HomeMy WebLinkAbout2022 Ordinance No. 0621
BY AUTHORITY
ORDINANCE NO. 62 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
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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
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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
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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
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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
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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. 62, 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. 62, Series of 2022.
Stephanie Carlile
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