HomeMy WebLinkAbout1996-09-17 WSB AGENDAAGENDA
ENGLEWOOD WATER AND SEWER BOARD
SEPTEMBER 17, 1996
5:00 P.M.
COMMUNITY ROOM
** PLEASE ALLOW TIME FOR THE MCLELLAN TOUR AND DINNER **
1. MINUTES OF THE AUGUST 13, 1996 MEETING. (ATT. 1)
2. GUEST: CARL HOUCK & MIKE ZAFER OF CDM
RE: SED-FLOC PROCESS
3. BUDGET REVIEW.
4. CITY CODE CHANGE -NUMBER OF USERS ON SERVICE
RESTRICTIONS. (ATT. 2)
5. LETTER TO LITTLETON CITY COUNCIL RE: C-470 AND
BACKGROUND INFO. (ATT. 3)
6. INFORMATIONAL ITEMS:
A. COURT OF APPEALS -AVAILABILITY OF INSURANCE
COVERAGE UNDER COMPREHENSIVE GENERAL LIABILITY
FOR ENVIRONMENTAL RESPONSE COSTS. (ATT. 4)
B. DENVER WATER BOARD RESOURCE STATEMENT. (ATT. 5)
C. BLACK & VEATCH STUDY -BUELL PROPERTY. (ATT. 6)
D. ANALYTICAL RESULTS OF COMMON FERTILIZERS. (ATT. 7)
E. LETTER FROM BARBARA FOUT RE: CITY DITCH. (ATT. 8)
F. COMPLAINT LETTER -GREG HIGGINS -4880 S. PEARL.
(ATT. 9)
G. COMPLIMENTARY LETTER RE: CHUCK MERRY. (ATT. 10)
7. OTHER.
8. TOUR OF MC LELLAN RESERVOIR -VAN AVAILABLE.
9. DINNER -COUNTY LINE BARBEQUE.
WATER AND SEWER BOARD
MINUTES
AUGUST 13, 1996
A TT. 1
The meeting was called to order at 5:05 p.m.
Chairman Fullerton declared a quorum present.
Members present:
Members absent;
Also present:
Fullerton, Burns, Neumann,
Guy, Vobejda, Wiggins, Higday
Habenicht, Otis
Stewart Fonda, Director of
Utilities
David Hill, Water Attorney
Joe Peerless and Steve Bowman
of Oury Inns
1) MINUTES OF THE JULY 18, 1996 MEETING.
The Englewood Water and Sewer Board Minutes from the July
18, 1996 meeting were approved.
Mr. Vobejda moved;
Mr. Wiggins seconded:
Ayes:
Nays:
Members absent:
Motion carried.
To approve the July 18, 1996
Englewood Water and Sewer
Board Minutes.
Fullerton, Burns, Neumann,
Guy, Vobejda, Wiggins, Higday
None
Habenicht, Otis
2) DRURY INN -GUEST -JOE PEERLESS AND STEVE BOWMAN.
Joe Peerless and Steve Bowman appeared on behalf of the
Drury Inn which is to be built on the northwest corner of I-
25 and Dry Creek Rd. The hotel will be a limited service
hotel consisting of 144 rooms, none of which will have
kitchen facilities. They are requesting that the Water
Board consider basing their tap fee on usage rather than the
$1,400 per dwelling unit fee.
The Board was favorable to considering a usage-based sewer
tap fee, with the condition of an irrevocable letter of
credit, or an equally acceptable form of reimbursement, in
the case the usage is higher than anticipated and additional
tap fees would be required. The Board directed Stu to
investigate whether a workable agreement for the City with
Drury Inn for sewer tap fees can be reached.
3) DAVID HILL -RULING WITH THORNTON.
Mr. Hill appeared to discuss a proposed ruling that Thornton
is seeking. Englewood filed a case in 1990 as an
application for a junior direct flow decree at Union Avenue.
Thornton has decided to oppose all upstream applications for
augmentation p l ans and exchanges which depend on return
flows in the form of sewage effluent. Mr. Hill reviewed the
negative ramif i cations if the ruling is entered. The
proposed ruling would require Englewood to pay Thornton's
attorneys fees , which is assessed at approximately $50,000.
Thornton is opposing our withdrawal from the case.
Mr. Hill informed the Board that the City had moved to
withdraw from the case.
Alex Habenicht entered at 5:25 p.m.
4) DAVID HILL -GOLDEN CASE.
David Hill reviewed the pending Golden Case where Golden is
contesting existing water rights changed from agricultural
use to municipal use. David noted that the previous Orr
case ruling changed the status of many decrees and affects
numerous water rights statewide. Thornton and others filed
a case against Golden which relies upon the Orr ruling.
Hill recommended filing an amicus br i ef as a "friend of the
court."
Ms. Habenicht moved;
Ms. Neumann seconded:
Ayes:
Nays:
Members absent:
Motion carried.
5) COUNTY LANDFILL.
To approval David Hill filing
an amicus brief as a "friend
of the court" on the Golden
case.
Fullerton, Burns, Neumann,
Guy, Vobejda, Wiggins, Higday
Habenicht
None
Otis
Stu reviewed a request for an Amendment to Agreement of the
Wastewater Transmission Agreement which was signed March 31,
1995 for the system located on a portion of the Fairways at
South Suburban property, owned, by Arapahoe County,
immediately north of County Line Landfill. The Addendum
would allow the system to operate continuously at a rate of
approximately 6 gpm. The proposed continuous pumping will
enable the system to maintain a water level in the trench
and sump that assure hydraulic capture of ground water.
Mr. Fullerton moved;
Ms. Neumann seconded:
Ayes:
Nays:
Members absent:
Motion carried.
To recommend Council approval
of the County Landfill
Amendment to Agreement.
Fullerton, Burns, Neumann,
Guy, Vobejda, Wiggins, Higday
Habenicht
None
Otis
6) COLORADO WATER CONSERVATION BOARD EASEMENT.
Stu briefed the Board on the proposed Easement with the
Colorado Water Conservation Board (CWCB) for a 20' easement.
The easement will run from Union Ave. to Oxford Ave. along
the s. Platte River channel (approximately one mile), for
the purpose of installing a 24" raw water line. The CWCB is
requested the sum of $2,500 for reimbursement of attorney's
fees.
Mr. Hiday moved;
Mr. Wiggins seconded:
Ayes:
Nays:
Members absent :
Motion carried .
To recommend Council approval
of the Easement with Colorado
Water Conservation Board.
Fullerton, Burns, Neumann,
Guy, Vobejda, Wiggins, Higday
Habenicht
None
Otis
7) TRANSFER OF LAND FOR THE WINDERMERE ST. IMPROVEMENTS.
Windermere is in the process of being converted to a truck
route, which will run from Belleview north of Oxford Ave.
The Colorado Department of Transportation is in the process
of rebuilding Windermere since in its current condition is
not constructed to carry heavy truck traffic. It will be
necessary to widen and raise the grade on Windermere, and in
the process, a new bridge will be built over Big Dry Creek.
The easement for the storm sewer will drain runoff from the
intersection of Windermere and Layton. The proposed
construction will raise the west driveway at the Allen
Filter Plant.
The proposed Memorandum of Understanding will involve
temporary and permanent easement and a fee simple transfer
of land for permanent street rights-of-way. The City will
receive $36,310. as fair market value for the proposed
easements.
Mr. Wiggins moved;
Ms. Neumann seconded:
Ayes:
Nays:
To recommend Council approval
of the Memorandum of
Understanding with the
Colorado Dept. of
Transportation for the s.
Windermere Street
Improvements.
Fullerton, Burns, Neumann,
Guy, Vobejda, Wiggins, Higday
Habenicht
None
Members absent: Otis
Motion carried.
8) The Board received the following informational items:
A. Letter from Randy Pierce to Ben Neumann discussing an
internal water problem at the Waterford Complex at 1900
W. Girard Pl.
B. A memo of appreciation from Dell Montgomery, Streets
Department to Bill McCormick, Operations Superintendent
regarding interdepartmental cooperation during the last
micro-surface project.
c. An article from Time Magazine dated June 10, 1996, "Do
Water Filters Work?"
D. A status report from Marcia Hughes on the Wild and
Scenic Task Force.
The next Water and Sewer Board meeting will be September 17,
1996 at 5:00 p.m. in Conference Room A .
Respectfully submitted,
Cathy Burrage
Recording Secretary
ATT. 2
12-1B-7: NUMBER OF USERS ON SERVICE RESTRICTED:
A More Than One Premises to a Service Connection . Each premise , or property
OR BUILDINGS SITUATED ON A PREMISE OR PROPERTY IN A MANNER
WHICH WOULD ALLOW THE PREMISE OR PROPERTY TO BE SUBDIVIDED
AND THE BUILDINGS SOLD SEPARATELY shall be served by a separate
serv ice connection DIRECTLY to the main WITHOUT CROSSING ANY OTHER
ADJOINING PREMISE OR PROPERTY AND with separate curb stops involving
only one account when water is turned on or shut off. Extension or service to
another premise OR BUILDING from an existing service connection is prohibited
and shall subject service to shut off without the City being liable for any damage.
EXCEPTIONS TO THIS REQUIREMENT MAY BE GRANTED BY THE
DIRECTOR OF UTILITIES UPON A REVIEW OF THE WRITIEN REQUEST OF
THE PROPERTY OWNER IN WHICH THE PROPERTY OWNER
ILLUSTRATES WITH BOTH WRITIEN AND GRAPHIC DESCRIPTIONS WHY
THE EXCEPTION SHOULD BE GRANTED . EXISTING PREMISES ,
PROPERTIES OR BUILDINGS WHICH DO NOT CONFORM TO THIS
REQUIRMENT MAY MAINTAIN THEIR SERVICE CONNECTION
CONFIGURATIONS UNLESS AND UNTIL SUCH TIME THAT, IN THE
OPINION OF THE DIRECTOR OF UTILITIES , THE SERVICE MUST BE
SEPARATED.
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City of Englewood
August 28 , 1996
Littleton City Council
2255 W . Berry Ave .
Littleton, CO 80165
RE : Interchange at County Line Road and C-470
Dear Mayor Reynolds and Members of Council:
A TT. 3
3400 S. Elati Street
Englewood , Colorado 80110-2304
Phone (303) 762-2300
(303) 762-2301
FAX (303) 789-1125
The Englewood City Council members have received a letter from the homeowners in
Littleton requesting that the interchange drive from County Line Road to the proposed
Mclellan Drive/C-470 interchange be reconsidered . The project is scheduled for bid
advertising in September.
This project is extremely important to the City of Englewood . It has taken about fifteen
(15) years to bring the project to this stage at considerable expense to the participants .
Changing the plans at this time could cause serious delays and could endanger the project
itself. During project planning the process was totally open and input was sought from
the City of Littleton as well as any other groups interested in participating . Many
accommodations were made in the process including donations ofland by Englewood to
accommodate a hiker-biker trail and to provide additional environmental features such as
wetlands .
The City of Englewood requests that the City of Littleton not take a position that opposes,
delays or objects to the project at this very late date without providing the City of
Englewood the opportunity to discuss the significant impacts of a negative decision with
the City of Littleton .
:~
Direction of Utilities
FINDING OF NO SIGNIFICANT IMPACT
FOR
MCLELLAN DRIVE/C-470 INTERCHANGE
The proposed action is construction of an interchange on C-470 between the current interchanges of
Santa Fe Dri ve and Broadway i n Douglas County, Colorado. The proposed interchange site is located
approximately one-and-one -half miles east of the Santa Fe interchange and one mile west of the
Broadway interchange at the proposed location of McLellan Drive. The recommended design
alternative for the proposed McLellan/C-470 interchange is an initial diamond interchange configured
with f ea tu res to be consistent and compatible with the other diamond interchanges along C-470. The
westbound off and on-ramp have been shifted further north than typical, in order to provide
sufficient right-of-way for future construction of a loop for the north-to-westbound movement
should the need arise . The project includes the construction of McLellan Drive north from C-470
to County Line Road as a 4-lane arterial. The approximate project length along C-470 is 0.65 miles,
and along McLellan Drive is 0.5 miles .
The project is proposed to be financed and constructed by the Highlands Ranch Special District and
no State or Federal funds are requested to assist in the construction .
~ ...
The attached Environmental Assessment for the project was signed by FHW A on May 22, 1991.
Environmental mitigation commitments are identified in Section 4 .2.8 of that document. A
Memorandum of Agreement addressing Section 4(f) issues was signed in 1989 and is included in the
Environmental Assessment.
The proposed action has been coordinated with all of the appropriate Federal, State , and local agencies
in compliance with the National Environmental Policy Act and the Colorado Department of Highways
(Transportation) Action Plan. Copies of the approved Environmental Assessment were made available
for public review for ·a 30 day period ending July 26, 1991 at three separate locations including the
Colorado Department of Transportation District 6 office, the Oakes Mill Branch of the Douglas
County Library System, and the Christensen Library of the Arapahoe Library District. The Notice
of Availability and Opportunity for Public Hearing was published in two legal newspapers: the
Den v er Post on June 13, 1991 and the Daily News Press on June 12, 1991 and June 19, 1991. Further,
the notice was published in one local circulation newspaper , the Highlands Ranch Herald, on June
12 , 199 l and June 19, 199 I. These notices are attached. Five written comment letters were received
during and shortly after the 30 day review period. Four of the five correspondents raised concerns
with the project and requested that a Public Hearing be held. To provide additional opportunity for
public consideration, it was determined that a Public Hearing would be held.
The Notice of Public Hearing was published in the Denver Post on August 30, 1991 and September
12, 1991, and in the Dail y News Press on September 12, 1991. A copy of the notice was mailed to
the persons responding in writing or by telephone to the initial Notice of Availability. The
Environmental Assessment was advertised as available at the Colorado Department of Transportation
District 6 office and the newly opened Highlands Ranch Library. The Public Hearing was held on
September 30, 199 I in the conference room of the Highlands Ranch Special District located at 62
Plaza Drive in Highlands Ranch. Five members of the public spoke at the Public Hearing. Two of
these individuals had writte n letters during the initial public comment stage. One of the speakers
submitted the public comment sheet distributed to attendees. One additional written comment letter
was received. A resolution in support of the project was provided by the Board of County
Commissioners of Douglas County. The City of Englewood provided a letter in support of the
project.
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The Public Hearing transcript, public comment sheet, and all comment letters submitted during both
review periods are attached. The specific issues raised have been summarized and responses are
provided .
The air quality conformity determination presented in the Environmental Assessment was prepared
in 1987 . To address the requirements of the Clean Air Act Amendments of 1990, a new air quality
analysis was completed. Because the build alternative was shown to reduce travel by about 1,250
vehicle miles per day within the project area, the Colorado Department of Transportation determined
that the project complies with the applicable conformity provisions of the 1990 Clean Air Act
Amendments . The Air Pollution Control Division of the Colorado Department of Health concurred
in this finding; the concurrence letter follows.
The attached environmental documentation has been independently evaluated by the FHW A and
determined to adequately and accurately discuss the environmental issues and impacts of the proposed
project. It provides sufficient evidence to conclude that the project will have no significant impacts
on the human environment; therefore , an Environmental Impact Statement is not required . The
FHW A takes full responsibility for the accuracy , scope , and content of the attached Environmental
Assessment .
\, ....
6/26/91-
7/26 /91
9/30/91
10/26/93
1/25 /94
2/22 /94
1115195
3128 195
12 /19 /95
211196
2/15 /96
318 196
3126196
3126196
5/21 /96
613 196
7/15 /96
7/24/96
7130196
815 196
PUBLIC MEETINGS REGARDING C-470 INTERCHANGE
Pub lic Comment and Review Period on Environmental Assessment
Pub lic Meeting on Environmental Assessment
HRMD No. 4 Meeting -Approval of Pre-Design
HRMD No . 4 Meeting -Approval of CDOT IGA
HRMD No. 4 Meeting -Approval of HAER Study
Presentation to HRCA Development Review Committee
HRMD No. 4 Meeting -Approval of Preliminary Design
HRMD No . 4 Meeting -Approval of Construction Documents
Presentation to Douglas County Commissioners at Douglas County -C-
470 Interchange
FIR Review at CDOT
Prese ntation to City of Littleton -Business & Industry Advisory
Committee
HRMD No. 4 Meeting -Approval of CDOT IGA Amendment
HRMD No . 3 Meeting -Approval of CDOT IGA Amendment
Englewood Utilities Board
Englewood City Council Study Sess ion
Englewood City Council Meeting
FOR at CDOT
HRMD No. 4 Meeting -Approval of Design Amendment
Engl ewood City Council Meeting
December 22, 1995
January 4, 1996
January 10, 1996
May 24, 1996
June 7, 1996
C-470 INTERCHANGE
RECENT NEWSPAPER ARTICLES
Highlands Ranch Herald
Highlands Ranch Highlander
Douglas County News Press
Rocky Mountain News
Highlands Ranch Herald
Highlands Ranch Herald -Dec. 22, 1995 -Page 3
Interchange plans move forward
Metro Districts GJJproJJriate design
funds for HR Blvd.!C470 raniJJS
By Nikki Onsgard
Herald S taff Writer
The Broadway and Snulh Sanla Fe Dri -
ve interchanges on C -470 could become
very crowded unless an additional inter -
change is huilt .
That's why the tvlctm Dislricts arc
moving ahead wilh designs for a $9 mil-
lion interchange at the future Highlands
Ranch Ooulcvard and C-470 between
South Santa Fe Drive and Broadway.
Metro Districts boards Tuesday appro -
priated $393,662 for construction draw-
i ngs and a Colorado Department or Trans-
portation review or the plans for th e inter-
change .
"II seemed the appropriate time," said
Metro Districts assistant general manager
JclT Case . "The C -470 corridor is develop-
ing rapidly as well as the western portion
or I lighlands Ranch ."
Conslruction on the interchange is
scheduled to begin in late 1996; the open-
ing is planned for 1998.
Construction of Highlands Ranch ·
Boulevard also is scheduled to begin in
1996 and he completed in 1998, Case said .
On Tuesday, hoard members nppropriated
$128 ,2 27 fur construction of a portion of
the boulevard .
The districts hnve spent nearly
$788,000 on consulting . Conceptual de -
signs, an environmental assessment miti-
gation report and preliminary designs arc
completed .
The preliminary designs will be sub-
mitted this month for review hy the Col -
orado Department of Transportation,
C ase said .
The construction ,.drawings should be
completed hy June 1996, according to
Metro Di s ticts reports . Once the . con-
struction plans are reviewed hy the lrans -
porlalion department in July, the Metro
Districts will begin accepting bids for
the project.
Metro District 3 hoard members will is-
sue bonds in mid-1996 to pay for the con-
struction, Case said .
In other business, the hoards appropri-
ated $9,375 for design of a neighborhood
park north of Highlands Ranch Parkway in
Marcy Gulch between Oroadw :!:, and
South Santa Fe Drive .
Construction on the $500,000 park,
near the future site of the Highlands Ranch
Community Association pool, is scheduled
lo begin in 1997 .
II will be similar ·io Plum Valley Ac-
tivity Arca on Westridgc Village Park -
way, said Tom Hoby, Metro Districts'
park manager.
Community workshops will be held in
late spring or summer 1996 10 solicit com-
ments from residents.
Wednesday, January 10, 1996 News-Prcn:i
Interchange plan s mo ve forward
Plans for a new C-470 inter-
change between Santa Fe Drive and
Broadway are moving forward .
The Highlands Ranch
Metropolitan Districts recently
appropriated S368,600 for final
design of the interchange. Final
design is expected to .be complete
sometime this year, said Jeff Case ,
assistant general manager for the ..
Highlands Ranch Metropolitan
Districts.
Tne interchange will be diamond
shaped, allowing access on and off
C-4 70 from all directions and from
both directions of , the future
Highlands Ranch .,._Boulevard.
Highlands Ranch Bouievard even-
tually will connect Wlth ·c~7Q at the
interchange. . :·: '.~,.~
The entire project .Will, cost about
S9 million, Case srud ~' -'-Highlands
Ranch Metropolitan District No. 3
will issue bonds to finance the pro-
ject.
. The bonds will be paid off with
funds generated by the systems
development fees that developers
pay.
The interchange has been part of
the metropolitan districts' facilities
plan since the early 1980s. After an
environmental assessment in the
late 1980s found the interchange
would have no significant environ-
mental impact, the project became
part of Colorado's Transportation
Improvement Plan.
The interchange originally was
referred to as the McClellan
Interchange, but will probabl y be
called Highlands Ranch Boulevard
Interchange, Case said. Whatever its
name, the interchange will play an
important role in relieving traffic
congestion on Santa Fe Drive and
on Broadway and in opening up the
northwestern corner of Highlands
Ranch for development.
"We think it's very important
this interchange is built," Case said.
"As the community is built out and
as that part of the Ranch is devel-
oped, this interchange will alleviate
a lot of traffic along Broadway."
Case said he didn't know when
the interchange will be built. The
metropolitan districts this year plan
to extend Highlands Ranch
Boulevard about 1/2 mile north of
Highlands Ranch Parkway, he said.
Plaza Drive eventually will . be
extended to Santa Fe Drive. In
1997, the metropolitan districts plan
to extend Plaza Drive west to the
extended Highlands Ranch
Boulev ard and complete the western
part of Plaza Drive from Santa Fe
Drive to . the future extension of
Foothills Canyon Boulevard.
The interchange is an important
component in opening up the north-
western corner of Highlands Ranch
to development. The area is primar-·
ily zoned for commercial/industrial
use. It also is the site of a proposed
golf course community and is being
considered as a location for a sports
stadium and complex of playing
fields.
I nt erchange
w ill open up
northwestern
p art of Ranch
By Pete Lewis
Highlander Editor
Plans for a new C-470 interchange between Santa Fe
Drive and Broadway are moving forward.
The Highlands Ranch Metropolitan Districts recently
appropriated $368 ,600 for final design of the interchange.
Final design is expected to be complete sometime this
year, said Jeff Case, assistant general manager for the
Highlands Ranch Metropolitan Districts.
The interchange will be diamond shaped, allowing
access on and off C-470 from all directions and from both
directions of the future Highlands Ranch Boulevard.
Highlands Ranch Boulevard eventually will connect with
C-470 at the interchange.
The entire project will cost about $9 million, Case said.
Highlands Ranch Metropolitan District No . 3 will issue
bonds to finance the project. The bonds will be paid off
with funds generated by the systems development fees
that developers pay.
The interchange has been part of the metropolitan dis-
tr icts' facilities plan since the early 1980s . After an envi-
ronmental assessment in the late 1980s found the inter-
change would have no significant environmental impact,
the project became part of Colorado's Transportation
Improvement Plan.
The interchange originally was referred to as the
McClellan Interchange, but will probably be called
Highlands Ranch Boulevard Interchange, Case said.
Whatever its name, the interchange will play an impor-
tant role in relieving traffic congestion on Santa Fe Drive
and on Broadway and in opening up the northwestern cor-
ner of Highlands Ranch for development.
"We think it's very important this interchange is built,"
Case said. "As the community is built out and as that part
of the Ranch is developed, this interchange will alleviate
a lot of traffic along Broadway."
Case said he didn "t know when the interchange will be
built. The metropolitan districts this year plan to extend
Highlands Ranch Boulevard about 1/2 mile north of
Highlands Ranch Parkway, he said.
Plaza Drive eventually will be extended to Santa Fe
Drive . !n 1997, the metropolitan districts plan to extend
Plaza Drive west to the extended Highlands Ranch
Boulevard and complete the western part of Plaza Drive
from Santa Fe Drive to the future extension of Foothills
Canyon Boulevard .
The interchange is an important component in opening
up the northwestern comer of Highlands Ranch to devel-
opment. The area is primarily zoned for
commercia l/industrial use . It also is the site of a proposed
golf course community and is being considered as a loca-
tion for a sports stadium and complex of playing fields.
' .
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Highlands Ranch,
C-470 to link up
Fourth interchange
will relieve traffic flovv
on crowded Broadway
I
By She ll ey Gonza les
Rocky /vfoimtain Neu:s Sta_rlWn"ter
DOUGLAS COUNTY -The last of
four interchanges linking C-470 to
Highlands Ranch is slated to break
ground in ~ovember:.
The :VIcLellan pro ject, named for
?vkLe llail Reservoir that forms its
nori..hern border. v.ill be midway
between South Santa Fe Drive and
HIGHLANDS RANCH ROAD WORK
-· i
i
Broadway and is intended to relie ve . ,.--.___:':..... :..... _·-_·_
traffic on Broadwav as the develop-The · .NkClel-J IN SIDE. .. l · · -h ment in nori..hwestern por"'Lion of an mterc ange
the bustling planned communi ry-•Train ove·r-\\-a.s plaAiled in .
picks up . . pass to· be bu il t the original C-
in fall/47 A . 4 ~0 d · -· Using a "full-diamond" design, I es1gn but
the interchange will connect Cotm-. ._ ___ ...__, was never built,
ty· Line Road with the soon-to-be-Case said. The other Highlands
built Highlands Ranch Boulevard. Ranch exits are at Broadway, Uni-
The boulevard then will meet with versity Boulevard and Quebec
Highlands Ranch Parh.-way and loop Street.
diagonally south back to Broadway. The metro district likely will be
The area off the high'-"d.Y exit will be able to take advantage of the low
zoned mixed commercial and could water le vels in the reservoir to
include business offices as well as make progress next wint er on the
retailers. interchange's construction, which
The interchange is scheduled to . will run simultaneously with the
be completed in November 1997. riearby railroad overpass project on
"We see this as an important County Line. ·
component to the entire transpor-It is one of many construction
ration plan in northwestern High-projects under way or planned in
lands Ranch," said Jeff Case, as-. northwestern Highlands Ranch.
sistant general manager · of the A towri"square and civic 'i:enter is
~ghlands Ranch Metropolitan Dis-· .still in the.conceptual stage, but con-·
tncts, which is funding the project. struction (of a Safeway. :striii.±enter .
He said studies show that with-on its ·southeastern periinefor has !
out the interchange, the already -been raisiilg du sf all spnnga~ Broad-:
clogged Broadway exit would be-way and ·J1ighlands Ranch Parl~way. i
come a traffic nightmare. Just :s·outhwest of Broadway and ·
The project will cost $9 million. C-470, ·the .area's first hotel is being
The metropolitan district, which built -a Resid ence Inn catering to
builds and maintains roadways in business !)eople or co .n_s.ultants ;
Highlands Ranch, gets its money working 'here· on tempcfrfuit ·, con-:
from fees paid by res idents there. tracts.-, ; ·'. -:· ~ 1 -~~1· .. . . . .. · !::·r
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"'
McClellan C-470 interchange
faces major hurdle in 2 weeks
Englewood n1ust decide to grant
right-of-way for key project
he said the district will ensure
access to all parcels .
Englewood bought the proper-
ty in the 1950s as pa11 of its water
development program.
By Tom Munds
Herald Statt Writer
T1lc: ,\kClc!IJn C-470 inter-
ch;uige faces a major hurdle in the
ne.~t two weeks JS Englewood
dctenninc:s whether to grant right-
of-way for the project.
HighlJilds RJilch Merropolitan
District 3 plJils to spend $9 mil-
lion to build the interthange . As
pJ11 of the road improvements, the
disrrict would extend Highlands
Ranch Boulevard from No11h ·
Plaza Drive to connect with the
interthJilge. County Linc Road
Jfld Broadway at a cost of about
S2.7 million . Work on the boule-
vard extension will st.l!t later this
year, J.11d the discict wants to st.l!t
the 12 -month intcrt!lange con-
s.truction project in November.
But the district needs
Englewood land for the inter-
change, and the right-of-way
would take about 20 acres of
about 90 acres the city owns south
of County Line Road. Also, the
construction and the Highline
CJilal would divide Englewood's
remain ing IJ.11d into four parcels .
But the roads would transform the
parcels from :i.lmost inaccessible
undeveloped range land into pos-
sible locations for commercial.
development.
Terry NolJ.11, District 3 gener:il
manager, said Monday the inter-
change has been in the planning
stages for 20 years .
"An interthJ.11ge was drawn in
as pan of the C-470 plans but it
was never built," he said . "But we
saw there was no way to get the
federal or state agencies to build
the interchange in the near future.
So, we decided to built it because
it is needed to serve our residents
and to serve a growing commer-
cial development in no11hem
Highlands Ranch."
TI1c: C-470 highway carries
abour 50,000 cars a day now J.11d
is projected to carry about 90,000
a day by 2015 . The new inter-
change is projected to carry about
20,000 cars a day.
Nolan said the interchange and
connecting roads are impo11ant to
Highlands Ranch growth.
"There are 35,000 people in
Highlands Ranch now, and it is
expected to grow to 90,000,"
Nolan said. "We have tried to
anticipate growth and we built the
arterials to handle the traffic. But,
we still see congestion, and the
new interchange would relieve
some of the heavy traffic we now
sec around Broadway and C-nO."
While the planned roads divide
the Englewood land into parcels,
"Englewood bought up entire
fam1s to obtain the land to build
the reservoir," John Bock,
Englewood manager of utilities
administration, said. ''TI1e reser-
voir t:ikes up a pa11 of the proper-
ty and the rest is just open range
l:ind." TI1c reservoir provides raw
w:iter storage for the city. The rest
of the land that came in the de:il
has remained undeveloped.
Stewart Fonda, Englewood
Utilities director. told the city
council the land can't be devel-
oped without roads. "'The inter-
change opens our land to devel-
opment. Without it, we would
have to pay to build roads to bring
in development md, even then, it
wouldn't provide the develop-
ment oppo11unities created by the
interchange."
The McClellan C-470 Interchange Includes an extension of
Hlghlands Ranch Boulevard from North Plaza Drive to connect
with the Interchange, County Line Road and Broadway.
COLORADO COURT OF APPEALS
No. 93CA1923
"'-. '.::..."'.: : i I .::.. ~-·
A TT. Lj-
July 11, 1996
City of Englewood, Colorado, a municipal corporation,
Plaintiff-Appellant,
and
City of Littleton, Colorado, a municipal corporation,
Plaintiff-Appellant and Cross-Appellee,
v.
Commercial Union Assurance companies, a/k/a Commercial Union
Insurance Company, a/k/a Employer's Fire Insurance Company, a
Massachusetts corporation; The Hartford Accident and Indemnity
Company, a Connecticut corporation; Fireman's Fund Insurance
Companies, a California corporation; The American Insurance
Company, a New Jersey corporation; Compass Insurance Company, a
New York corporation; American States Insurance Company, an
Indiana corporation; American Reinsurance Company, a/k/a American
Excess Insurance Company, a Delaware corporation,
Defendants-Appellees,
and
Guaranty National Insurance Company, a Colorado corporation,
Defendant-Appellee and Cross-Appellant.
Appeal from the District Court of the City and County of Denver
Honorable Robert S. Hyatt, Judge
No. 91CV723
Division V
Opinion by JUDGE ROTHENBERG
Hume and Taubman, JJ., concur
JUDGMENT AFFIRMED IN PART, REVERSED
IN PART, CROSS-APPEAL DISMISSED
AND CAUSE REMANDED
WITH DIRECTIONS
Martin Semple, Acting City Attorney, Daniel L. Brotzman,
Assistant City Attorney, Englewood, Colorado; Anderson, Kill,
Olick & Oshinsky, P.C., Edward M. Joyce, Roberto Velez, Mayda
Prego, Michelle Perez, New York, New York, for Plaintiff-
Appellant City of Englewood
Berkowitz, Brady & Backus, P.C., Larry W. Berkowitz, William J.
Brady, Denver, Colorado, for Plaintiff-Appellant and Cross-
Appellee City of Littleton
Montgomery, Green, Jarvis, & Kolodny, James K. Green, Joyce L.
Jenkins, Denver, Colorado, for Defendant-Appellee Comm~rcial
Union Assurance Companies, a/k/a Commercial Union Insurance
Company
Pryor, Carney and Johnson, P.C., Joanne M. Zboyan, Englewood,
Colorado, for Defendant-Appellee Hartford Accident and Indemnity
Company, a Connecticut corporation
Cook, Kotel & Fitch, Randy D. Kotel, Denver, Colorado; Kaufman &
Logan, w. Martin Tellegen, Jeffrey s. Gubernick, San Francisco,
California for Defendant-Appellee Fireman's Fund Insurance
Compa.nies, a California corporation
Cooper & Clough, P .C., John E. Clough, Denver, Colorado; Wilson,
Elser, Moskowitz, Edelman & Dicker, Stephen D. Straus, New York,
New York, for Defendant-Appellee Compass Insurance Company, a New
York corporation
Anderson, Campbel l & Laugesen, P.C., Richard w. Laugesen, Denver,
Colorado; Bingham , Summers, Welsh & Spilman, Tammy J. Meyer,
Martha s. Hollingsworth, Indianapolis, Indiana, for Defendant-
Appellee American States Insurance Company, an Indiana
corporation
Law Office of Diana L. Terry, Diana L. Terry, Denver, Colorado,
for Def endant-Appellee and Cross-Appellant Guaranty National
Insurance Company, a Colorado corporation
Law Firm of Kevin s. Hannon, Kevin s. Hannon, Denver, Colorado;
Gorsuch Kirgis L.L .C., Peter R. Nadel, Denver, Colorado, for
Amicus Curiae Colorado Trial Lawyers Association
Inman Flynn & Biesterfeld, P.C., Joel A. Moritz, Richard P.
Brentlinger, Michael J. Glade,· Robert J. Thomas, Denver,
Colorado, for Amicus Curiae Colorado Municipal League
White & Steele, P.C., Frederick W. Klann, George A. Codding, III,
Denver, Colorado; Wiley, Rein & Fielding, Laura A. Foggan, John
E. Barry, Russell Sullivan, Washington, D.C., for Amicus Curiae
Insurance Environmental Litigation Association
Long & Jaudon, Dennis W. Brown, Denver, Colorado; Harwood LLoyd,
Edward Zampino, Victor c. Harwood, III, Peter E. Mueller,
Hackensack, New Jersey, for Amicus Curiae Aetna Casualty and
Surety Company
No Appearance for Defendant-Appellee American Insurance Company,
a New Jersey corporation
In this consolidated appeal, plaintiffs, City of Littleton
and City of Englewood (cities), appeal from a summary judgment in
favor of defendants, Commercial Union Assurance Companies, a/k/a
Commercial Union Insurance Company, a/k/a Employer's Fire
Insurance Company (Commercial Union); the Hartford Accident and
Indemnity Company (Hartford); Fireman's Fund Insurance Companies
(Fireman's Fund); the American Insurance Company (American);
Compass Insurance Company (Compass); American States Insurance
Company (American States); American Reinsurance Company, a/k/a
American Excess Insurance Company (American Excess); and Guaranty
National Insurance Company (Guaranty National). Guaranty
National cross-appeals. We affirm in part, reverse in part, and
dismiss the cross-appeal.
This action concerns the availability of insurance coverage
under several Comprehensive General Liability (CGL) insurance
policies for environmental response costs sought from the cities
by the Environmental Protection Agency (EPA) pursuant to the
Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), 42 U.S.C. §9601, et seq. (1988).
At issue here is whether EPA letters sent to the cities
alleged claims for liability which potentially come within the
coverage provided by the defendants' insurance policies. The
trial court determined that none of the insurers had either a
duty to defend or a duty to indemnify the cities. We hold that
all .but three insurers have a duty to defend, and that the
determination of the duty to indemnify was premature.
-1-
I. Factual Background
In 1973, Englewood and Littleton entered into an agreement
to build and operate the Bi-City Waste Treatment Facility (Bi-
City Plant), which was designed to process sewage sludge from the
cities of Englewood and Littleton. From April 1, 1977, through
the early summer of 1980, the cities disposed of municipal sludge
at the· Lowry Landfill.
Defendant insurance companies issued CGL insurance policies
to the cities and/or the Bi-City Plant during the relevant
period. Between 19 7 1 and 1986, virtually all insurance companies
issued a standard-form CGL insurance contract produced by the
National Bureau of Casualty Underwriters and the Mutual Insurance
Rating Bureau. See Broderick Investment Co. v. Hartford Accident
& Indemnity Co., 954 F.2d 601 (10th Cir.) (fn. 1), cert. denied,
506 U.S. 865, 113 s.ct. 189, 121 L.Ed. 2d 133 (1992).
In 1984, the EPA determined that a release of hazardous
substances had occurred at the Lowry Landfill. In 1985, it
notified Englewood that it was a "Potentially Responsible Party"
(PRP) under CERCLA . Alleging that Englewood had generated,
transported, or disposed of waste that caused property damage at .
the landfill site , the EPA informed Englewood it was potentially ·
jointly and severa l ly liable for the cleanup costs.
In May 1988, the EPA sent separate letters to Englewood and
Littleton notifying them of their potential liability for costs
of remediation and other damages at the Lowry Landfill. In June,
the EPA also sent a letter to the Bi-City Plant advising it that
-2-
it was potentially liable for the environmental damage at the
landfill. The EPA stated it had reason to believe the ~i-City
Plant "arranged by contract, agreement, or otherwise, for the
disposal, treatment, or transportation of hazardous substances
found at the facility."
The cities notified defendant insurance companies of the EPA
action in sending the PRP letters and sought coverage under the
policies. Defendant Commercial Union originally agreed to defend
Englewood subject to a reservation of rights, but later withdrew
its defense of the action. The remaining defendant insurance
companies refused to defend the cities.
The cities then filed this action against the insurance
companies seeking a declaration of their rights and
responsibilities under the liability insurance policies, specific
performance of those policies, and indemnification for clean-up
of pollutants at the landfill.
They incorporated into their complaint the same allegations
contained in the EPA notices sent to them:
EPA has asserted that numerous parties,
including [the cities] disposed of waste at
the Lowry Landfill and that said waste,
including the [cities'] municipal sewage
sludge, contained hazardous substances,
pollutants, or contaminants, and as such, the
[cities] may be liable for costs of
remediation and other damage pursuant to
CERCLA ..
Englewood filed a motion for partial summary judgment,
seeking an order requiring the insurance companies to defend it
with respect to the EPA action. That motion was denied by the
-3-
court.
Compass, Commercial Union, and American Excess filed cross-
motions for summary judgment on the duty to defend, asserting,
inter alia, that because the Bi-City Plant was a joint venture,
it was not covered under the "persons insured" provision of the
policies.
In disposition of these motions, the trial court granted
summary judgment in favor of defendants Compass, Commercial
Union, and American Excess. It found that: (1) the Bi-City
Plant was a joint venture; (2) the policies expressly excluded
coverage of joint ventures which .are not designated in the policy
as the named insured; and (3) on that basis, the cities were not
entitled to coverage for their landfill cleanup liabilities.
The court also granted the cross-motions for summary
judgment of Compass, Commercial Union, and American Excess on an
alternative basis, finding there was no duty to defend or to
indemnify plaintiffs because the policies' pollution exclusion
clauses were applicable so as to preclude coverage.
Hartford then filed a motion for clarification or, in the
alternative, for summary judgment on all claims based on the
pollution exclusion in its policy. The trial court granted
Hartford's motion for summary judgment, again finding no duty to
defend or to indemnify.
Similarly, Fi reman's Fund, American, American States, and
Guaranty National filed a joint motion for summary judgment on
all claims based on the pollution exclusion clause. The trial
-4-
court also granted their motion.
In September 1993, the court granted Englewood's motion for
C.R.C.P. 54(b) certification.
II. Standard of Review
Summary judgment is proper when the pleadings, affidavits,
depositions, and admissions show there is no genuine issue as to
any material fact and the moving party is entitled to judgment as
a matter of law. The moving party has the initial burden to show
there is no genuine issue of material fact. Once the moving
party has met this initial burden, the burden then shifts to the
nonmoving party to establish there is a triable issue of fact.
Jones v. Board of Education, 854 P.2d 1386 (Colo. App. 1993).
In determining whether summary judgment is proper, the
~onmoving party must receive the benefit of all favorable
inferences that may be reasonably drawn from the undisputed facts
and a reviewing court must resolve all doubts as to whether an
issue of fact exists against the moving party. Jones v. Board of
Education, supra.
The interpretation of a contract, including an insurance
contract, is a matter of law which may be reviewed de n.QYQ to
determine if plaintiffs' claims are excluded from coverage. See
Union Insurance Co. v. Houtz, 883 P.2d 1057 (Colo. 1994).
When a court is construing the language of an insurance
contract, its provisions cannot be read in isolption, but must be
considered as a whole. Simon v. Shelter General Insurance co.,
842 P.2d 236 (Colo. 1992).
-5-
An unambiguous insurance contract must be given effect .
according to the ordinary and plain meaning of its terms. A
court may not rewrite an unambiguous policy or limit its effect
by a strained construction. However, ambiguous language must be
construed in favor of the insured and against the insurer who
drafted the policy. Allstate Indemnity Co. v. Gonzales, 902 P.2d
.....______---~~~------953 (Colo. App. 1995).
Here, there are two contractual duties that are at issue:
the duty of an insurer to defend its insured against claims of
liability, and the duty of the insurer to indemnify its insured
for the insured's liability obligations.
The duty to defend is broader than the duty to indemnify and
should be viewed separately. An insurer seeking to avoid its
duty to defend bears a heavy burden.
In determining whether there is a duty to defend, a court
must look to the allegations in the complaint that assert
liability on the part of the insured to determine whether there
may be a covered l i ability and _ a concomitant obligation by the
insurer to defend . If those allegations potentially or arguably
come within the po l icy coverage or there is some doubt whether a
theory of recovery within the policy coverage has been stated,
then the insurer must accept the defense of the claim. Also, an
insurer must defend against all claims if some potentially
covered claims are alleged. Hecla Mining Co. v. New Hampshire
Insurance Co., 811 P.2d 1083 (Colo. 1991).
In order to avoid any policy coverage, including absolution
-6-
from th~ duty to defend, an insurer must establish that a policy
exclusion applies in the particular case and that it is not
subject to any other reasonable interpretations. In other words,
an insurer has a duty to defend unless it can establish that:
(1) the allegations in the complaint against its insured are such
that they solely and exclusively describe a situation within the
exclusions in the insurance policy; and (2) there is no factual
or legal basis upon which the insurer eventually might be held
liable to indemnify the insured.
Whether indemnification is ultimately available under the
contract is a question of fact. In contrast, the determination
of a duty to def end depends on the terms in the insurance policy
and the interpretation of those terms based upon the principle~
of contract interpretation. The insured's actual liability is
not the criterion which places upon the insurance company the
obligation to defend. Hecla Mining Co. v. New Hampshire Co.,
supra.
III. Pollution Exclusion
The cities contend that the trial court erred in granting
summary judgment in favor of all defendants on the duty to defend
based upon the pollution exclusion. We agree.
Initially, we note that substantially similar contract
language contained in the CGL standard contract is at issue in
nearly all insurance litigation pertaining to the years between
1971 and 1986. Broderick Investment Co. v. Hartford Accident &
Indemnity Co., supra. This contract language, and particularly
-7-
interpretation of the pollution exclusion clause, has generated
an inordinate amount of litigation throughout the country with
varying results. It also has produced considerable commentary in
law journals and other legal publications. See, ~' Larsen Oil
Co. v. Federated Insurance Co., 859 F. Supp. 434 (D. Or. 1994);
s. Greenlaw, The CGL Policy and the Pollution Exclusion Clause:
Using ·the Drafting History to Raise the Interpretation Out of the
Quagmire, 23 Colum. J.L. & Soc. Probs. 233 (1990).
Here, the relevant language in each policy provides coverage
for legal liability for damages imposed upon the insured based on
bodily injury or property damage caused by an "occurrence." Each
policy defines an "occurrence" as:
[A]n accident, including injurious exposure
to conditions, which results, during the
policy period, in bodily injury or property
damage neither expected nor intended from the
standpoint of the insured.
Even if an insured's loss resulted from an occurrence, the
insurer still may avoid paying on the policy if the event falls
within the pollution exclusion clause contained in each policy.
The pollution exc l usion clause excludes coverage for damage~:
arising out of discharge, dispersal, release
or escape of ... toxic chemicals, liquids
or gases, waste materials or other irritants,
contaminants or pollutants into or upon land
.... (emphasis added)
However, coverage is restored if such "discharge, dispersal,
release or escape is sudden and accidental." See Hecla Mining
Co. v. New Hampshire Insurance Co., supra -("sudden and
accidental" defined as "unexpected and unintended").
-8-
A.
Insurers contend that they have no duty under Hecla to
defend because: (1) their duty to defend is measured against the
language as stated within the four corners of th·e complaint; ( 2)
the complaint here is the PRP letter from the EPA alleging that
the cities disposed of "pollutants" at the Lowry Landfill; (3)
the al-legations of the complaint must be taken as true; and ( 4)
those allegation put this case squarely within the pollution
exclusion. We are not persuaded.
Under the interpretation urged by insurers, the recipient of
a PRP letter from the EPA would never be covered because the EPA
invariably will allege that the recipient of the letter has
discharged pollutants. But, the contracts, by their terms
exclude the discharge of sewage sludge from coverage only if it
is an industrial type emission or a waste material or other -irritant, contaminant, or pollutant. The insurers'
interpretation is also inconsistent with Hecla's broad
construction of the duty to defend in favor of the insured.
In Hecla, as here, insurers denied they had a duty to defend
claims against their insured arising from alleged CERCLA
violations. There, as here, insurers relied on the pollution
exclusions in their CGL policies, and urged narrow
interpretations of the terms "occurrence" and "sudden and
accidental."
The Hecla court rejected the insurers' position, concluding
that: (1) because there were no claims asserting Hecla Mining
-9-
expected or intended the discharge of pollutants into the
California Gulch as a result of its mining operations, there was
an "occurrence" within the meaning of the insurance policy that
was "unexpected and unintended"; and (2) the phrase, "neither
expected nor intended" excludes only "those damages that the
insured knew would flow directly and immediately from its
intentional act." Accordingly, the court held that the insurers
had a duty to defend. Hecla Mining Co. v. New Hampshire
Insurance Co., supra, 811 P.2d at 1086-88.
Thus, it is true that, when determining the duty to defend,
the court must examine the allegations within the complaint.
However, the Hecla court also held that, if there is any factual
or legal basis on which an insurer eventually might be held
liable to indemnify plaintiffs, then the insurer must defend,
subject to a reservation of rights. Hecla Mining Co. v. New
Hampshire Insurance Co., supra.
Here, we need not look beyond the four corners of the
complaint to conclude there is a legal basis upon which the
in~urers mjqht be held liable to indemnify the cities. This is
because there is a pending legal issue regarding the
characterization o f domestic sewage sludge.
Several courts have recognized a significant distinction
between: (1) toxic industrial sludge; and (2) non-toxic, non-
hazardous "biosolids" or domestic sewage sludge, which is
suitable for beneficial reuse on agricultural lands or as a soil
supplement. See Incorporated Village of Cedarhurst v. Hanover
-10-
Insurance Co., 611 N.Y.S. 2d 417, 160 Misc. 795 (1994) (natural
municipal sewage such as garbage and undigested food residue not
pollutant); United States Fidelity & Guaranty Co. v. Armstrong,
479 So. 2d 1164 (Ala. 1985) (pollution exclusion refers to
industrial pollution, not natural city sewage); Minerva
Enterprises v. Bituminous Casualty Corp. 851 S.W.2d 403 (Ark.
1993) .. (definition of "pollutants" intended to exclude industrial
wastes, not common household wastes).
We also note that, on similar facts involving the Lowry
Landfill site, two federal district courts in Colorado have
rejected the defendants' argument that, as a matter of law,
sewage sludge is an irritant, contaminant, or pollutant. See
Metro Wastewater Reclamation District v. CNA, 834 F. Supp. 1254,
1260 (D. Colo. 1993) (court rejected insurers' claim that
pollution exclusion clauses precluded coverage because there was
genuine issue whether sewage sludge fell within the plain meaning
of "waste materials or other irritants, contaminants or
pollutants") and City of Lakewood v. United States Fire Insurance
Co., No. 90-Z-880 (D. Colo., March 30, 1993) (bench ruling by
Weinshienk, J., finding duty to defend under Hecla on basis of
PRP letter) (reprinted in Mealey's Litigation Reports-Insurance
Vol. 7, #30) .
Based upon this authority, we thus conclude there is an
unresolved and potentially dispositive issue of law whether
domestic sewage sludge, which is recycled and sold as a
fertilizer, is an "irritant, contaminant, or pollutant" within
-11-
the meaning of the pollution exclusion clause. Accordingly, we
further conclude the trial court erred in finding as a matter of
law that the pollution exclusion necessarily applied, and in
determining that the insurers had no duty to defend the
plaintiffs in this action.
B.
ln granting summary judgment for all insurers, the trial
court heavily relied on Broderick Investment Co. v. Hartford
Accident & Indemnity Co., supra, which held that the initial
placement of admitted pollutants into containment ponds
constituted a "discharge, dispersal, release or escape," even
though the insured did not expect or intend damage to result, and
that property damage arose out of that "discharge, dispersal,
release or escape."
Based upon Broderick, the trial court found that: ( 1) a
discharge of the cities ' waste occurred when the waste initially
was placed at the landfill, rather than when the alleged
pollutants later escaped into the surrounding environment; (2)
because the cities had intended initially to place the waste in
the landfill, they expected and intended the result within the
meaning of Hecla; and (3 ) coverage was precluded by the pollution
exclusion clause.
On appeal, insurers urge us similarly to conclude there is
no coverage under the policies because the cities "expected and
intended" to "discharge" pollutants into the Lowry Landfill.
As previously noted, however, the pollution exclusion clause
-12-
only bars coverage under the policy if the discharge is of
"irritants, contaminants or pollutants." If the discharge of
sludge here wa& :Rot such a:A emi&aion as the cities contend, it -
is irreleyant when the discharge occurred and what the cities
expected or intended.
Thus, given our earlier conclusion that there is a genuine
issue -regarding the proper characterization of the cities' sewage
sludge, we need not decide whether the trial court's reliance on
Broderick was appropriate and the discharge by the cities
occurred at the time of the initial placement of sewage at the
Lowry Landfill, or whether it occurred at a later time, as other
courts have concluded. Cf. Patz v. St. Paul Fire & Marine
Insurance Co., 15 F.3d 699 (7th Cir. 1994) (placement of liquid
waste into containment area was not a discharge into the
environment; rather, "discharge" occurred when water leached
through the bottom of the pit); and Outboard Marine Corp. v.
Liberty Mutual Insurance Co., 54 Ill. 2d 90, 607 N.E.2d 1204
(1992) (relevant discharge is the release from the state of
confinement and not initial placement into a landfill). If the
cities' argument is successful, the need for such a determination
may never arise.
In summary, an insurer has the duty to defend its insured
unless it establishes that there is no factual or legal basis on
which liability might be established. Here, there is a legal
basis on which it may be concluded that the pollution exclusion
does not apply to the cities. Accordingly, the insurers have
-13-
failed to meet their heavy burden of showing "that the
allegations in the complaint are solely and entirely within the
exclusions in the insurance policy," and summary judgment based
upon the pollution exclusion clause should not have been granted.
Hecla Mining Co. v. New Hampshire Insurance Co., supra, 811 P.2d
at 1090.
IV. Duty to Indemnify
In a related contention concerning the pollution exclusion
clause, the cities next assert that the trial court erred in
granting summary judgment in favor of all insurers concerning the
duty to indemnify. Again, we agree.
The cities' underlying CERCLA liability has not been
resolved and no judgment has entered. Thus, the trial court's
resolution of the duty to indemnify was premature. See Hecla -Mining Co. v. New Hampshire Insurance Co., supra. See also New
Hampshire Insurance Co. v. Constitution Associates, 908 P.2d 1163
(Colo. App. 1995) (cert. granted, January 16, 1996); Employers
Fire Insurance Co. v. Western Guaranty Fund Services, P.2d
~-(Colo. App. No. 94CA1482, February 8, 1996).
V. Joint Venture Exclusion
The cities next contend that the trial court erred in
granting defendants' Compass, Commercial Union, and American
Excess separate motion for summary judgment after finding the Bi-
City Plant was a joint venture and therefore excluded from
coverage. We disagree and conclude that summary judgment
concerning the duty to defend was proper as to these defendants
-14-
based upon the joint venture exclusion.
The policies issued by these three defendants contained
joint venture exclusions which provide that:
This insurance does not apply to bodily
injury or property damage arising out of the
conduct of any . . . joint venture of which
the insured is a partner or member and which
is not designated in this policy as a named
insured. (emphasis added)
A joint venture exists when there is: (1) a joint interest
in property; (2) an express or implied agreement to share in
profits or losses of the venture; and (3) actions and conduct
showing joint cooperation in the venture. See Hancock
Construction Co. v. Cummins, 791 P.2d 1208 (Colo. App. 1990).
Two parties merely cooperating in operating and managing an
enterprise do not constitute a joint venture. See Agland, Inc.
v. Koch Truck Line, Inc., 757 P.2d 1138 (Colo. App. 1988).
Plaintiffs concede that the joint operation of the Bi-City
Plant involved a joint interest in property and that their
actions and conduct reflected joint cooperation in the operation
of the plant. The only remaining issue relating to the joint
venture is whether the agreements for the creation and operation
of the Bi-City Plant contemplated a sharing of profits or losses.
The agreement between the cities provides, in relevant part:
WHEREAS, it is the intention of the Cities of
Littleton and Englewood to manage and operate
the Englewood WWTP [Waste Water Treatment
Plant] in concert with, and within the
administrative structure established for the
Joint Use WWTP; and,
WHEREAS, the basic concept of this Agreement
is that neither city shall be a customer of
-15-
the other, but rather the Cities shall
operate the Bi-City plant with costs of
additions, and costs of operation and
maintenance being divided between them in a
fair and equitable manner as set forth
hereinafter with specificity ....
Although the agreement does not specifically state the
cities will share profits or losses, it does say they will divide
the costs of operation and maintenance. Thus, we must determine
whether the trial court erred in finding that "profits" may
properly be interpreted to include a reduction in costs. Under
these circumstances, we conclude that such an interpretation is
appropriate .
When determining the plain and ordinary meaning of words,
definitions in a recognized dictionary may be considered. Hecla
Mining Co. v. New Hampshire Insurance Co., supra.
Webster's Third New International Dictionary 1811 (1986)
defines profit, inter alia, as:
An advantage, benefit, accession of good,
gain, or valuable return especially in
financial matters . . . .
A benefit or advantage accruing from the
management, use, or sale of property from the
carrying on of any process of production, or
from the conduct of business . . . .
Thus, the term "profits" may take many forms and is not
limited to the "gross proceeds of a business transaction less the
costs of the transaction," as urged by the cities. Applying the
quoted dictionary definition here, we conclude that the cities
realized a savings and acquired a benefit, gain, and advantage by
agreeing to divide the costs. Since these savings constituted a
-16-
"profit," we further conclude that the cities were engaged in a
joint venture.
Accordingly, the trial court did not err in granting summary
j~on the duty to def end in favor of those defendants that
had joint venture exclusions in the policies issued to the
cities. The court did not grant summary judgment on the duty to
indemn·ify on this basis. See Hecla Mining Co. v. New Hampshire
Insurance Co., supra (resolution of the duty to indemnify
premature where underlying liability has not been resolved and no
judgment has entered); New Hampshire Insurance Co. v.
Constitution Associates, supra.
VI. Additional Contentions
Because they were not addressed by the trial court, we do
not address the cities' additional contentions that: (1) the Bi-
City Plant is a completed operations hazard and that the
pollution exclusion does not apply to completed operation
hazards; (2) they were entitled to coverage based on the personal
injury protection provisions of nhe insurance policies; (3) the
EPA action is a "suit" which obligates the insurance companies to
defend them; and (4) the costs of mitigation and remediation of
actual or threatened property damage sought by the EPA are
damages covered under the insurance policies. See Committee for
Better Health Care v. Meyer, 830 P.2d 884 (Colo. 1992).
VII. Cross-appeal
In view of our resolution of the other issues and the
necessity of a remand for further proceedings,.we conclude that
-17-
the issues raised by Guaranty National on cross-appeal are moot.
The summary judgment based upon the joint venture exclusion
in favor of the defendants Compass, Commercial Union, and
American Excess concerning the duty to defend is affirmed.
However, insofar as it was based upon the pollution exclusion and
concerned the duty to indemnify, the summary judgment in favor of
defendants Compass, Commercial Union, and American Excess is
reversed. The summary judgment in favor of all other defendants
based upon the pollution exclusion also is reversed, and the
cause is remanded for further proceedings in accordance with the
views expressed in this opinion. Guaranty National's cross-
appeal is dismissed as moot.
JUDGE HUME and JUDGE TAUBMAN concur.
-18-
A TT. s
Denver Board of Water Commissioners
Ronald L Lehr, President
Richard A. Kirk, 1 st Vice President
Hubert A. Farbes, Jr.
Denise s. Maes
William J. Shoemaker
TO: Interested Parties
Hamlet J. Barry, Ill, Manager
FROM: Denver Board of Water Commissioners
SUBJECT: Board Draft Resource Statement
DATE: August 8, 1996
1600 West 12th Avenue
Denver, Colorado 80254
303/628-6000
Fax 303/628-6509
In April 1989, recognizing that EPA was moving toward a veto of the
Two Forks project, the Denver Board of Water Commissioners adopted
certain policies addressing water supply issues in the absence of the
planned-for project. For the past three years, the Board has been
engaged in an Integrated Resource Planning (IRP) process, consisting of
an extended examination of both demand and supply options for the
future. The public, other water suppliers and various interest groups
have participated actively in the IRP. As a result of the IRP, the 1989
policies have been reviewed and major modifications have been
suggested. The proposed new policy statement, a draft copy of which
is attached, is intended to guide the allocation of Denver Water's
resources in the future, and will supersede the Board's 1989 statement.
The IRP has focused on actions necessary to fulfill water service needs
for the full geographic build-out of the Board's service area, which
consists of the City and County of Denver and the Board's existing
contract distributors in areas surrounding Denver. At the present time,
the Board's system has a yield of 345,000 acre-feet, while existing
demand is 265,000 acre-feet. If the Board takes no action to either
increase supply or reduce demand, the existing supply will be
insufficient to meet demand in the service area after about the year
2013. To fulfill its obligations to build out the service area, the Board
will require a supply of 445,000 acre-feet. The Board will need to
increase its existing supply, through a combination of demand
management and supply options, by 100,000 acre-feet.
To meet this anticipated need, the Board will commit to additional
conservation measures and to an innovative reuse program, especially
in the near-term. Small-scale system modifications and supply projects,
including potential cooperative projects with entities outside the
service area, will also be needed to meet water service obligations.
Should you have comments on the draft policies before September 30,
1996, please call Leslie Parker at 628-6553.
CONSERVE
I. Introduction
Draft
Board Resource Statement
August 8, 1996
A. This policy statement guides the future allocation of Denver Water's
resources to meet the water needs of customers within our service area.
B. This policy statement promotes productive interaction with entities
outside the Board's service area.
C. This statement is a result of the Board's Integrated Resource Planning
process and supersedes the April 4, 1989 Statement of the Board of Water
Commissioners.
II. Future Strategy
A. No single resource strategy is sufficient to meet the Board's water service
obligations, and each strategy has its own environmental and other
consequences. Instead, the Board intends to invest in and manage a
diverse portfolio of resources to meet its future needs and avert risks.
The Board will pursue opportunities that increase supply through
conservation, reuse and water rights development, either alone or in
cooperation with others.
B. When meeting future water needs, including development of cooperative
projects with others, the Board will pursue resource development in an
environmentally responsible manner.
C. The Board acknowledges that its treatment, transmission, and
distribution system will need to be maintained and expanded as growth
occurs in the Board's service area and as federal regulatory requirements
change.
D. For the foreseeable future, the Board will maintain a safety factor of
30,000 acre feet to protect against risks the Board faces in meeting its
customers needs. Potential risks include:
1. catastrophic events
2. unexpected build-out demand
3. lower than expected yield from programs or projects
4. a longer than anticipated drought
5. unpredictability of water supply in semi-arid regions
ID. Statement of Current Resource Situation
A. Under the assumptions contained in the Integrated Resource Plan,
Denver Water's presently available water supply of 345,000 acre feet will
meet projected demand until approximately the year 2013.
8/8/96 8: 12 AM Page 1
Draft
B. The Board cannot rely completely on this projection because of a number
of risk factors associated with its supply, including: .
1. Developing and maintaining municipal water supplies today is
more challenging than in the past due to a combination of political
forces and the federal government's increased regulatory role.
2 . Water supply in semi-arid regions is highly unpredictable.
IV. The Board's Current Water Supply Obligations
A The Board is obligated under the Charter to provide an adequate supply
of water to the people of the City and County of Denver, consistent with
the City's quality-of-life and planning goals.
1. The Board's assets are owned by the people of Denver.
2. The Board is committed to the responsible financial management
of those assets.
B. The Board is permitted by Charter to lease water for use outside Denver.
The Board is obligated by contract to provide treated water service to the
Combined Service Area (CSA), which is the geographic area composed of
the service areas of all the Distributors who rely solely on the Board's
treated water for their water supply.
1. For the foreseeable future, the Board will not undertake
responsibility for water supply for areas outside the CSA.
2. For distributors who have signed the new distributor contract, the
Board is committed to providing all water necessary to serve the
full development of all land within the distributors' service areas ,
and to imposing water use restrictions, when necessary, in the
same manner as imposed inside Denver.
3. For current distributors who do not sign the new contract, the
Board reserves the right, pursuant to the contracts of these
distributors , to impose a tap allocation program and water use
restrictions that may be different than those imposed within
Denver.
4. Future supply will be dedicated first to Denver and to signatories
of the new contracts, who enjoy a commitment of water service to
build-out.
5. As required by the Charter, rates and charges for Distributors
outside the city will differ from inside-Denver rates , and will be
designed to fully reimburse the people of Denver for the cost of
furnishing the service, plus a reasonable return.
6 . The Board also has contract obligations for fixed amounts of
treated or raw water to suburban entities who are not Distributors.
C. The Board has adequate water resources and options , including
opportunities for conservation, reuse and development of its water rights,
to fulfill its obligations, including service for the CSA through build-out.
8/8/96 8:12 AM Page 2
Draft
Nevertheless, the Board recognizes that cooperative arrangements with
entities outside the CSA may benefit customers within the CSA.
V. Near-Term Strategy
A. The Board's near-term strategy is designed to produce approximately
55,000 acre feet of additional water in order to extend its water supply
beyond the year 2013 to the year 2030. The resources in the near-term
strategy will be diverse and will contain conservation, non-potable reuse,
small-scale system modifications, and supply projects, including potential
cooperative projects with others and private sector involvement.
B. The Board will maintain a strong water conservation ethic and will
invest in additional cost-effective water conservation, including
investments that provide opportunity for private sector participation.
The Board will rely on a volume of savings from conservation in its
plannjng, and will refine the projected volume of savings based on actual
results obtained.
C. Beginning in 1997, the Board will move forward with system
management techniques and will acquire small water rights as they
become available.
D. The Board will develop non-potable reuse of water as demand increases
and as opportunities arise.
E. The Board believes that new surface water storage will be needed at the
end of the near-term timeline. The Board cannot determine at this time
which of its water rights will be required for this surface water supply, so
the Board intends to preserve its conditional water rights.
F. Unanticipated opportunities for cooperative projects which will benefit
the CSA are certain to arise. The Board is adopting a cooperative posture
toward these opportunities.
VI. Long-Term Strategy:
A. The long-term strategy is designed to produce the final 45,000 acre feet to
make up the difference between the total system supply after completion
of the near-term strategy (400,000 acre feet) and the supply needed to
serve the CSA to buildout (445,000 acre feet).
B. Various options exist for the long-term and the Board, in the interest of
maintaining flexibility, need not make project-specific commitments at
this juncture. Some of these options include additional conservation,
expanded reuse and the development of water rights with new or
enlarged surface water structures. The Board cannot determine at this
point which water rights will be required, so the Board must preserve its
water rights to assure their availability in the future and to maintain
flexibility in the ever-changing and complex world of water supply.
8/8/968:12 AM Page 3
Draft
VII. Metropolitan Role
A The Board recognizes that the Denver metropolitan area iS a socially and
economically integrated whole. In that light the Board recognizes that
cooperative options with other metropolitan entities should be explored,
in order to enhance the Board's near-term and long-term strategies.
B. When a potential project primarily benefits Denver and the CSA, the
Board will consider assuming a major role in the regulatory, :financial,
political, and legal risks of the project. The Board is interested in
minimizing the risk to the existing yield of its water system in
undertaking any cooperative project.
C. The Board's staff is directed to explore cooperative options with water
suppliers outside the CSA based upon a set of guidelines to be developed
by the Board.
D. The Board has determined that it cannot permanently dedicate to
entities outside the CSA capacity within its system because all of the
Board's existing infrastructure and more will be needed to meet the
Board's water supply obligations.
E. The Board will consider short-term leases of water under the following
conditions:
1. The lease is five years or less in duration;
2. The Board's system suffers no adverse impact;
3. Reliance on Denver Water is truly temporary, meaning that the
lessee will identify in the agreement a substitute for Board-
supplied water;
4. Proper compensation is made to the Board using a cost-based
formula.
VIII. Beyond the Metro Area
A The Board will emphasize aggressive conservation, efficient reuse, a.n,d
small-scale system modifications.
B. In order to meet demand between now and 2013, the Board will be
required to maximize use of its existing supply of 345,000 acre feet,
causing, among other impacts, reduced return flows north of Denver as a
result of aggressive conservation and reuse programs and increased
fluctuation of water levels at the Board's reservoirs, including Dillon
Reservoir.
C. Any future structural projects located on the West Slope should be
developed cooperatively with West Slope entities' for the benefit of all
parties. The Board believes that the Wolford project and the Clinton
Reservoir-Fraser River Agreement are useful examples of East Slope-
West Slope cooperation.
8/8/96 8: 12 AM Page4
Summer-Fal l 1996
Denver Water's
Integrated Resource Planning Process Volume 2 • Number 2
~ "~ ~ ... , , , . ,
Tapping w·ate.r resources -conservation
and re-use pro.~rams are in our future
T he Den ver Board of Water Commissioners has set a new
course for the future , emphasizin g re -use of water and a
greatl y expanded conservation program. The new po li cy is
contained in a draft document the Board is circulating to its
constituents for re vi ew and comment before making a final
decision in October.
The draft po li cy statement is the culmination of a three-year
planning proces s that anal yzed the Board 's current water supply
and future growth within Denver and the suburbs it now serves .
The polic y also limits the Board 's leadership role in water suppl y
development to those options that primaril y benefit the people of
Denver and current customers.
For the past three years , Denver Water has conducted an
Integrated Resources Planning (IRP) process consisting of an
extended examination of both future demand, conservation and
suppl y options .
The public , other water suppliers and various interest groups
have participated activel y in the IRP . As a result, major
modifications to the Board 's policies have been suggested to
guide allocation of Denver Wate r's resources . A draft statement
of those proposed policies is summarized in this newsletter .
The IRP has focused on actions necessary to fulfill water
See WATER RESQURCES on Back Page
w ·ater Board Picks Up the Challenre.
ln.tro
t ~ 1 The Water Board 's Integrated Resource Plannin g establishes a guide for future allocation
lf of Denver Water 's resources and promotes productive interaction with entities outside
the Board 's service area .
Multiple Strateeies
I~ The Board intends to develop a diverse portfolio of resources to meet demands and avert
lWJ risks ; pursue opportunities that increase suppl y through conservation , re-use and water
rights development; seek resource development in an environmentally responsible manner , and
maintain a 30 ,000-acre-foot cushion against catastrophic events , unexpected build-out demands ,
lower than expected yields , extended drought , and suppl y's unpredictability in a semiarid region .
See THE CURRENT SnuADON on Back Page
,,,;
...... r...... ~ ........ ._ .. ,.._... ..... . .. ., . .. .. ,. -" " .. •· ,...... ~ ... .. ..... .,,... -,... "· ,...._ . ;o.. • • ~" .,.... .. ..... ._ ... ....._ ....,... ... •• ..,.,..,.,._ ........ ,.,, • "'" •• • • • •• .. • •• • •
The Curren.t Situation
~ Current available water supply of 345.000 acre feet annually lWJ will meet projected demand until about 2013. However, this
projection must be tempered by two factors: Challenges posed by a
combination of political forces and the increased federal regulatory
role AND water supply in a semiarid region is highly unpredictable.
Th .e Board's Obli:a.tion.s
~ The Board" s first obligation under the City Charter is to
I~ supply water to the people of Denver. The Board 's Integrated
Resource Planning found that Denver Water has enough resources
and options to meet its Charter obligations as well as its contracts
with suburban customers in the Combined Service Area (CSA).
Future supply will be dedicated first to Denver and to signatories of
the new distributo r contracts, who enjoy a commitment of service to
build-out ; the Board also will honor its Fixed Special Contracts .
A tap allocation program and water restrictions different than
those applied in Denver ma y be imposed upon current distributors
who do not sign the new distributor contract.
Rates and charges for distributors outside the city will be
designed to fully reimburse Denver Water 's cost , plus a reasonable
return.
The Board doe s not foresee undertaking responsibility for
supplying wate r w areas outside the CSA.
Although it has ade quate resources and options , the Board
recognizes }hat cooperative arrangements with entities outside the
CSA may benefit customers within the CSA .
WATER FOR TOMORROW is published to provide
information about Denver Water 's Integrated Resource
Planning process , a three-year, long-range planning
effort.
1600 W. 12th Ave.
Denver, Colo . 80254
Mailing Labe l
BULK RATE
U.S. Postage
PAID
Denver, CO
Permit No. 86
Short-term Stra:tev
~ Conservation, nonpotable re-u~. small-scale system lWJ modifications, small-scale supply projects (enlarged
reservoirs , new reservoirs , diversions), and possibly cooperative
programs will produce 55,000 acre feet of additional water to extend
the supply from 2013 to 2030 .
Lon:-te·rm strategy
~ To produce the final 45,000 acre feet of water. the Board will lWJ explore additional conservation programs, expanded re-use
and new or enlarged dams and reservoirs.
Metro Role
· [ ~ ] Cooperative options both with other metropolitan entities
ffi and water suppliers outside the CSA and short-term leases
will be considered .
Be-vond Metro ..
~ Demand between now and 2013 will require maximum use ~ of the existing supply of 345 ,000 acre feet of water, resulting
in reduced return flows north of Denver and increased fluctuation of
reservoir levels, including Dillon Reservoir . Any structural projects
on the Western Slope should be developed cooperatively with
Western Slope entities.
Water Resources ... from the Front Page
service demands of full geographic build-out in the Board's
service area, which consists of Denver and the Board's
existing contract distributors in areas surrounding the city .
Today, Denver Water 's system yields 345,000 acre feet
annually , while demand is 265.000 acre feet. If the Board
takes no action to either increase supply or reduce demand ,
existing supply will be insufficient to meet demand after 2013 .
To fulfill its obligations to build out the service area, the
Board , through a combination of demand management and
supply options , will have to increase existing supply by
100,000 acre feet to meet an ultimate build-out demand
requirement of 445 ,000 acre feet annually.
To meet this anticipated need, the Board will commit to
additional conservation and to a re-use program, especially in
the near future . Small-scale system modifications and small
supply projects also will be needed to meet obligations.
If you have comments or want a copy of the draft policies,
call Leslie Parker at Denver Water at 628-6553 .
How To Find Out More
If you'd like to get invohed or if you would like
more information , call 303-()28-6553.
~
BLACK & VEATCH
A TT. ~
l 1900 East Cornell Avenue . Sui te 300, Aurora, Colorado 80014 (303) 671-4200 Fox (303) 671-4285
Mr. John Bock
Utilities Manager of Administration
City of Englewood
3400 S. Elati Street
Englewood, Colorado 80110
Dear John:
September 5, 1996
In reference to our meeting last week, we are pleased to submit the
following Scope to Services and cost proposal to provide engineering
services for the evaluation of sewer line capacities. This will be a
partial update to the Sewer System Study for Englewood, Colorado dated
November 1979. The main focus of this evaluation will be to determine if
there is sufficient capacity in the City's existing collection system to
accomnodate additional flow from the Cherry Hills Village Sanitation
District (CHVSD) with respect to a proposed residential development on the
Buell property.
The Buell property is located generally on the Southeast corner of Hampden
Avenue and South University Boulevard. It is our understanding that
approximately 120 homes are planned for this development. However, there
is not a PUD available as of yet, so there will be some assumptions made as
to lot locations on the site. Because of the site topography, lot
locations will have a bearing on the direction and amount of flow entering
the Englewood system and the possible need for a sewage life station as
part of the CHVSD system.
To provide the above noted evaluation, we propose the following Scope of
Services:
1. Review the existing sewer system model data, calculation files, and
meet wi th City of Englewood personnel to obtain specifics on any system
changes and infill growth that has occurred since the last study update
completed in 1984.
2. Work with City personnel to insert the City's portable flow meter at
three or four strategic locations in the collection system. Flow data
will be gathered at these locations for calibrating the computer model.
3. Revise the existing model to include new information as noted in item
one above and develop flow projections for the Buell development.
Several model runs will be conducted using the existing and projected
fl ow rates.
BLACK 8: VEATCH
Mr. John Bock Page: 2
September 5, 1996
4. Evaluate flow capacities in the 21-inch sewer that connects to CHVSD
near Kenyon and the downstream connections to the wastewater treatment
plant. In addition, flow capacities will be evaluated in the 15-inch
line running in Floyd and the downstream connections to the wastewater
treatment plant.
5. Evaluate the most viable points of connection to the Englewood
collection system. This will include either or both of the 21-inch or
15-inch lines noted in item 4 above.
6. Develop a letter report stating our assumptions, findings, and
recommendations. Draft copies of the report, along with calculation
files, will be submitted to both the City of Englewood and CHVSD for
review and comment.
7. Conduct a draft report rev i ew meeting with Englewood and CHVSD
personnel to discuss any comments or questions. Following the review
meeting, the letter report will be finalized and distributed to both
parties. Fifteen copies of the final report are anticipated.
Black & Veatch proposes to provide the services listed above for the not-
to-exceed amount of $6,060. A breakdown of this amount showing staff hours
and costs is included on the enclosed spreadsheet for your reference.
Invoices will be issued to the City periodically as the work progresses,
and billings will be on a cost-plus basis with the above noted upper limit.
We propose to complete the work within 60 days following notice to proceed.
This will allow sufficient time for gathering flow data and review of the
draft letter report.
If this Scope of Services and budget are acceptable to the City and CHVSD,
please return one s i gned copy of this letter for our records. Please give
me a call if you would like to discuss the proposal in more detail.
Authorization, City of Englewood
cc: Mr. Chuck Schloss
Very truly yours,
Black & Veatch
(Vi
City or Englewood
Sewer System Study Llpdate
Buell Property Ot\·elopment
Review Exis1ing Compuler I\ lode( and Data Files
Meel wilh Ciiy Personnel lo Discuss any System Changes Since 1984
Work with City Personnel to CoUeci Addi1ional Flow Dala Using Portable M1rs
Updale and Calibrale lhe Computer l\lodel I Run System Analysis
Evaluale Flow Capacilies in Sewer Lines lo \V\vrP
Evaluate Most Viable Points of Connec1ion to Englewood Syslem
Develop a Draft Lener Report / Submil to Englewood and CHVSD (8 Copies)
Conduct Re~;ew l\lceting with Englewood and CHVSD
Finalize Report and Distribule ( 15 Copies)
General Administralion
TOTAL STAFF HOURS
ENGINEERING SERVICES
EXPENSES:
Compuler
Photocopies Draft Report
Pho1ocopies Final Report
!vWea11,e
Misc
Poslage
PROJECT
!\{<\NAGER
HOUR$
~I
6
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HOURS
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41
S3 ,326
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so so so S714 S372 $230 $5,359
$276
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$35
$100
$60
ENGINEERING SERVICES FEE $6.060
A TT. 7
ANAL Y I ll,;AL Ht:~UL I~ Uf ~UMt: C,;UMMUN t-t:H 111 17~.R AND 01 nER tJHUUUl,; I~
NATURAL AND/OR ORGANIC PRODUCTS
Cd Cr r Cu Pb Ni Zn Ftt i Hg r Mo I A.s
Brand and Product Analysis Date mg/kg mg/kg mg/kg : mg/kg : mg/kg ! mg/kg mg/kg i mg/kg ; mg/kg . mg/kg
Agronics '10-5·5 5.30.91 : 9.7 28.0 1 100.0i 420.0! 22.01 2600.0 50630.0! I 39.01
American Bone Meal '0-12·0 8·7·87 3.7 ; 58.0 1 10.01 25.0 ' 17.0! 52.0 11000.01 !
r
Ampel Cal-Sul Coarse ; 5-30-91 1.5 ! 2.5 i 2.91 47.01 6.0 1 2.5 : I 3.9 1
Ampel Cal-Sul Mini's : 5-30·91 1.5 : 2.5 : 1 .5 ! 26.01 6.2 1 2.5 • I i 2.5 i
Ampel Lime Mini's ... ; 5·30-91 I 1.5 1 5.0 i 2. 1 i 41.0 1 9.5 ; 21.0, ! . 5.0 ! .
~ ! Biosol ·Organic Substance• I 4-11·88 O.S i 1.1 : 9.2 ! 7.91 2.3 1 53.0 i o. 10 : 2.3 : 11.3
~ ! Bovung Dehydrated Cow Manure ; 2· 1 ·2 5-3-91 1.0 ; 14.5 1 83.0 1 a.5 j 16.3 1 335.0 • i 0.101 2.s : 2.2
-·
! Chicken Manure Fertilizer i 7.3.3 11 -23·87 : 1.5 : 31.01 2.3 1 25.01 16.0 : 430.Q : 5000.0! ' i
:Chippewa Valley 1000 Natl Org F :B-1·3 4-4-90 1.5 ' 15000.0 i 81.0 : 84.01 21.0 1 250.0 : 11000.01 ! :
-j Dehydrated Manure I 4-11·88 I 1.41 8.1 1 42.7 1 14.2 i 16.3 1 268.3 : ! 0.181 4.1 : 22.4
~ I Dragon Cottonseed Meal I 6·2·1 5-3-91 i 0.4 1 1.S i 11 .9 1 0.3j 1.1 i 57.9 ' I O.TO! 1.0! 0.3 r I
@ · Espoma Garden Food !S-10·5 5.3.91 ' 3.7 1 31.8 1 1.01 0.6 1 S.5 1 6a.s · 0.101 1.01 0.8 I
: GSL Granular Potassium Sulphate i 0·0-51 6-4-91 : 0.3 : 1.1. 2.7 ! 52.0 1 2.S i 1.1 I I 0.101 1.7 1 I
· GSL Soluble Fine Potassium Sulph10·0·51 6-4-91 0.2 : 0.5 1.0 : 5.4 1 1.T 11.0 I o.1oi O.T
4 . Holland Bulb Booster ! 9-9·6 4-30-91 s.0 1 1200.0 1 100.0 1 50.0 ! SQ.Q I 320.0 15000.o l :
Howaro Johnson Bone Meal '0-12-0 a-7-87 1 .5 24.0 8 .7 ' 25.0 1 5.o : 110.0 4700.01
! Howard Johnson Blood Meal :12-0-1 8· 7-87 1 .5 26 .0 16.0 : 25.0 1 5.0 ' 100.0 5100.0 i . Howard Johnson Natl Org Lawn F : ? ? 0.5 : 9920 .0 r 10.1 ' 9.6 1 4.5 : 28.6 1460.0 1 '
@ Hyponex Peat Moss 5-3-91 1.0 · 17.8 19.4 16.4 : 18.9 80.5 0.10 ! 2.0 4.5
i Hynite·Leather Tankage 10-0-0 5-19-89 1.9 22000.0 15 .0 · 81 .0 1 9 .4 . 25 .0 2100.0 1 ! 1.1 ·
I lronite Natural Fertilizer ;PROF 3/26/96 28.0 30.0 307 .0 , 2770.0 1 < 10 ' 9250.0 i 12.40! <10 4280.0
= lronite Natural Fertilizer •RETAIL 3/26/96 26.4 36.8 273.0 1 2730.0 ! 6.5 8200.0 1 11.00 ! <5 4400.0 L MRorganite Nat'I Org Fert 6-2-0 3/13/95 2.3 480.0 198.0 62.0 28.0 386.0 48911.0 0.61 7.4 1.1
: . Natural! Lawn Fertilizer ? ? 2. 1 11000.0 74.4 . 27 .9 1 11.8 . 184.0 9Q1Q.Q I
Natural Guard Rock Phosphate 0-30·0 T 11-8·89 13.0
I Nortn Country Organics 5.3.4 3·28·90 1.9 3300 .0 14.0 25.0 : 11 .0 77 .0 12000.0
• Peat Humus 4-11-88 1 .4 2,0 2 .0 · 13 _9 : 4 .0 12.5 o. 15 : 4.0 19.8
Rico Verde Fertilizer 5.3.3 11 -23-87 2.4 44.0 160.0 1 25.0 1 14.0 · 3700.0 ' 17000.0 1
i Ringer Compost Booster 8· 7-87 1.5 49 .0 20.0 39.0 1 5.Q . 98.0 6600.0 i ;
80 Year Old Saw Dust 1.2-0·.05 11-23·87 . 1.5 23.0 7 .6 • 25.0 1 5.Q . 13.0 · 1800.0i
' Sand Filler :0-0-0 1-21-91 1.5 . 7.2 I i.5 : 25 .0 1 5.0 1 2.5 58.01 2.5
II Scons Next Generation I 3.5.3 4-30-91 5 .o ' 50.0 20.0 : 50.0 1 150.Q : 100.0 · 7700.0 1
!11 Scons Next Generation : 9-2-4 4-30-91 5.0 ' 50.0 10.0 50.0 1 50.0 1 120.0 ; 410.0 i
'II Scons Next Generation ~ 14-3-6 4-30-91 5.0 50.0 20.0 · 50.0 1 50.0 : 100.0 • 3600.0 . Sustane Natl Org Fertilizer 5·2-4 ? 5.1 56.8 151 .0 : 20.41 42.8 : 510.0 ' 25700.0 ·
Sustane Natl Org Fertilizer !5·2-4 3-13-90 2 .0 35.0 190.0 · 35.Q r 30.0 560.0 '
II Terrone· Turf Natt Org Fertilizer ; 5·2-0 €mo avg 2 .7 41.3 449.Q i 82.1 : 15.4 533.Q : 9800.0 ! 0 .69 27 .1 1.5
II Terrene-Greens Natl Org Fertilizer . 6·2-0 6 mo avg 8.8 95.3 300.0 1 153.J f".··.-:J . 1 .·::4'1iiriP.O r ... 1.a.100.0 1 1.80 . Vermont 100 Natural Organic Fertl 5-3-4 4-30·90 1 .5 5900.0 14.0 : 58.0 1 10.0 1 46 .0 . 920.0 1 i
1@ Vermont 1 00 Natural Organic Fertl 5.3.4 5-3-91 0.4 5540.0 11 .6 5.41 3.7 38.3 : ! 0.10 1.0 0.3
i -Vita-Hume Cow Manure 4-11-88 2 .5 19.7 50.0 15.0 1 17 .5 110.0 · 0.25 5.0 22.5
i ... l/ita-..,ume Top Soil 4-11-88 1 .5 12.3 22.1 · 11.3 : · 20.8 . 60.5 : 0.17 3.8 17.0
I+ Wooo Chips 4.11-88 0.9 1.3 8 .1 26.0 5.2 29.9 · 0 .09 2.6 13.0
: (.../')~
US EPA 40 CFR Part 503 "1-l ;q.1.,tOv.i..L ~-( K, .. 'i~ 39.0 1200.0 1500.0 300.0 ; 420.0 2800.0 . 17.00 ~ 41.0
L /E. Y.J\J \ w '9 5 C\.vQ.~a~Q.. G-3-.d-. <a.s 58 '~8 <_35 ~'1 95g ll,l.80 -;. 9' ~9 ;)..5 ;
NATURAL AND/OR ORGANIC BASED PRODUCTS
: ' Cd I Cr Cu i Pb Ni I Zn Fe Hg I Mo i A.s ! : I I I
Brand and Product Analysis Oare mg/kg ' mg/kg mg/kg : mg/kg mg/kg : mg/kg mg/kg i mg/kg i mg/kg : mg/kg
Vigoro Enviro·Care Lawn Fertilizer • 29-3-6 5-30-91 5. 1 : :Z.5 27.0 1 140.0 • 28.0 1 36.0 2480.01 I 20.0 1
Vigoro Enviro-Care Tree, etc. Ferti i 7-6-7 5-30-91 3.41 24.0 130.01 65.0 i 32.01 390.0 20300.0 I 14.0! I
: The Natural Fertilizer '22-3-6 4-10-90 1.S I 6400.0 9.6 i 25.0 1 S.01 6.9 1400.0 j i i
. Rid·X Septic Tank Starter 8-7-87 4 .2 1 610.0 80.0 1 81.0 ! 23.01 310.0 1sooo.0 1 I !
Septic Tank Cleaner 8-7-87 24.0 1 3700.0 340.01 360.01 89.0 I 960.0 S2000.0 j I i
SYNTHETIC PRODUCTS
i :
!Cd j cr Cu IPb ;Ni !Zn Fe Hg jMo .j As ;
Brand and Product Anelysis Oare 'mg/kg !mg/leg mg/kg :mg/kg mg/kg :mg/kg mg/kg lmg/kg jmglkg !mg/kg
. Ammonium Sulphate i 21-0-0 1-21-92 . 1.S I 2.5 1.5 1 25.01 s.01 2.6 18.0j I 1.5j
i Diammonium Phosphate : 18-46-0 1-21-92 : 8.81 81.0 13.0 I 78.01 36.01 ss.o . 1500.0 I 28.01
I I Easy Green Lawn Food : 10-10-1 ? I 13.01 4.0 1 51.01 19.0j 144.0 . 4643.0 I I I I
! i Ferti-Lome Lawn Food J 2544 ? i 2.0 1 10.o l 52.0 i 40.0 j 35.0 14406.0 I !
I 'Green Supreme Lawn Food : 26-3-3 11-8-89 : 7 .0 1 : I I I I i
i
I # ·Hechinger All-Purpose I 10•10•1 4-30-91 S .0 1 50.0 10.0 i 50.0 1 S0.01 40.0 3200.01 I I
I
11 , Hechinger Great Lawn Fertilizer : 28-4-8 4-30-91 5 .0 1 50.0 10.0 1 50.0 ! so.a l 150.0 2600.0 ! I I
I
!# Hechinger Great Start-Up Fertilize 18-24-6 4-30-91 5 .0 1 50.0 30.0 '. 50.0 • S0.0 1 100.0 11900.01 !
I' . Hechinger Great Weed & Feed . 27-4-7 4-30-91 S.0 1 so.a 20.0 1 50.0 i 50.0 I 30.0 2000.0 1 I I
I
I@ Miracle-Gro . 15-30· 1 S-3·91 0.4 : 6.9 597.0 • 0 .3 : 2.5 1 746.0 I 0.10 1 9.1 0.9
I Muriate of Potash 0-0-50 1-21-92 1.9 ! 2.7 8.3 67 .o : 11 .01 2.5 180.0! I 7 .7
Ortho General Purpose Plant Food 10-10-1 11-8-89 28 .QI i I
I# Ortho General Purpose Plant Food 10·10-1 4-30-91 30.0 1 200.0 10.0 so.a · 150.0 1 390.0 3300.0 1 ! ,, Ortho Rose Food 8-12-4 4-30-91 22.0 i 200.0 10.0 50.Q ! 150.01 360.0 3200.0 i ' I
+ Ortho Superphosphate 4-7-89 101.0 ! 320.0 5.9 : 5.6 : 303.01 1070.0 I 0.101 7.0 : 1.0
@ Osmocote Vege & Bedding Plant 14-14-1 5.3.91 4.3 : 58.3 21.2 1.6 · 17.0 1 79.9 i 0.101 1.0 : 1.7
# Scotts Flower and Herb Builder 18-11 -1 4-30-91 5.0 1 1SO.O 20.0 so.a · 100.o l 30.0 15500.0! I
I Scotts Starter Fertilizer . 1 7-23-6 11-8-89 6.0 1 : I
I
!+ Scotts Turf Bu i lder 28-3-3 4-11-89 2.0 1 281 .0 10.0 0 .9 i 91 .o i 26.0 ! o.1o i 3.0 2.0
I Scons Turf Builder . 28-3-3 11 -8-89 4 .0 1 ! I I
I I
Scotts Turf Builder 28-3-3 ? 1.0 1 6.0 42.0 I 55.0 1 18.0 9026.0 j I
Scotts Vegetable Fertil izer : 17-23-6 11 ·8-89 : 6 .0 i I i I I
Sulfate of Potash : 0-0-60 1·21-92 : 1.5 1 2.S 1 .s : 25.o l 5.0 1 2.5 1500.0 j I 2.s :
Sulfate ot Potash-Magnesia 1-21-92 ' 3.41 14.0 1 .5 26.0 1 8.7 ! 2.5 110.0 1 I 7:7"
Sulfur-coated Urea . 32-0-0 1-21 -92 . 1.S I 2.5 1.5 25.0 1 5.0 1 2.S 160.0 1 ! 2.5 1
Triple Superphosphate 0-46-0 1-21-92 . 6.2 ! 99 .0 1 .s 25.0 ! 21.0 ! 51.0 12000.0 1 I 16.0 1
Urea 46-0-0 1-21-92 4.3 1 6.8 17.0 110.0 1 17.01 2.5 31 .0 1 I 15.0 :
Urea Formaldehyde 36-0-0 1·21-92 5.0 1 12.0 20.0 130.0! 20.0 ! 20 .0 35 .o l I 18.0 :
I I I I (:.,() ~ I i I
US EPA 40 CFR Part 503 "/..1:9 4.,~ ~C:f1'' i(~. 39.0 1 1200.0 1500.0 · 300.01 420.0 I 2800.0 j 17.00 1 ~· 41.0
;L/E-tul.vT? 'qS .A~ raqe ~-3~.~ ..::'.M l 58 G,a,~ <3S i '8 '7 ! q5g I l,~goj 3.q : a9 ~.5
I I I i ! • Analvs1s performed by Dr . Wayne Kussow ot the University of Wisconsin i I !+ Analysis performed by Energy and Environmental Engineering I I i
I II Analvs1s performed by A & L Eastern Agricultural Laboratories. Inc. I
i I
;
I @ Analysts performed by Revet Environmental & Analytical Laboratories, Inc I
'" Analysis performed by Analytical Techno log ies. Inc: Phoenix , Arizona I I
I All other analyses performed by the Milwaukee Metropolitan Sewerage Distri ct laboratory ,.. .... I ' I . .
AUG-20-96 04:58 AM ITDS.TRANSIT
Englewood City Council Members
City Hall 3400 Elati St.
Englewood Colo 80110
August 16,1996
ATT. 8
This letter is in reference to the letter we received from Mr,
John Bock of Englewood Utilitios concerning the intent of the
City of Englewood to acquire a portion of our property which
is adjacent to the city ditch for right of way to an easement.
The letter states the city failed to obtain an easement and
is examining ways to do so at this time. Mr Bock stated this
was subsequently necessary in ordar to tile the ditch over to
regain water rights.
On August 13, 1996 I called Mr. Bock in response to this letter
and told him we would obtain legal council to help us retain
our rights of home ownership. We would seek any assistance
necc~sary to thwart any unwanted attempts to gain rights or
access to our property.
The property being discussed is our families home of 4185
s. Huron St. I would like to bring to your attention the
following facts concerning this property and our family history
with the City of Englewood.
1. We feel it is vital that city council recognize the
properties adjacent to the ditch are not of a cookie cutter
design but individual, different and even unique. We encourage
each of you to personally examine aspects of our property, which
makes our situation unique in many ways. The ditch cuts
diagonally across the entire width of our one acre property.
The property consists of an abundance of fruit, pine and shade
trees, flowering shrubs, grass areas, and large beautifully
maintained flower beds. Many people enjoy our property because
it is so unique and well taken care of. The ditch creates a
env1roment we treusure.
AUG-20-96 04:58 AM ITDS.TRANSIT
We encourage each of you to come out to see our property and
how this ditch positively affects our home.
We had the house and land evaluated several times over the
years. Several different appraisers were used, yet the common
outcome was there were no comparable properties, within the
city. This is largely due to the path of the ditch and the size
of the lot. lt has been described by those viewing it as a place
time forgot, because of the location,the size of the property,
the peaceful nature of the ditch with the ducks and their babies
floating down each summer, and the beautiful grounds.
2. This property has been in my family for over 100 years. Much
of the area around this neighborhood was owned and maintained
by my husbands immediate family since the late 1800s. We are
raising the fourth generations to reside in Englewood. We hope
this continues to be our families community for generations
to come.
P.03
3. In 1967 Englewood City Leaders declared Imminent Domain rights
upon the father in laws property, located at 1025 w. Quincy
Ave. ~nd took .over the family property. This was then converted
to what is now Jason St Park. My husbands family obtained legal
council and spent thousands of dollars and much effort trying
to hang on their family property but were unsuccessful. My in-
laws had lived in this family owned home for over 50 years.
Losing this property caused my father in law much distress as
that w~s his home for all his life. He died shortly after that.
4. In 1982 we applied for a permit to repair part of the original
structure to this property located at 4185 S. Huron st. We
attempted to repair part of the foundation around the house
closest to the ditch. The Cily utilities dept. denied us the
right to do this. The reason glvon was that we would be in
violation to the easement, the city had, which was located
between the house and the ditch.
5. Because of that decision, by the utilities dept. we were
forced to spend in excess of $10,000 to add an additional room
and to subsequently remove part of the original structure from
the property.
AUG-20-96 04:59 AM ITDS.TRANSIT •
6. we were forced to obtain legal council which reported to
us the City of Englewood had no easement rights to our property
and misconstrued their leg~l rights to the ditch crossing our
property.
7. Through out the years we have maintained an attempt to work
amicably with tho city in regards to the neccessary maintenance
of the ditch, as to cut costs to the city. We have successfully
worked out an informal agreement with the city workers, for
us to maintain this long stretch of property on an ongoing basis.
The city frequently uses our property to access properties
bordering the ditch south to Quincy on a regular basis.
8. We would like to continue this amicable relationship with
the city. We are in hopes you will consider our individual
rights as long term proud citizens, home and property owners
of this community. we do not want the city to force the issue
with trying to obtain an easement which would negate our property
values, and to subsequently tile over this section of the ditch.
Please consider the individual wishes of the property own~rs
and the effect of the ditch path. Each property is affected
differently by the ditch. we are in hopes you will not
universally mandate the same decision as applicable for each
property. We do not choose to have it tiled over. We are willing
to continue to come to an agreement in which we will maintain
it.
We are in hopes you will consider this request in the manner
it is given. We want to continue to maintain our property as
it is with no changes or amendments to easement rights.
~-:s~ely, ~P~-
Daniel j and Barbara J Fout a
4185 s. Huron St.
Englewood Colo 80110
761-7889
P.04
City of Englewood
August 21, 1996
Daniel R. and Barbara J. Fout
4185 S. Huron St.
Englewood, CO 80110
RE : City Ditch
Dear Mr. and Mrs . Fout:
3400 S. Elati Street
Englewood , Colorado 80110-2304
Phone (303) 762-2300
(303) 762-2301
FAX (303)789-1125
There has existed an easement connected with the City Ditch, which runs from Chatfield
Reservoir to Harvard Gulch, since its construction in the 1870' s. The City Ditch was
owned by a private ditch company until purchased by the Denver Water Board in the early
1900 ' s. The City of Englewood acquired title to the City Ditch from Chatfield Reservoir
to Harvard Gulch in the 1970's.
The City Ditch and its associated easements have been in continual use since the 1970' s.
The original ditch company for the Denver Water Board should have and has recorded this
easement for most of the length of the City Ditch. Upon the City of Englewood acquiring
the City Ditch , a title survey was made as part of the City's plan to upgrade, repair and
maintain the City Ditch consistent with the City's standard. That survey showed that in a
few areas along the City Ditch, the recorded easements could not be located. The City is
currently researching those titles and when they are found, will be recorded .
While some of these easements may not have been recorded when the land was
subdivided, the City 's position is that the easements exist by prescription . That is by long
possession and exercise of right. The City's plan is to complete the title search and
institute a quiet title action on any remaining obscure titles .
Sincerely ,
Stewart Fonda
Director of Utilities
City of Englewood
OFFICE OF THE CITY MANAGER
Doug las A. Cl ark. City Mana ger
August 21 , 1996
Mr . and Mrs. Greg Higgins
4880 South Pearl Street
Englewood , Colorado 80110
Dear Mr. and Mrs . Higgins:
A TT. 9
3400 South Elati Street
Englewood , Colo rado 80 11 0·230 4
Phone (303 ) 762-23 1 o
FAX (303 ) 789 -1125
Thank you for your letter concerning the water rate increase , water pressure and
water quality . I am sorry for your dissatisfaction of the situation. The water rate
increases will pay for improvements at the Allen Filter Plan . Those improvements will
ensure compliance with future regulations, to provide a better barrier against con-
taminants , and to improve the quality of Englewood 's water.
Two new buildings will be built as part of the process -a new floccula-
tion/sedimentation basin to assist with the removal of waterborne diseases and a
facility to remove additional sludge due to the flocculation /sedimentation process .
Other programs planned include an extensive cleaning program to improve perform-
ance of the City 's water mains, enhancements to the City Ditch and construction of
new deep wells to provide water during dry spells. Once completed, the new water
treatment system will be much more efficient than our current system , improving the
safety and quality of Englewood 's treated water.
We understand your concerns and frustrations. After completion of the improve-
ments, please feel free to contact us.
cc: Englewood City Council
Utilities Director Stu Fonda ,, ..
;';:';-\
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