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HomeMy WebLinkAbout2022 Ordinance No. 066 1 BY AUTHORITY ORDINANCE NO. 66 COUNCIL BILL NO. 63 SERIES OF 2022 INTRODUCED BY COUNCIL MEMBER WINK 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 DocuSign Envelope ID: CDA924CB-0173-434B-BB8C-5D9BE178226C 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 DocuSign Envelope ID: CDA924CB-0173-434B-BB8C-5D9BE178226C 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 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. Read by Title and passed on final reading on the 5th day of December, 2022. Published by Title in the City’s official newspaper as Ordinance No. 66, Series of 2022, on the 8th day of December, 2022. Published by title on the City’s official website beginning on the 7th day of December, 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. 66, Series of 2022. Stephanie Carlile DocuSign Envelope ID: CDA924CB-0173-434B-BB8C-5D9BE178226C 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 5th day of December, 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: DocuSign Envelope ID: CDA924CB-0173-434B-BB8C-5D9BE178226C 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 DocuSign Envelope ID: CDA924CB-0173-434B-BB8C-5D9BE178226C 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 DocuSign Envelope ID: CDA924CB-0173-434B-BB8C-5D9BE178226C 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. DocuSign Envelope ID: CDA924CB-0173-434B-BB8C-5D9BE178226C 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. DocuSign Envelope ID: CDA924CB-0173-434B-BB8C-5D9BE178226C 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 DocuSign Envelope ID: CDA924CB-0173-434B-BB8C-5D9BE178226C 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) DocuSign Envelope ID: CDA924CB-0173-434B-BB8C-5D9BE178226C