). JMT will note the CDOT standard details required for the work at W. Union Ave and S. Federal Blvd, but will not develop the detailed traffic control plans required for the CDOT permitting process. • JMT will use available GIS data for ROW and property boundaries. No boundary survey will be provided. • Development of easement documents will not be required. • Construction Administration and Inspection Services are not included in this contract, but can be provided for an additional fee. At the City’s request, JMT will develop a proposal for this work. Page 471 of 482 Page 472 of 482 ATTACHMENT 2 INTAKE SUBMITTAL CHECKLIST Consultant’s Project Manager Initials the following: 30% Design Phase  Collected all available as-builts  Walked alignment area to note changes from as-builts  Performed utility designation (all utilities including water/sewer mains, gas mains, WSL, etc…)  Evaluated area for adequate fire hydrant coverage, recommended new fire hydrant locations, if applicable.  Provided copies of information request correspondence with other utilities.  30% Design Package Submittal includes: __survey data and detail, __test pit plan, __photographic record, __ horizontal alignment plan showing all utilities, __permits list (if needed), __utility correspondence, __association research results City Project Manager: Accepted □, Rejected □, Date: _______ Initials: _______ Page 473 of 482 INTAKE SUBMITTAL CHECKLIST Consultant’s Project Manager Initials the following: 60% Design Phase  After approval from the City Project Manager, subsurface investigations were performed.  Prepared design drawings  Plan view shows all existing utilities (including water/sewer mains, WSL, sewer, gas, and storm drain crossings, fiber optics, power lines, etc…), water service line tables, fire hydrant tables, stakeout tables, and proposed water/sewer main replacements. Label all fire hydrants, valves, water mains, and sewer mains. Include Mandatory Sequence of Construction.  Profile shows proposed water/sewer main replacements, parallel sewer, and all existing utility crossings including water and sewer service line connections.  Reviewed design against available as-builts  Field Constructability Review is conducted (for distribution main projects)  60% Design Package Submittal includes:  Design drawings (22”x34” copy).  Test pit results report  Project Map  List of addresses in excel  Copies of previous review comments with responses City Project Manager: Accepted □, Rejected □, Date: _______ Initials: _______ Page 474 of 482 INTAKE SUBMITTAL CHECKLIST Consultant’s Project Manager Initials the following: 90% Design Phase  Prepare joint restraint calculations in accordance with Denver Water Pipeline Design Manual.  Attended Constructability Review field walk with the City Project Manager and project review team for transmission main projects (Project review team to be designated by the City Project Manager).  Contract Specifications Book: Cover page, Supplemental Special Conditions, and bid schedule.  Calculations and any reports not previously submitted (typically for sub-surface investigation).  Test Pit Results Report  Preliminary Engineer’s Estimate with supporting calculations (such as for paving quantity, etc.) (Excel and pdf)  Mandatory sequence of construction  Bypass size schedule  Right of Way agreement documentation  Permits  Design drawings with the following: ___ Revised and completed plans and profiles (including WSL) per previous review comments and any additional information received ___ All remaining tables, notes, and details completed ___ Paving limits based on permitting requirements ___ Mandatory sequence of construction. City Project Manager: Accepted □, Rejected □, Date: _______ Initials: _______ Page 475 of 482 INTAKE SUBMITTAL CHECKLIST Consultant’s Project Manager Initials the following: Bid-Ready (ITB) Phase  AutoCAD drawing files  Copy of previous review comments with responses  Complete Contract Specification Book  Copies of acquired permits (or note of conditional approval)  Cover page, as-builts  Engineer’s Estimate with supporting calculations (such as for paving quantity, etc.), PE Seal and date  Final mandatory sequence of construction  Final bypass size schedule  Final Project Map, and Mailing List  Permits  Subcontracting Cost Breakdown, if applicable  Project location map to be used for community outreach (jpg or pdf)  Completed Water & Sewer Buried Assets Registry Spreadsheet  Pipe layout schedule if the pipe is 30” or larger City Project Manager: Accepted □, Rejected □, Date: _______ Initials: _______ Page 476 of 482 ATTACHMENT 3 Monthly Status Report Format I – Work Performed During This Period: This includes all scope related scheduled activities that were completed by the consultant for the said month. Prepare Status Reports and email them monthly to the City Project Manager. The information provided should include but not be limited to the following: 1. Project Management 2. Data Accumulation and Evaluation 3. Preparation of Design Package, Design Plans, and Specifications. II – Unusual Problems and Delays: To ensure effective project management, the consultant is expected to perform an assessment of the project’s performance throughout the life of the project. In doing so, unanticipated risks and problems that may impact the project constraints (Cost, Time, and Quality) can be mitigated. III – Anticipated Progress Next Month: This includes all scheduled activities/deliverables that will be completed in the following month. IV – Project Schedule/Upcoming Deadlines: Consultant is expected to provide a baseline schedule for the project. The baseline schedule may not be changed unless written approval is received by the City Project Manager. The project progress must be updated on a monthly basis as the project progress. Schedule performance and cost performance are measured against the baseline schedule. Potential delays should be identified and promptly brought to the City Project Manager’s attention. V – Contractual/Scope Issues: No services for which additional compensation will be charged by the Consultant shall be furnished without the written authorization of the of the City Project Manager. Note: Report shall be modified at the request of the City Project Manager to meet specific project requirements. Page 477 of 482 Water Main Replacement Design City Council, Regular Session Pieter Van Ry, Englewood Utilities and South Platte Renew Director November 21, 2022 Page 478 of 482 Annual Water Main Replacement Program •High consequence line •Design new water main •~6,700 linear feet •Primary connection to Centennial Park area •16-inch 14-inch and 12-inch •Construction anticipated 2024 Page 479 of 482 Consultant Selection •RPF issued in March 2021 •Selected JMT •Completed work under PSA 21-62 •New Contract •High-quality work and responsive •Team and firm experience •Demonstrated understanding of scope Contract Amount Staff-Managed Contingency Total Project Authorization $258,880 $25,888 $284,768 Page 480 of 482 Questions?Page 481 of 482 Thank you Page 482 of 482