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Home My WebLink About2023-01-03 (Regular) Meeting Agenda Packet Please note: If you have a disability and need auxiliary aids or services, please notify the City of Englewood (303-762-2405) at least 48 hours in advance of when services are needed. 1000 Englewood Pkwy - Council Chambers Englewood, CO 80110 AGENDA City Council Regular Meeting Tuesday, January 3, 2023 ♦ 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=RngFfkyRIpY 1. Study Session Topic a. Parks Recreation, Library and Golf Director Christina Underhill, Library & Cultural Arts Manager Beth Lafferty, and Patron Experience Librarian Carrie Watson will be present to discuss Library Staffing. 6:00pm to 6:50pm Information and Direction Presentation: 20 minutes Discussion: 30 minutes 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 December 12, 2022. 5a 6. Appointments, Communications, Proclamations, and Recognition a. Recognition of Holiday Decorating Contest Winners 6a 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. Van Bruce Arrant will be present to speak about Municipal Ordinances Page 1 of 192 Englewood City Council Regular Agenda January 3, 2023 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 Tuesday, January 3rd, please visit https://englewoodco.zoom.us/webinar/register/WN_tquIHq7-Sz2UHBCT0wifMw 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. Wednesday, January 4th. 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 01 - Amending Englewood Municipal Code sections regarding quarterly billing cycles for utility billings 9ai Staff recommends City Council approve a Bill for an Ordinance amending municipal code sections regarding quarterly billing cycles for utility billings. Staff: City Attorney Tamara Niles ii. CB 03 - Amending Public Offense Code to mirror changes in state law and ensure compliance 9aii 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, Assistant City Attorney Sergio Renteria b. Approval of Ordinances on Second Reading. i. CB 64 - 10 Year Agreement for use of Comcast Dark Fiber 9bi Staff recommends City Council approve an Ordinance to enter into a 10 year agreement for use of Comcast Dark Fiber. The full amount of the agreement is $660,000 or $5,500 a month. Staff: IT Director Jeromy King and IT Operations Manager Brad Creager Page 2 of 192 Englewood City Council Regular Agenda January 3, 2023 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. CB 70 - Amending Englewood Municipal Code to add and remove City facilities for open carry of firearms on City property 9bii Staff recommends City Council approve an Ordinance amending EMC 7-6C-6 to update for current City property ownership. Staff: City Attorney Tamara Niles iii. CB 74 - Approve an Easement Agreement necessary to construct the South Englewood Flood Reduction Project 9biii Staff recommends City Council approve an Ordinance for South Englewood Flood Reduction Project Easement Acquisition. Staff: Deputy Director - Engineering Tim Hoos iv. CB 75 - Intergovernmental Agreement (IGA) with the Mile High Flood District (MHFD) for the design of improvements to Dry Gulch 9biv Staff recommends City Council approve an Ordinance for Dry Gulch IGA. Staff: Deputy Director Engineering Tim Hoos, and Capital Project Engineer Devin Keener v. CB 76 - Amending the Intergovernmental Agreement (IGA) with Mile High Flood District (MHFD) for the Design, Right-of-Way Acquisition, and Construction of Drainage and Flood Control Facilities in the South Englewood Basin 9bv Staff recommends City Council approve an Ordinance authorizing an amendment to the Intergovernmental Agreement with the Mile High Flood District for the Design, Right-of-Way Acquisition, and Construction of Drainage and Flood Control Facilities in the South Englewood Basin. Staff: Tim Hoos - Deputy Director Engineering c. Resolutions and Motions i. Designation of the Official Posting Place for Legal Notices 9ci Staff recommends City Council approve a Resolution for the Designation of the Official Posting Place for Legal Notices. Staff: City Clerk Stephanie Carlile ii. 2023 Optimal Source Bulk Chemical Purchases for the Allen Water Treatment Plant (WTP) 9cii Staff recommends City Council approve a Resolution, 2023 optimal source bulk chemical purchases of sodium hypochlorite, sodium hydroxide and aluminum sulfate for the Allen Water Treatment Plant (WTP). Staff: Director of Utilities, and South Platte Renew Pieter Van Ry and Deputy Director Josh Roach 10. Public Hearing Items Page 3 of 192 Englewood City Council Regular Agenda January 3, 2023 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. 11. Ordinances, Resolutions and Motions a. Approval of Ordinances on First Reading i. CB 02 - Amending Englewood Municipal Code regarding restitution to victims of ordinance violations. 11ai Staff recommends City Council approve a Bill for an Ordinance Amending Englewood Municipal Code 1-4-7, Restitution to Victims of Ordinance Violations. Staff: City Attorney Tamara Niles, and Assistant City Attorney Sergio Renteria b. Approval of Ordinances on Second Reading c. Resolutions and Motions 12. General Discussion a. Mayor's Choice b. Council Members' Choice 13. City Manager’s Report 14. Adjournment Page 4 of 192 STUDY SESSION TO: Mayor and Council FROM: Bethany Lafferty, Christina Underhill DEPARTMENT: Parks, Recreation & Library DATE: January 3, 2023 SUBJECT: Englewood Public Library Safety & Security Proposal DESCRIPTION: A presentation to Council on proposed changes to staffing levels, service hours, and entrance options to address challenges the Library has been facing over the past year. RECOMMENDATION: Staff recommends implementing a plan to increase staffing and Library programs, and change to a single entrance to improve the services and safety of the library. PREVIOUS COUNCIL ACTION: NA SUMMARY: An analysis of staffing hours needed to fulfill operating requirements with maximum support as well as maintaining and increasing programs and services was completed by Library Manager, Bethany Lafferty and Patron Experience Librarian, Carrie Watson. The analysis led to the creation of 4 plans.On December 13, 2022, the4 plans werepresented to the Library Board for consideration. Plans for a feasibility study regarding a single entrance were previously recommended and funded. ANALYSIS: An analysis of staffing hours needed to fulfill operating requirements with maximum support as well as maintaining and increasing programs and services was completed by Library Manager, Bethany Lafferty and Patron Experience Librarian, Carrie Watson. The analysis led to the creation of 4 possible plans. On December 13, 2022, the 4 plans were presented to the Library Board for consideration.The analysis included factors such as: number of patrons visiting the library daily, number of patrons in the library at any given time,quantity and length ofpatron interactions, and safety incidents. This led to the recalibration of staffing levels requiredto ensure adequate customer service, ability to plan and present programs, and an overall safe environment for all. Both Plans 1 and 2 are supported by the Library Board, with Plan 1 being preferred, and Plan 2 the minimum to be implemented. Implementing Plan 1 will provide the following benefits: • Increase in staffing • Expansion of programs and services • 100% library floor coverage for a 7-day service week Page 5 of 192 • Ability to meet City Strategic Plan goals Additionally, compared with other municipal public libraries serving similar populations, the Englewood Public Library has 50% less staff across the board and half the total budget funds, while offering nearly the same number of public service hours. Safety and security are also significant factors in requesting increased staff. During the 4th quarter of 2022 (through 12/20) there were 42 incidents recorded which requires staff to turn away from public service duties and other work to address problems, enforce consequences and complete necessary follow-up. COUNCIL ACTION REQUESTED: Based on the low staffing levels and safety concerns of the libraryand the recommendation of the Library Board, staff requests that the City Council approve Plan 1to allow the library to increase staff, services levels and programming along with the continuation of 7-day operations week. FINANCIAL IMPLICATIONS: The cost of implementing the preferred plan will require a budget supplemental action to the 2023 budget for the General Fund. Personnel costs will be $307,440 and program and collection costs will be $30,000. A breakdown of all costs is included in the attached Plan Summary Document. This budget increase will be ongoing each year. CONNECTION TO STRATEGIC PLAN: Community Wellbeing Goals – Lifelong Learning: Opportunities for all ages to improve knowledge, skills, understanding, and competencies The recommended Plan will allow for 3 key projects to be fully addressed: • Launch the Englewood History Nook • Conduct library outreach to public schools, preschools, and senior centers • Expand the offerings of non-traditional item types in the library's circulating collection OUTREACH/COMMUNICATIONS: The library has closed on Sundays due to low staffing levels. Many programs have also needed to be canceled due to the lack of staff to implement. To date, social media, the library website, newsletters and emails have been utilized to communicate the changes at the library. These same channels will be utilized to inform the public of any future changes. ATTACHMENTS: Public Library Safety Proposal ppt Public Library Plan Safety Proposal Page 6 of 192 Englewood Public Library Safety & Security Proposal Presented By Bethany Lafferty and Carrie Watson Page 7 of 192 Overview 1.Library Safety Concerns 2.Physical Upgrades 3.Current Staffing Status 4.Staffing Comparisons to other Libraries 5.Proposed Solutions 6.Library Board Recommendation 7.Questions?Page 8 of 192 Library Incidents –4th Quarter Examples Patron Incidents •October 3 –Patron verbal assault of staff •October 26 –Patron argument escalated to knife being drawn •November 5 & 6 –Short on staff,hypervigilance, patron stalking staff •December 6 –Patron has a seizure Other Situations Encountered •Patrons viewing pornography •Vaping •Fighting •Non-compliance with staff requests •Stalking staff members •Stealing library property •Destruction of library property •Drug and alcohol use/sale •Offensive language •Emergency medical •Weapons Tools Provided •Standards of Behavior •Notices –Verbal, Ejection, Exclusion Reported Violations of Standards of Behavior •October –12 Incident Reports •November –20 Incident Reports •December –10 Incident Reports (as of 12/20/2022)Page 9 of 192 Physical Upgrades to Library Short-Term Solution •Utilize south entrance (near parking garage) as single entry-point •Will allow staff to more easily monitor entrance •Increased ability to address issues immediately Long-Term Solution •Conduct feasibility study for construction of new east entrance, emergency exits •Creates equity of access from north and south parking areas •Civic Center more secure in lobby areas Page 10 of 192 Current Staffing Status –January 2023 Staff: •As of January 2023,11 Library Associates working 20 hours a week, providing 220 staff hours for library floor coverage Allocation of Workload: •Supervisors: 50%+ Library Floor, 35% Administration, 15% Planning •Library Associates: 90% Library Floor, 5% Planning, 5% Program Outcomes: •No quality time for planning/programing •7-day operating schedule requires 380 staff hours •Full-Time supervisors spend 50% or more of their work week on the library floor. •Canceled computer classes, writing groups, book clubs •Suspended growth of local history/archives, senior center outreach, social media promotion Page 11 of 192 Staffing levels at similar Libraries Library Estimated Population Service Hours per Week Total Staff FTE Total Librarians FTE Other Paid Staff FTE Total Operating Expenditures (2021) Englewood 33,516 60 15.0 5.0 8.0 $1,390,230 Littleton 45,191 64 29.14 11.24 17.9 $2,648,593 Broomfield 75,325 69 32.77 15.20 17.57 $2,799,347 Page 12 of 192 Status Quo with Service Reduction Library Staffing Remains at Current Level •5-day service operation •100% Library Floor Coverage •Reduction in programs •Reduced service hours Page 13 of 192 Plan 2 -Complete Staff: $337,440 Staff and Operations Increase: •4 FT Librarian I Hires: $270,000 •2 PT-20 Library Associate Hires: $37,440 •Program and Service Expansion: $30,000 Allocation of Workload: •Supervisors –50% Planning,35% Administration, 15% Library Floor •New Librarian I –50% Library Floor, 30% Planning, 20% Programs •Library Associate –75% Library Floor, 15% Planning, 10% Programs Outcomes: •Growth of the Archives/Local History Collection •Development of non-traditional lending collection •Increase of Youth, Teen, and Adult programs and services •Development of Outreach activities •7-Day Service Operation Page 14 of 192 Plan 3 -Increase to Staff: $229,880 Staff and Operations Increase: •2 FT Librarian I Hires: $135,000 •4 PT-20 Library Associate Hires: $74,880 •Program and Service Expansion: $20,000 Allocation of Workload: •Supervisors: 40% Planning,35%Administration, 25% Library Floor •Librarian I: 75% Library Floor,15% Planning, 10% Program •Library Associates: 75% Library Floor, 15% Planning, 10% Program Outcomes: •Development of non-traditional lending collection •Minimal increase to Youth programs and services •Growth of Adult program and services •Moderate development of Outreach Activities •7-Day Service Operation Page 15 of 192 Plan 4 –Mild Increase to Staff: $140,000 Staff and Operations Increase: •2 FT Librarian I Hires: $130,000 •Program and Service Expansion: $10,000 Allocation of Workload: •Supervisors: 40%Planning,35%Administration, 25% Library Floor •Librarian I: 75% Library Floor,15% Planning, 10% Program •Library Associate: 90% Library Floor,5% Planning,5% Program Outcomes: •Initial development of non-traditional lending collection •Minimal growth of Adult program and services •Minimal development of Outreach Activities •6-Day Service Operation, with reduced hours Page 16 of 192 Comparison of Library Plans Cost Staffing Additions Service Hours Plan Outcomes Program Expansion Plan 1 $337,440 4 Full-Time Librarian I 2 Part-Time Library Associates 7 days M-Th 9:30-7:30 F-Sa 9:30-5:00 Sun 12-5 80% increase in Librarian-In- Charge coverage 100%+ Library Floor coverage $30,000 for Program Expansion Growth of the Archives/Local History Collection Development of non-traditional lending collection items Increase to Youth, Teen & Adult programs and services Development of outreach services Plan 2 $229,880 2 Full-Time Librarian I 4 Part-Time Library Associates 7 days M-Th 9:30-7:30 F-Sa 9:30-5:00 Sun 12-5 40% increase in Librarian-In- Charge coverage 100% Library Floor coverage $20,000 for Program Expansion Development of non-traditional lending collection items Minimal increase to Youth programs and services Growth of Adult programs and services Moderate development of outreach services Plan 3 $140,000 2 Full-Time Librarian I 6 days M-Th 10:00-7:00 F-Sa 10:00-5:00 Sun CLOSED 40% increase in Librarian-In- Charge coverage 86% Library Floor coverage $10,000 for Program Expansion Initial development of non-traditional lending collection items Minimal growth of Adult programs and services Minimal development of outreach services Zero Budget Impact Plan $0 0 New Staff 5 days Tu-Th 10:00- 7:00 F-Sa 10:00-5:00 Sun/Mon CLOSED 100% Library Floor coverage Reduction in current programs, no development of new programs Page 17 of 192 Potential Staffing based on Plan 1 Library Estimated Population Service Hours per Week Total Staff FTE Total Librarians FTE Other Paid Staff FTE Total Operating Expenditures (2021) Englewood (current) 33,516 60 15.0 5.0 8.0 $1,390,230 Englewood (proposed) 33,516 60 20.0 9.0 11.0 $1,727,670 Littleton 45,191 64 29.14 11.24 17.9 $2,648,593 Broomfield 75,325 69 32.77 15.20 17.57 $2,799,347 Page 18 of 192 Questions? This Photo by Unknown Author is licensed under CC BY-SA Page 19 of 192 Englewood Public Library Safety & Security Proposal Problem Statement In recent years, complaints regarding safety and security of both patrons and staff have increased. In addition, Englewood Public Library, along with Englewood Police Department, has become the frontline of the City’s response to homelessness. Library staff are called upon to break up fights, handle situations in which patrons bring knives or guns the library, identify and report drug usage and drug dealing, handle patrons watching pornography at computer stations; all this while providing excellent customer service to the hundreds of residents who use Englewood Public Library every week with a lower-than average staffing level in the library and a lack of security personnel seven days a week. Improvements Made to Date • Trespass ordinance • Trespass ordinance training with CAO • In-house library security • Allied Security upgrade • Garage lighting Proposed Solutions There is no one silver bullet to resolve the many issues facing the library, but Library staff, the Library Board, the City Manager’s/Attorney’s Offices, and departmental leadership have come up with solutions to increase safety and security that fall into the following two categories that this proposal seeks to address: 1. Physical upgrades to the library, 2. Staffing adjustments, and 3. Security personnel enhancements. Page 20 of 192 1. Physical Upgrades to Englewood Public Library Before libraries suffered from security concerns and serving as the City’s frontline for responding to homelessness, multiple entrances were commonplace. The challenges facing libraries today, and particularly the Englewood Library, make multiple entrances untenable for the following reasons: 1. Inability for staff to monitor who comes in and out of the library 2. Increased likelihood of someone entering the library with a weapon 3. Inability to check suspicious bags and personal items being brought into the library 4. Difficulty for staff to monitor most areas of the library from one point For these reasons, City Staff recommend moving to a single point of entry for the library. In the short term, only the south entrance for will be utilized for access into the library, with the north doors remaining locked and serving as an emergency exit. Through the capital project prioritization, the Library Board recommended to City Manager and City Council to move forward with a feasibility study for implementing a single entrance in 2023. The feasibility study will take place during the first quarter of 2023. It will examine the opportunity for a single entrance and creation of additional emergency exits throughout the library space. To fully secure the Library space with a new primary entrance and additional emergency exits associated costs could be as high as $250,000. Ultimately, a new entrance on the east side of the building is preferred for the following reasons: • An entrance at the mid-point between the current north and south entrances provides equity of access to folks parking in the circle drive or the parking garage. • The entrance will be further away from the Children’s area, creating a greater distance from where families and children are using the library and potential incidents. • An exterior entrance to the library used outside of Civic Center hours will help to keep the overall building secure. 2. Staffing Adjustments When compared to our benchmark libraries, Englewood Library is understaffed as follows: City of Englewood - Public Library Estimated Population (2021): 33,516 Englewood Public Library – open 60 hours per week Total Staff FTE (current) – 15.0 Total Librarians FTE (current) – 5.0 Other Paid Staff FTE (current) – 8.0 (2.0 vacant) Total Operating Expenditures (2021) – $1,390,230 City of Littleton – Bemis Public Library Estimated Population (2021): 45,191 Edwin A Bemis Public Library – open 64 hours per week Total Staff FTE (2021) – 29.14 Page 21 of 192 Total Librarians FTE (2021) – 11.24 Other Paid Staff FTE (2021) – 17.9 Total Operating Expenditures (2021) – $2,648,593 City of Broomfield - Public Library Estimated Population (2021): 75,325 Broomfield Library – open 69 hours per week Total Staff FTE (2021) – 32.77 Total Librarians FTE (2021) – 15.20 Other Paid Staff FTE (2021) – 17.57 Total Operating Expenditures (2021) - $2,799,347 Englewood Library Leadership has considered many options for arriving at the most cost-effective solutions for staffing. The Plans outlined below describe these alternatives. Plan 1: Status Quo with Service Reduction Should City Council wish to leave Library staffing at current levels, Library staff and the Library Board recommend a reduction of service hours to ensure that the library can be staffed and secured appropriately for patron and employee safety. Zero Budget Impact Plan with 100% Library Floor Coverage (REVISED) • 5-Day Service Operation: Tu - Th 10-7, F-Sa 10-5, Sunday/Monday CLOSED • No positions added, $0 cost Allocation of Workload • Supervisors – 50% Planning, Floor, 35% Administration, 15% Library Floor • Library Associates – 75% Library Floor, 15% Planning, 10% Program Outcomes • 100% Library Floor coverage with Supervisor participation • Reduction in programs due to Closure on Monday • Reduced service hours Plan 2: Approximate Annual Cost $337,440 • 7-Day Service Operation - M-Th 9:30-7:30, F-Sa 9:30-5, Sun 12-5 • 4 Full-Time Librarian I Hires: $270,000 • 2 Part-Time-20 Library Associate Hires: $37,440 • Program and Service Expansion: $30,000 o Children - $6,000 o Teen - $2,000 o Adult - $6,000 o Outreach - $4,000 o Non-traditional lending Collection & Archives - $12,000 Page 22 of 192 Allocation of Workload • Supervisors – 50% Planning, 35% Administration, 15% Library Floor • Librarian I – 50% Library Floor, 30% Planning, 20% Program • Library Associates – 75% Library Floor, 15% Planning, 10% Program Outcomes • 4 Librarians increase Librarian-In-Charge coverage by 80% throughout the week o One assigned to Circulation o One assigned to Adult Services o One assigned to Youth Services o One assigned to Technical Services/Archives • 2 PT-20 Library Associates o One assigned to Circulation o One assigned to Adult Services • Adds 200 staff hours per week, 100% Library Floor coverage • Expansion of programs and services o Growth of the Archives/Local History Collection o Development of non-traditional lending collection items o Increase to Youth and Adult programs and services o Development of Outreach activities Plan 3: Approximate Annual Cost $229,880 • 7-Day Service Operation - M-Th 9:30-7:30, F-Sa 9:30-5, Sun 12-5 • 2 Full-Time Librarian I Hires: $135,000 • 4 Part-Time-20 Library Associate Hires: $74,880 • Program and Service Expansion: $20,000 o Children - $3,000 o Teen - $1,000 o Adult - $6,000 o Outreach - $2,000 o Non-traditional lending Collection - $8,000 Allocation of Workload • Supervisors – 40% Planning, 35% Administration, 25% Library Floor • Librarian I – 75% Library Floor, 15% Planning, 10% Program • Library Associates – 75% Library Floor, 15% Planning, 10% Program Outcomes • 2 Librarians increase Librarian-In-Charge coverage by 40% throughout the week o One assigned to Circulation o One assigned to Adult Services • 4 PT-20 Library Associate Hires o One assigned to Circulation o Two assigned to Adult Services o One assigned to Youth Services Page 23 of 192 • Adds 160 staff hours per week, 100% Library Floor coverage • Expansion of programs and services o Development of non-traditional lending collection items o Minimal increase to Youth programs and services o Growth of Adult program and services o Moderate development of Outreach Services Plan 4: Approximate Annual Cost $140,000 • 6-Day Service Operation: M - Th 10-7, F-Sa 10-5, Sunday CLOSED • 2 Full-Time Librarian I Hires: $130,000 • Program and Service Expansion: $10,000 o Adult - $3,000 o Outreach - $1,000 o Non-traditional lending Collection - $6,000 Allocation of Workload • Supervisors – 40% Planning, 35% Administration, 25% Library Floor • Librarian I – 75% Library Floor, 15% Planning, 10% Program • Library Associates – 90% Library Floor, 5% Planning, 5% Program Outcomes • 2 Librarians increase Librarian-In-Charge coverage by 40% throughout the week o One assigned to Circulation o One assigned to Adult Services • Adds 80 staff hours per week, 86% Library Floor coverage • Expansion of programs and services o Initial development of non-traditional lending collection items o Minimal growth of Adult programs and services o Minimal development of Outreach Services 3. Increased Security Personnel and Equipment Personnel One of the ongoing challenges with seven-days a week coverage for the Library is the lack of security personnel on Saturdays and Sundays. The managing department of the Civic Center security contract with Allied received a proposal from Allied for an additional armed guard in the library on Saturday. Total Cost: $68,340. Earbud Radios for Librarians Page 24 of 192 Because of the size of the Englewood Library, security situations sometimes occur in one part of the library without other librarians or supervisors being aware that the situation is occurring. Having a discreet earbud-based radio system for library staff will ensure that librarians can stay in constant contact with their colleagues on the floor and with the supervisor of the shift. Such radios could also be equipped with panic buttons for emergency services that are needed. Total Cost: $10,000 Page 25 of 192 MINUTES City Council Regular Meeting Monday, December 12, 2022 1000 Englewood Parkway - 2nd Floor Council Chambers 6:00 PM 1 Study Session Topic There were no Study Session topics. 2 Call to Order The regular meeting of the Englewood City Council was called to order by Mayor Sierra at 7:04 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 Cheryl Wink Council Member Jim Woodward COUNCIL ABSENT: None STAFF PRESENT: Assistant City Attorney McDermott Senior Deputy City Clerk McKinnon Assistant City Manager Dodd Director of Finance Loh Deputy Director-Engineering Hoos, Public Works Capital Projects Engineer Grafman, Public Works Capital Project Engineer II Keener, Public Works System Administrator Munnell, Information Technology Network Administrator Hunnicutt, Information Technology Officer Smith, Police Department Page 1 of 7 Draft Page 26 of 192 City Council Regular December 12, 2022 5 Consideration of Minutes of Previous Session a) Minutes of the Regular City Council Meeting of December 5, 2022 Moved by Council Member Steven Ward Seconded by Council Member Joe Anderson APPROVAL OF THE MINUTES OF THE REGULAR CITY COUNCIL MEETING OF DECEMBER 5, 2022. For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp x Joe Anderson (Seconded By) x Steven Ward (Moved By) x Rita Russell x Cheryl Wink x Jim Woodward x 7 0 0 Motion CARRIED. 6 Appointments, Communications, Proclamations, and Recognition 7 Recognition of Scheduled Public Comment There were no citizens signed up to speak for scheduled public comment. 8 Recognition of Unscheduled Public Comment There were no citizens signed up to speak for unscheduled public comment. 9 Consent Agenda Items Council Member Russell removed Agenda Item 9(a)(ii) from the Consent Agenda. Moved by Council Member Nunnenkamp seconded by Council Member Ward to approve Consent Agenda Items 9(a)(i) and 9(c)(i-ii). a) Approval of Ordinances on First Reading i) CB 70 - Amending Englewood Municipal Code to add and remove City facilities for open carry of firearms on City property COUNCIL BILL NO. 70 INTRODUCED BY COUNCIL MEMBER NUNNENKAMP Page 2 of 7 Draft Page 27 of 192 City Council Regular December 12, 2022 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. ii) CB 75 - Intergovernmental Agreement (IGA) with the Mile High Flood District (MHFD) for the design of improvements to Dry Gulch [Clerks Note: This agenda item was removed from the Consent Agenda Motion and considered independently.] COUNCIL BILL NO. 75 INTRODUCED BY COUNCIL MEMBER RUSSELL A BILL FOR AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT REGARDING FINAL DESIGN, RIGHT-OF-WAY ACQUISITION, AND CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR DRY GULCH FROM YALE AVENUE TO UNIVERSITY BOULEVARD BETWEEN THE URBAN DRAINAGE AND FLOOD CONTROL DISTRICT AND THE CITY OF ENGLEWOOD. b) Approval of Ordinances on Second Reading. There were no additional Ordinances on Second Reading c) Resolutions and Motions i) Contract Amendment Agreement for On-Call Engineering Services with EST, Inc. Approval of a Contract Amendment Agreement for On-Call Engineering Services with EST, Inc. ii) Four (4) On-Call Storm Water Contractors selected for $200k individual contracts Approval of On Call Contracts for Storm Water Maintenance and Repair. Moved by Council Member Chelsea Nunnenkamp Seconded by Council Member Steven Ward Motion to approve Consent Agenda items 9(a)(i) and 9(c)(i-ii). For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp (Moved By) x Page 3 of 7 Draft Page 28 of 192 City Council Regular December 12, 2022 Joe Anderson x Steven Ward (Seconded By) x Rita Russell x Cheryl Wink x Jim Woodward x 7 0 0 Motion CARRIED. 10 Public Hearing Items No public hearing was scheduled before Council. 11 Ordinances, Resolutions and Motions a) Approval of Ordinances on First Reading i) CB 74 - Approve an Easement Agreement necessary to construct the South Englewood Flood Reduction Project Moved by Council Member Chelsea Nunnenkamp Seconded by Council Member Joe Anderson COUNCIL BILL NO. 74 INTRODUCED BY COUNCIL MEMBER NUNNENKAMP A BILL FOR AN ORDINANCE AUTHORIZING THE CITY OF ENGLEWOOD, COLORADO’S ACCEPTANCE OF A PERMANENT UTILITY EASEMENT AND TEMPORARY CONSTRUCTION EASEMENT LOCATED AT 1301 W. STANFORD AVENUE FROM CRI (AZ-CO) QRS 16-4 INC. For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp (Moved By) x Joe Anderson (Seconded By) x Steven Ward x Rita Russell x Cheryl Wink x Jim Woodward x 7 0 0 Motion CARRIED. ii) CB 76 - Amending the Intergovernmental Agreement (IGA) with Mile High Flood District (MHFD) for the Design, Right-of-Way Acquisition, and Page 4 of 7 Draft Page 29 of 192 City Council Regular December 12, 2022 Construction of Drainage and Flood Control Facilities in the South Englewood Basin Moved by Council Member Jim Woodward Seconded by Council Member Cheryl Wink COUNCIL BILL NO. 76 INTRODUCED BY COUNCIL MEMBER WOODWARD A BILL FOR ORDINANCE APPROVING A FIRST AMENDMENT TO AN INTERGOVERNMENTAL AGREEMENT (IGA) REGARDING FINAL DESIGN, RIGHT-OF-WAY ACQUISITION, AND CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR SOUTH ENGLEWOOD BASIN BETWEEN THE URBAN DRAINAGE AND FLOOD CONTROL DISTRICT AND THE CITY OF ENGLEWOOD. For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp x Joe Anderson x Steven Ward x Rita Russell x Cheryl Wink (Seconded By) x Jim Woodward (Moved By) x 7 0 0 Motion CARRIED. b) Approval of Ordinances on Second Reading There were no additional Ordinances on Second Reading c) Resolutions and Motions i) North Englewood Storm Sewer Inventory and Condition Assessment Contract Award Moved by Council Member Jim Woodward Seconded by Council Member Steven Ward Approval of a contract with Surveying and Mapping, LLC (SAM) in the amount of $116,989.00 for professional services for the North Englewood Storm Sewer Inventory and Condition Assessment. For Against Abstained Othoniel Sierra x Page 5 of 7 Draft Page 30 of 192 City Council Regular December 12, 2022 Chelsea Nunnenkamp x Joe Anderson x Steven Ward (Seconded By) x Rita Russell x Cheryl Wink x Jim Woodward (Moved By) x 7 0 0 Motion CARRIED. ii) Motion to Designate City committees to review 2022 voter approved sales tax expenditures Moved by Council Member Steven Ward Seconded by Council Member Rita Russell Approval to designate the Budget Advisory Committee to review 2022 voter-approved sales tax expenditures. For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp x Joe Anderson x Steven Ward (Moved By) x Rita Russell (Seconded By) x Cheryl Wink x Jim Woodward x 7 0 0 Motion CARRIED. iii) 2022 Quarter 3 Strategic Plan Update Moved by Council Member Cheryl Wink Seconded by Council Member Chelsea Nunnenkamp Approval of the 2022 Quarter 3 Strategic Plan Update. For Against Abstained Othoniel Sierra x Chelsea Nunnenkamp (Seconded By) x Joe Anderson x Steven Ward x Rita Russell x Cheryl Wink (Moved By) x Page 6 of 7 Draft Page 31 of 192 City Council Regular December 12, 2022 Jim Woodward x 7 0 0 Motion CARRIED. 12 General Discussion a) Mayor's Choice i) Executive Session for the purpose of the transfer or sale of a water property interest, pursuant to CRS 24-6-402(4)(a) was canceled. b) Council Members' Choice i) City Council met at the Fellow Traveler Restaurant following the meeting for a social gathering. 13 City Manager’s Report 14 Adjournment MAYOR SIERRA MOVED TO ADJOURN. The meeting adjourned at 8:26 p.m. Senior Deputy City Clerk Page 7 of 7 Draft Page 32 of 192 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Chris Harguth DEPARTMENT: Communications DATE: January 3, 2023 SUBJECT: Recognition of Holiday Decorating Contest Winners DESCRIPTION: Holiday Decorating Contest Recognition RECOMMENDATION: Council will recognize the Holiday Lighting Contest winners in each of the following categories: Best House, Best Block/Neighborhood, Best Business and the Legacy Award. SUMMARY: The Neighborhood Resources Program invited Englewood residents and businesses to participate in the Annual Holiday Decorating Contest. Below you will find the winners. Best House: Kevin and Ashley Nguyen 490 E. Bellewood Dr. Best Block/Neighborhood: Alice Spencer 3100 block of S. Fox St. Best Business: Frame De Art 3065 S. Broadway Legacy Award: The Kloewers 5041 S. Elati St. COUNCIL ACTION REQUESTED: NA FINANCIAL IMPLICATIONS: NA Page 33 of 192 Best House 490 E. Bellewood Dr.Page 34 of 192 Best Block 3100 Block of S. Fox St.Page 35 of 192 Best Business Frame De Art Page 36 of 192 Legacy Awar d 5041 S. Elati St.Page 37 of 192 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: January 3, 2023 SUBJECT: CB 01 - Approve a bill for an ordinance amending municipal code sections regarding quarterly billing cycles for utility billings, utility code updates DESCRIPTION: CB 01 - Multiple municipal code sections refer to quarterly utility billing, when the City now uses a monthly billing cycle. The ordinance amends those provisions, revises code sections further to omit unnecessary and duplicative provisions, and creates new fees/costs to deter certain conduct. RECOMMENDATION: Adopt an ordinance amending sections of municipal code that contain reference to specific billing cycles. SUMMARY: The City now generally issues monthly billings, but municipal code still contains references to quarterly billing cycles. As proposed, the sections would be revised to refer to "periodic" utility billing. In addition, the impacted sections also include significant additional proposed revisions to make municipal code direct, clear, succinct, and consistent; and it adds additional fees to compensate the City for its time, costs, and work performed when property owners fail to comply with code requirements regarding utilities. The substantive revisions are specifically as follows: 1. Removes references to specific mandated billing cycles to allow for flexibility in billing cycles; 2. Moves all collections provisions to a single section, rather than repeated over various sections; 3. Revises language for clarity and brevity; 4. In an attempt to deter the theft of water, establishes that those damaging/tampering with a water meter or illegally turning on a water meter shall reimburse the City for its costs of discovering, correcting, and billing the theft by requiring the violator to pay a City tampering fee, double the City's cost to repair, and double the cost of water had it been legally obtained; 5. In an attempt to ensure the City does not inadvertently undercut/compete with private business enterprises, establishes that those who request the City (instead of their own hired plumber) cut off their service from a main will pay twice the City's costs of performing the work (and if they don't either request the City or a plumber perform the work, they also pay an additional City fee to reimburse the City for the work required to discover, plan, resolve, and bill for the work); 6. In an attempt to encourage property owners to properly cut off an abandoned sewer from the main, establishes that those who fail/refuse to cut off an abandoned sewer from a main when Page 38 of 192 required, and don't request the City perform the work, will pay double the City's costs of performing the work plus a City fee; 7. Requires a permanent agreement to defend and indemnify the City for all requested and approved private lift stations; and 8. Requires proper filling/abandonment of private septic sytems when connecting to a public sewer. The ordinance further establishes the fees created therein for wrongful conduct to be $300. COUNCIL ACTION REQUESTED: Adopt an ordinance amending municipal code sections regarding utility billing. FINANCIAL IMPLICATIONS: Staff anticipates these revisions will increase revenue to the City, although the exact amount is unknown at this time. ATTACHMENTS: Council Bill #01 Page 39 of 192 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 01 SERIES OF 2023 INTRODUCED BY COUNCIL MEMBER _________________ A BILL FOR AN ORDINANCE AMENDING ENGLEWOOD MUNICIPAL CODE SECTIONS 12-1A-4, 12-1A5, 12-1B-2, 12-2-3, 12-2-4, 12-5-5, AND 12-8-9 TO REMOVE REFERENCES TO BILLING CYCLE TERMS, AND TO REVISE LANGUAGE OF THOSE CODE SECTIONS FOR CONSISTENCY IN STYLE. WHEREAS, Englewood Municipal Code provides in several sections that the City shall follow specific billing cycles for City-provided utilities and services; and WHEREAS, while some provisions of Englewood Municipal Code call for specific billing cycles for City utilities, in practice, the City bills monthly for most utilities and bills no utilities quarterly as stated in various sections of code; and WHEREAS, removing specific requisite billing cycles lengths from Englewood Municipal Code allows City Council to establish billing cycles when it establishes rates for utilities and City-provided services; and WHEREAS, various Englewood Municipal Code sections are inconsistent in style and terminology, and therefore the code sections containing required billing cycles will be revised simultaneously to implement consistent style and succinct language. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Amendment of Englewood Municipal Code Subsection F shall be added to Title 12, Chapter 1A, Section 12-1A-4 of Englewood Municipal Code to read as follows (deleted provisions struck through; new provisions underlined): 12-1A-4: - Meter Requirements. F. No person shall damage, deface, or tamper with any meter. Customers in violation shall pay the City tampering fee, plus double the City’s cost and labor to repair and/or replace the meter and double the cost of water that would have been payable for the lawful use of water (if applicable); and could be subject to prosecution in Englewood Municipal Court. Section 2. Amendment of Englewood Municipal Code Title 12, Chapter 1A, Section 12-1A-5 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1A-5: - Turning on of Water. A. The City will turn water on at any premises lawfully entitled to be served, upon request. Except upon written order of the City, no one other than a duly authorized employee of the City under any condition or circumstance shall turn on water for use in any premises when the water shall have been Page 40 of 192 2 turned off by the City, or at its order; provided, however, that a licensed plumber may turn on water to the minimum extent necessary for the purpose of testing work, after which the same shall be turned off. The City shall not be liable for any damages resulting in the turning on of the water either by City employees or a licensed plumber. B. Any Person violating this section shall pay the City unauthorized use fee, double the City’s costs and labor to repair any damage caused, and double the cost of water that would have been payable for the lawful use of water. Section 3. Amendment of Englewood Municipal Code Title 12, Chapter 1B, Section 12-1B-2 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-1B-2: Tapping and Cutting Off Mains. A. At the applicant’s expense, the City shall tap all mains tapping of any main to makefor the purpose of making a connection shall be done only by the City and at the expense of the applicant. The corporation valve inserted in the main and the service pipe to be laid must be of the size specified in the permit. B. Only the City or a licensed and bonded plumber may cut The cutting off from mains may be performed by either a licensed and bonded plumber or by City personnel. Should the applicant request the City perform this work, the applicant shall pay double the City’s costs for In the event City personnel perform the cutoff, including a charge equal to the City's labortime and materials will be due and payable from the applicant. If an abandoned water service is not disconnected by the owner or by the City at the owner’s request at the main in a timely manner, the property owner shall pay double the City’s costs, including labor and materials, plus the City fee to disconnect service from the main may perform the disconnection and may charge time and materials against the property either through the next regular periodic quarterly water bill or by lien. Section 4. Amendment of Englewood Municipal Code Title 12, Chapter 2, Section 12-2-3 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-2-3: Fees and Charges. A. To fund Purpose. It is the purpose of this section to provide for the payment of all POTW (publicly owned treatment works) costs, including costs of the City. The total annual cost of operation and maintenance of the POTW, including shall include, but need not be limited to: labor, repairs, equipment replacement, maintenance, necessary modifications, power, sampling, laboratory testing and a reasonable contingency fund, every owner of real estate and/or POTW user The charges will be based upon the quality and quantity of user's wastewater, and also upon the capital and operating costs to intercept, treat, and dispose of wastewater, and shall be established by formal action of the City Council. B. General. There is hereby levied and charged on each lot, parcel of land and premises served by or having a City Wastewater connection with the Wastewater of the City or otherwise directly or indirectly discharging Wastewater, industrial wastes or other liquids, either directly or indirectly, into the City Wastewater system shall be responsible to pay the following as established by the City’s Fee and Rate Schedule: an annual service charge which shall be computed and payable as follows: 1. The charge for wastewater treatment shall be based on the gallonage of water delivered to the premises during the lowest water meter reading period falling between September 1 through May 31 for service inside City and November 1 through April 30 for Page 41 of 192 3 service outside City. This gallonage shall be converted to an annual equivalent and multiplied by the annual rate per one thousand (1,000) gallons provides the annual treatment charge. 2. A charge for Wastewater Collection System Charge shall be established annually by the City Council as part of their annual approval of the City's Fee and Rate schedule, except where or by separate resolution, where premises are served by the City collection system. Where the City does not own and maintain the collection system, the fee is paid only if authorized by City will collect charges for maintenance of same only when authorized by the terms of contract between the City and the sanitation district. 2. A 3. The charge for Wwastewater treatment fee, which shall be the greater of the City minimum fee or the rate computed as follows: a. The City shall determine the lowest shall be based on the gallonage of water delivered to the premises during a the lowest water meter reading period falling between September 1 through May 31 for service inside City, and November 1 through April 30 for service outside City. This gallonage shall be converted to an annual equivalent and multiplied by the annual rate per one thousand (1,000) gallons to establish provides the annual treatment charge. b. Where multiple meters provide water to a single at any premises, the minimum fee shall be the sum of the minimum charges for each meter. is taken through multiple meters, the charge for wastewater treatment shall be based on the gallonage of water delivered to the premises through all of the meters during the lowest water meter reading period falling between September 1 through May 31 for inside City and November 1 through April 30 for outside City, or the sum of the minimum charges for each meter, whichever is greater. However, one (1) bill for all wastewater treatment, composed of the sum of minimum charges for each meter used, or a single quantitative charge for all wastewater treatment may be issued in the following cases: a. Where water service is taken through a combination of meters or through meters on two (2) or more service pipes, if water serviced through each of such meters and service pipes is delivered and used on the same property for one (1) general purpose, or the premises is a single enterprise on an integrated holding of land, undivided by public streets, roads or alleys; and b. For each public school entity, even though the meters may be situated on separate properties. 4. Where water usage information is not available, wastewater service charges will be based on a minimum charge established by ordinance and maintained in the City's Rate and Fee Schedule. 35. Customers outside of the City limits Outside City customers shall pay a higher will be charged an increased rate from the amount charged to than customers within the inside City, established using customers for similar service to reflect industry-accepted methodology for establishing appropriate outside City rates. These rates shall be included in the flat rate and minimum rate tables establishing the rates charged to customers of the City. 6. Charges for service to customers inside the City limits shall be billed quarterly or annually in advance. Charges for Wastewater only service outside the City may, at the discretion of the City, be billed annually where this would not conflict with special provisions of a connector's agreement. All bills are due and payable as of the billing date and Page 42 of 192 4 become delinquent thirty (30) days after the billing date for inside City and forty-five (45) days after the billing date for outside City. 47. Annually the City shall review ratesUser charges shall be reviewed annually and revised the City’s Fee and Rate Schedule as necessary periodically to reflect actual POTW operation and maintenance treatment works O&M costs. 8. The rates charged by the City for all wastewater service shall be established by ordinance, and maintained in the City's Rate and Fee Schedule. BC. Exceptions.Special Cases: 1. Schools. Any school operating on a nine-month (9) school year may apply and submit proof of the school operation schedule, to pay which supplies documentation to the City verifying the nine-month (9) schedule and which applies for a nine-month (9) operating status, shall be billed seventy-six percent (76%) of the charges which would normally accrue for similar usage by a residential customers. 2. The City may enter into mutually-agreeable alternative billing arrangements for commercial users with insignificant summer irrigation or seasonal business fluctuations (such as Industries, car washes) to estimate actual usage and other establishments where summer irrigation water is not significant or where seasonal business fluctuations are more significant than irrigation usage shall be billed based on annual rather than winter period water usage. 3. Customers with delivery flow characteristics significantly different from those of a single-family dwelling shall pay an additional readiness to serve fee as established by ordinance and maintained in the City's Rate and Fee Schedule. 4. Other Cases. Where the procedures above are not applicable, or When a customer establishes application of the above calculations is same would work is inaccurate by at least 10 percent an obvious and significant injustice, to the customer, a rate shall be established by the City shall consider an alternative rate based on reasonable estimates of projected flow. CD. Permitted Industrial Users. 1. Industries that are permitted as Significant Industrial Users or holding have been issued a Wastewater Control Permit and discharge wastewater with BOD, COD and/or TSS in excess of Normal Domestic Strength Wastewater shall pay a City surcharge will be charged for the cost of handling treatment of these wastes, calculated bybased upon the net excess loading. The use of Imposition of surcharges does not authorizepermit the User to otherwise exceeding any specified Local Limits specified, or Federal orand State Pretreatment Standards. 2. The City shall require payment to cover the added cost surcharge of handling and treating the wastes as established by ordinance and maintained in the City's Rate and Fee Schedule. 3. The City shall calculate sSpecific individual rates will be calculated based on the volume strength and rate of flow in accordance with current Federal guidelines, payable within one (1) year of POTW service initiation. The City will adjust Adjustments to individual rates will be made at least annually or more frequently, whenever evidence is received that for a major change in wWastewater volume and/or characteristics.has occurred. Payment will commence within one (1) year of the date of initiation of service through the POTW. Page 43 of 192 5 34. Industrial Users in a identified for inclusion into an applicable Sector Control Program shall pay a re-inspection fee, plus any additional costs incurred by the City may be charged for the incurred by the City for every re-inspections required by the User’s due to failure to correct non-compliances or violations identified during a sector control inspection. A fee shall be established by Resolution of the City Council and maintained in the City's Rate and Fee Schedule, for each inspection required until completion of violation remedy. Such fee shall be established as a minimum of one hundred dollars ($100.00), but may be modified by Resolution, and shall be set forth in the City's Fee and Rate schedule. 45. Sanitation District shall pay may be charged a City inspection fee, plus any additional costs for the cost incurred by the City for each inspection of inspecting Industrial Users contributing Wastewater to the POTW from outside the City limits or otherwise included in or added to, based on inspection results, the City's Fats, Oil, and Grease (FOG) or Petroleum Oil, Grease and Sand (POGS) Sector Control Program. Such fee shall be established by Resolution and maintained in the City's Rate and Fee Schedule. A fee shall be established as a minimum of fifty dollars ($50.00) per inspection for facilities contributing wastewater to the POTW from locations outside of the City boundary, but may be modified by Resolution, and shall be set forth in the City's Fee and Rate schedule. E. Restoration of Service. Wastewater service shall not be restored until all charges, including the expense of termination and charge for restoration of service, have been paid. DF. Billing, Delinquency, Collection. Procedures: 1. Charges Responsibility of Owner: All fees and charges shall be chargeable against and payable by the owner of the premises receiving wastewater services. 2. Periodic Billing Statements. All charges and fees shall be billed periodically in advance, and shall be delinquent if not paid in full by issuance of the next periodic billing statement. A delinquent bill fee shall be added to the balance of all delinquent, outstanding invoices. a. The City shall cause billings for wastewater treatment and/or water charges to be rendered periodically at rates established. b. Billings for charges and any other notices shall be effective upon mailing said billing or notice to the last known address of the user as shown on City records. c. Service charges provided in this chapter shall be billed and paid in full within thirty (30) days from date of billing for inside City and forty-five (45) days after the billing date for outside City. 2. Accounts shall not be delinquent if the City approves partial payments under the City’s payment plan policy, all payments are timely made as promised, and the invoice is paid in full no more than three (3) months after the billing date. Partial payments may be approved by the City Manager or designee on a case by case basis provided that the total bill is paid in full no more than three months after the original billing date. The City Manager or designee shall develop policies that set forth the conditions under which a partial payment plan may be granted. The City shall bear no responsibility to provide the customer with any kind of reminder notices. 3. When payment of City utility services is received, the payment shall be applied in the following order; stormwater enterprise fund all concrete utility fund charges, all wastewater fund charges and water fund charges. Partial payment of combined City utility billing statements shall be applied as described in EMC § 12-5-5. G. Delinquency and Collection: Page 44 of 192 6 1. Fees and charges levied in accordance with this chapter shall be paid to the City within thirty (30) days from the date of billing for inside City and forty-five (45) days after the billing date for outside City. If the bill is not paid within thirty (30) days from the date of billing for inside City and forty-five (45) days after the billing date for outside City, it shall be deemed delinquent, whereupon a delinquency fee shall be imposed for collection services. The fee shall be established by ordinance and maintained in the City's Rate and Fee Schedule. 42. Liens, Non-payment. All delinquent and unpaid Wastewater charges and fees wastewater charges and surcharges, including, but not limited to, collection charges, pretreatment charges, monitoring charges, shall be a lien upon the real property from to which the Wwastewater was discharged to the POTW. are connected from the date said charges become due until said charges are paid. The legal owner(s) of such real property shall be jointly and severally every structure or premises shall be liable to ensure payment of the delinquent and unpaid charges and satisfy the lienfor all wastewater charges for users on his premises, which lien of liability may be enforced by the City by action at law to enforce the lien. In case the tenant in possession of any premises shall pay the wastewater charges, it shall relieve the landowner from such obligations and lien, but the City shall not be required to seek payment from any person whomsoever other than the owner of the property for the payment of wastewater charges. The lien created hereunder shall be binding on all successive owners of real property, even if the successor lacked actual knowledge of the lien prior to assuming ownership. No change of ownership or occupation shall affect the application of this subsection, and the failure of any owner to discover that he purchased property against which a lien for wastewater service exists shall in no way affect his liability for such payment in full. Said delinquent payments, and the lien created thereby, shall be enforced by assessment upon the property and premises so served and certification thereof to the County Treasurer for the collection under and in pursuance as provided for in this Code. 5. The City Clerk may certify all delinquent and unpaid wastewater charges and fees to the county treasurer where the real property from which the Wastewater was discharged to the POTW is located, to be levied and collected pursuant to C.R.S. § 31-20-105. EH. Disconnection. Clause: 1. The City may disconnect water and/or Wastewater service on any within the City or contract areas served by the City for accounts delinquent more than ninety (90) days, if the City gives thirty (30) days prior notice. Notice shall be given to the user or owner’s last known address of user or owner thirty (30) days prior to disconnection. All costs of disconnection shall be repaid at the time of reconnection; provided, that if the premises are supplied with City water services, such service may be shut off until such rates and charges for treatment and disposal of wastewater shall have been paid. 2. Wastewater service shall not be restored until all costs of disconnection, restoration, notice, delinquent charges, and other Wastewater fees and costs including the expense of termination and charge for restoration of service, have been paid, unless otherwise required by applicable law. When the premises to which such service is provided are located outside the limits of the City, failure to pay the rates and charges for treatment and disposal of wastewater when due shall be cause for the City Clerk to certify to the county commissioners of the county in which said delinquent user's property is located the charges due and unpaid, on or before November 1 of each year as, and thereupon and until paid, the same shall be a lien upon the real property so served by said wastewater system and shall be levied, certified, received or collected by sale annually from year to year by Page 45 of 192 7 the proper county officials as are general taxes, and the proceeds therefrom remitted to the City of Englewood; provided, that if the premises are supplied with City water services, such service may be shut off until such rates and charges for treatment and disposal of wastewater shall have been paid. Section 5. Amendment of Englewood Municipal Code Title 12, Chapter 2, Section 12-2-4 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-2-4: Private Sewers, Connections and Repairs. A. Structures Buildings to Have Separate Connections. Each parcel containing one or more structures requiring sanitary sewer service premises, property or building(s) situated on a premises or property in a manner which would allow the premises or property to be subdivided and the building(s) sold separately shall have be served by a separate service connection directly to athe nearest main without crossing other adjoining parcelspremises or properties, or and no connection shall be made by extending the service from one parcel to another property, premises or building to another property, premises or building. Each structureseparate building in a planned unit development requiring sanitary sewer service shall have a separate sewer service line connected to the main. With the Water and Sewer Board’s review and approval, the City Manager’s designee may grant a variance to this requirement if a written request establishes good cause why the requirement imposes an undue burden and that an exception would not harm the City, its sanitary sewer or utility service, or surrounding properties. Exceptions to this requirement may be granted by the City Manager or designee with the concurrence of the Water and Sewer Board upon a review of a written request of the property owner, in which the property owner illustrates with both written and graphic descriptions, why the exception should be granted. Existing Parcelspremises, properties or buildings which do not conforming to this requirement prior to its effective date may maintain their existing service connection configurations unless and until the City Manager’s designee and the Water and Sewer Board direct such time, in the opinion of the City Manager or designee with the concurrence of the Water and Sewer Board, the service must be separated. B. Old Existing Private Sewers. Upon structure demolition of an existing structure or replacement of sewer lines, the use of existing or aging cast iron, clay tile or concrete sewer service pipes will not be permitted by the City at new buildings. The old sewer service must be replaced from the structure building to the main with approved pipe. The Water and Sewer Board may grant a variance to this requirement for owner-occcupied property Owner/occupants of properties who desire to replace a building with the intent to occupy it themselves may seek a variance from the Water and Sewer Board if City Utilities staff determines the existing pipe is found by Utilities Department inspectors to be in sound condition. Utilities staff Department inspectors may require testing at the owner’s expense all necessary tests to conclusively establish the sound condition of the existing sewer service pipe. At the property owner’s expense, abandoned private sewers shall be plugged at the sewer main, inspected, and approved by the City and at the user's expense upon discontinuance of service. The plug of the old private sewer must be inspected and approved by the City. Expenses shall include the City’s A plan review and inspection fee will be charged by the City. City Utilities staff may approve use of existing sewer saddles or wye connections may be used for new sewer services if approved by Utilities Department inspectors. If an abandoned sewer service is not disconnected at the main in a timely manner, the property owner shall pay double the City’s costs, including labor and materials, plus the City fee to disconnect service from the main. If an abandoned sewer service is not plugged at the main within thirty (30) days, the City may perform the disconnection and may charge time and materials against the property either through the next regular City water bill or by lien as provided in 12-1D-2 EMC. Page 46 of 192 8 C. Design and Construction. The size, slope, alignment, and materials of construction of a private sewer, and the methods to be used in excavating, placing of pipe, jointing, testing, and backfilling the trench and all other work shall conform to the requirements of the Building and Plumbing Code or other applicable codes, laws, rules and regulations of Federal, State, and local entities. D. Private Lift Stations. Sewage lift stations are shall be prohibited, except when the City Manager’s designee determines in structures where it can be clearly demonstrated to the satisfaction of the City Manager or his representative that the sewer discharge pipe cannot be located to allow gravity flow to the public sewer. Sanitary sewage discharge from such structures shall be lifted and discharged to the sewer by means of a Ssewage lift stations that shall be located inside the building to be served, which sewage lift station shall be owned, operated, and maintained by the user. Outdoor sSewage lift stations require may be located outside buildings only with the approval of the Water and Sewer Board approval, upon after submission of compelling evidence that no alternative arrangement is feasibleor was possible and compliance with the following: . Outside building lift stations approved by the Water and Sewer Board must have bolt-down, gasketed lids; vents that extend above the building roofline; and water-tight containment structures with top rim elevations that extend at least six inches (6") above the rim elevation of the nearest toilet bowl; and an agreement running with the land to defend and indemnify the City from all damages and liability regarding the lift station. Furthermore, the property owner shall enter into an agreement with the City of Englewood, which agreement shall bind the owner and all future successors and assigns, whereby, should the lift station overflow, the City shall be held harmless and indemnified against all State and Federal fines, penalties and legal actions. DE. Installation and Maintenance. The applicant shall pay aAll costs and expenses of incidental to the installaingtion and connectingon aof the private sewer, including a licensed and bonded shall be borne by the applicant who shall retain or employ a licensed sewer contractor or plumber to connect and install the sewer and service line from the public sewer main to the structuremake connection to and install a sewer. The applicant and The service line from the public sewer main line to the structure to be served shall be installed by the property owner at his/her expense. The owner shall hold the City harmless for any loss or damage that may directly or indirectly causedbe occasioned by the installation of the service line or the malfunction of any old private sewer. The owner of any property connecting to the POTW shall be responsible for the maintainenance and repair of the service line from the public sewer main to the structure to be served to ensure it remains The owner shall keep the service line for which he/she is responsible in good condition, it is not and shall replace at his/her expense any portions thereof which, in the opinion of the City, have become damaged or disintegrated as to be unfit for further use, nor does it is in such condition to permit infiltration into the system. All repairs shall be completed by a licensed and bonded contractor within thirty (30) days after notification by the City and shall be completed by a bonded contractor. The owner shall is be responsible to repair public right-of-way and improvements damaged by any sewer line repair for returning the public right of way and the street to acceptable City standards. EF. Permit Required. Before commencement of Construction of a private sewage disposal system requires a City permit, the owner shall first obtain a written permit signed by the City. FG. Connection Requirement. 1. The holder of a applicant for the private sewer permit shall notify the City when the private sewer is ready for inspection and connection to the public sewer; connection shall only be made if all permit requirements were met, and only under City supervision. The Page 47 of 192 9 applicant must have secured a permit and have met all City requirements. The connection shall be made under the supervision of the City's representative. 2. The City may require the owner of any structure used for human occupancy, employment or activity , situate within the City, may be required at such owner's expense to connect thesuch structure to a public sewer located, if such a public sewer is within four hundred feet (400') of the property line of the property upon which the structure is located. Such connection shall be made within ninety (90) days after service of notice from the City is served by personal delivery or conspicuously posting on the property and mailing by registered mail to the owner of record’s address on file with the Arapahoe County Assessor. on the owner of the property affected; provided, however, that in the event compliance with this Subsection causes A residential owner may receive a temporary exemption upon establishing a severe economic hardship resulting from compliance, for the duration of the hardship. to said person, he/she may apply to the City for exemption from this Subsection. Such applications shall state in detail the circumstances which are claimed to cause such economic hardship. Such exemptions shall only be granted to residential users, shall not apply to other users, and shall be granted only for such time as the demonstrated hardship exists. Upon connection to the public sewer, any private sewage disposal system shall be emptied, cleaned, and filled with dirt or sand. Service shall be considered complete upon delivery of the notice to the owner of the property or by posting a copy of the notice on the property in question in a conspicuous place and by mailing a copy of such notice, registered mail, to the record owner of the property as disclosed and at the address shown in the current records of the Arapahoe County Assessor. 3. If a public sewer is not available within four hundred feet (400') of the property line of the property upon which a house or building is located, the owner shall utilize a private sewage disposal system constructed in accordance with applicable regulations of the Health Department shall be utilized to dispose of sewage. 4. In cases where a public sewer was not previously available within four hundred feet (400') of the property line of a property but a public sewer later becomes later available within such distance, the owner may be required to connect with the public sewer as provided in Subsection H2 above. In such event, after the connection is completed, the private sewage disposal system shall be emptied, cleaned and filled with sand or dirt. 45. It shall be unlawful for any person to deposit or discharge, or to cause any solid or liquid waste to be deposited or discharged to any wastewater collection facilities any solid or liquid waste unless through a City-approved connection approved by the City. GH. Damage to POTW. No person shall Any person who maliciously, willfully, or negligently breaks, damages, destroys, uncovers, defaces, or tampers with any POTW structure, appurtenance or equipment which is part of the POTW shall be subject to such action and penalty as provided in Section 12-2-6 of this Chapter and Section 12-2-5 for industrial users. HI. Septic Waste Fees and Charges. A City permit is required for aThe wastewater or septic tank waste hauler, and such haulers shall pay the City permit fee and fee permit fee shall be one hundred dollars ($100.00). Charge for disposal of hauled wastewater or septage shall be nine cents ($0.09) per gallon. IJ. New Construction Over Existing Sewer Service Lines. Prior to constructing If a property owner wishes to build a new, permanent structure or an expansion of an existing structure, the owner shall determine the location of the existing sewer service line and, if it is within the proposed construction site, either relocate the line outside of the construction site or replace the line with material appropriate for use inside the structure. over an existing sewer service line, whether the structure is Page 48 of 192 10 attached to an existing structure or unattached, the sewer service line shall be relocated away from the new structure, or the service line will be replaced with pipe material approved for use inside a building. If the location of an existing sewer service line is unknown, it shall be the property owner's responsibility to determine, by whatever means necessary, the location of the service line to the satisfaction of the City of Englewood. Section 6. Amendment of Englewood Municipal Code Title 12, Chapter 5 Section 12-5-5 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-5-5: Billing and Payment of Fees. A. The Sstormwater fees shall be billed and collected with the periodically, and may be included on a combined City utility quarterly water and sewer bill, for those lots or parcels of land utilizing utilities and billed and collected separately as stormwater utility fees for those lots or parcels of land not utilizing other City utilities. B. The fees charged in each billing period are effective upon mailing athe bill or notice to the user’s last known address of the utility user shown on the records of the City. C. Stormwater fees All charges for the use of the stormwater utility prescribed by this Chapter are due within one month thirty (30) days after billingthe date of the bill and are payable at the City. D. Partial payment of stormwater fees and other City utility services shall be applied to City funds in the following order: When payment of City utility services is received, the City shall apply said payment to satisfy all Stormwater Enterprise Fund charges first, all Concrete Utility Fund charges second, all Sanitary Sewer Fund charges shall be satisfied next, Wastewater, thenand lastly, Water Fund charges shall be satisfied, in that order. Section 7. Amendment of Englewood Municipal Code Title 12, Chapter 8, Section 12-8-9 of Englewood Municipal Code is hereby amended to read as follows (deleted provisions struck through; new provisions underlined): 12-8-9: Billing and Payment of Fees. A. The Cconcrete Uutility fees shall be billed, charged, and collected, paid, and applied like stormwater fees under EMC § 12-5-5. with the quarterly water and sewer bill for those lots or parcels of land utilizing City utilities and billed and collected separately as for those lots or parcels of land not utilizing City water and sewer utilities. B. The fees charged in each billing period are effective upon mailing the bill or notice to the last known address of the utility user shown on the records of the City's Utilities Department. C. All charges for the use of the concrete utility prescribed by this Chapter are due within thirty (30) days after the date of the bill and are payable at City Hall. D. When payment of City utility services is received, the City shall apply said payment to satisfy all Stormwater Enterprise Fund charges first, all Concrete Utility Fund charges second, all Sanitary Sewer Fund charges shall be satisfied next, and lastly, Water Fund charges shall be satisfied, in that order. Section 8. Fee Amounts Established Page 49 of 192 11 The fees created herein shall be contained within the City’s Fee Schedule as follows: EMC 12-1A-4(F) Meter Tampering Fee $300 12-1A-5(B) Unauthorized Water Use Fee $300 12-1B-2(B) City Main Disconnection Fee/ Failure to Disconnect $300 12-2-4(B) Abandoned Sewer Service Fee/ Failure to Disconnect $300 SECTION 9. 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 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 50 of 192 12 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 _____ day of ________________, 2023. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the _____ day of ________________, 2023. Published as a Bill for an Ordinance on the City’s official website beginning on the _____ day of ________________, 2023 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 __________________, 2023. Stephanie Carlile Page 51 of 192 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: January 3, 2023 SUBJECT: CB 03 - 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 03 - 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: 1-7-2: -Jurisdiction, Power. Mirrors state law definitions, procedure for contempt Provides more due process to defendants Requires affidavit before warrant issued for contempt outside of court's presence Order to appear on contempt served 21 days before hearing 7-6A-5: - Resist, Interfere With Municipal Officers. Expanded to include EMS, fire, code enforcement, building officials Remaining silent or stating verbal opposition is OK Page 52 of 192 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 The City Attorneys Office provided the proposed council bill to the Municipal Court Administrator at her request for review. After multiple revisions at her request, the Adminstrator approved the substantive revisions to municipal code. 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, BEST PRACTICES FINANCIAL IMPLICATIONS: None anticipated. ATTACHMENTS: Council Bill #03 Powerpoint Page 53 of 192 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 54 of 192 •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 55 of 192 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 56 of 192 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 57 of 192 Falsely reporting animal cruelty is not a violation 7-6B-10: -False Reports and Alarms.Page 58 of 192 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 59 of 192 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 60 of 192 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 61 of 192 Removes certain acts that can no longer be prosecuted in Municipal Court 7-6D-1: -Prostitution.Page 62 of 192 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 63 of 192 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 64 of 192 QUESTIONS?Page 65 of 192 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 03 SERIES OF 2023 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: No person shall 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 Page 66 of 192 2 sixty (360) 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 enforcementing of court 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 by law from asserting jurisdiction. B. Contempt 1. Definition: Contempt means disobedience of a court order; 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. 2.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 Page 67 of 192 3 facts constituting the contempt, adjudging the contemner guilty of contempt and prescribing the 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. 3D. Out of Presence of Court: When it appears to the court by a motion supported by affidavit establishes that a contempt was has been committed outside of the presence of the court, or if a person fails to appear in court after being ordered to return either in person or in writing, the court 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 for contempt of courttherefor. 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. a. 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. b. Any bond may be forfeited upon proper notice of hearing to the surety, if any, and may be paid to the City or any aggrieved party by order of the court. c. Nothing herein affects the court’s authority to issue a bench warrant arising out of a failure to appear in court, to secure an in-person appearance. 4E. 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. Page 68 of 192 4 CF. 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 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 cCourt 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. 23. The Municipal cCourt 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 oOrder by the defendant, the court can order forfeiture of the bond. 34. Each violation of a No Contact Order is a separate contempt and may can be punished as provided hereinin subsection E of this section. DG. 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 after hearing the evidence and, being fully satisfied therein that sufficient cause exists, the Municipal Court Judge may issue a temporary restraining order 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. EH. Juvenile Evaluation. 1. The Judge of the Englewood Municipal cCourt 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 Page 69 of 192 5 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. 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 Page 70 of 192 6 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. 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. Page 71 of 192 7 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, 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 Page 72 of 192 8 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 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 Page 73 of 192 9 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 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. Page 74 of 192 10 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. 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. Page 75 of 192 11 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. 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 Page 76 of 192 12 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 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 Page 77 of 192 13 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. 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). Page 78 of 192 14 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 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. Page 79 of 192 15 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 3rd day of January, 2023. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 6th day of January, 2023. Published as a Bill for an Ordinance on the City’s official website beginning on the 5th day of January, 2023. 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 3rd day of January, 2023. Stephanie Carlile Page 80 of 192 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Brad Creager, Jeromy King DEPARTMENT: Information Technology DATE: January 3, 2023 SUBJECT: CB 64 - Approve a bill for an ordinance authorizing execution of a Comcast Dark Fiber Agreement DESCRIPTION: CB 64 - Approve an ordinance to enter into a 10 year agreement for use of Comcast Dark Fiber. The full amount of the agreement is $660,000 or $5,500 a month. RECOMMENDATION: Staff recommends approval of an ordinance to enter into a ten year lease agreement with Comcast Business for dark fiber services. PREVIOUS COUNCIL ACTION: 2002 Ordinance #19 - Franchise Agreement w/Mountain States Video Inc. 2019Ordinance #11 - Comcast Franchise Extension SUMMARY: In 2002 the City of Englewood entered into a franchise agreement with Comcast of Colorado (Comcast) cable television which expired on June 10, 2017. In 2019 the Cityentered into a month to month agreement in order for the City to convert the INet (Dark Fiber) services and Comcast video services over to business accounts. This was needed in order to resume franchise agreement talks with Comcast since they would no longer offer the INet and video services at discounted rates or free service. City staff worked with Comcast to get the best pricing on dark fiber service that connect our buildings. ANALYSIS: In June of 2017 the Comcast franchise agreement expired and in 2018 promptedCity Staff to reach an agreement to extend the existing agreement if the customer services standards were updated. Following Comcast's review of the ordinance they reversed their position because Comcast did not realize the current franchise from 2002 included language on INET services and cable video services. The City used the INet (dark fiber) services at an annual cost of $500 per mile which totaled $1,560.00 per year for maintenance and Comcast provided each of our buildings non-public viewing of basic cable video service at no cost. Comcast has transitioned away from INET services and cable video services in franchise renewals since 2013 and required them to be converted to business accounts. In 2019 the City and Comcast extend the Franchise month-to-month. Page 81 of 192 The City and Comcast worked together to identify which locations were using the INET (dark fiber) services so in this transition there would be no interruption to services. The locations that were identified was, Allen Plant, Police Department, Recreation Center, Broken Tee through the Recreation Center, Pirates Cove and Civic Center. Each location would have one ten gigabit connection back to Civic Center with no redundancy for digital services. City staff negotiated a ten year agreement at a cost of $1,100.00 per month for each location which totals $5,500 per month for the 5 locations. The annual cost would be $66,000 and total cost of the agreement is $660,000.00. City staff saw the need to lock in pricing so there would be no increases the terms of the agreement unless more locations are added. COUNCIL ACTION REQUESTED: Staff requests approval of an ordinance to enter into a ten year lease agreement with Comcast Business for dark fiber services. FINANCIAL IMPLICATIONS: The Dark fiber lease agreement is a ten year agreement for a total cost of $660,000.00 at an annual rate of $66,000.00 with Comcast of Colorado. CONNECTION TO STRATEGIC PLAN: Digital communications compliance is in line with Governance in the Strategic Plan ATTACHMENTS: CB #64 - Lease Agreement Comcast Contract-Approval-Summary Comcast Dark Fiber City of Englewood - Dark Fiber Agreement Page 82 of 192 1/3 BY AUTHORITY ORDINANCE NO. __ COUNCIL BILL NO. 64 SERIES OF 2022/2023 INTRODUCED BY COUNCIL MEMBER WOODWARD AN ORDINANCE APPROVING A LEASE AGREEMENT FOR DARK FIBER WITH COMCAST BUSINESS COMMUNICATIONS, LLC AND AUTHORIZING THE EXECUTION OF DOCUMENTS RELATED THERETO WHEREAS, the City of Englewood is authorized by Section 31-15-801, C.R.S., to enter into rental or leasehold agreements in order to provide necessary land, buildings, equipment and other property for governmental or proprietary purposes; and WHEREAS, the City of Englewood Department of Information Technology has identified a need for fiber-optic infrastructure to increase capacity and facilitate high speed Internet access and communications for the City; and WHEREAS, the Department of Information Technology has further determined that it is in the best interests of the City to enter into a Dark Fiber Lease Agreement with Comcast Business Communications, LLC for the provision of a fiber optic network and related equipment and services (“Dark Fiber Lease Agreement”), and that the use of such equipment is essential to the City’s proper, efficient, and economic operation; and WHEREAS, the Department of Information Technology has taken the necessary and appropriate steps under applicable law to arrange for the acquisition of the equipment under the Dark Fiber Lease Agreement; and WHEREAS, the Dark Fiber Lease Agreement terminates and the City’s obligations thereunder are extinguished if the City fails to appropriate money for the ensuing fiscal year for the payment of the amounts due in such fiscal year; and WHEREAS, the Department of Information Technology requests that the Englewood City Council approve, enter into, and deliver, as applicable, to effectuate the proposed Dark Fiber Lease Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Pursuant to C.R.S. § 31-15-801, the City Council of the City of Englewood, Colorado hereby authorizes the Dark Fiber Lease Agreement between Comcast Business Solutions, LLC and the City of Englewood, Colorado, a copy of which is attached hereto as Exhibit 1. Page 83 of 192 2/3 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. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance, including correcting any non-substantive typographical or scrivener’s error in the Agreement. Page 84 of 192 3/3 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 5th day of December, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 8th day of December, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 7th day of December, 2022 for thirty (30) days. Read by Title and passed on final reading on the 3rd day of January, 2023. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2022/2023, on the 6th day of January, 2023. Published by title on the City’s official website beginning on the 5th day of January, 2023 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 2022/2023. Stephanie Carlile Page 85 of 192 Contract Approval Summary March 2019 Update Page | 1 Contact Identification Information (to be completed by the City Clerk) ID number: CB 64 Authorizing Resolution/Ordinance: Ordinance Recording Information: City Contact Information Staff Contact Person: Jeromy King Phone: 303-783-6831 Title: Director of IT Email: jking@englewoodco.gov Vendor Contact Information Vendor Name: Comcast Business Vendor Contact: Amy Prange Vendor Address: 1701 JFK Blvd / One Comcast Center Vendor Phone: (303) 913-0580 City: Philadelphia Vendor Email: Amy_Prange@comcast.com State: PA Zip Code: 19103 Contract Type Contract Type:LeaseAgreement 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: 1/1/2023 End Date:12/31/2032 Total Years of Term:10 Total Amount of Contract for term (or estimated amount if based on item pricing): $ 660,000.00 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Payment terms (please describe terms or attach schedule if based on deliverables): This will be a month to month term at $5,500.00 per month Attachments: ☐Copy of original Contract if this is an Amendment ☐Copies of related Contracts/Conveyances/Documents Ten year lease agreement for the City to lease Comcast dark fiber for communications to Allen Plant, Police Department, Recreation Center, Broken Tee through the Recreation Center, Pirates Cove and Civic Center. Page 86 of 192 Contract Approval Summary March 2019 Update Page | 2 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): This is a lease agreement for Comcast Business to lease dark fiber for digital communications ☐ Qualification Based Selection / Best Value* (Continue on Next Page): *Note: Qualifications Based Selection / Best Value Justification detailed explanation may include the following information, but is not limited to: 1.) Product and provider reliability 2.) Product and project understanding 3.) Product availability / Low risk solution 4.) Ability to connect to with current City of Englewood IT systems 5.) Familiarization with the City of Englewood Page 87 of 192 Dark Fiber Lease Agreement This Dark Fiber Lease Agreement (“Agreement”) is made on September 14, 2022 (“Effective Date”) by and between Comcast Business Communications, LLC (“Company or Comcast”) with offices located at 1701 JFK Blvd / One Comcast Center Philadelphia, PA 19103 and City of Englewood (“Customer”), with offices located at 1000 Englewood Parkway, Englewood, CO 80110. Herein, the above shall be collectively referred to as the “Parties” and individually as “Party”. Description of Facilities (“Facilities”) to be provided by Company to Customer: Dark fiber strands (ten (10) pair), as set forth in the Sales Order attached hereto. Agreement Term (months): One-Hundred and Twenty (120) Agreement Number: CO-APr-091422-1 Non-Recurring Charges (“NRC”): $0.00 Monthly Recurring Charges (“MRC”): $5,500.00 Any Additional Charges/Explanation: Number of Sites: Five (5) Estimated Facility Availability Date: N/A (already provisioned) Notes / Comments: The mutual execution of this new Dark Fiber Lease Agreement No. CO-APr-091422-1 (“Replacement Agreement”) by the Parties shall commence the full termination (without penalty or Termination Charges) of the already in-effect Enterprise Services Sales Order - MSA ID No. CO-11387590 (“Existing Agreement”) between the Parties. In the event this Replacement Agreement is not mutually executed by the Parties, the Existing Agreement shall remain in full force and effect. Salesperson: Amy Prange Telephone Number: (303) 913-0580 General Manager: Chris Prekopa Telephone Number: (720) 357-3264 Customer Contact: Jeromy King Telephone Number: (303) 783-6831 This Agreement sets forth the terms and conditions under which Comcast will provide the Facilities identified above to Customer. This Agreement consists of this document (“Cover Page”), the standard General Terms and Conditions attached hereto (“General Terms and Conditions”), Sales Order (“Sales Order”), and any jointly executed amendments (“Amendments”), collectively referred to as the “Agreement.” In the event of any inconsistency among these documents, precedence will be as follows: (1) Amendments, (2) General Terms and Conditions, (3) this Cover Page, and (4) Sales Order. This Agreement shall commence and become a legally binding agreement upon mutual execution of this Cover Page by the Parties. The Agreement shall terminate as set forth in the General Terms and Conditions. All capitalized terms not defined on this Cover Page shall have the definitions given to them in the General Terms and Conditions. All modifications to the Agreement, if any, must be captured in a written Amendment, executed by an authorized Comcast Vice President and the Customer. All other attempts to modify the Agreement shall be void and non-binding on Comcast. By signing below, the Parties agree and accept the terms and conditions of this Agreement. City of Englewood Comcast Business Communications, LLC Signature: Signature: Printed Name: Printed Name: Title: Title: Date: Date: Page 1 of 6 CONFIDENTIAL and PROPRIETARY rcv. 10.10.17 SH-A Page 88 of 192 Page 1 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 GENERAL TERMS AND CONDITIONS SECTION 1 - SCOPE 1.1 Company will lease to Customer the strands of Company’s multi-strand single mode fiber-optic cable (the “Facilities,” which may be referenced herein as the “Services,” but no service other than the provision and maintenance of these Facilities is provided under this agreement), which strands shall originate at the points and terminate to the Customer “Buildings” and at the prices as set forth in the attached Sales Order attached hereto. These strands and all related facilities and equipment are hereinafter referred to as the “Facilities.” Customer agrees that it will light and immediately use all strands for its broadband needs. The Facilities are provisioned into each Building at the point of interconnection between the Comcast-owned Facilities and Customer’s provided equipment located at Customer’s Building (“Demarcation Point”). 1.2 The Facilities do not include connection to the public switched network, building wire, any Local Area Networks (“LANs”), Customer Premise Equipment (“CPE”), IP addressing capability, firewalls or any other equipment, electronics, or wiring required on the Customer’s side of the Demarcation Point. 1.3 Upon the request of Customer, Company will consider providing other facilities or services to Customer at terms, conditions, and prices to be mutually agreed upon in writing between the Parties. SECTION 2 - INSTALLATION 2.1 Customer, at no cost to Company, shall secure throughout the Term any easements, leases or other agreements necessary to allow Company to use existing pathways into and in each Building to the Demarcation Point. 2.2 Subject to the terms of this Agreement, and at no cost to Company, Customer shall provide adequate environmentally controlled space and electricity required for installation, operation, and maintenance of the Facilities within each Building. 2.3 Company and its employees, agents, lessees, officers and its authorized vendors will require free ingress and egress into and out of the Buildings in connection with the provision of the Facilities. Upon reasonable notice from Company, Customer shall assist Company in accessing each Building. 2.4 If the presence of asbestos or other hazardous materials exists or is detected, Customer must have such hazardous materials removed immediately at Customer’s expense or notify Company to install the applicable portion of the Facilities in areas of any such Building not containing such hazardous material. Any additional expense incurred as a result of encountering hazardous materials, including but not limited to, any additional equipment shall be borne by Customer. 2.5 Company shall have no obligation to install, operate, or maintain Customer-provided facilities or equipment. 2.6 Customer shall be responsible for providing maintenance, repair, operation and replacement of all wire, cable facilities on the Customer’s side of the Demarcation Point. Any CPE and wiring that Customer uses in connection with the Facilities shall be compatible with Comcast’s other facilities, equipment, and services provided to itself or any other party (the “Network”). 2.7 Customer shall use reasonable efforts to maintain its property and Buildings in a manner that preserves the integrity of the Facilities and shall promptly notify Company of any event that affects such integrity including but not limited to damage to the Facilities or Network. 2.8 At such time as Company completes installation and connection of the Facilities and equipment, Company shall then notify Customer in writing that the Facilities are available for use and the date of such notice shall be the “Service Date.” The current notice form is called the “Customer Site Service Acceptance Document” (“Acceptance Form”). Company may update, modify or replace the service notification form from time to time without notice to Customer. 2.9 Any other failure or refusal on the part of Customer to be ready to receive the Facilities shall not relieve Customer of its obligation to pay charges for any Facilities that would otherwise be available for use. 2.10 Customer-Provided Equipment (CPE). Company shall have no obligation to install, operate, or maintain CPE. Customer alone shall be responsible for providing maintenance, repair, operation and replacement of all inside telephone wiring and equipment and facilities on the Customer’s side of the Demarcation Point. All CPE and wiring that Customer uses in connection with the Facilities must be fully compatible with the Facilities. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance or repairs attempted or performed by Company’s employees or authorized contractors when the difficulty or trouble report results from CPE. SECTION 3 - OWNERSHIP, IMPAIRMENT, AND REMOVAL OF THE FACILITIES 3.1 The Facilities and all other portions of the Network are and shall remain the property of Company regardless of whether installed between, within or upon the Buildings and whether installed overhead, above, or underground and shall not be considered a fixture or an addition to the land or the Buildings located thereon. Customer agrees that it shall take no action that directly or indirectly impairs Company’s title to the Facilities or Network, or exposes Company or the Facilities, Network, or any Company-provided equipment, or on the rights or title relating thereto, or any interest therein, to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties, and Company will promptly at its own expense take all actions necessary to remedy any violation of this provision. 3.2 Company retains the right to remove the Facilities or Network including, but not limited to, those portions that are located in the Buildings. To the extent Company removes such portion of the Network; it shall be responsible for returning the Buildings to their prior condition, reasonable wear and tear excepted. 3.3 In accordance with the Federal Communications Commission’s Order in FCC 99-216, released August 11, 1999, the Parties agree to the terms set forth in this section. All equipment located on Customer's premises installed or provided under this Agreement by Company is an integral component of the Facilities provided by Company and will only be used in connection therewith. All right, title, and interest in the Facilities and any other equipment or facility provided by Company shall, at all times, remain exclusively with the Company, shall not become a fixture to Customer's premises, and must be returned to Company at the conclusion of the Term (unless a new similar agreement has been executed or is being actively negotiated by both parties) in the condition in which it was received, subject to ordinary wear and tear. All rights of Customer to the Facilities shall cease and Company may, at its option, disconnect, terminate, remove or use the Facilities for any other purpose. Company may use such equipment and its Network in any lawful manner, including supporting its network or providing service to other customers and Customer will not sell, lease, assign nor encumber any equipment provided by Company. Company does not provide any option to Customer to purchase any such equipment. Customer agrees not to interfere with other customers' use of the Company services or equipment, including any Company equipment located on Customer's Page 89 of 192 Page 2 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 premises. Customer represents and warrants that its internal communications systems, such as a Local Area Network ("LAN"), would continue to function if disconnected from the Company Network or disconnected from any on-premise equipment provided by Company. SECTION 4 - COMPENSATION; PAYMENT 4.1 The Non-Recurring Charges (“Non-Recurring Charges” or “NRC”) and Monthly Recurring Charges (“Monthly Recurring Charges” or “MRC”) for the Facilities are set forth in the attached Sales Order and on the first page of the Agreement. Upon the availability of Facilities, Company shall invoice Customer for the NRC and Customer shall pay Company one hundred percent (100%) of the NRC. Unless otherwise stated in this Agreement, Company will invoice Customer in advance on a monthly basis for all Monthly Recurring Charges arising under the Agreement. Payment will be considered timely made to Company if received within thirty (30) days after the invoice date set forth in the invoice. Any charges not paid to Company within such period will be considered past due. In the event the Facilities Availability Date is not the first day of the billing period, the first Recurring Charge shall also include the prorated in arrears charges for Services from date of installation to the date of first billing. 4.2 Any payment not made when due will be subject to a late charge of 1.5% per month or the highest rate allowed by law on the unpaid invoice, whichever is lower. 4.3 Except for taxes based on Company’s net income, and except to the extent Customer provides a valid tax exemption certificate acceptable to Comcast prior to the Facility Availability Date, Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes (however designated) levied upon the sale, installation, use or provision of the Facilities, including all applicable right-of-way, franchise, pole attachment, pole rental and/or other permitting, rental or joint use fees in proportion to its activities hereunder. Further, Company reserves the right to invoice Customer for the costs of any fees or payment obligations stemming from an order, rule, or regulation of the FCC, a public service commission or a court of competent jurisdiction with respect to the Facilities, including, without limitation, charges to recover amounts that Company is permitted by government or quasi-governmental authorities to collect from or to pay to others in support of statutory or regulatory programs, including, without limitation, franchise fees and right-of-way fees. It will be the responsibility of Customer to pay any such taxes and fees that subsequently become applicable retroactively. 4.4 In the event that any newly adopted law, rule, regulation, or judgment increases Company’s costs of providing the Facilities, Customer shall pay Company’s additional costs of providing the Facilities under the new law, rule, regulation or judgment. SECTION 5 - TERM Unless sooner terminated as provided herein, including under Section 6.2(c), the term of this Agreement shall be for one-hundred and twenty (120) months from the Facility Availability Date (“Term”). Upon the expiration of the Term, this Agreement shall automatically renew for successive periods of one (1) year each (“Renewal Term(s)”), unless prior notice of non-renewal is delivered by either Party to the other at least thirty (30) days before the expiration of the Term or the then current Renewal Term. Effective at any time after the end of the initial Term and from time to time therein, Company may modify the charges for the Facilities to reflect then-current prevailing pricing subject to thirty (30) days prior notice to Customer. Customer will have thirty (30) days from receipt of such notice to cancel the applicable lease of Facilities without further liability. Should Customer fail to cancel within this timeframe, Customer will be deemed to have accepted the modified pricing for the remainder of the Renewal Term. SECTION 6 - TERMINATION WITHOUT FAULT; DEFAULT 6.1 Notwithstanding any other term or provision in this Agreement, Customer shall have the right, in its sole discretion, to terminate this Agreement at any time during the Term, or any Renewal Term, upon (i) sixty (60) days prior written notice to Company and (ii) the payment of 100% of the remaining Monthly Recurring Charges payable to Company within ten (10) days following termination of the Agreement (“Termination Charges”). 6.2 (a) Company may, in its sole discretion, immediately terminate this Agreement in the event that it is unable to provide access to the Facilities due to any law, rule, regulation, Force Majeure event, or judgment of any court or government agency. If Company terminates the agreement under this subsection 6.2(a), Customer shall have no obligation to pay any remaining Monthly Recurring Charges as a result of Termination by the Company, with the exception of payments due for Facilities actually provided. (b) Any breach of Article 9A shall be deemed a material breach of this Agreement. In the event of such material breach, Company shall have the right to restrict, suspend, or terminate immediately any or all Service, without liability on the part of Company, and then to notify Customer of the action that Company has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement. In the event Company terminates service under this subsection 6.2(b), Customer shall be responsible for the payment of all past due amounts and Termination Charges in addition to any other remedies as identified in section 6.4. (c) Customer is a governmental entity and as such is subject to Article X, Section 20 of the Colorado Constitution, commonly known as “TABOR”. The financial obligations of Customer after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. In the event that funds are not made available in subsequent fiscal years, Customer may terminate this Agreement, without penalty, but subject to any right Company may have under applicable law to recover its costs incurred in connection with any such termination. Any termination under this subsection shall not be deemed to incur Termination Charges. 6.3 In the event of default, either Party may terminate this Agreement. A “default” exists under this Agreement upon the following events: (i) either Party’s failure to meet or perform any material term, provision, covenant, agreement, or obligation contained in this Agreement; provided that the non-defaulting Party so advises the defaulting Party in writing of the event of default and the defaulting Party does not remedy the default within thirty (30) days after written notice thereof; or (ii) Either Party’s insolvency or initiation of bankruptcy or receivership proceedings by or against the Party. (iii) Customer is in breach of a payment obligation and fails to make payment in full within ten (10) days after receipt of written notice of default. 6.4 The non-defaulting Party shall be entitled to all available legal and equitable remedies for such breach. 6.5 In addition to the remedies set forth in Section 6.4 above; Company shall be entitled to Termination Charges for any Customer Default. SECTION 7 – MAINTENANCE 7.1 Maintenance consists of the repair or replacement, at Page 90 of 192 Page 3 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 Company’s option, of any portion of the Facilities that is malfunctioning. Company will maintain the Facilities twenty-four (24) hours a day, seven (7) days per week, every day of the year. Company is responsible for the maintenance of the Facilities; provided, that, Customer may incur additional charges for maintenance (at Company’s then-existing applicable rates for material and labor), if the maintenance is caused by the acts or omissions of the Customer. All maintenance and repair of the Facilities shall be performed by or under the direction of Company. Customer may not, nor permit others to, rearrange, disconnect, remove, attempt to repair or otherwise tamper with any of the Facilities or equipment installed by Company, except with the written consent of Company, which consent shall be at Company’s sole discretion. 7.2 In the event that Company, in responding to a Customer- initiated service call, determines that the reason for such service call is due to Customer-provided equipment or Customer's actions or omissions, acts or omissions of third parties with whom Customer has any type of relationship, Customer shall compensate Company for Company’s costs of such service call at the rate of $50.00 per half hour and $150.00 per truck roll charge. SECTION 8 - LIMITATIONS ON WARRANTIES AND LIABILITY 8.1 COMPANY AND ITS AFFILIATES WILL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY COST OF SUBSTITUTE PRODUCT(S), FACILITIES, OR SERVICES, LOSS OF REVENUE, LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY’S AGGREGATE LIABILITY TO CUSTOMER FOR ANY DAMAGES OF ANY KIND UNDER THIS AGREEMENT WILL NOT EXCEED, IN AMOUNT, A SUM EQUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. 8.2 THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 8.3 Company’s liability for mistakes, errors, omissions, interruptions, delays, outages, or defects in any Facility or Service (individually or collectively, “Liability”) shall be limited solely to 1/30th of the Monthly Recurring Charge for the affected portion of the Service, for one or more Liabilities of at least two (2) hours in duration in any 24-hour period that is not coincident with any other Liability, (“Credit”), provided that the Liability is reported by Customer during the duration of the Liability. Notwithstanding the foregoing, Company shall not be liable for such Credits if the event is caused in part by force majeure events or Customer’s (or Customer’s equipment’s) actions or omissions. 8.4 Company shall not be liable for any act or omission of any other company or companies furnishing a portion of the Facilities including, but not limited to, the inability of a supplier to provide equipment in a timely manner for Network, or for damages associated with services, facilities, or equipment which it does not furnish, including, but not limited to, damages which result from the operation of Customer’s system, equipment or facilities. In no event shall Company, its affiliates, its/their employee’s agents, contractors, merchants, or licensors be liable for any loss, damage or claim arising out of or related to: (1) stored, transmitted, or recorded data, files, or software. (i.e., Customer is advised to back up all data, files and software prior to the installation of service and at regular intervals thereafter); (2) interoperability, interaction or interconnection of the Service provided under this Agreement with applications, equipment, services or networks provided by Customer or third parties. 8.5 Neither Customer nor its agents or independent contractors shall offer third parties warranties or representations for the Service which would obligate or otherwise bind Company beyond any warranty or representation expressly set forth in this Agreement. SECTION 9 – INDEMNIFICATION 9.1 Subject to Section 8, and to the extent not prohibited by law, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, , independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts (collectively, "Damages"), arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, "Claims") relating to: (i) Any Claim of any third party resulting from the gross negligence or willful act or omission of Indemnifying Party arising out of or related to this Agreement, the obligations hereunder, and uses of Services; and (ii) Any violation of this Agreement by the Indemnifying Party or any violation of any law, rule, regulation, or order of any governmental authority having jurisdiction over any aspect hereof, or in violation of any patent, right, license, agreement, or certificate relating to the subject matter hereof. 9.2 To the extent not prohibited by law, the Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of this Section 9. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. 9.3 The provisions of Section 9 shall not be construed or interpreted as a waiver. express or implied, of any of the immunities, rights, benefits, or other provisions, of the Colorado Governmental Immunity Act. CRS § :24-10-101 et seq. SECTION 9A - USE POLICIES 9A.1 Customer agrees to ensure that all uses of the Facilities by Customer or by any other person (“user”), whether authorized by Customer or not, are legal, appropriate and compliant with all applicable rules, regulations, and orders of any governmental authority having jurisdiction over the Facilities, and this Agreement. Customer shall not use, or permit any other entity or person to use, the Facilities to provide internet access service, cable television service, telecommunications, or any other services to any third party, or any services to or from locations other than the locations set forth in the Page 91 of 192 Page 4 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 Sales Order. Company reserves the right to act immediately and without notice to terminate or suspend all rights to use the Facilities if Company (i) determines that such use or information does not conform to the requirements set forth in this Agreement, or (ii) determines that such use or information interferes with Company’s ability to provide the Services to Customer or others. Company’s action or inaction in enforcing the requirements of this Section shall not constitute review or approval of Customer’s or any other users’ use or information. 9A.2 Violation. Any breach of this Article 9A shall be deemed a material breach of this Agreement. In the event of such material breach, Company shall have the right to restrict, suspend, or terminate immediately any or all rights to access to the Facilities, without liability on the part of Company, and then to notify Customer of the action that Company has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement. SECTION 10 - INSURANCE 10.1 Customer shall, at its own expense, secure and maintain in force, throughout the term of this Agreement, General Liability Insurance, with competent and qualified issuing insurance companies, including the following coverages: Product Liability; Hazard of Premises/Operations (including explosion, collapse and underground coverages); Independent Contractors; Products and Completed Operations; Blanket Contractual Liability (covering the liability assumed in this Agreement); Personal Injury (including death); and Broad Form Property Damage in policy or policies of insurance such that the total available limits to all insureds will not be less than $2,000,000 Combined Single Limit for each occurrence and $2,000,000 aggregated for each annual period. Such insurance may be provided in policy or policies, primary and excess, including the so- called Umbrella or Catastrophe forms and each such policy shall be endorsed to show Company, its parent and affiliates and its and their directors, officers, agents, servants, employees and independent contractors as additional insureds. In addition, Customer shall maintain in effect, with insurance companies of recognized responsibility, at its own expense, (i) "All Risk" property insurance coverage with limits sufficient to cover the full replacement cost of the Facilities with no co- insurance, (ii) Business Interruption coverage on an actual loss sustained basis, and (iii) such other insurance as may be required by any applicable franchise and/or pole attachment or conduit license agreements, as applicable and naming Company as the loss payee. All policies required by this Section shall require the insurance companies to notify Company at least thirty (30) days prior to the effective date of any cancellation or material modification of such policies. 10.2 Company shall carry Workers' Compensation insurance as required by the Labor Code of the State of Colorado and Employers Liability Insurance. The parties understand and agree that Customer is relying on and does not waive or intend to waive by any provision of this contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, § 24-10- 101 et seq., C.R.S., as from time to time amended, or otherwise available to Customer, its officers, or its employees. SECTION 11 - ASSIGNMENT 11.1 Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld. The foregoing notwithstanding, Company may assign this Agreement to any affiliate, related entity, or successor in interest without Customer’s consent. In addition, Company may partially assign its rights and obligations hereunder to any party which acquires from Company all or substantially all of the assets of cable franchise(s) in which the Service is deployed to Customer. 11.2 All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party. SECTION 12 - FORCE MAJEURE Neither Party shall be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, act of terrorism, government regulations, condemnation of any part of the Network used to provide the Facilities or Services, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation common carriers. SECTION 13 - SEVERABILITY In the event that any one or more of the provisions in this Agreement shall for any reason be held invalid, unenforceable, or void in any respect under the laws of the jurisdiction governing the entire Agreement, such provision(s) shall be construed so as to render it enforceable and effective to the maximum extent possible in order to effectuate the intention of this Agreement; and the validity, legality, and enforceability of the remaining provisions hereof shall not be affected or impaired. SECTION 14 - THIRD-PARTY BENEFICIARIES No provision in this Agreement is intended, nor shall any be interpreted, to provide any person not a Party to this Agreement with any remedy, claim, liability, reimbursement, cause of action or create any other third-party beneficiary rights against Company. SECTION 15 - INDEPENDENT CONTRACTORS 15.1 The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party. 15.2 The requirements of this Article shall survive the expiration, termination, or cancellation of this Agreement to the greatest extent permitted by law. SECTION 16 - NONDISCLOSURE 16.1 Unless prior written consent is obtained from a Party hereto, the other Party will keep in strictest confidence all information identified by the first Party as confidential, or which, from the circumstances, in good faith and in good conscience, should be treated as confidential; provided that (a) the owner thereof has taken reasonable measures to keep such information secret; and (b) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by the public. Such information includes but is not limited to all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or not stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing. A Party shall be excused from these nondisclosure provisions if the information has been, or is subsequently, made public by the disclosing Party, is independently developed by the other Party, if the disclosing Party gives its express, prior written consent to the public disclosure of the information, or if Page 92 of 192 Page 5 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 the disclosure is required by any law or governmental or quasi- governmental rule or regulation. 16.2 Customer shall not disclose to third parties the rates, terms, or conditions of this Agreement or any proprietary or confidential information of the Company, except as necessary for the operation of Customer’s business and under non-disclosure agreement between Customer and third parties. 16.3 Company acknowledges that the Customer is subject to the Colorado Open Records Act. If Company asserts that any information constitutes a trade secret, it is understood and acknowledged that the Customer will not release such records without first notifying Company and affording them an opportunity to challenge in a court of competent jurisdiction the requester’s right to access to such information. The entire burden of maintaining and defending the trade secret designation shall be upon Company. Company acknowledges and agrees that if it shall fail, in a timely manner, to initiate legal action to defend the trade secret designation or be unsuccessful in its defense of that designation, the Customer shall be obligated to, and will, release the information. SECTION 16A - CUSTOMER PRIVACY POLICIES 16A.1 In addition to the provisions of Article 16, the privacy policy below applies to Company’s handling of Customer confidential information. In the event of a conflict between the provisions of Article 16 and any provision of the privacy policy below, the applicable provision of the privacy policy shall prevail in the resolution of the conflict. A copy of Company’s privacy policy is available at http://www.comcast.com/customerprivacy/. Company may update this policy from time to time, and such updates shall be deemed effective upon posting. 16A.2 Privacy Note Regarding Information Provided to Third Parties: Company is not responsible for any information provided by Customer to third parties, and this information is not subject to the privacy provisions of this Agreement or the privacy policies. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties via the Services. SECTION 17 – NOTICES 17.1 Any notices or other communications contemplated or required under this Agreement, in order to be valid, shall be in writing and shall be given via personal delivery, or overnight courier, or via U.S. Certified Mail, Return Receipt Requested, at the following addresses: To Customer: Attn: Jeromy King City of Englewood 1000 Englewood Pkwy Englewood, CO 80110 To Company: Attn.: VP – Business Services Comcast Cable Communications Management, LLC 1701 JFK Blvd / One Comcast Center Philadelphia, PA 19103 With a copy to: Attn.: Cable Law Department - Operations Comcast Cable Communications, LLC. 1701 JFK Blvd / One Comcast Center Philadelphia, PA 19103 SECTION 18 - HEADINGS AND TITLES The headings or titles of any provisions of this Agreement are for convenience or reference only and are not to be considered in construing this Agreement. SECTION 19 – CHOICE OF LAW The domestic law of the state in which the Services are provided shall govern the construction, interpretation, and performance of this Agreement, except to the extent superseded by federal law. SECTION 20 - COMPLIANCE WITH LAWS Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement. SECTION 21 - AMENDMENTS; NO WAIVER 21.1 This Agreement may be amended only by written agreement signed by authorized representatives of both Parties. 21.2 No waiver of any provisions of this Agreement or to any default under this Agreement shall be effective unless the same shall be in writing and signed by or on behalf of the Party against whom such waiver is claimed. 21.3 No course of dealing or failure of any Party to strictly enforce any term, right, or condition of this Agreement shall be construed as a waiver of such term, right or condition. 21.4 Waiver by either Party of any default by the other Party shall not be deemed a waiver of any other default. SECTION 22 - SURVIVAL Provisions contained in this Agreement that by their sense and context are intended to survive the performance, termination or cancellation of this Agreement hereof by any Party hereto shall so survive. SECTION 23 - FULLY INTEGRATED This writing constitutes the entire agreement between the Parties as to the subject matter hereof and supersedes and merges all prior oral or written agreements, representations, statements, negotiations, understandings, proposals, and undertakings with respect to the Agreement. SECTION 24 -INTERPRETATION OF AGREEMENT This Agreement is a negotiated document. In the event that this Agreement requires interpretation, such interpretation shall not use any rule of construction that a document is to be construed more strictly against the Party who prepared the document. SECTION 25 - RIGHT TO ENTER INTO CONTRACTS Nothing herein shall be construed as preventing either Party hereto from entering into similar contractual arrangements with other parties, unless such contracts would conflict with the performance of this Agreement. SECTION 26 - REMEDIES CUMULATIVE All rights of termination, or other remedies set forth in this Agreement are cumulative and are not intended to be exclusive of other remedies to which the injured Party may be entitled at law or equity in case of any breach or threatened breach by the other Party of any provision of this Agreement. Use of one or more remedies shall not bar use of any other remedy for the purpose of enforcing any provision of this Agreement; provided, however, that Party shall not be entitled to retain the benefit of inconsistent remedies. Page 93 of 192 Page 6 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 SECTION 27 - COUNTERPARTS This Agreement may be executed simultaneously in two or more counterparts, each counterpart shall be deemed an original, and all counterparts individually or together shall constitute one and the same instrument. SECTION 28 - VERIFICATION OF COMPLIANCE WITH C.R.S. 8-17.5-101 ET.SEQ. REGARDING HIRING OF WORKERS WITHOUT AUTHORIZATION 28.1 Employees, Consultants and Sub-consultants: Company shall not knowingly employ or contract with a worker without authorization to perform work under this Agreement. Company shall not contract with a sub-consultant that fails to certify to the Company that the sub-consultant will not knowingly employ or contract with a worker without authorization to perform work under this Agreement. [CRS 8-17.5- 102(2)(a)(I) & (II).] 28.2 Verification: Company 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. Company 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. 28.3 Duty to Terminate a Subcontract: If Company obtains actual knowledge that a sub-consultant performing work under this Agreement knowingly employs or contracts with a worker without authorization, Company shall; (1) notify the sub-consultant and the Customer within three (3) days that the Company 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, with respect to the applicable work performed by such sub-consultant, if, within three (3) 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 Company shall not terminate the contract with the sub-consultant, with respect to the applicable work performed by such sub-consultant, if during such three (3) days the sub-consultant provides information to establish that the sub- consultant has not knowingly employed or contracted with worker without authorization. 28.4 Duty to Comply with State Investigation: Company 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 94 of 192 Agreement No: CO-APr-091422-1 SO ID#:Account Name: Primary Contact:Othoniel Sierra Billing Account Name Title:Mayor Billing Name (3rd Party Accounts) Address 1: Address 1:1000 Englewood Parkway Billing Contact:Address 2: Address 2:Title:City: City:Englewood Phone:State: State:CO Cell:Zip Code: Zip:80110 Fax:Tax Exempt: Phone:303-762-2310 Email: Cell: Fax: Email:osierra@englewoodco.gov Service Term (Months):120 SUMMARY OF SERVICE CHARGES* Current Monthly Recurring Charges:$5,500.00 Total Standard Installation Fees:$0.00 Current Trunk Services Monthly Recurring Charges:$0.00 Total Trunk Services Standard Installation Fees:$0.00 Total Monthly Recurring Charges (all Services):$5,500.00 Total Standard Installation Fees (all Services):$0.00 Change Monthly Recurring Charges:$0.00 Change Trunk Services Monthly Recurring Charges:$0.00 Total Custom Installation Fee: Change Monthly Recurring Charges (all Services):$0.00 Total Monthly Recurring Charges:$5,500.00 Total Trunk Services Monthly Recurring Charges:$0.00 Total Monthly Recurring Charges (all Services):$5,500.00 SUMMARY OF MONTHLY EQUIPMENT FEES Current Equipment Fee Monthly Recurring Charges:$0.00 Current Trunk Services Equipment Fee Monthly Recurring Charges:$0.00 Current Equipment Fee Monthly Recurring Charges (All Services):$0.00 Change Equipment Fee Monthly Recurring Charges:$0.00 Change Trunk Services Equipment Fee Monthly Recurring Charges:$0.00 Change Equipment Fee Monthly Recurring Charges (All Services):$0.00 Total Equipment Fee Monthly Recurring Charges $0.00 Total Trunk Service Equipment Fee Monthly Recurring Charges $0.00 Total Equipment Fee Monthly Recurring Charges (All Services)$0.00 303-762-2310 CO 1000 Englewood Parkway Othoniel Sierra Englewood 80110 SALES ORDER FORM 21614145 City of Englewood CUSTOMER INFORMATION (for notices) City of Englewood INVOICE ADDRESS Yes osierra@englewoodco.gov * If Yes, please provide and attach all applicable tax exemption certificates SUMMARY OF CHARGES (Details on following pages) SUMMARY OF STANDARD INSTALLATION FEES* SUMMARY OF CUSTOM INSTALLATION FEES* $0.00 *Note: Charges identified in the Sales Order are exclusive of maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Please refer to your Comcast Enterprise Services Master Services Agreement (MSA) for specific detail regarding such charges. Customer shall pay Comcast one hundred percent (100%) of the non-amortized Custom Installation Fees prior to the installation of Service.Page 95 of 192 SERVICES AND PRICING Account Name:Date: Agreement No:SO ID#: Short Description of Service: Service Term:120 MONTHS Line Request Action Service(s)Tax Jurisdiction Qty Monthly One-Time 001 Renew Remove Dark Fiber Primary Route Civic Center / 1000 Englewood Par - Interstate 5 ($2,750.00)$0.00 002 Renew Remove Dark Fiber Primary Route - Safety Services / 3615 S Elati Street Interstate 1 ($550.00)$0.00 003 Renew Remove Dark Fiber Primary Route - Rec Center / 1155 W Oxford Ave Interstate 2 ($1,100.00)$0.00 004 Renew Remove Dark Fiber Primary Route - Allen Filter Plant / 1500 W Layton Ave Interstate 1 ($550.00)$0.00 005 Renew Remove Dark Fiber Primary Route - Broadway Bellweview traffic lights / Br Interstate 1 ($550.00)$0.00 006 - - - - - $0.00 $0.00 007 Renew Add Dark Fiber Primary Route Civic Center / 1000 Englewood Par - Interstate 5 $2,750.00 $0.00 008 Renew Add Dark Fiber Primary Route - Safety Services / 3615 S Elati Street Interstate 1 $550.00 $0.00 009 Renew Add Dark Fiber Primary Route - Rec Center / 1155 W Oxford Ave Interstate 2 $1,100.00 $0.00 010 Renew Add Dark Fiber Primary Route - Allen Filter Plant / 1500 W Layton Ave Interstate 1 $550.00 $0.00 011 Renew Add Dark Fiber Primary Route - Broadway Bellweview traffic lights / Br Interstate 1 $550.00 $0.00 012 - - - - - $0.00 $0.00 013 - - - - - $0.00 $0.00 014 - - - - - $0.00 $0.00 015 - - - - - $0.00 $0.00 016 - - - - - $0.00 $0.00 017 - - - - - $0.00 $0.00 018 - - - - - $0.00 $0.00 019 - - - - - $0.00 $0.00 020 - - - - - $0.00 $0.00 021 - - - - - $0.00 $0.00 022 - - - - - $0.00 $0.00 023 - - - - - $0.00 $0.00 024 - - - - - $0.00 $0.00 025 - - - - - $0.00 $0.00 026 - - - - - $0.00 $0.00 027 - - - - - $0.00 $0.00 028 - - - - - $0.00 $0.00 029 - - - - - $0.00 $0.00 030 - - - - - $0.00 $0.00 031 - - - - - $0.00 $0.00 032 - - - - - $0.00 $0.00 033 - - - - - $0.00 $0.00 034 - - - - - $0.00 $0.00 035 - - - - - $0.00 $0.00 036 - - - - - $0.00 $0.00 037 - - - - - $0.00 $0.00 038 - - - - - $0.00 $0.00 039 - - - - - $0.00 $0.00 040 - - - - - $0.00 $0.00 041 - - - - - $0.00 $0.00 042 - - - - - $0.00 $0.00 043 - - - - - $0.00 $0.00 044 - - - - - $0.00 $0.00 045 - - - - - $0.00 $0.00 046 - - - - - $0.00 $0.00 047 - - - - - $0.00 $0.00 048 - - - - - $0.00 $0.00 049 - - - - - $0.00 $0.00 050 - - - - - $0.00 $0.00 * Services Location Details attached PAGE 2 SUBTOTAL:$0.00 $0.00 SALES ORDER FORM Description Solution Charges #N/A Service Location A*Service Location Z* 21614145CO-APr-091422-1 9/14/2022City of Englewood #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A Page 96 of 192 Date:9/14/2022 Agreement No:SO ID#:Account Name: Line State Incremental Equipment Fee 1 CO $0.00 2 CO $0.00 3 CO $0.00 4 CO $0.00 5 CO $0.00 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 SALES ORDER FORM SERVICE LOCATION DETAIL INFORMATION CO-APr-091422-1 21614145 City of Englewood Location Name/Site ID Address 1 Address 2 City Zip Code Technical/Local Contact Name Technical/Local Contact Phone # Technical/Local Contact Email Address Allen Filter Plant 1500 W Layton Ave Englewood 80110 Rec Center 1155 W Oxford Ave Englewood 80110 Safety Services 3615 S Elati Street Englewood 80110 Civiv Center 1000 Englewood Parkway Englewood 80110 Broadway Bellweview traffic l Broadway and Belleview Englewood 80110 Technical Contact On Site (Yes/No)Page 97 of 192 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: January 3, 2023 SUBJECT: CB 70 - Approve 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. On December 5, 2022, a revision was requested to clarify Englewood Housing Authority properties are not City-owned properties. This is back on Consent Agenda for first reading, with that revision. 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: Page 98 of 192 Council Bill #70 Page 99 of 192 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 70 SERIES OF 2022/2023 INTRODUCED BY COUNCIL MEMBER NUNNENKAMP 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; 2. All Englewood Housing Authority-owned structures, including Housing Offices, 3460 S. Sherman; Simon Center, 3333 S. Lincoln; and Orchard Place, 3425 S. Sherman; and 3B. 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 100 of 192 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 101 of 192 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 12th day of December, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper the 15th day of December, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 14th day of December, 2022. Read by Title and passed on final reading on the 3rd day of January, 2023. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2022/2023, on the 6th day of January, 2023. Published by title on the City’s official website beginning on the 5th day of January, 2023 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Othoniel Sierra, Mayor Page 102 of 192 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 2022/2023. Stephanie Carlile Page 103 of 192 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tim Hoos DEPARTMENT: Public Works DATE: January 3, 2023 SUBJECT: CB 74 - Approve an ordinance authorizing a South Englewood Flood Reduction Project Easement Acquisition DESCRIPTION: CB 74 - Approve an Easement Agreement with CRI (AZ-CO) QRS 16-4 Inc. for property easement necessary to construct the South Englewood Flood Reduction Project RECOMMENDATION: Staff recommends that City Council approve an ordinance authorizing the City of Englewood to enter into an easement agreement with CRI (AZ-CO) QRS 16-4 Inc This easement is required to construct the South Englewood Flood Reduction Project and provide long-term operations and maintenance access for the proposed storm sewer outfall pipe. PREVIOUS COUNCIL ACTION: At the May 17, 2021 meeting, City Council approved the award of a Professional Services Agreement to HDR Engineering, Inc. for final engineering design services for the South Englewood Storm Sewer Outfall Project that included the necessary property acquisition services for the project. SUMMARY: Acquisition of this easement is necessary to move forward with final design and construction of the South Englewood Flood Reduction Project (formerly referred to Projects S1 and S2). This easement agreement with CRI (AZ-CO) QRS 16-4 Inc will allow for the portion of the proposed outfall pipe between Rotolo Park and the new detention pond at the end of the cul-de sac on Stanford Ave east of Navajo Street to be installed and maintained. There is a short 80 foot section of property between the end of the cul-de-sac and the City Ditch property that is privately owned and requires an easement to install the new pipe across. ANALYSIS: While a majority of the new outfall pipe will be within the existing Stanford Ave right of way, this short portion at the end of the cul-de-sac is necessary to complete the new pipe section between the existing Rotolo pond and the new pond. Just east of where the new pipe crosses the city ditch. The cost for the easement is based on the appraised value of the property. Staff believes the cost is fair and reasonable. COUNCIL ACTION REQUESTED: It is recommended that Council approve this bill for an ordinance authorizing the easement agreement necessary to construct the South Englewood Flood Reduction Project. Page 104 of 192 FINANCIAL IMPLICATIONS: Funding for the South Englewood Flood Reduction Project easement acquisition is included in the 2022 Stormwater Enterprise Fund budget. Source of Funds Line Item Description Line Item Amount YTD Line Item Expensed Purchase Amount Storm Water – 42 Source of Supply – 1607 Other Improvements – 61201 $14,325,000.00 $8,013,201.39 $18,846.00 CONNECTION TO STRATEGIC PLAN: Infrastructure - A city that proactively, and in a cost effective manner, invests in, maintains, and plans to protect its infrastructure. OUTREACH/COMMUNICATIONS: Public outreach has been conducted during the development and design of the South Englewood Flood Reduction Project and will turn to impacts of the construction of the improvements as right of way acquisition is completed and the design is finalized. ATTACHMENTS: Council Bill #74 Presentation Easement Agreement Exhibit A Contract Approval Summary Page 105 of 192 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 74 SERIES OF 2022/2023 INTRODUCED BY COUNCIL MEMBER NUNNENKAMP AN ORDINANCE AUTHORIZING THE CITY OF ENGLEWOOD, COLORADO’S ACCEPTANCE OF A PERMANENT UTILITY EASEMENT AND TEMPORARY CONSTRUCTION EASEMENT LOCATED AT 1301 W. STANFORD AVENUE FROM CRI (AZ-CO) QRS 16-4 INC. WHEREAS, in response to flood events in July 2018 and July 2019, the City of Englewood (“City”) completed a Stormwater Analysis and Alternatives Feasibility Study for all flood-prone areas of the City, identified and prioritized various capital infrastructure projects, and ultimately prepared a Stormwater Master Plan to mitigate flooding; and WHEREAS, the South Englewood Flood Reduction Project (formerly referred to Projects S1 and S2) is an identified necessary improvement to eliminate bottlenecks in the existing storm sewer system that creates backups and flooding during major rain events; and WHEREAS, a final Feasibility Report confirmed that construction of a detention pond is the most feasible and cost-effective method to resolve sewer system backups; and WHEREAS, the City authorized a contract to purchase land at 4450 S. Windemere in order to acquire the property necessary to construct the detention pond as a first step of the project; and WHEREAS, a Permanent Utility Easement and Temporary Construction Easement is necessary to move forward with final design and construction of the outfall pipe to allow for a portion of the proposed outfall pipe between Rotolo Park and the new detention pond to cross private property at the end of Stanford Avenue east of Navajo Street; and WHEREAS, funding for the easement acquisition is included in the 2022 Stormwater Enterprise Fund budget; and WHEREAS, the passage of this Ordinance authorizes the City to accept a 2,094 Permanent Utility Easement located at 1301 W. Stanford Avenue and temporary construction easement; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The City Council of the City of Englewood, Colorado herby approves and authorizes the acceptance of “Grant of an Easement” from CRI (AZ-CO) QRS 16-4 Inc., Page 106 of 192 2 the owner of the parcel located at 1301 W. Stanford Avenue, attached as Exhibit 1 with corresponding Exhibit A. Section 2. The Temporary Construction Easement between from CRI (AZ-CO) QRS 16-4 Inc. and the City of Englewood, Colorado, attached hereto as Exhibit 2, is hereby accepted and approved by the Englewood City Council. Section 3. 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 Page 107 of 192 3 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 12th day of December, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 15th day of December, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 14th day of December, 2022. for thirty (30) days. Read by Title and passed on final reading on the 3rd day of January, 2023. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2022/23, on the 6th day of January, 2023. Published by title on the City’s official website beginning on the 5th day of January, 2023 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 2022/2023. Stephanie Carlile Page 108 of 192 Resolution Authorizing the Acquisition of a Permanent Easement for the South Englewood Flood Reduction Project (Stormwater Master Plan Projects S1 and S2) Tim Hoos, Deputy Director of Public Works - Engineering & Asset Management Page 109 of 192 • Highest priority project identified in the Stormwater Master Plan • Enhance capacity by allowing more stormwater to flow through the system from upstream locations Purpose of the Project EXISTING PIPELINE Page 110 of 192 • Several candidate properties were considered • Analysis included estimated cost and constructability at each location • Three parcels identified: • 4390 S. Windermere St (previous property acquisition for detention pond) • 4450 S. Windermere St (previous property acquisition for detention pond) • 1301 W. Stanford Ave (easement acquisition) • Negotiations with property owners began in September 2021 • Proposed settlement reached on Stanford easement property in August 2022 Property Acquisition Page 111 of 192 Page 112 of 192 • Funding for this property acquisition is available in the Stormwater Fund G/L account number 42-1607-61201 Other Improvements. Property Acquisition Costs Property Address Amount % of Total Project Costs 4390 S. Windermere St $5,507,893.75 23% 4450 S. Windermere St $687,000.00 3% 1301 W. Stanford Ave $18,846.00 0.1% Total Acquisition Costs $6,213,739.75 26.1%Page 113 of 192 • Staff recommends that the City Council approve, by Resolution, the authorization to enter into an easement agreement for property located at: 1. 1301 W. Stanford Ave from CRI (AZ-CO) QRS 16-4 Inc, for a total negotiated settlement amount of $18,846.00. Summary Page 114 of 192 -1- GRANT OF UTILITY EASEMENT THIS GRANT of a Utility Easement ("this Grant") is made this ____ day of ___________________, 2022 by 18,846., a Delaware corporation, ("Grantor"), whose address is c/o W.P. Carey Inc., One Manhattan West, 395 9th Avenue, 58th Floor, New York, NY 10001, to the CITY OF ENGLEWOOD, COLORADO ("Grantee" or "City"), whose address is 1000 Englewood Parkway, Englewood, Colorado 80110. City and Grantor are collectively referred to herein as (the “Parties”). The Parties covenant and agree as follows: 1. Easement Property. The "Easement Property" shall mean the real property located in the City of Englewood, County of Arapahoe, State of Colorado, more particularly described in Exhibit A and identified as “Permanent Storm Easement”, attached hereto consisting of two pages. 2. Consideration. As consideration for this Grant, Grantee shall pay to Grantor the sum of Eighteen Thousand Eight Hundred Forty-Six Dollars ($18,846.00) and other good and valuable consideration paid by Grantee, receipt of which is hereby acknowledged by Grantor. 3. Grant of Utility Easement. Grantor hereby grants to City, its successors and assigns, a perpetual utility easement (the "Utility Easement") over, under, across and through the Easement Property for the purpose of operating, maintaining, repairing, replacing, removing, and enlarging those structures or improvements of City that City constructs pursuant to the grant of temporary construction easement described in the Temporary Construction Easement agreement between the Parties for a storm sewer pipeline including related equipment. 4. Access. City shall have the perpetual, nonexclusive right to ingress and egress in, on, to, over, through, under and across the Easement Property for any purpose necessary for the full enjoyment of the rights granted to City under this Grant. 5. Restoration. Grantee agrees that after the construction, maintenance, repair, replacement, enhancement or enlargement of any of the lines and appurtenances, Grantee shall restore the surface of the Easement Property as nearly as reasonably possible to the grade and condition the surface of the Easement Property was in immediately prior to said construction, maintenance, repair, replacement, enhancement or enlargement, except as may be necessary to accommodate the storm sewer pipeline and appurtenances (e.g., a manhole cover). 6. No improvements. Grantor covenants and agrees not to construct, erect, place or plan any "improvements," as hereinafter defined, including without limitation any structures, on the Easement Property without obtaining the prior written consent of Grantee. Grantee shall have the right to remove, without any liability to Grantor, any improvements constructed, erected, placed or planted on the Easement Property without Grantee's having obtained the prior written consent of Grantor. For purposes of this Grant, the term “improvements” shall not include the paving of the surface of the Easement Property and use of such surface for (x) parking of passenger and/or commercial vehicles and/or (y) ingress and egress of passenger and/or commercial vehicles (the “Permitted Improvements”) and for the avoidance of doubt, Grantor shall be permitted to construct and use the Permitted Improvements without Page 115 of 192 -2- permission of Grantee and same shall not be a violation of this Grant. Grantee confirms there is no weight limit for vehicles that may park on, or drive over, the Easement Area. 7. Subjacent and Lateral Support. Grantor covenants and agrees that Grantee shall have the right of subjacent and lateral support on the Easement Property to the extent necessary for the full rights granted to Grantee under this Grant. It is specifically agreed between and among the parties that, except as provided in this Agreement, the Grantor shall not take any action, which would impair the lateral or subjacent support for the storm sewer pipeline and related equipment. 8. Rights of Grantor. Grantor reserves the full right to the undisturbed ownership, use and occupancy of the Easement Property insofar as said ownership, use, and occupancy is consistent with and does not impair the rights granted to Grantee in this Grant. For the avoidance of doubt, Grantor reserves the right to construct, maintain, and use the Permitted Improvements. 9. Abandonment. In the event that Grantee shall abandon the rights granted to it under this Grant, all rights, title and interest hereunder of Grantee shall cease and terminate, and Grantor shall hold the Easement Property, free from the rights of Grantee so abandoned and shall own all materials and structures of Grantee so abandoned, and shall own all materials and structures of Grantee so abandoned, provided that Grantee shall have a reasonable period of time after said abandonment in which to remove any or all utility lines and appurtenances from the Easement Property. In the event that Utility Line Easement is abandoned by Grantee, Grantor shall have the right, at its sole option, to require Grantee to remove or neutralize any improvements constructed in the Easement Property by Grantee. 10. Warranty of Title. Grantor warrants and represents that Grantor that it is the fee simple owner of the Easement Property, subject to any encumbrances of record, and that Grantor has full right, title and authority, and that this Grant is effective to grant and convey to Grantee the easement provided for herein. Grantor further covenants and agrees to the extent permitted by law, to indemnify, defend and hold Grantee harmless from and against any adverse claim to the title of the Easement Property by all and every person or persons lawfully claiming or to claim the whole or any part thereof. 11. Binding Effect. This Grant shall extend to and be binding upon the heirs, personal representatives, successors and assignees of the respective parties hereto. The terms, covenants, agreements and conditions in this Grant shall be construed as covenants running with the land. [Signature Page Follows] Page 116 of 192 -3- IN WITNESS WHEREOF, the parties hereto have executed this Grant of Easement on the day and year first above written. GRANTOR: CRI (AZ-CO) QRS 16-4, INC., a Delaware corporation By: ______________________________________ Name: Sam Rubenstein Title: Vice President STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK ) The foregoing instrument was acknowledged before me this ____ day of _________________, 2022, by Sam Rubenstein, Vice President of CRI (AZ-CO) QRS 16-4, Inc., a Delaware corporation, on behalf of said corporation. ___________________________________ Notary Public My Commission expires: ___________________________________ GRANTEE: CITY OF ENGLEWOOD, COLORADO By: _______________________________________ ATTEST: Othoniel Sierra, Mayor __________________________________ Stephanie Carlile, City Clerk Page 117 of 192 PE-1 PERMANENT EASEMENT LEGAL DESCRIPTION 1301 W. STANFORD AVE., ENGLEWOOD, CO EXHIBIT A 1 OF 2 A PARCEL OF LAND BEING LOCATED IN THE NORTHWEST QUARTER OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE 69 WEST OF THE SIXTH PRINCIPAL MERIDIAN, CITY OF ENGLEWOOD, STATE OF COLORADO MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE SOUTH 30.00 FEET OF THAT CERTAIN PARCEL OF LAND DESCRIBED AS 1301 WEST RADCLIFF, PARCEL 1, IN THE DEED RECORDED UNDER RECEPTION NUMBER B4109727 ON JUNE 17, 2004 IN THE RECORDS OF THE ARAPAHOE COUNTY CLERK AND RECORDERS OFFICE, STATE OF COLORADO. EXCEPT ANY PORTION LYING WITHIN THAT PORTION CONVEYED TO THE CITY OF ENGLEWOOD BY DEED RECORDED OCTOBER 14, 1963 IN BOOK 1469 AT PAGE 129 IN SAID ARAPAHOE COUNTY CLERK AND RECORDERS RECORDS. CONTAINING 2,094 SQUARE FEET MORE OR LESS CHRISTOPHER BROOKS COLORADO LICENSED LAND SURVEYOR 38063 FOR AND ON BEHALF OF FARNSWORTH GROUP, INC. 5613 DTC PKWY, SUITE 1100 GREENWOOD VILLAGE, CO 80111 12/22/2021 Page 118 of 192 30' PE1 PERMANENT EASEMENT 2,094 SF 58.29' 30.00' 81.30' 37.81' Project No: Drawn by: Approved: Date: Revised: LEGAL DESCRIPTION PE1 PERMANENT EASEMENT 1301 WEST STANFORD AVE LOCATED IN NW 1/4 SECTION 9, T.5 S., R.69 W. OF THE 6TH P.M., ENGLEWOOD, ARAPAHOE COUNTY, COLORADO 0201095.01 MJE CAB 2021.11.17 2 OF 2 General Note: This description does not represent a monumented survey. It is intended only to describe the attached exhibit. 0 U.S. SURVEY FEET SCALE: 1"=80' 40 80 (303) 692-8838 / info@f-w.com GREENWOOD VILLAGE, COLORADO 80111 GROUP 5613 DTC PARKWAY, SUITE 1100 Exhibit A SHEET 2 OF 2 12/22/2021 Page 119 of 192 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: Tim Hoos Phone: (303) 762-2503 Title: Deputy Director of Public Works Email: thoos@englewoodco.gov Vendor Contact Information Vendor Name: W.P. Carey, Inc. on behalf of CRI (AZ-CO) QRS 16-4 Inc Vendor Contact: Sam Rubenstein Vendor Address: 395 9th Avenue Vendor Phone: (212) 492-1156 City: New York Vendor Email: srubenstein@wpcarey.com State: NY Zip Code: 10001 Contract Type Contract Type:Easement 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: N/A End Date: N/A Total Years of Term: N/A Total Amount of Contract for term (or estimated amount if based on item pricing): $18,846.00 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Payment terms (please describe terms or attach schedule if based on deliverables): Payment will be made within 30 days of Easement Agreement document execution. Attachments: ☐Copy of original Contract if this is an Amendment The City of Englewood and CRI (AZ-CO) QRS 16-4 Inc will enter into an Easement Agreement for construction of the South Englewood Flood Reduction Project in the amount of $18,846. Page 120 of 192 Contract Approval Summary March 2019 Update Page | 2 ☒Copies of related Contracts/Conveyances/Documents Source of Funds (Insert Excel Document Image): Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor (Check Box): ☐Bid: ☐ Bid Evaluation Summary attached ☐ Bid Response of Proposed Awardee ☐RFP: ☐ RFP Evaluation Summary Attached ☐ RFP Response of Proposed Awardee ☐Quotes: Copy of Quotes attached ☒Optimal Source: Provide Detailed Explanation: ☒ Sole Source (Use as much space as necessary for detailed explanation): Private property Easement acquisition ☐ Qualification Based Selection / Best Value* (Continue on Next Page): *Note: Qualifications Based Selection / Best Value Justification detailed explanation may include the following information, but is not limited to: 1.) Product and provider reliability 2.) Product and project understanding 3.) Product availability / Low risk solution 4.) Ability to connect to with current City of Englewood IT systems 5.) Familiarization with the City of Englewood CAPITAL ONLY A B C 1 = A-B-C Capital Operating Year Tyler / New World Project # / Task#Fund Division Object Line Item Description Budget Spent to Date Contract Amount Budget Remaining O 2022 42 1607 61201 Other Improvements -$ -$ O 2022 42 1607 61201 Surveying and Mapping, Inc. 14,325,000.00$ 8,013,201.39$ 116,989.00$ 6,194,809.61$ O 2022 42 1607 61201 CRI (AZ-CO) Inc. Easement 6,194,809.61$ -$ 18,846.00$ 6,175,963.61$ O 2022 42 1607 61201 MHFD IGA S. Englewood 6,175,963.61$ -$ 500,000.00$ 5,675,963.61$ 42 1607 61201 MHFD IGA Dry Gulch 5,675,963.61$ -$ 275,000.00$ 5,400,963.61$ -$ -$ -$ -$ -$ -$ -$ -$ Total by Fund - Current Year 32,371,736.83$ 8,013,201.39$ 910,835.00$ 5,400,963.61$ Total by Fund - Year Two -$ -$ -$ -$ Grand Total 32,371,736.83$ 8,013,201.39$ 910,835.00$ 5,400,963.61$ NOTES (if needed): For Operating Expense Line Item Detail, please review information provided in OpenGov. For Capital items, please review Attachment - Prior Month Project Status and Fund Balance Report CAPITAL & OPERATING EXPENSE Page 121 of 192 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Devin Keener, Tim Hoos DEPARTMENT: Public Works DATE: January 3, 2023 SUBJECT: CB 75 - Approve an ordinance authorizing an Intergovernmental Agreement (IGA) for the Dry Gulch with MHFD DESCRIPTION: CB 75 - IGA with MHFD for the design of improvements to Dry Gulch RECOMMENDATION: Staff recommends that the City Council approve an ordinance authorizing an Intergovernmental Agreement (IGA) between the Mile High Flood District (MHFD) and the City of Englewood to fund the final design of flood control improvements along Dry Gulch. SUMMARY: The MHFD, in conjunction with the City, created a master plan entitled "Harvard Gulch and Dry Gulch Major Drainageway Plan" in 2016 which suggested drainage improvements to be constructed on Dry Gulch in Englewood that would remove 141 homes from the 100 year floodplain. The City and MHFD now desire to proceed with the prioritization and design of the flood control improvements recommended in the master plan within Englewood City Limits from Yale Avenue to University Boulevard. The City's contributory share towards the initial phase of the project is 50% for a total of $275,000. Funds are available in the Storm Water Drainage Fund for these expenditures. The project design is scheduled to be completed by the end of 2023. This first phase would be an assessment of the entire reach of Dry Gulch within Englewood city limits and the master plan document to determine the appropriate alternative(s) to carry forward to final design, along with any needed phasing plan for implementing future phases. This could include a benefit-cost analysis or a more qualitative assessment to scope the most appropriate project to begin with. The master plan document is expected to be recent enough that reevaluating hydrology and modeling is not necessary, although that is a possibility that could potentially save overall construction cost and will be evaluated as part of this initial work. ANALYSIS: Dry Gulch within the City of Englewood is an approximately 9,825-foot long network of underground storm sewer pipes ranging in size from 48 to 66 inch diameter. The natural channel generally does not exist except for pockets of open channel in Clarkson Park, Emerson Park, Barde Park and Packy Romans Park. Existing storm sewer pipes are generally sized for the 2-year storm. Larger floods flow overland with the majority of the overflow generally Page 122 of 192 following the alignment of existing streets, parks and drainage easements. There are currently 141 residential structures in the 100-year floodplain of Dry Gulch within Englewood. The least costly alternative avoids acquisitions by constructing all improvements within the existing right-of-way. Proposed improvements in the master plan include 100-year capacity storm drain conduits to convey the 100-year peak flow safely underground through Englewood from the crossing at University Boulevard & E. Floyd Avenue to the crossing at E. Yale Avenue. Stormwater detention in Wellshire Golf Course could reduce flow into the system. In addition, the Packy Romans Park detention could be expanded to help reduce the size of the conveyance pipe required through Englewood. Both options will be further evaluated for feasibility during this first phase of the work to minimize the size of conduits necessary to convey the peak flows. Proposed improvements include a 100-year capacity storm drain to safely convey the 100-year peak flow shown in the following options below: • Twin cell 8’x5’ CBC, 4,411 LF • Single cell 13’x5’ CBC, 1,274 LF • 66” pipe, 1,699 LF • 72” pipe, 951 LF • Upsize the existing open channel through Barde Park The funding of this IGA will determine the most appropriate and cost effective option to create final design plans for the highest priority segment(s). COUNCIL ACTION REQUESTED: Staff recommends that the City Council approve a bill for an ordinance authorizing an Intergovernmental Agreement (IGA) between the MHFD and the City of Englewood to fund the final design of flood and drainage control improvements along Dry Gulch. FINANCIAL IMPLICATIONS: The City of Englewood and MHFD will each contribute 50% in matching contributions to fund the final design of flood and drainage control improvements along Dry Gulch. MHFD $275,000 City of Englewood $275,000 Total $550,000 Englewood's share of the project is $275,000 and will be funded from the Storm Water Drainage Fund. There is adequate funding available in Storm Water Drainage Fund account 42-1607- 61201 - Other Improvements for the city's contribution as shown on the attached Contract Approval Summary document. CONNECTION TO STRATEGIC PLAN: Outcome Area: Infrastructure A city that proactively and in a cost-effective manner invests in, maintains, improves, and plans to protect its infrastructure. Page 123 of 192 OUTREACH/COMMUNICATIONS: Details of this project will be added to the city's website. No specific public outreach is planned for this initial phase of the feasibility and design work. ATTACHMENTS: Council Bill #75 Intergovernmental Agreement Exhibit A: Dry Gulch Location MHFD Contract Approval Summary Page 124 of 192 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 75 SERIES OF 2022/2023 INTRODUCED BY COUNCIL MEMBER RUSSELL AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT REGARDING FINAL DESIGN, RIGHT-OF-WAY ACQUISITION, AND CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR DRY GULCH FROM YALE AVENUE TO UNIVERSITY BOULEVARD BETWEEN THE URBAN DRAINAGE AND FLOOD CONTROL DISTRICT AND THE CITY OF ENGLEWOOD. WHEREAS, the Urban Drainage and Flood Control District D/B/A Mile High Flood District (“District”) in a policy statement previously adopted (Resolution No. 14, Series of 1970), expressed an intent to assist public bodies which have heretofore enacted floodplain zoning measures; and WHEREAS, the District and the City Of Englewood (“City”) participated in a joint planning study titled “Harvard Gulch and Dry Gulch Major Drainageway Plan” by Matrix Design Group, dated December 2016 (“Plan”); and WHEREAS, the Parties now desire to proceed with the design, right-of-way acquisition and construction of drainage and flood control improvements for Dry Gulch from Yale Avenue to University Boulevard in accordance with the Plan (“Project”); and WHEREAS, the District has adopted at a public hearing a Five-Year Capital Improvement Program (Resolution No. 79, Series of 2021) for drainage and flood control facilities in which the Project was included in the 2022 calendar year; and WHEREAS, the District has adopted a Special Revenue Fund Budget for calendar year 2022 subsequent to public hearing (Resolution No. 76, Series of 2021) which includes funds for Project; and WHEREAS, the District’s Board of Directors has authorized the District financial participation for the Project (Resolution No. 86, Series of 2022); and WHEREAS, the cost of the Project is not to exceed $550,000 dollars with each Parties’ share being $275,000 dollars; and WHEREAS, City Staff seeks City Council authorization to enter into an Intergovernmental Agreement with the District regarding final design, right-of-way acquisition, and construction of drainage and flood control improvements for Dry Gulch from Yale Avenue to University Boulevard. Page 125 of 192 2 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The City Council of the City of Englewood, Colorado hereby authorizes an Intergovernmental Agreement regarding final design, right-of-way acquisition, and construction of drainage and flood control improvements for Dry Gulch from Yale Avenue to University Boulevard between the Urban Drainageway and Flood Control District and the City of Englewood, Colorado, 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. Page 126 of 192 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 12th day of December, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 15th day of December, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 14th day of December, 2022. for thirty (30) days. Read by Title and passed on final reading on the 3rd day of January, 2023. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2022/2023, on the 6th day of January, 2023. Published by title on the City’s official website beginning on the 5th day of January, 2023 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Othoniel Sierra, Mayor Page 127 of 192 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 2022/2023. Stephanie Carlile Page 128 of 192 22-11.07 1 AGREEMENT REGARDING FINAL DESIGN, RIGHT-OF-WAY ACQUISITION, AND CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR DRY GULCH FROM YALE AVENUE TO UNIVERSITY BOULEVARD Agreement No. 22-11.07 Project No. 107346 THIS AGREEMENT, by and between URBAN DRAINAGE AND FLOOD CONTROL DISTRICT D/B/A MILE HIGH FLOOD DISTRICT (hereinafter called "DISTRICT") and CITY OF ENGLEWOOD (hereinafter called "CITY") and collectively known as "PARTIES"; WITNESSETH: WHEREAS, DISTRICT, in a policy statement previously adopted (Resolution No. 14, Series of 1970 and Resolution No. 11, Series of 1973) expressed an intent to assist public bodies which have heretofore enacted floodplain regulation measures; and WHEREAS, PARTIES participated in a joint planning study titled "Harvard Gulch and Dry Gulch Major Drainageway Plan" by Matrix Design Group, dated December 2016 (hereinafter called "PLAN"); and WHEREAS, PARTIES now desire to proceed with the design, right-of-way acquisition and construction of drainage and flood control improvements for Dry Gulch from Yale Avenue to University Boulevard (hereinafter called "PROJECT"); and WHEREAS, DISTRICT has adopted at a public hearing a Five-Year Capital Improvement Program (Resolution No. 79, Series of 2021) for drainage and flood control facilities in which PROJECT was included in the 2022 calendar year; and WHEREAS, DISTRICT has heretofore adopted a Special Revenue Fund Budget for calendar year 2022 subsequent to public hearing (Resolution No. 76, Series of 2021) which includes funds for PROJECT; and WHEREAS, DISTRICT's Board of Directors has authorized DISTRICT financial participation for PROJECT (Resolution No. 86, Series of 2022); and WHEREAS, the City Council of CITY and the Board of Directors of DISTRICT have authorized, by appropriation or resolution, all of PROJECT costs of the respective PARTIES. NOW, THEREFORE, in consideration of the mutual promises contained herein, PARTIES hereto agree as follows: 1. SCOPE OF THIS AGREEMENT This Agreement defines the responsibilities and financial commitments of PARTIES with respect to PROJECT. 2. SCOPE OF PROJECT A. Final Design. PROJECT shall include the final design of improvements in accordance with the recommendations defined in PLAN. Specifically, the final design of facilities shall extend from approximately Yale Avenue to University Boulevard, as shown on Exhibit A. Page 129 of 192 22-11.07 2 B. Right-of-Way Delineation and Acquisition. Right-of-way for the improvements as set forth in the final design and an estimate of costs for acquisition shall be determined. Maps, parcel descriptions, and parcel plats shall also be prepared. C. Construction. PROJECT shall include construction by DISTRICT of the drainage and flood control improvements as set forth in the final design and vegetation establishment. 3. PUBLIC NECESSITY PARTIES agree that the work performed pursuant to this Agreement is necessary for the health, safety, comfort, convenience, and welfare of all the people of the State, and is of particular benefit to the inhabitants of PARTIES and to their property therein. 4. PROJECT COSTS AND ALLOCATION OF COSTS A. PARTIES agree that for the purposes of this Agreement PROJECT costs shall consist of and be limited to the following: 1. Final design services; 2. Delineation, description and acquisition of required rights-of-way/easements; 3. Construction of improvements; 4. Contingencies mutually agreeable to PARTIES. B. It is understood that PROJECT costs as defined above are not to exceed $550,000 without amendment to this Agreement. PROJECT costs for the various elements of the effort are estimated as follows: ITEM AMOUNT 1. Final Design $ 550,000 2. Right-of-way $ -0- 3. Construction $ -0- 4. Contingency $ -0- Grand Total $ 550,000 This breakdown of costs is for estimating purposes only. Costs may vary between the various elements of the effort without amendment to this Agreement provided the total expenditures do not exceed the maximum contribution by all PARTIES plus accrued interest, if applicable. C. Based on total PROJECT costs, the maximum percent and dollar contribution by each party shall be: Percentage Maximum Share Contribution DISTRICT 50% $275,000 CITY 50% $275,000 TOTAL 100.00% $550,000 Page 130 of 192 22-11.07 3 5. MANAGEMENT OF FINANCES As set forth in DISTRICT policy (Resolution No. 11, Series of 1973, Resolution No. 49, Series of 1977, and Resolution No. 37, Series of 2009), the funding of a local body's one-half share may come from its own revenue sources or from funds received from state, federal, or other sources of funding without limitation and without prior DISTRICT approval. Payment of each party's full share (CITY - $275,000; DISTRICT - $275,000) shall be made to DISTRICT subsequent to execution of this Agreement and within 30 days of request for payment by DISTRICT. The payments by PARTIES shall be held by DISTRICT in a special fund to pay for increments of PROJECT as authorized by PARTIES, and as defined herein. DISTRICT shall provide a periodic accounting of PROJECT funds as well as a periodic notification to CITY of any unpaid obligations. Any interest earned by the monies contributed by PARTIES shall be accrued to the special fund established by DISTRICT for PROJECT and such interest shall be used only for PROJECT upon approval by the contracting officers (Paragraph 13). Within one year of completion of PROJECT if there are monies including interest earned remaining which are not committed, obligated, or disbursed, each party shall receive a share of such monies, which shares shall be computed as were the original shares; or, at CITY request, CITY share of remaining monies shall be transferred to another special fund held by DISTRICT. 6. FINAL DESIGN The contracting officers for PARTIES, as defined under Paragraph 13 of this Agreement, shall select an engineer mutually agreeable to both PARTIES. DISTRICT shall contract with selected engineer and shall supervise and coordinate the final design including right-of-way delineation subject to approval of the contracting officer for CITY. Payment for final design services shall be made by DISTRICT as the work progresses from the PROJECT fund established as set forth above. Final design services shall consist of, but not be limited to, the following: A. Preparation of a work plan schedule identifying the timing of major elements in the design; B. Delineation of required right-of-way/easements; C. Preparation of detailed construction plans and specifications; D. Preparation of an estimate of probable construction costs of the work covered by the plans and specifications; E. Preparation of an appropriate construction schedule. DISTRICT shall provide any written work product by the engineer to CITY. 7. RIGHT-OF-WAY CITY, with DISTRICT assistance, shall be responsible for acquiring, subject to approval of DISTRICT, such land or interests in land needed to implement construction of the drainage and flood control improvements as defined herein. The cost to be shared by PARTIES for right-of-way acquisition may include relocation costs of existing occupants. Appraisal costs and costs associated with condemnation (including outside legal costs) will also be considered a PROJECT Page 131 of 192 22-11.07 4 cost. Right-of-way acquisition by negotiation and / or the exercise of eminent domain shall be in full compliance with the laws of the State of Colorado. In addition, the right-of-way acquired shall be in the name of CITY and the conveyancing document shall be promptly recorded in the records of the Clerk and Recorder of CITY. DISTRICT shall serve as the paying agency. A. Coordination of Right-of-Way Acquisition. Cost sharing by PARTIES will be based on supporting documentation such as formal appraisals, reasonable relocation cost settlements, legal description of the property, and other information deemed appropriate to the acquisition. Furthermore, cost sharing will be only for the properties, or portions thereof, approved by PARTIES to be needed for the drainage and flood control portions of PROJECT. Request for such approval shall include appraisals of property, legal description of the property, and other information deemed appropriate to the acquisition by PARTIES to this Agreement. CITY shall purchase the right-of-way only after receiving prior approval of DISTRICT, and such purchases shall be made with PROJECT funds. B. Payment for Right-of-Way Acquisition. Following purchase or receipt of executed memorandum of agreement between CITY and property owner for the needed right-of-way that commits the property owner to sell property to CITY at a price certain and on a date certain, CITY shall so advise DISTRICT and request payment as provided above. DISTRICT shall make payment within 30 days of receipt of request accompanied by the information set forth above. C. Ownership of Property and Limitation of Use. PARTIES acknowledge that CITY owns the property on which PROJECT is constructed either in fee or non-revocable easement and shall be responsible for same. It is specifically understood that the right-of-way is being used for drainage and flood control purposes. The properties upon which PROJECT is constructed shall not be used for any purpose that shall diminish or preclude its use for drainage and flood control purposes. CITY may not dispose of or change the use of the properties to diminish or preclude its use for drainage and flood control purposes without approval of DISTRICT, which shall not be unreasonably withheld. If, in the future, CITY disposes of any portion of or all of the properties acquired upon which PROJECT is constructed pursuant to this Agreement; changes the use to diminish or preclude its use for drainage and flood control purposes of any portion or all of the properties upon which PROJECT is constructed pursuant to this Agreement; or modifies any of the improvements located on any portion of the properties upon which PROJECT is constructed to diminish or preclude its use for drainage and flood control purposes pursuant to this Agreement; and CITY has not obtained the written approval of DISTRICT prior to such action, CITY shall take any and all action necessary within their legal authority to reverse said unauthorized activity and return the properties and improvements thereon, acquired and constructed pursuant to this Agreement, to the ownership and condition they were in immediately prior to the unauthorized activity at no expense to DISTRICT. Page 132 of 192 22-11.07 5 However, CITY shall not be responsible for the actions of third parties that would violate the provisions of this Paragraph who may have legal rights in the property as long as CITY has taken reasonable action to stop those actions. In the event CITY breaches the terms and provisions of this Paragraph 7 and does not voluntarily cure as set forth above, DISTRICT shall have the right to pursue a claim against CITY for specific performance of this portion of the Agreement. DISTRICT may, subsequent to the recording by CITY of any document transferring title or another interest to property acquired pursuant to this Agreement to CITY, record a memorandum of this Agreement (Exhibit B), specifically a verbatim transcript of Paragraph 7.C. Ownership of Property and Limitation of Use except for this sub-paragraph which shall not be contained in the memorandum. The memorandum shall reference by legal description the property being acquired by CITY and shall be recorded in the records of the Clerk and Recorder of Arapahoe County immediately following the recording of the document transferring title or another interest to CITY. CITY authorizes the recording of that memorandum and acknowledges that the same is meant to encumber the property with its restrictions. 8. MANAGEMENT OF CONSTRUCTION A. Costs. Construction costs shall consist of those costs as incurred by the most qualified contractor(s) including detour costs, licenses and permits, utility relocations, and construction related engineering services as defined in Paragraph 4 of this Agreement. B. Construction Management and Payment 1. DISTRICT, with the concurrence of CITY, shall administer and coordinate the construction-related work as provided herein. 2. DISTRICT, with concurrence of CITY, shall select and award construction contract(s). 3. DISTRICT shall require the contractor to provide adequate liability insurance that includes CITY. The contractor shall be required to indemnify CITY. Copies of the insurance coverage shall be provided to CITY upon request. 4. DISTRICT, with assistance of CITY, shall coordinate field surveying; staking; inspection; testing; acquisition of right-of-way; and engineering as required to construct PROJECT. DISTRICT, with assistance of CITY, shall assure that construction is performed in accordance with the construction contract documents including approved plans and specifications and shall accurately record the quantities and costs relative thereto. Copies of all inspection reports shall be furnished to CITY on a weekly basis upon request. DISTRICT shall retain an engineer to perform all or a part of these duties. 5. DISTRICT, with concurrence of CITY, shall contract with and provide the services of the design engineer for basic engineering construction services to include addendum Page 133 of 192 22-11.07 6 preparation; survey control points; explanatory sketches; revisions of contract plans; shop drawing review; as-built plans; weekly inspection of work; and final inspection. 6. PARTIES shall have access to the site during construction at all times to observe the progress of work and conformance to construction contract documents including plans and specifications. 7. DISTRICT shall review and approve contractor billings. DISTRICT shall remit payment to contractor based on billings. 8. DISTRICT, with concurrence of CITY, shall prepare and issue all written change or work orders to the contract documents. 9. PARTIES shall jointly conduct a final inspection and accept or reject the completed PROJECT in accordance with the contract documents. 10. DISTRICT shall provide CITY a set of reproducible "as-built" plans. C. Construction Change Orders. In the event that it becomes necessary and advisable to change the scope or detail of the work to be performed under the contract(s), such changes shall be rejected or approved in writing by the contracting officers. No change orders shall be approved that increase the costs beyond the funds available in the PROJECT fund, including interest earned on those funds, unless and until the additional funds needed to pay for the added costs are committed by all PARTIES. 9. MAINTENANCE PARTIES agree that CITY shall own and be responsible for maintenance of the completed and accepted PROJECT. PARTIES further agree that DISTRICT, at CITY's request, shall assist CITY with the maintenance of all facilities constructed or modified by virtue of this Agreement to the extent possible depending on availability of DISTRICT funds. Such maintenance assistance shall be limited to drainage and flood control features of PROJECT. Maintenance assistance may include activities such as keeping flow areas free and clear of debris and silt, keeping culverts free of debris and sediment, repairing drainage and flood control structures such as drop structures and energy dissipaters, and clean-up measures after periods of heavy runoff. The specific nature of the maintenance assistance shall be set forth in a memorandum of understanding from DISTRICT to CITY, upon acceptance of DISTRICT's annual Maintenance Work Program. DISTRICT shall have right-of-access to right-of-way and storm drainage improvements at all times for observation of flood control facility conditions and for maintenance when funds are available. 10. FLOODPLAIN REGULATION CITY agrees to regulate and control the floodplain of South Englewood Basin within CITY in the manner prescribed by the National Flood Insurance Program and prescribed regulations thereto as a minimum. PARTIES understand and agree, however, that CITY cannot obligate itself by contract to exercise its police powers. If CITY fails to regulate the floodplain of South Englewood Basin within CITY Page 134 of 192 22-11.07 7 in the manner prescribed by the National Flood Insurance Program and prescribed regulations thereto as a minimum, DISTRICT may exercise its power to do so and CITY shall cooperate fully. 11. TERM OF AGREEMENT The term of this Agreement shall commence upon the earlier of the date of final execution by all PARTIES and shall terminate three (3) years after the final payment is made to the construction contractor and the final accounting of funds on deposit at DISTRICT is provided to all PARTIES pursuant to Paragraph 5 herein, except for Paragraph 10. FLOODPLAIN REGULATION, Paragraph 7.C. Ownership of Property and Limitation of Use, and Paragraph 9. MAINTENANCE, which shall run in perpetuity. 12. LIABILITY Each party hereto shall be responsible for any suits, demands, costs or actions at law resulting from its own acts or omissions and may insure against such possibilities as appropriate. 13. CONTRACTING OFFICERS A. The contracting officer for CITY shall be the Mayor, 1000 Englewood Parkway, Englewood, Colorado 80110. B. The contracting officer for DISTRICT shall be the Executive Director, 2480 West 26th Avenue, Suite 156B, Denver, Colorado, 80110. C. The contracting officers for PARTIES each agree to designate and assign a PROJECT representative to act on the behalf of said PARTIES in all matters related to PROJECT undertaken pursuant to this Agreement. Each representative shall coordinate all PROJECT-related issues between PARTIES, shall attend all progress meetings, and shall be responsible for providing all available PROJECT-related file information to the engineer upon request by DISTRICT or CITY. Said representatives shall have the authority for all approvals, authorizations, notices or concurrences required under this Agreement. However, in regard to any amendments or addenda to this Agreement, said representative shall be responsible to promptly obtain the approval of the proper authority. 14. RESPONSIBILITIES OF PARTIES DISTRICT shall be responsible for coordinating with CITY the information developed by the various consultants hired by DISTRICT and for obtaining all concurrences from CITY needed to complete PROJECT in a timely manner. CITY agrees to review all concept plans, preliminary design plans, and final plans and specifications; and to provide comments within 21 calendar days after the drafts have been provided by DISTRICT to CITY. 15. AMENDMENTS This Agreement contains all of the terms agreed upon by and among PARTIES. Any amendments to this Agreement shall be in writing and executed by PARTIES hereto to be valid and binding. 16. SEVERABILITY If any clause or provision herein contained shall be adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, such invalid or unenforceable Page 135 of 192 22-11.07 8 clause or provision shall not affect the validity of the Agreement as a whole and all other clauses or provisions shall be given full force and effect. 17. APPLICABLE LAWS This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Jurisdiction for any and all legal actions regarding this Agreement shall be in the State of Colorado and venue for the same shall lie in the CITY where PROJECT is located. 18. ASSIGNABILITY No party to this Agreement shall assign or transfer any of its rights or obligations hereunder without the prior written consent of the nonassigning party or parties to this Agreement. 19. BINDING EFFECT The provisions of this Agreement shall bind and shall inure to the benefit of PARTIES hereto and to their respective successors and permitted assigns. 20. ENFORCEABILITY PARTIES hereto agree and acknowledge that this Agreement may be enforced in law or in equity, by decree of specific performance or damages, or such other legal or equitable relief as may be available subject to the provisions of the laws of the State of Colorado. 21. TERMINATION OF AGREEMENT This Agreement may be terminated upon thirty (30) days’ written notice by any party to this Agreement, but only if there are no contingent, outstanding contracts. If there are contingent, outstanding contracts, this Agreement may only be terminated upon the cancellation of all contingent, outstanding contracts. All costs associated with the cancellation of the contingent contracts shall be shared between PARTIES in the same ratio(s) as were their contributions. 22. PUBLIC RELATIONS It shall be at CITY's sole discretion to initiate and to carry out any public relations program to inform the residents in PROJECT area as to the purpose of PROJECT and what impact it may have on them. Technical information shall be presented to the public by the selected engineer. In any event DISTRICT shall have no responsibility for a public relations program, but shall assist CITY as needed and appropriate. 23. NO DISCRIMINATION IN EMPLOYMENT In connection with the performance of work under this Agreement, PARTIES agree not to refuse to hire, discharge, promote or demote, or to discriminate in matters of compensation against any person otherwise qualified because of race, color, ancestry, creed, religion, national origin, gender, age, military status, sexual orientation, gender identity, marital status, or physical or mental disability and further agree to insert the foregoing provision in all subcontracts hereunder. 24. APPROPRIATIONS Notwithstanding any other term, condition, or provision herein, each and every obligation of CITY and/or DISTRICT stated in this Agreement is subject to the requirement of a prior appropriation of funds therefore by the appropriate governing body of CITY and/or DISTRICT. Page 136 of 192 22-11.07 9 25. NO THIRD PARTY BENEFICIARIES It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to PARTIES, and nothing contained in this Agreement shall give or allow any such claim or right of action by any other or third person on such Agreement. It is the express intention of PARTIES that any person or party other than any one of PARTIES receiving services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. 26. GOVERNMENTAL IMMUNITIES PARTIES hereto intend that nothing herein shall be deemed or construed as a waiver by any party of any rights, limitations, or protections afforded to them under the Colorado Governmental Immunity Act (§ 24-10-101, et seq., C.R.S.) as now or hereafter amended or otherwise available at law or equity. 27. INTENT OF AGREEMENT Except as otherwise stated herein, this Agreement is intended to describe the rights and responsibilities of and between PARTIES and is not intended to and shall not be deemed to confer rights upon any person or entities not named as PARTIES, nor to limit in any way the powers and responsibilities of the CITY, the DISTRICT or any other entity not a party hereto. 28. EXECUTION IN COUNTERPARTS – ELECTRONIC SIGNATURES This Agreement, and all subsequent documents requiring the signatures of PARTIES to this Agreement, may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. PARTIES approve the use of electronic signatures for execution of this Agreement, and all subsequent documents requiring the signatures of PARTIES to this Agreement. Only the following two forms of electronic signatures shall be permitted to bind PARTIES to this Agreement, and all subsequent documents requiring the signatures of PARTIES to this Agreement. A. Electronic or facsimile delivery of a fully executed copy of a signature page; or B. The image of the signature of an authorized signer inserted onto PDF format documents. Documents requiring notarization may also be notarized by electronic signature, as provided above. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, CRS §§ 24-71.3-101 to -121. WHEREFORE, PARTIES hereto have caused this instrument to be executed by properly authorized signatories as of the date and year written below. Page 137 of 192 22-11.07 10 URBAN DRAINAGE AND FLOOD CONTROL DISTRICT D/B/A MILE HIGH FLOOD DISTRICT By ___________ Name Laura A. Kroeger Checked By Title Executive Director Date CITY OF ENGLEWOOD By Name Title Date Page 138 of 192 GREEMENT REGARDING FINAL DESIGN, RIGHT-OF-WAY ACQUISITION, AND CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR DRY GULCH FROM YALE AVENUE TO UNIVERSITY BOULEVARD Agreement No. 22-11.07 Exhibit A Page 139 of 192 Page 140 of 192 AGREEMENT REGARDING FINAL DESIGN, RIGHT-OF-WAY ACQUISITION, AND CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR DRY GULCH FROM YALE AVENUE TO UNIVERSITY BOULEVARD CITY OF ENGLEWOOD Agreement No. 21-09.05 Project No. 107346 Exhibit A Page 141 of 192 Contract Approval Summary 7/1/2021 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: Devin Keener Phone: (303) 762-2501 Title: Capital Projects Engineer Email: dkeener@englewoodco.gov Vendor Contact Information Vendor Name: Mile High Flood District (MHFD) Vendor Contact: Jon Villines Vendor Address: 2480 W. 26th Ave. Suite 156 B Vendor Phone: 303-455-6277 City: Denver Vendor Email: jvillines@mhfd.org State: CO Zip Code: 80211 Contract Type Contract Type:Intergovernmental Agreement Description of Contract Work/Services: Attachments: ☒Contract -- ☐Original ☒Copy ☐Addendum(s) ☒Exhibit(s) ☐Certificate of Insurance Summary of Terms: Start Date: December 2022 End Date: December 2023 Total Years of Term: 1 Total Amount of Contract for term (or estimated amount if based on item pricing): $275,000.00 If Amended: Original Amount $ Amendment Amount $ Total as Amended: $ Renewal options available: Payment terms (please describe terms or attach schedule if based on deliverables): The City will pay Vendor for the work in accordance with the following payment schedule. This schedule will include one lump sum payment when invoiced from the Vendor. Unused funds will be returned to the City from the Vendor. Attachments: ☐Copy of original Contract if this is an amendment This IGA between the City and the Mile-High Flood District serves to fund the design of proposed storm water improvements along Dry Gulch. Page 142 of 192 Contract Approval Summary 7/1/2021 Page | 2 ☒Copies of related Contracts/Conveyances/Documents Source of funds: 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: ☐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 ☒Sole Source: Explain Need below ☐Other: Please describe The Mile High Flood District is a local partnering agency that provides matching funds for flood improvements in many communities within the Denver Metro Area. Page 143 of 192 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tim Hoos DEPARTMENT: Public Works DATE: January 3, 2023 SUBJECT: CB 76 - Approve an ordinance authorizing an amendment to the Intergovernmental Agreement with the Mile High Flood District for the Design, Right-of-Way Acquisition, and Construction of Drainage and Flood Control Facilities in the South Englewood Basin DESCRIPTION: CB 76 - This is an amendment to the original IGA with MHFD for the Design, Right-of-Way Acquisition, and Construction of Drainage and Flood Control Facilities in the South Englewood Basin. RECOMMENDATION: Staff recommends City Council approve an amendment to an Intergovernmental Agreement (IGA) between the Mile High Flood District (MHFD) and the City of Englewood for the design, right-of-way acquisition, and construction of drainage and flood control facilities in the South Englewood Basin in the amount of $500,000.00 to access matching funds in the amount of $500,000.00 provided by MHFD. PREVIOUS COUNCIL ACTION: CB #03 (January 4, 2022) Council approval of a Council Bill regarding an Intergovernmental Agreement between Mile High Flood District (MHFD) and the City of Englewood for the design, right-of-way acquisition, and construction of drainage and flood control facilities in the South Englewood Basin in the amount of $825,000.00 to access matching funds in the amount of $825,000.00 provided by MHFD. SUMMARY: The proposed IGA amendment between MHFD and the City of Englewood would add a total of $1M to the original IGA amount of $1.65M for the design and construction of drainage and flood control facilities in the South Englewood Basin. A specific project location has not yet been selected. Final project selection will be based on the results of the City’s Major Dr ainageway Plan once it has been completed in 2023. The planning, design and construction of this work will be managed by MHFD on Englewood's behalf if a project not already being managed by the City of Englewood is selected. City staff will provide project oversight and guidance. Page 144 of 192 ANALYSIS: MHFD and the City are currently in the process of completing a citywide MDP & Flood Hazard Area Delineation (FHAD) for all local drainage basins that originate within city limits. The Citywide MDP is the drainageway master plan document that MHFD uses to prioritize and allocate funding for storm drainage improvement projects to the City of Englewood. Having an updated document not only provides more detailed information and prioritization of future storm drainage projects but also makes the City of Englewood eligible for MHFD funding for the improvements recommended in the report. The baseline hydrology report which updated anticipated stormwater flows in all basins in the City has been completed and the alternatives analysis process is now starting which will identify an appropriate priority project for this IGA funding. The South Englewood Basin has been identified as the highest priority basin in the Stormwater Master Plan and other studies undertaken by the City of Englewood. While the South Englewood Flood Reduction Project (also known as S1 and S2) and the South Acoma Drainage Improvement Project (also known as S3 and S4) are currently underway in varying phases of design and/or construction, the alternatives analysis may identify other improvements that may also be needed to address flooding in this area. The Citywide MDP will allow the City to make informed decisions regarding future drainage improvements in the South Englewood Basin and throughout the City, and this IGA will allow the City of Englewood and MHFD to share costs for drainage and flood control improvements at a reduced cost to the City and at a much faster rate than otherwise anticipated. This funding can be used for any project recommended by the Citywide MDP in the South Englewood Basin. If an appropriate project is not identified in the South Englewood Basin or does not require the entire allocated amount, these funds can be reallocated to another drainage improvement project in another drainage basin within the City of Englewood. COUNCIL ACTION REQUESTED: Staff recommends City Council approve an Ordinance for an amendment to the IGA with MHFD to obtain an additional $500,000.00 in matching funds for design, right-of-way acquisition, and construction of drainage and flood control facilities in the South Englewood Basin. FINANCIAL IMPLICATIONS: The total funding for this IGA amendment is $1,000,000.00 for design and construction of the drainage and flood control improvements. Funding Source: Approved IGA Amount Current IGA Request Amount Total Revised IGA Amount Mile High Flood District (MHFD) $825,000 $500,000 $1,325,000 City of Englewood $825,000 $500,000 $1,325,000 Total $1,650,000 $1,000,000 $2,650,000 The City of Englewood portion of the cost is proposed to be funded from the Storm Drainage Fund, Fund 42, G/L Account Number 42-1607-61201, Other Improvements, which has sufficient budget to pay for the City’s share of the cost as shown on the attached Contract Approval Summary document. CONNECTION TO STRATEGIC PLAN: Page 145 of 192 Strategic Outcome: Safety A city that protects its people, infrastructure and built environment. • Build, maintain, replace, and fund a quality storm drainage system • Provide community resiliency against human-made and natural disasters Strategic Outcome: Sustainability A city that protects its natural environment • Stormwater quality • Consider long-term sustainability in infrastructure OUTREACH/COMMUNICATIONS: MHFD and the City will jointly conduct public outreach as necessary during design and construction of the selected project. ATTACHMENTS: Council Bill #76 Presentation Intergovernmental Agreement Amendment Contract Approval Summary Page 146 of 192 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 76 SERIES OF 2022/2023 INTRODUCED BY COUNCIL MEMBER WOODWARD ORDINANCE APPROVING A FIRST AMENDMENT TO AN INTERGOVERNMENTAL AGREEMENT (IGA) REGARDING FINAL DESIGN, RIGHT-OF-WAY ACQUISITION, AND CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR SOUTH ENGLEWOOD BASIN BETWEEN THE URBAN DRAINAGE AND FLOOD CONTROL DISTRICT AND THE CITY OF ENGLEWOOD. WHEREAS, the Urban Drainage and Flood Control District d/b/a Mile High Flood District (“District”) and the City of Englewood (“City”) entered into an “Agreement Regarding Final Design, Right-of-Way Acquisition and Construction of Drainage and Flood Control Improvements for South Englewood Basin” (Agreement No. 21-10.08) dated March 2, 2022, (“AGREEMENT”) which was approved by City Council as Ordinance No. 4, Series of 2022; and WHEREAS, the District and the City now desire to increase funding for final design, right of way, and construction of drainage and flood control improvements for South Englewood Basin (“Project”); and WHEREAS, the District and the City desire to increase the level of funding by $1,000,000, to be split equally among the parties for an additional City contribution of $500,000; and WHEREAS, the District’s Board of Directors has authorized additional District financial participation for the Project (Resolution No. 88, Series of 2022); and WHEREAS, the Parties desire to enter into a First Amendment to the Agreement memorializing the financial participation of the parties. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The City Council of Englewood, Colorado, hereby approves the First Amendment to an Intergovernmental Agreement Regarding Final Design, Right-of-Way Acquisition, and Construction of Drainage and Flood Control Improvements for South Englewood Basin, City of Englewood – Agreement No. 21-10-08, Project No. 108702, between the Urban Drainage and Flood Control District and the City of Englewood, a copy of which is attached hereto as Exhibit 1. Page 147 of 192 2 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. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. Page 148 of 192 3 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 12th day of December, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 15th day of December, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 14th day of December, 2022. for thirty (30) days. Read by Title and passed on final reading on the 3rd day of January, 2023. Published by Title in the City’s official newspaper as Ordinance No. ___, Series of 2022/2023, on the 6th day of January, 2023. Published by title on the City’s official website beginning on the 5th day of January, 2023 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 2022/2023. Stephanie Carlile Page 149 of 192 Approval of an amendment to the Intergovernmental Agreement (IGA) with the Mile High Flood District (MHFD) for the Design, Right-of-Way Acquisition, and Construction of Drainage and Flood Control Facilities in the South Englewood Basin Tim Hoos – Deputy Director of Public Works – Engineering and Asset Management Page 150 of 192 • Provide matching funds for the design and construction of drainage and flood control facilities in the South Englewood Basin or other priority areas in Englewood • Project will be selected from the priorities recommended in the Citywide Major Drainageway Plan (MDP) currently being developed with Mile High Flood District • The South Englewood Basin is expected to be the highest priority area identified in the MDP update Purpose of the IGA Page 151 of 192 Location South Englewood Basin Page 152 of 192 Funding for this project: • Funding for the city’s portion is available in the Stormwater Fund G/L account number 42-1607-61201 Other Improvements. Project Funding Funding Source Original Amount Additional Amount % of Total City of Englewood Contribution $825,000 $500,000 50% Mile High Flood District (MHFD) Contribution $825,000 $500,000 50% Total $1,650,000 $1,000,000 100%Page 153 of 192 • Staff recommends City Council approve a Bill for an Ordinance to enter into an amendment to the Intergovernmental Agreement with the Mile High Flood District (MHFD) to obtain an additional $500,000.00 in matching funds for design, right-of-way acquisition, and construction of drainage and flood control facilities in the South Englewood Basin. Summary Page 154 of 192 Questions?Page 155 of 192 21-10.08A 1 FIRST AMENDMENT TO AGREEMENT REGARDING FINAL DESIGN, RIGHT-OF-WAY ACQUISITION, AND CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR SOUTH ENGLEWOOD BASIN CITY OF ENGLEWOOD Agreement No. 21-10.08 Project No. 108702 THIS FIRST AMENDMENT TO AGREEMENT (hereinafter called "FIRST AMENDMENT"), by and between URBAN DRAINAGE AND FLOOD CONTROL DISTRICT D/B/A MILE HIGH FLOOD DISTRICT (hereinafter called "DISTRICT") and CITY OF ENGLEWOOD (hereinafter called "CITY") and collectively known as "PARTIES"; WITNESSETH: WHEREAS, PARTIES have entered into "Agreement Regarding Final Design, Right-of-Way Acquisition and Construction of Drainage and Flood Control Improvements for South Englewood Basin" (Agreement No. 21-10.08) dated March 2, 2022, (hereinafter called "AGREEMENT"); and WHEREAS, PARTIES now desire to fund final design, right of way, and construction of drainage and flood control improvements for South Englewood Basin (hereinafter called "PROJECT"); and WHEREAS, PARTIES desire to increase the level of funding by $1,000,000; and WHEREAS, DISTRICT's Board of Directors has authorized additional DISTRICT financial participation for PROJECT (Resolution No. 88, Series of 2022); and WHEREAS, the City Council of CITY and the Board of Directors of DISTRICT have authorized, by appropriation or resolution, all of PROJECT costs of the respective PARTIES. NOW, THEREFORE, in consideration of the mutual promises contained herein, PARTIES hereto agree as follows: 1. Paragraph 4. PROJECT COSTS AND ALLOCATION OF COSTS is deleted and replaced as follows: 4. PROJECT COSTS AND ALLOCATION OF COSTS A. PARTIES agree that for the purposes of this AGREEMENT, PROJECT costs shall consist of and be limited to the following: 1. Final design services; 2. Delineation, description and acquisition of required rights-of-way/ easements; 3. Construction of improvements; 4. Contingencies mutually agreeable to PARTIES. B. It is understood that PROJECT costs as defined above are not to exceed $2,650,000 without amendment to this AGREEMENT. PROJECT costs for the various elements of the effort are estimated as follows: Page 156 of 192 21-10.08A 2 ITEM AS AMENDED ORIGINAL 1. Final Design $ 1,000,000 $ 200,000 2. Right-of-way $ -0- $ -0- 3. Construction $ 1,650,000 $ 1,450,000 4. Contingency $ -0- $ -0- Grand Total $ 2,650,000 $ 1,650,000 This breakdown of costs is for estimating purposes only. Costs may vary between the various elements of the effort without amendment to this AGREEMENT provided the total expenditures do not exceed the maximum contribution by all PARTIES plus accrued interest. C. Based on total PROJECT costs, the maximum percent and dollar contribution by each party shall be: Percentage Share Previously Contributed Additional Contribution Maximum Contribution DISTRICT 50% $825,000 $500,000 $1,325,000 CITY 50% $825,000 $500,000 $1,325,000 TOTAL 100.00% $1,650,000 $1,000,000 $2,650,000 2. Paragraph 5. MANAGEMENT OF FINANCES is deleted and replaced as follows: 5. MANAGEMENT OF FINANCES As set forth in DISTRICT policy (Resolution No. 11, Series of 1973, Resolution No. 49, Series of 1977, and Resolution No. 37, Series of 2009), the funding of a local body's one- half share may come from its own revenue sources or from funds received from state, federal or other sources of funding without limitation and without prior DISTRICT approval. Payment of each PARTY's full share (CITY - $1,325,000; DISTRICT - $1,325,000) shall be made to DISTRICT subsequent to execution of this AGREEMENT and within 30 days of request for payment by DISTRICT. The payments by PARTIES shall be held by DISTRICT in a special fund to pay for increments of PROJECT as authorized by PARTIES, and as defined herein. DISTRICT shall provide a periodic accounting of PROJECT funds as well as a periodic notification to CITY of any unpaid obligations. Any interest earned by the monies contributed by PARTIES shall be accrued to the special fund established by DISTRICT for PROJECT and such interest shall be used only for PROJECT upon approval by the contracting officers (Paragraph 13). Within one year of completion of PROJECT if there are monies including interest earned remaining which are not committed, obligated, or disbursed, each party shall receive a share Page 157 of 192 21-10.08A 3 of such monies, which shares shall be computed as were the original shares; or at CITY request, CITY share of remaining monies shall be transferred to another special fund held by DISTRICT. 3. All other terms and conditions of this AGREEMENT shall remain in full force and effect. WHEREFORE, PARTIES hereto have caused this FIRST AMENDMENT to be executed by properly authorized signatories as of the date and year written below. URBAN DRAINAGE AND FLOOD CONTROL DISTRICT D/B/A MILE HIGH FLOOD DISTRICT By ___________ Name Laura A. Kroeger Checked By Title Executive Director Date CITY OF ENGLEWOOD By Name Title Date Page 158 of 192 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: Tim Hoos Phone: (303) 762-2503 Title: Deputy Director of Public Works Email: thoos@englewoodco.gov Vendor Contact Information Vendor Name: Mile High Flood District (MHFD) Vendor Contact: Jon Villines Vendor Address: 2480 W. 26th Ave, Suite 156-B Vendor Phone: (303) 455-6277 City: Denver Vendor Email: jvillines@mhfd.org State: CO Zip Code: 80211 Contract Type Contract Type:Intergovernmental Agreement Description of ‘Other’ Contract Type: Description of Contract Work/Services: Attachments: ☒Contract -- ☐Original ☒Copy ☐Addendum(s) ☐Exhibit(s) ☐Certificate of Insurance Summary of Terms: Start Date: TBD End Date: TBD Total Years of Term: N/A Total Amount of Contract for term (or estimated amount if based on item pricing): $1,325,000.00 If Amended: Original Amount $825,000 Amendment Amount $500,000 Total as Amended: $1,325,000 Renewal options available: Payment terms (please describe terms or attach schedule if based on deliverables): MHFD will be reimbursed at start of project for work completed at 50% of the cost-share up to a total of $500,000.00. Attachments: ☐Copy of original Contract if this is an Amendment The City of Englewood and the Mile High Flood District (MHFD) will enter into an Amendment to an Intergovernmental Agreement to fund and construct drainage and flood control facilities in the South Englewood Basin as recommended in the Citywide Master Drainageway Plan. Both parties shall contribute an additional $500,000.00 for a total project cost not to exceed $2,625,000.00. The MHFD will assume the role of leading this project’s design and construction. Page 159 of 192 Contract Approval Summary March 2019 Update Page | 2 ☒Copies of related Contracts/Conveyances/Documents Source of Funds (Insert Excel Document Image): Attachment (For Capital Items Only / Expense Line Item Detail is Located in Open Gov): ☐Prior Month-End Project Status and Fund Balance Report Process for Choosing Vendor (Check Box): ☐Bid: ☐ Bid Evaluation Summary attached ☐ Bid Response of Proposed Awardee ☐RFP: ☐ RFP Evaluation Summary Attached ☐ RFP Response of Proposed Awardee ☐Quotes: Copy of Quotes attached ☒Optimal Source: Provide Detailed Explanation: ☒ Sole Source (Use as much space as necessary for detailed explanation): The MHFD has matching funds available for each city in their District to use to design and construct drainage and flood control facilities. Representatives of the City of Englewood met with a representative from the MHFD in 2021 to discuss the potential for funding the design and construction of additional drainage and flood control improvements in the South Englewood Basin based on the recommendations to be provided by the Citywide Master Drainageway Plan currently under development. The MHFD voted on a resolution to approve an additional match of $500,000.00 after budget discussions with the City of Englewood’s Public Works Department for these improvements. ☐ Qualification Based Selection / Best Value* (Continue on Next Page): CAPITAL ONLY A B C 1 = A-B-C Capital Operating Year Tyler / New World Project # / Task#Fund Division Object Line Item Description Budget Spent to Date Contract Amount Budget Remaining O 2022 42 1607 61201 Other Improvements -$ -$ O 2022 42 1607 61201 Surveying and Mapping, Inc. 14,325,000.00$ 8,013,201.39$ 116,989.00$ 6,194,809.61$ O 2022 42 1607 61201 CRI (AZ-CO) Inc. Easement 6,194,809.61$ -$ 18,846.00$ 6,175,963.61$ O 2022 42 1607 61201 MHFD IGA S. Englewood 6,175,963.61$ -$ 500,000.00$ 5,675,963.61$ 42 1607 61201 MHFD IGA Dry Gulch 5,675,963.61$ -$ 275,000.00$ 5,400,963.61$ -$ -$ -$ -$ -$ -$ -$ -$ Total by Fund - Current Year 32,371,736.83$ 8,013,201.39$ 910,835.00$ 5,400,963.61$ Total by Fund - Year Two -$ -$ -$ -$ Grand Total 32,371,736.83$ 8,013,201.39$ 910,835.00$ 5,400,963.61$ NOTES (if needed): For Operating Expense Line Item Detail, please review information provided in OpenGov. For Capital items, please review Attachment - Prior Month Project Status and Fund Balance Report CAPITAL & OPERATING EXPENSE Page 160 of 192 Contract Approval Summary March 2019 Update Page | 3 *Note: Qualifications Based Selection / Best Value Justification detailed explanation may include the following information, but is not limited to: 1.) Product and provider reliability 2.) Product and project understanding 3.) Product availability / Low risk solution 4.) Ability to connect to with current City of Englewood IT systems 5.) Familiarization with the City of Englewood Page 161 of 192 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Stephanie Carlile DEPARTMENT: City Clerk's Office DATE: January 3, 2023 SUBJECT: Designation of the Official Posting Place for Legal Notices DESCRIPTION: Designation of the Official Posting Place for Legal Notices RECOMMENDATION: Staff recommends City Council approve, by Resolution, the designation of the Official Posting Place for Legal Notices for 2023. PREVIOUS COUNCIL ACTION: On January 4, 2022, City Council designated the City's website as the official posting place for all legal notices of the City of Englewood for 2022. SUMMARY: Legislation amending Colorado Revised Statutes, § 24-6-402 (2)(c) became effective July 1, 2019. House Bill 19-1087 requires a local government to post notices of public meetings required by the state open meetings law on the local government's website. The notices are accessible to the public at no charge. The notices shall be searchable, if feasible, by type of meeting, date and time of meeting, and agenda contents. Colorado Revised Statutes, § 24-6-402(2)(c) also provides that the local public body shall be deemed to have given full and timely notice of a public meeting if the local public body posts the notice, with specific agenda information if available, no less than twenty-four hours prior to the holding of the meeting. The Open Meetings Law, State Statute § 24-6-402(2)(c) requires that the public place or places for posting legal notices shall be designated annually at the local public body’s first regular meeting of each calendar year. In addition to the City website, legal notices will be posted to the bulletin boards located at the Civic Center, all in conformance with C.R.S. § 24-6-402(2)(c). COUNCIL ACTION REQUESTED: Staff is requesting that Council approve a Resolution designating the City website as the official posting place for all legal notices for 2023. FINANCIAL IMPLICATIONS: Page 162 of 192 None ATTACHMENTS: Resolution Page 163 of 192 RESOLUTION NO. SERIES OF 2023 A RESOLUTION DESIGNATING THE OFFICIAL POSTING PLACE FOR ALL LEGAL NOTICES OF THE CITY OF ENGLEWOOD FOR 2023. WHEREAS, Colorado Revised Statutes, § 24-6-402(2)(c) provides that “A local public body shall be deemed to have given full and timely notice of a public meeting if the local public body posts the notice, with specific agenda information if available, no less than twenty-four hours prior to the holding of the meeting on a public website of the local public body.” WHEREAS, C.R.S. § 24-6-402(2)(c) also provides that the public place or places for posting legal notices shall be designated annually at the local public body’s first regular meeting of each calendar year. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The official posting place for all legal notices of the City of Englewood for the year 2023, shall be the City of Englewood’s website, all in conformance with C.R.S. § 24-6-402(2)(c). If the City is unable to post to the website due to exigent or emergency circumstances, the City of Englewood will post a physical notice at the bulletin board on the north side of the second floor of the Englewood Civic Center. Section 2. This Resolution does not in any way of itself create a requirement for notice. ADOPTED AND APPROVED this 3rd day of January, 2023. 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 2023. Stephanie Carlile Page 164 of 192 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Josh Roach, Pieter Van Ry DEPARTMENT: Utilities DATE: January 3, 2023 SUBJECT: Optimal Source 2023 Bulk Chemical Purchases DESCRIPTION: 2023 optimal source bulk chemical purchases of sodium hypochlorite, sodium hydroxide and aluminum sulfate for the Allen Water Treatment Plant (WTP). RECOMMENDATION: Utilities staff recommends City Council approve, by Resolution, the 2023 optimal source bulk chemical purchases of sodium hypochlorite from DPC Industries, Inc. (DPC) up to the amount of $380,000; sodium hydroxide from DPC up to the amount of $175,000; and aluminum sulfate from Chemtrade Chemicals US LLC (Chemtrade) up to the amount of $195,000 for water treatment at the Allen WTP. The Water and Sewer Board recommended Council approve the 2023 optimal source bulk chemical purchases at its December 13, 2022 meeting. PREVIOUS COUNCIL ACTION: • October 17, 2022 – Council approval of CB 54 – 2023 City of Englewood Budget. • January 4, 2022 – Council approval of 2022 bulk chemical purchases for the Allen WTP. SUMMARY: The Allen WTP uses three (3) primary chemicals for treatment of the City of Englewood’s drinking water, as follows: • Sodium hypochlorite, or bleach, is used for disinfection in the water treatment process, as mandated by the Colorado Department of Public Health and Environment (CDPHE) to process drinking water for public consumption. • Sodium hydroxide, or caustic soda, is used to adjust the pH levels of the water to keep it with in a specific range. This pH adjustment assists in ensuring the drinking water remains safe within the distribution system by mitigating harmful constituents, such as lead and copper, from leaching into the drinking water supply. • Aluminum sulfate, or alum, is used as a primary coagulant to remove sediment from its drinking water supply. Utilities staff orders these chemicals as needed throughout the year to ensure a sufficient supply is available as water demand fluctuates throughout the year. Chemical usage in 2021 and 2022 was closely monitored to estimate the chemical needs in 2023. Page 165 of 192 ANALYSIS: The Utilities department purchases chemicals in bulk from two local chemical vendors; DPC supplies sodium hypochlorite and sodium hydroxide, and Chemtrade supplies aluminum sulfate. Utilities staff recommends awarding optimal source purchase orders with DPC and Chemtrade for the following reasons: • Both chemical suppliers are local, which is critical for delivery responsiveness and allows for less lead time when orders are placed. • Both vendors are utilized by the Allen WTP and South Platte Renew for water treatment and wastewater treatment, respectively. • Both chemical suppliers have reliably provided these chemicals to the Utilities department for several years. Staff estimated the 2023 bulk chemical purchase amounts of sodium hypochlorite, sodium hydroxide, and aluminum sulfate from actual chemical usage and cost tracking performed in 2021 and 2022. Generally, the cost to purchase chemicals is increasing, Utilities staff will seek Colorado’s Multiple Assembly of Procurement Officials (MAPO) pricing where possible. On average, the cost for these chemicals increased by approximately 30% in the last year. Staff accounted for these increasing costs in its estimates for the 2023 bulk chemical purchase recommendations. Staff recommends a total authorization for these three (3) chemicals, up to the amount of $750,000, as shown in Table 1. Table 1: Chemical (Common name) Vendor Use Proposed 2023 Amount Sodium Hypochlorite (Bleach) DPC Industries Disinfection $380,000 Sodium Hydroxide (Caustic soda) DPC Industries pH adjustment $175,000 Aluminum Sulfate (Alum) Chemtrade Chemicals Sediment removal $195,000 Total $750,000 The 2023 budget for bulk chemical purchases is $770,000. Since chemical prices and water usage fluctuate throughout the year, Utilities staff actively monitor chemical purchases throughout the year. COUNCIL ACTION REQUESTED: To approve, by Resolution, optimal source purchases of bulk chemicals used for water treatment at the Allen WTP from DPC and Chemtrade up to the amounts of $555,000 and $195,000, respectively. FINANCIAL IMPLICATIONS: Funding for these purchases is included in the Utilities 2023 budget. Purchase orders (PO) for the three (3) bulk chemicals will be managed within a total budget up to an amount of $750,000. Source of Funds Line-Item Description 2023 Line-Item Budget YTD Line Item Expensed Purchase Amount Page 166 of 192 40–1605– 52301 Water Fund, O&M, Bulk Chemicals $770,000 $0 $750,000 PROCUREMENT INFORMATION Account Number: 40–1605–52301 Project Number: 40 10002 Util. Treatment Task Number: 001 Util. Treat. Gen. CONNECTION TO STRATEGIC PLAN: Safety: • Ensure safe drinking water is delivered to customers that meets State and Federal Regulations ATTACHMENTS: Resolution Alum Chem Resolution Sodium Hydro Chem Pricing Quote from DPC Pricing Quote from Chemtrade PowerPoint Presentation Page 167 of 192 1/2 RESOLUTION NO. SERIES OF 2023 A RESOLUTION AWARDING AN OPTIMAL SOURCE CONTRACT FOR THE PURCHASE OF ALUMINUM SULFATE FROM CHEMTRADE CHEMICALS US LLC DURING THE 2023 CALENDAR YEAR. WHEREAS, Section 116(b) of the Englewood Home Rule Charter, allow contracts for public works or improvements associated with capital improvements to be negotiated, provided that contracts for which no competitive bids have been requested are approved and accepted by Resolution setting forth the reason for the exception to the competitive bidding requirement; and WHEREAS, Section 4-1-3-1 of the Englewood Municipal Code 2000 allows for the purchase of materials, equipment, machinery or devices without competitive bids where the standardization of such materials and equipment is necessary to ensure the proper functioning of existing equipment, machinery or devices and/or to prevent the duplication of existing equipment; and WHEREAS, the Allen Water Treatment Plant utilizes aluminum sulfate as a primary coagulant to remove sediment from its drinking water supply; and WHEREAS, the Utilities Department recommends utilizing Chemtrade Chemicals US LLC for the aluminum sulfate purchases made during the 2023 calendar year because Chemtrade Chemicals US LLC is a local vendor, which is critical for delivery responsiveness and allows for less lead time when orders are placed; supplies chemicals to the Allen Water Treatment Plant and the South Platte Renew facility, who utilize the chemicals for water and wastewater treatment, respectively; and is awarding optimal source purchase orders for the City, which are competitively bid or negotiated agreements utilized by various municipalities and the State of Colorado take advantage of the pricing structure negotiated by the State through the cooperative bidding process; and WHEREAS, the funds for the purchase of this chemical comes from the Utilities budget under line item 40-1605-52301, Bulk Chemicals; and WHEREAS, the cost of purchasing this chemical for the for the 2023 calendar year should not exceed $195,000. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The Englewood City Council hereby authorizes the purchase of Aluminum Sulfate for the Allen Water Treatment Plant from Chemtrade Chemicals US LLC, in lieu of the internal competitive bid process, in the amount of $195,000. Page 168 of 192 2/2 Section 2. The Mayor, Mayor Pro Tem (in the Mayor’s absence), and/or City staff are hereby granted the authority to take all actions necessary to implement the provisions of Section 1 above. ADOPTED AND APPROVED this 3rd day of January, 2023. 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 2023. Stephanie Carlile Page 169 of 192 1/2 RESOLUTION NO. SERIES OF 2023 A RESOLUTION AWARDING AN OPTIMAL SOURCE CONTRACT TO DPC INDUSTRIES, INC. FOR THE PURCHASE OF SODIUM HYPOCHLORITE AND SODIUM HYDROXIDE DURING THE 2023 CALENDAR YEAR WHEREAS, Section 116(b) of the Englewood Home Rule Charter, allow contracts for public works or improvements associated with capital improvements to be negotiated, provided that contracts for which no competitive bids have been requested are approved and accepted by Resolution setting forth the reason for the exception to the competitive bidding requirement; and WHEREAS, Section 4-1-3-1 of the Englewood Municipal Code 2000 allows for the purchase of materials, equipment, machinery or devices without competitive bids where the standardization of such materials and equipment is necessary to ensure the proper functioning of existing equipment, machinery or devices and/or to prevent the duplication of existing equipment; and WHEREAS, the Allen Water Treatment Plant utilizes Sodium Hypochlorite as a primary water disinfectant during the water treatment process, and acts as an oxidizing agent for organics, and its use is mandated by the Colorado Department of Public Health and Environment; and WHEREAS, the Allen Water Treatment Plant utilizes Sodium Hydroxide, to adjust the pH levels of treated water to maintain the pH which in turn assists in ensuring that drinking water remain safe within the distribution system by mitigating harmful constituents, such as lead and copper, from leaching into the drinking water supply; and WHEREAS, the Utilities Department recommends utilizing DPC Industries, Inc. for the purchase of Sodium Hypochlorite during the 2023 calendar year because DPC Industries, Inc. is a local vendor, which is critical for delivery responsiveness and allows for less lead time when orders are placed; supplies chemicals to the Allen Water Treatment Plant and the South Platte Renew facility, who utilize the chemicals for water and wastewater treatment, respectively; and is awarding optimal source purchase orders for the City, which are competitively bid or negotiated agreements utilized by various municipalities and the State of Colorado take advantage of the pricing structure negotiated by the State through the cooperative bidding process; and WHEREAS, the cost for purchasing Sodium Hypochlorite for the 2023 calendar year is $380,000 and the cost for purchasing Sodium Hydroxide is $175,000; and WHEREAS, the funds for the purchase of these chemicals come from the Utilities budget under line item 40-1605-52301, Bulk Chemicals; and Page 170 of 192 2/2 WHEREAS, the cost of purchasing these chemicals during the 2023 calendar year should not exceed $555,000. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The Englewood City Council hereby authorizes the purchase of Sodium Hypochlorite and Sodium Hydroxide for the Allen Water Treatment Plant from DPC Industries, Inc, in lieu of the internal competitive bid process, in an amount of $555,000. Section 2. The Mayor, Mayor Pro Tem (in the Mayor’s absence), and/or City staff are hereby granted the authority to take all actions necessary to implement the provisions of Section 1 above. ADOPTED AND APPROVED this 3rd day of January, 2023. 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 2023. Stephanie Carlile Page 171 of 192 From:Brenda Varner To:Brenda Varner Subject:FW: [EXTERNAL] Englewood Utilities MAPO Pricing Date:Wednesday, December 7, 2022 9:41:08 AM Attachments:image001.png image002.png image003.png From: Galyon, Tony <tgalyon@dxgroup.com> Sent: Wednesday, November 2, 2022 6:51 AM To: Kimberly Ramuno <KRamuno@englewoodco.gov> Subject: RE: [EXTERNAL] Englewood Utilities MAPO Pricing USE CAUTION: This email originated from outside of the organization. DO NOT CLICK LINKS or OPEN ATTACHMENTS unless you have verified the sender and know that the content is legitimate. Kimberly, The City of Englewood was not part of the last MAPO bid in 2020. The city conducted its own bid process. Contact information for the 2023 MAPO bid is below: Jeff Lehmann Sr. Procurement Agent Finance/Purchasing & Contracts | City of Aurora office 303.739.7102 [auroragov.org] [auroragov.org] Current pricing for the City of Englewood is as follows: 10% sodium hypochlorite, $2.49 per gallon 50% sodium hydroxide, $4.69 per gallon Please contact me with any questions. Tony From: Kimberly Ramuno <KRamuno@englewoodco.gov> Sent: Tuesday, November 1, 2022 2:36 PM To: Galyon, Tony <tgalyon@dxgroup.com> Cc: Patrick Paranto <pparanto@Englewoodco.gov> Subject: [EXTERNAL] Englewood Utilities MAPO Pricing Importance: High Page 172 of 192 [Be careful this message is not coming from the DX email servers] Hi Tony, I’m having a hard time understanding the Q4 MAPO pricing spreadsheet. Could you confirm Q4 pricing for 10% bleach and 50% caustic ($/gal) and is there an anticipitated increase for 2023? Thanks, Kim Kimberly Ramuno, EIT (She/Her/Hers) Project Engineer I City of Englewood | Utilities 1500 W. Layton Avenue Englewood, CO 80110 englewoodco.gov | o: 303.762.2640 c: 720.584.4509 Page 173 of 192 From:Patrick Paranto To:Brenda Varner Subject:FW: Chemical quote Date:Thursday, November 3, 2022 4:56:18 PM Attachments:image001.png Patrick Paranto, CWP Allen Treatment Plant Supervisor City of Englewood | Utilities 1500 West Layton Avenue Englewood, CO 80110 englewoodco.gov | o: 303.762.2650 c: 720.376.0774 From: Hire, Shawn <shire@chemtradelogistics.com> Sent: Friday, September 23, 2022 7:00 PM To: Patrick Paranto <pparanto@Englewoodco.gov> Subject: Re: Chemical quote USE CAUTION: This email originated from outside of the organization. DO NOT CLICK LINKS or OPEN ATTACHMENTS unless you have verified the sender and know that the content is legitimate. Patrick, We’re anticipating a 5-8% increase for alum for 2023. We’re still waiting on Q4 Tampa Sulfur Index and Freight indices. Will Englewood be participating on the MAPO bid? Thanks, Shawn Get Outlook for iOS From: Patrick Paranto <pparanto@Englewoodco.gov> Sent: Friday, September 23, 2022 10:11:31 AM To: Hire, Shawn <shire@chemtradelogistics.com> Subject: Chemical quote Shawn, Good morning, I hope things are going well. I am looking to get some chemical quotes from you for the 2023 bulk budget. Can I get an official quote for the following chemical: Aluminum Sulfate. Let me know if there is anything you need from me. I look forward to hearing from you. Thank you. Page 174 of 192 Patrick Paranto, CWP Allen Treatment Plant Supervisor City of Englewood | Utilities 1500 West Layton Avenue Englewood, CO 80110 englewoodco.gov | o: 303.762.2650 c: 720.376.0774 This e-mail (including any attachments) is for the sole use of the intended recipient and may contain confidential information which may be protected by privilege. If you are not the intended recipient, please notify the sender immediately, delete this e-mail and destroy any copies. E-mail transmission cannot be guaranteed to be secure or error-free and the sender cannot accept responsibility for any errors or omissions resulting from such transmission. Thank you. Page 175 of 192 Allen Water Treatment Plant 2023 Bulk Chemical Purchases City Council, Regular Session Pieter Van Ry, Englewood Utilities and South Platte Renew Director January 3, 2023 Josh Roach, Utilities Deputy Director –O&M Page 176 of 192 2023 Bulk Chemical Purchases Chemical (Common Name)Vendor Use Proposed 2023 PO Amount Sodium Hypochlorite (bleach)DPC Industries Disinfection $380,000 Sodium Hydroxide (caustic soda)DPC Industries pH adjustment $175,000 Aluminum Sulfate (alum) Chemtrade Chemicals Sediment removal $195,000 TOTAL $750,000 Page 177 of 192 Questions?Page 178 of 192 Thank you Page 179 of 192 COUNCIL COMMUNICATION TO: Mayor and Council FROM: Tamara Niles DEPARTMENT: City Attorney's Office DATE: January 3, 2023 SUBJECT: CB 02 - Approve a bill for an ordinance amending Englewood Municipal Code 1-4-7, Restitution to Victims of Ordinance Violations DESCRIPTION: CB 02 - Amendment to Ordinance 1-4-7, restitution to victims of ordinance violations. RECOMMENDATION: Consider amendments to Englewood Municipal Code regarding restitution in Municipal Court SUMMARY: Background The City Attorneys Office analyzed EMC 1-4-7 in light of best practices for restitution (including practices utilized by state courts) and changes to applicable Colorado law. While the goal of the City Attorneys Office is to obtain justice for victims by requesting and recovering restitution resulting from a crime, the results of the analysis concluded current Municipal Code creates unnecessary obstacles for the prosecution and the Court in requesting, considering, awarding, and recovering restitution; and it requires the prosecutor to seek restitution, even when the prosecutor concludes restitution is not appropriate. Current municipal code contains the following provisions that the City Attorneys Office concluded should be amended: mandatory provisions for the imposition and collection of restitution by the Municipal Court; lack of prosecutorial discretion to decide if obtaining a restitution order is in the interests of justice for all parties. In addition, current code is deficient in that it omits prov isions for: victims that do not wish to cooperate in the restitution process; deadlines by which a restitution orders should be imposed extending final resolutions past reasonable time frames; and provisions that increase the likelihood of collecting a restitution order, such as sending them to a third party collector and authorizing victims to seek enforcement in civil court. Proposed Amendments: The purposed amendments intend to cut out unnecessary and unused sections of the code for clarity, and to provide the City Prosecutor discretion to make decisions on restitution based on facts and circumstances of each individual case. The proposed amendments also impose a 91- day deadline to request restitution to ensure that: restitution is collected in a reasonable time Page 180 of 192 frame, Defendants receive notice of what they owe, and victims know the amount of restitution they are entitled to receive within reasonable time frame. Proposed amendments also align municipal code with current case law by providing that if a request for restitution is not made within 91 days then the court is unable to consider restitution, but authorizing Municipal Court to extend the time frame for extenuating circumstances. If restitution is not timely requested, the victim would be required to seek recovery from the defendant outside of Municipal Court, such as in a civil Small Claims Court proceeding. Proposed amendments further recognize an Order of Restitution in favor a victim is enforceable by victims in State civil court, at the victim’s option; and rather than acting as a collection agency for restitution, revisions recognize Municipal Court has authority to send unpaid restitution to an outside, third party collector. The result of all amendments to current municipal code is a restitution process that is legally- compliant, clear and concise, and thereby benefit all the parties involved in the process. The City Attorneys Office provided the proposed revisions to the Municipal Court Administrator at her request for comment and revision, and after multiple revisions, she has approved the council bill as proposed. COUNCIL ACTION REQUESTED: Approve Council Bill on first reading FINANCIAL IMPLICATIONS: None anticipated ATTACHMENTS: Council Bill #02 Powerpoint Page 181 of 192 1 BY AUTHORITY ORDINANCE NO. ____ COUNCIL BILL NO. 02 SERIES OF 2023 INTRODUCED BY COUNCIL MEMBER _________________ A BILL FOR AN ORDINANCE AMENDING ENGLEWOOD MUNICIPAL CODE 1-4-7, RESTITUTION TO VICTIMS OF ORDINANCE VIOLATIONS WHEREAS, Englewood Municipal Code contains mandatory provisions for the imposition and collection of restitution in Municipal Court; and WHEREAS, these provisions infringe upon prosecutorial discretion, to weigh the facts and evidence to determine whether restitution should be sought in the interests of justice; and WHEREAS, in requiring the prosecutor and court to collect funds from defendants without the means to pay, these provisions may subject the City to potential liability; and WHEREAS, these provisions may provide a disservice to the victim, as continued unsuccessful collection attempts required by EMC may result in the passage of time such that the victim is prohibited from later attempting to collect in a private, civil action; and WHEREAS, EMC provisions regarding restitution should be revised to provide the Municipal Prosecutor and Court with the tools necessary to impose and legally collect restitution for the victim, but still allow for discretion to ensure compliance with applicable law, allow the prosecutor and Court to weigh the facts and evidence to obtain the most just result for both the victim and Defendant, and to impose and/or collect restitution orders in a legal, efficient, and beneficial manner to all those impacted. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. AMENDMENT TO MUNICIPAL CODE 1-4-7: - Restitution to Victims of Ordinance Violations. A. No later than 91 days after conviction or plea of guilty or no contest, the City Prosecutor may Upon conviction of a defendant in any offense in which the conduct of the defendant resulted in loss or damage to the property of another or cause bodily injury to another, request restitution for any loss, damage, or bodily injury caused by the defendant to another. The court shall consider any such request for restitution and upon a finding or admission that restitution is owed, order defendant to pay as a condition of probation or as a mitigating factor in imposing any punishment, provide that the defendant make restitution to the victim of his conduct for the actual uncompensated pecuniary loss which were sustained by the victim. Such restitution shall be ordered by the court as a condition of probation or as a condition of mitigating any punishment. The amount of such restitution shall be based on the actual Page 182 of 192 2 pecuniary damages sustained by the victim, the ability of the defendant to pay and the defendant's obligation to support his dependents and other family obligations. Such restitution may be paid to the office of the City Attorney for deposit into the City's treasury and repayment therefrom to the victim. If the court finds, based upon clear and convincing evidence, that such restitution shall work an undue hardship on the defendant and his family, the court may waive the making of such restitution, in whole or in part. The court is authorized to monitor such payment of restitution by setting penalty hearing at reasonable intervals to receive reports of partial payments made and, for this purpose, may continue the penalty hearings. If the defendant fails to make restitution as ordered by the court, any sentence imposed will include unsuspended confinement of not less than thirty (30) days for an adult defendant. The court has the authority to delay imposing a punishment until either the defendant has satisfied the paying of restitution or the court has determined that no restitution will be paid. The requirement of restitution shall be deemed satisfied if the defendant presents a signed "release" from the victim to the Clerk of the Court upon a form provided by the prosecuting attorney. The Clerk and/or the prosecuting attorney may contact the victim to verify the authenticity of the execution of the "release" prior to satisfaction of the requirement of restitution. If no request is made within the 91-day period, restitution is waived unless the court extends the request period for extenuating circumstances. B. When as a result of a plea bargain agreement or when a defendant is ordered to make restitution pursuant to subsection A above, the City Attorney's Office supervising the collections of such restitution may assess a reasonable charge to the defendant upon receiving of a bad check as restitution payment, such charge to be based upon the reasonable cost of processing a request for and obtaining the payment due from the defendant. For this section, a "bad check" means a check or similar site order for the payment of money which is dishonored by the bank or other drawee because the issuer does not have sufficient funds upon deposit with the bank or other drawee to pay the check or order upon presentation within thirty (30) days after issue. C. Upon a determination by the court that the defendant had a liability insurance policy in effect at the time of the injury or the damage or loss of property resulted to another and such injury, damage, or loss was reported to such insurance policy company, and the identity of that insurance policy and company has been made known to the victim, the court shall find that further restitution is not required, provided that the liability insurance policy was equal to or greater than the amount of injury, damage, or loss. D. The terms and provisions of this section shall not preempt the rights, if any, of persons to seek or resist civil remedies in any court of law. BE. Both The defendant and the victim, personally or by an attorney, may have standing to present evidence and argument for the court’s consideration to the court on the issue of restitution but the court has complete discretion to limit such evidence and argument pursuant to its own rules and may choose not to conduct a restitution hearing separate from the defendant's sentencing. Page 183 of 192 3 CF. Englewood Municipal Court shall be responsible for collecting restitution payments from or on behalf of defendants found guilty of ordinance violations and disbursing the same to the victims. Restitution assessed by the Court and unpaid within a reasonable time may be collected pursuant to EMC § 1-4-4. A Municipal Court Order of Restitution also may be enforced by the victim as a civil judgment, but in no event shall the victim be compensated more than actual damages sustained. 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 Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Page 184 of 192 4 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 ___ day of __________, 2023. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the ___ day of __________, 2023. Published as a Bill for an Ordinance on the City’s official website beginning on the ___ day of __________, 2023 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 __________, 2023. Stephanie Carlile Page 185 of 192 AN ORDINANCE AMENDING SECTION 1-4-7 RESTITUTION TO VICTIMS OF ORDINANCE VIOLATIONS Sergio Renteria, Assistant City Attorney Page 186 of 192 •Applies to Municipal Court procedures for restitution •The City Attorneys Office analyzed EMC 1-4-7 inlightofbestpractices,practices used by state courts,and recent changes to applicable Colorado law •The analysis concluded that current Municipal CodecreatesunnecessaryobstaclesfortheprosecutionandtheCourtinrequesting,considering,awarding,and recovering restitution Background Page 187 of 192 The purposed amendments intend to cut out unnecessary and unused sections of the code for clarity. They provide the City Prosecutor discretion to make decisions on restitution based on facts and circumstances of each individual case. The amendments align Municipal Code with current state law. Clear and Concise Page 188 of 192 The Proposed amendments align municipal code with current case law by providing that if a request for restitution is not made by the victim within 91 days then the court is unable to consider restitution, unless extenuating circumstances can be shown to extend the deadline. Time Frames for Restitution Page 189 of 192 The amendment recognizes an Order of Restitution as a civil judgment in favor of a victim enforceable in state court. While Municipal Court is still responsible for collecting restitution the revisions allows Municipal Court to send unpaid restitution to an outside, third party collector. Civil Judgment and Collections Page 190 of 192 The result of all amendments to current municipal code is a restitution process that is legally-compliant, clear and concise, and benefits all the parties involved in the process. Result Page 191 of 192 QUESTIONS?Page 192 of 192