HomeMy WebLinkAbout2011-01-11 WSB AGENDAWATER & SEWER BOARD
AGENDA
Tuesday, January 11, 2011
5:00 P.M.
COMMUNITY DEVELOPMENT CONFERENCE ROOM
ENGLEWOOD CITY HALL
1. MINUTES OF THE NOVEMBER 9, 2010 MEETING. (ATT. 1)
2. GUEST: JEFF SHOEMAKER OF THE GREENWAY FOUNDATION -PURE .
(ATT. 2)
3. VARIANCE RE: 460 E. YALE AVE. & 2701 S. PENNSYLVANIA ST. -
SEWER TAPS. (ATT. 3)
4. DISTRICT COURT RULING ON THE CITY DITCH AT OXFORD & HURON.
(ATT. 4)
5. WASTEWATER COLLECTION SYSTEM MAINTENANCE AGREEMENT.
(ATT. 5)
6. GREENWOOD VILLAGE CONNECTOR'S AGREEMENT. (ATT. 6)
7. SOUTH ARAPAHOE CONNECTOR'S AGREEMENT. (ATT. 7)
8. WATERRESULTSFROMTHEMARKS. (ATT.6)
9. WATER RIGHTS UPDATES FROM DAVID HILL DATED NOVEMBER 5
AND DECEMBER 7, 2010. (ATT. 8)
10. OTHER.
r
WATER AND SEWER BOARD
MINUTES
November 9, 2010
The meeting was called to order at 5:04 p.m.
Members present:
Members absent:
Also present:
Cassidy, Wiggins, Woodward, Olson
Habenicht, Higday, McCaslin, Clark
Burns
Stewart Fonda, Director of Utilities
1. MINUTES OF THE OCTOBER 12, 2010 MEETING.
The Englewood Water and Sewer Board received the minutes of the October 12, 2010
meeting.
Mr. Higday moved;
Mr. Habenicht seconded:
Ayes:
Nays:
Abstain:
Absent:
Motion carried.
Mr. Burns entered at 5:10 p.m .
To approve the minutes of the October 12,
2010 as amended.
Cassidy, Wiggins, Woodward, Olson,
Habenicht, Higday, McCaslin
None
Clark
Burns
2. BOREAS PASS DITCH
The U.S. Department of Agriculture -Forest Service, submitted a Special Use Permit for
the continued operation and maintenance of the Boreas Ditch #2. This allows the Boreas
Ditch #2 to cross the White River Forest in the Dillon Ranger Dis trict. The existing 30-
year permit has expired and this permit would be for an additional 30 years. An annual
fee of $210.92 is assessed for a 25' right-of-way for 1.48 miles. Englewood received
approximately 250 acre feet ofraw water per year from this ditch. The City Attorney's
office reviewed and approved the Special Use Permit. A modification to the Forest
Service indemnity clause was added by the City Attorney and accepted by the Forest
Service.
Mr. Habenicht moved;
Mr. Higday seconded:
Ayes:
Nays:
Absent:
Motion carried.
To recommend Council approval of the
U.S. Department of Agriculture Forest
Service Special Use Permit for Boreas Ditch
#2.
Cassidy, Wiggins, Woodward, Olson,
Habenicht, Higday, McCaslin, Bums, Clark
None
None
3. ADMINISTRATIVE COMPLIANCE ORDER APPEAL -CHIPOLTE -333 W .
HAMPDEN -FRANK BRANDSE
An executive session was called to address the Administrative Compliance Order Appeal
from Frank Brandse of Pro GTS regarding an overflow incident caused by the Chipolte
Restaurant at the Chase Bank Building at 333 W. Hampden Ave.
Present was Frank Brandse of Pro GTS, Jon Bridges and Harold Sheel of the Industrial
Pretreatment Division of the Littleton Englewood Wastewater Treatment Plant, Kevin
Ferris, representative of Clifford Wynberger, owner of building and the building
management company, Situs Enterprises and Tom Brennan, City of Englewood OUtilities
Manager.
Mr. Frank Brandse of Pro GTS was sworn in to testify. Mr. Brandse was charged with
knowingly and willingly discharging liquid waste from his tanker into the City's
interceptor. Mr. Brandse reviewed the background behind the overflow incident and
distributed pictures showing the fat, oil and grease (FOG) interceptor process . He noted
that two employees were on site. One employee inside was using the portable jetter,
cleaning the line using high pressure water and the other was out side using a truck-
mounted jetter. Tom Brennan questioned the procedure that was used. As a result,
wastewater backed up in the basement because of the blockage. The grease interceptor
was not emptied before flushing. The flushing operation was stopped as soon as it was
discovered that the interceptor was backing up into the basement. PRO GTS performed
no immediate mitigation because Mr. Ferris told them to leave . Situs called a restoration
service for cleanup and billed Chipolte for $7,200. Pro GTS reimbursed Chipolte. Mr.
Brandse's insurance company cut him a check for the amount.
Ms. Arnold had requested an equipment inspection, which was arranged with Mr.
Brandse. Mr. Bridges and Mr. Sheel of the Industrial Pretreatment Division met with Mr.
Brandse, but he refused to cooperate after discovering that they did not have a
predetermined check-off sheet or an interview questionnaire. He believed they were
looking for evidence to use against him.
Mr. Brandse refuted using the non-compliance charge and fine because he stated the
charges were dismissed October 12, 2010 , Case #10M2236. He had been charged with
dumping water from a construction site in an unauthorized area. Mr. Cassidy noted the
Sherriff's report was not signed or properly filled out.
Linda Olson asked about precautions taken when going into a new place for cleaning.
Brandse said this was the first time they used two jetters at the same time and because of
this incident, they now vacuum first and start the jetters on low . Cassidy asked if a there
is a government document stating the acknowledged proper procedure or best practices.
Mr. Brandse and Mr. Bridges were not aware of such a document
Mr. Kevin Ferris of Situs Property Management at 333 W. Hampden Ave. was sworn in .
Mr. Ferris acknowledged that he ordered Pro GTS to stop. Mr. Ferris noted that Situs has
a strong preventative plumbing maintenance program and they contract out to have the
lines cleaned every 3 -4 months. The backup encompassed approximately l" in the
building basement over a 2,000 square foot area.
Jonathan Bridges of the Industrial Pretreatment Division was sworn in. Mr. Bridges
explained how the Pretreatment Division regulates discharges that cause problems at the
treatment plant, including fats, grease and oil from restaurants. Mr. Bridges distributed a
schematic of an interceptor system.
Mr. Bridges discussed the Enforcement Respond Plan which states that the fine can be
increased or decreased depending on circumstances. During the investigation, Ms .
Arnold considered what Pro GT's business practices were, the prior history, which was
dismissed, and if Mr. Brandse's actions caused harm to property.
Tom Bums asked what the fine would be without a history of noncompliance. Mr.
Bridges stated that if there was no history of noncompliance the base fine would be
$2,000 . Mr. Cassidy asked if there was evidence of waste being pushed into the
interceptor and the sewer system. He noted that instead of inspecting every 6 months,
City had only inspected every 9 months . To be compliant, a restaurant is required to have
a 3 year history of records on site, but a normal inspection does not include a records
review. All percentages were under the 25% pumping rule and in compliance, so a more
extensive inspection was not necessary. The interceptor is designed to slow flow down so
solids and grease can separate out. If excess water is introduced into the system, it will
short circuit the system. This is why interceptor should have been pumped first.
Harold Sheel of the Industrial Pretreatment Division, noted that the interceptor should
always be pumped out first and discussed how a pumping operation should be conducted.
According to policy Chipolte is responsible for pumping.
Jim Higday moved to close meeting. Mr. Wiggins seconded.
Linda Olson noted that further discussion and questions were necessary.
Ayes:
Nays:
Motion defeated.
Higday moved:
Motion was not seconded .
Motion died.
Jim Higday moved:
Wiggins seconded:
Ayes:
Higday, Wiggins
Cassidy, Woodward, Olson, Habenicht, McCaslin,
Clark, Bums
That the original recommended fine stand.
To close the hearing and make a
determination of fine .
Cassidy, Wiggins, Woodward, Olson,
Habenicht, Higday, McCaslin, Bums, Clark
Nays: None
Absent: None
Motion carried .
Mr. Clark discussed lowering the fine , but not eliminating it because there was a
discharge . Stu discussed the Memorandum from Pam Arnold dated September 23, 2010
noting that the, "major history of noncompliance," category calls for a minimum penalty
of $3 ,000 . The other option would be to consider it from the, "minor history of
noncompliance" category that calls for a minimum penalty of $2 ,500 , if the Board
believes the history is a minor offense. If the history of a major noncompliance penalty is
removed, it would result in a $2,000 fine .
Clark moved :
to $2,000.
Habenicht seconded:
That because there was not a history of non
compliance, the leve l of the fine be lowered
Further discussion regarding the motion ensued.
Cassidy stated that Chipolte 's inspection records were not in compliance, and the
interceptor may have been already over capacity, which could have contributed to the
backup . He does not believe that Mr. Brandse willfully or maliciously discharged into the
interceptor. Mr. Cassidy recommended that he not be fined, or if fined, suspend the fine
for one year as incentive to comply with proper procedure.
Mr. Clark stated that believes damages were caused by not pumping the system out.
Wiggins noted having two pumpers working also contributed.
Ayes:
Nays:
Absent:
Motion carried.
Cassidy, Wiggins , Woodward, Olson,
Habenicht, Higday, McCaslin, Bums, Clark
None
None
The above hearing was recorded. Cop i es of the tapes are available for a fee .
4. GRANT OF EASEMENT FOR ENGLEWOOD ACRES.
Timothy and Nancy Baker submitted a Grant of Easement to Distinctive Builders for a
10' utilities easement to service the future Englewood Acres deve lopment. The 10'
easement is to provide space for a City water main for the propos ed Habitat for Humanity
Development.
Mr. Bums moved;
Mr. Cassidy seconded:
Ayes:
Nays:
Absent:
Motion carried.
To recommend Council approval of the
Grant of Easement to Distinctive Builders
for a 10' utilities eas ement for a water main
at 1294 W . Quincy Ave. from Timothy and
Nancy Baker.
Cassidy, Wiggins, Woodward, Olson,
Habenicht, Higday, McCaslin, Clark, Bums
None
None
5. WATER RIGHTS UPDATE FROM DAVID HILL DATED OCTOBER 8,
2010.
The Board received an update from Mr. David Hill dated October 8, 2010 on
developments in water litigation cases in which Englewood is invo lv ed.
The meeting adjourned at 7:10 p.m.
The next Englewood Water Board meeting will be January 11, 2010 in the Community
Development Conference Room
Respectfully submitted,
Isl Cathy Burrage
Recording Secretary
Protect our Urban River Environment (PURE)
Scope of Services -2011-2013
(12/12/10)
Mission Statement:
PURE is dedicated to pursuing a "zero trash tolerance" policy for the South Platte River
and tributaries in the Denver urbanized metropolitan area (Denver metro area) with an
ultimate goal of eliminating trash from these waterways. The following goal and sub
goals have been identified:
• Reduce trash in the South Platte River
o Undertake a study to create a definition of trash .
o Develop a methodology to measure and monitor the presence of trash.
o Test and implement a program that will achieve trash reduction as
agreed upon by the project partners.
• Reduce littering by residents in the Denver metro area
o Undertake a social marketing study to understand the littering process.
o Create a trash education and outreach program based on the results of
the study that will change resident's behavior and achieve trash
reduction as agreed upon by the project partners.
Objectives:
Technical
• Develop a shared understanding of the nature and magnitude of the trash
problem on the South Platte River and tributaries within the Denver metro area.
o Conduct an inventory of what other cities nationally are doing with
regard to visual trash reduction/trash elimination. An important element
of this report will be to report on public education and public
information. Some of the cities that could be included in this inventory
are Los Angeles, Washington, DC (Anacostia and Potomac initiatives) and
Portland, Oregon.
o Undertake a study to create a definition of trash in the waterways within
the Denver metro area and a baseline reference for representative
locations.
• Identify and categorize locations that represent the occurrence of
trash (e.g., worst locations, high/med/low locations).
• Include trash directly deposited, blown from roads and highways
and conveyed by stormwater runoff to the river.
• Utilize data provided by Urban Drainage and Flood Control District
(UDFCD) to identify areas of significant trash contribution, and
1
trash collected to analyze the nature of the trash that ends up in
the South Platte River and its tributaries.
o Develop a measurement and monitoring methodology, based on the
baseline study including, but not limited to evaluat i on of the following:
• Trash-capturing equipment.
• Street and highway cleaning policy and procedures.
• Stormwater sources, based on outfall contribution to the South
Platte River and its tributaries.
• Expand the initial trash reduction program based on the study results.
Social/Societal
Explore the role of local governments and businesses as partners in this effort.
• Create a Denver metro area trash reduction/trash elimination task force to
implement and monitor the program and determine future initiatives through
the development of a Denver metro area trash treaty. This could be initiated in
collaboration with the Denver Regional Council of Governments (DRCOG) or it
could be undertaken as an independent effort.
• Develop a study to understand the basis for trash generation including why
people litter and why others accept this behavior.
o Identify businesses located within one-quarter mile on either side of the
South Platte River (in particular retail businesses, grocery store, fast-food
restaurants, etc.). Create a coalition that takes a leadership role in a
trash reduction program.
o Develop a program working with business owners adjacent to the River
to reduce their use of plastic and paper bags.
o Identify areas for pilot public awareness programs, such as
REI/Confluence/Commons Park, Bear Creek Park, River Point at Sheridan,
Cherry Creek Shopping Center in Denver and Aspen Grove in Littleton.
• Create and implement a trash education and outreach program based on the
results of the study.
o Work with Denver Environmental Health's (DEH) social marketing staff,
along with other municipal counterparts, to design a public education
and outreach campaign about trash utilizing soc i al networks, such as
Facebook, Twitter, etc .
o Expand the South Platte River Environmental Education's (SPREE) SPREE
FORCE program to eventually include efforts with public and private
junior high schools and high schools beyond the City and County of
Denver in the Denver metro area.
o Provide content for neighborhood associations, community associations
and merchant associations to use in their respective newsletters and
websites describing the circumstances that cause trash accumulation in
the River as well as options for prevention.
o Work with local governmental jurisdictions to expand/enhance current
efforts to place stickers or stenciled messages on all stormwater intakes
2
intended to educate the citizenry that dumping trash directly/indirectly
into stormwater intakes equates to dumping i nt o the River and its
tributaries.
• Work with UDFCD on their trash pick-up efforts during the year . Recruit
volunteers to assist with these efforts .
o Organizations that could be approached include Denver Trout Unlimited,
Colorado Whitewater Association, Sierra Club and Audubon Society of
Greater Denver among others.
o Work with Denver metro municipalities to identi f y volunteers to work
with UDFCD .
o Consider developing an Adopt-the-River program.
• Explore using volunteers to undertake routine River clean -up
efforts in conjunction with UDFCD.
• Use volunteers to focus clean -up ef forts on areas of the
River that their respective organizati o ns typically target.
• Increase participation and press coverage of communit y South Platte River
cleanups , currently consisting of South Platte RiverSweep (September) and the
Spring River Cleanup (April).
Financial
• Determine how local businesses/chambers of comm e rce, etc. could be
approached for contributions to this initiative as well as participating in a Trash
Treaty focused on a goal to reduce/eliminate trash .
• Develop specific budget requests for FY2011 and in fu t ure years from local
governmental jurisdictions and other funding sources to assist with carrying out
visual trash reduction and trash elimination programs. Identify grant funding
sources .
• Request trash pledge signatories commit to an annual amount of funding for the
PURE trash reduction program (similar to SP CURE).
• Explore the interest of local governmental jurisdiction s passing ordinances
banning the use of plastic bags and other non-bio degradab le packaging.
3
ht.tp ://www.denverpost.com/headlines/ci_14964622
outdoor extremes
South Platte River
u11der siege by
trash
By Scott Willoughby
The Denver Post
Posted: 04 /27 /20 10 01 :0 0:00 AM MDT
More often than not, Jonathan Kahn feels like
he's up the proverbial creek.
And even with the benefit of a paddle, the owner
of Confluence Kayaks in Denver understands
that he and the small army of about 200 South
Platte River-lovers assembled for Sunday's fourth
annual South Platte River Cleanup are battling a
tide they currently cannot control.
Garbage and pollutants -in their many varied
forms -have become the defining features of
Denver's downtown waterway, and river-
dependent recreational outlets such as kayaking ,
rafting and fishing are suffering the collateral
damage.
"As it stands now, it's absolutely a losing battle,"
said Kahn, who has helped organize the annual
spring cleanup since its inception. "The next ?ig
rainstorm , there will be just as much trash going
into the river."
http://www .denverpost.com/fdcp?l285712204921
Page I of 3
Still, that's not enough to discourage the
modern-day Sisyphus from fighting the good
fight.
With support from a host of river-centric
sponsors, the intrepid team of volunteers has
paddled the channel and fanned out along the
banks of 6-1 O miles of the South Platte to collect
6 tons of trash in the past three years. The
official weigh-in from Sunday's offerings is still
pending.
Boaters piled into rafts, canoes and kayaks to
gather debris wrapped in the reeds and floating
in eddies for 6 miles below the Union Street
Whitewater Park put-in , while cyclists and
pedestrians walked the recreation path to snatch
trash littering the riverside down to Habitat Park.
Along the way, the volunteers encountered
homeless squatters and river otters, rapids and
rubbish, including street signs and truck tires,
discarded dog toys and, yes, even one dead dog .
"It was nasty," said L.B. Myers, the Denver trout
fisherman who hauled away the small dog.
While Myers' experience may qualify as the
e~treme , his description is all too common to the
South Platte River where it runs through Denver.
A pair of playful
whitewater kayak parks at Union Street and
downstream at Confluence Park have earned the
reputation among paddlers as the state's least
sanitary, with the downstream park garnering
nicknames of "consewage" and "confluenza" and
9/28 /20 10
h~p ://www.denverpost.com/headlines/ c i_ 14 964622 Page 2 of3
denvernost.colm ~!E DENVERI:UsT
eye-stinging wave features known as "Hepatitis
A-D."
-----" ·-'~ ·---·-----·-~----South Platte River
View slide show of South Platte River
Cleanup .
With fishermen casting more often to carp than
to the sporadic trout common in upriver reaches,
fishing traffic is light, to say the least.
"I think a lot of people avoid it because they
think of it as a sewer," Kahn said of the river. "If
people weren't worried about the water quality
so much , I'm sure there'd be more people using
it."
Kahn doesn 't make excuses for the river running
past his downtown shop, and he admits he has
had customers get sick after paddling in it. As a
result, he tends to conduct kayak lessons closer
to Chatfield Reservoir upstream, where the
water quality is better. But when he looks at his
backyard river, he still manages to look beyond
reputation to see potential.
"It's the most degraded river in the state for
sure," Kahn ·said . "What this could be -should
be -is a recreational paradise. It's right in the
middle of town , and people should be out here
able to use it without worrying about their kids
getting sick and without seeing all kinds of nasty
debris on the side of the river."
http ://www.denverpost.com/fdcp?1 2 8571220492 1
With that in mind, Co nfluence Kayaks has
teamed up with Denver Parks and Recreation
partners at The Greenway Foundation and river
stakeholders
Cli f f Spencer takes a littl e break before
the start of t he fourth an nu al South
Platte Clean up on Sunday .
such as Colorado Whit ewater and Denver Trout
Unlimited (TU) to form an entity known as
Protect our Urban River Environment, or PURE .
PURE has initiated efforts to work with municipal
leaders along the South Platte in Arapahoe ,
Denver and Adams co u nties to increase the focus
on preventing trash and debris from getting into
the river and its tributa r ies ; as well as the actual
removal.
The first step, organizers say, is to retrofit
sewage and storm-water outfall pipes with
pollutant traps designed to collect the garbage
before it flows into the river, rather than pulling
it out· piece by piece. The group has approached
the state's Water Quali ty Control Commission
about listing the river as "impaired" because of
9/2 8/2 010
h~://www.denverpost.com/headlines/ci_14964622
the amount of trash. The river is undergoing an
EPA-enforced effort to reduce levels of E. coli
and other pathogens, and PURE would like to see
a similar Total Maximum Daily Load established
for trash.
"We were encouraged by the momentum that
these guys had established and encouraged
them to work to develop an appropriate
benchmark to list something for trash," said
Andrew Todd, a Water Control Commissioner and
TU member who took part in Sunday's cleanup.
Ultimately , Kahn says, what's needed is
accountability. The river community that spent
its Sunday mucking through the mud to gather
other people's garbage isn't the problem. Many
of the boaters never had floated that section of
the South Platte . And unless local authorities
step up to address the issue, many of them never
will again .
"We're asking the entities that are responsible
for the water quality on the Platte to take
responsibility for it without a regulatory or
enforcement body coming down and saying that
from above. The city governments of Denver, of
Englewood and of Littleton -anybody who has a
storm-water discharge permit -we're asking
those entities to take responsibility for the
situation," Kahn said. "The Greenway Foundation
has developed this plan for the South Platte
River, and we don't really feel like it can live up
to its potential until the water quality is dealt
with.
"Right now, the streamside areas have been
http://www .denverpost.com/fdcp?1285712204921
Page 3of3
improved substantially over the past 20 years,
but the in-channel recreation hasn't been dealt
with. It's really a gem that's waiting to be
polished."
Scott Willoughby: 303-954-1993 or
swil/oughby@denverpost.com
Help is on the way
The annual South Platte River Cleanup:
Stretch: Union Avenue put-in to Habitat Park
(approx. 6 miles)
Trash: Six tons in the first three years
Groups involved: Down River Equipment Co.,
High Point Ventures, High Country River Rafters,
Keen footwear, The Greenway Foundation
Info: southplattecleanup .com
9/28/2010
METRO WASTEWATER
RECLAMATION DISTRICT
6450 York Stree t -De nve r, Col o rad o 80229-7499
(303) 286 -3000 Te lefax (303) 286-3030
www.metrowastewater.com
John Bock, Utilities Manager of Administration
City of Englewood Utilities Department
1000 Englewood Parkway
Englewood, Colorado 80110
RE : Sewer Connection Charge Determination
460 E Yale , Englewood , Colorado
Dear Mr. Bock;
Curt A. Aldstadt. Chai rman of the Board
Margaret R. Medellin , Chairman Pro Tern
Peter M. Adler, Secretary
George L. Dumas , Treasurer
Catherine R. Ge rali , Di str ict Manager
December 9, 201 O
The Metro District is in receipt of a request from the City of Englewood (Englewood) regarding
any possible sewer connection charges due for the property located at 460 E. Yale Ave.,
Englewood, Colorado. Per our recent conversations Englewood was approached about the
water and sewer for the property as part of a pending real estate sale; however, Englewood's
records did not indicate a connection for this address. The results of a dye test of the properties
in the immediate area revealed that the sanitary sewers for 460 E. Yale Ave., 2701 S.
Pennsylvania St., and 2725 S. Pennsylvania St. all share the same serv ice line that connects to
the Metro District's manhole on the north side of E. Yale Avenue.
Metro District records indicate that all three properties -460 E. Yale Ave ., 2701 S.
Pennsylvania St., and 2725 S. Pennsylvania St.-were listed on Addendum A to the Special
Connectors Agreement dated March 20, 1984 between the City of Englewood and the Metro
District and all three have been included in Englewood's Annual Charges for Service since then.
Because the property has been included in the District 's System since Englewood joined the
District and Englewood has paid Annual Charges for Service for this property, there is no further
action needed by Englewood regarding either the Sewer Connection Charge or Annual Charges
for Service programs.
You mentioned that Englewood is proposing no change to the layout of the sewer connection
but plans to advise the three owners of the noncompliant nature of t heir arrangement and
advise them that they come to a mutual understanding as to repairs and ma intenance.
Keep in mind that Section 3.2.3 of the Distr ict's Rules and Regulations states
Only lines which are the property of and/or under the complete control of the
direct connector will be allowed to be connected to the system . Where minor
collection lines or individual service lines are allowed to be connected , ... the
direct connector shall be responsible for the connection and fo r all flows through
the connection .
If there is a problem with this connection in the future , the Metro Distr ict will look to the City of
Englewood for reso lution .
If you have any questions please contact me at (303) 286-3467.
~truly ,jk jd M'{~~echan ~
Governmental/Leg islative Programs Administrator
M :\G OV05.10 Co nnection Ch a rge System \2 01 O\Engle wood -SCC Determination fo r 460 E . Ya le Ave. doc
Serving Greater Denver
WE USE RECYCLED PAPER
MEMORANDUM
To: Stu Fonda, Director of Utilities
From: John Bock, Utilities Manager of Administration
Date: December 16, 2010
Subject: Shared Private Sewer Service Line
It has recently come to our attention that the following properties all share the same private
sewer service pipe which connects to a Metro Wastewater Reclamation District manhole:
460 E. Yale Ave
2701 S Pennsylvania St.
2725 S Pennsylvania St .
These homes were probably built sometime in the 1940s or 1950s during which time we have
no idea what sort of inspection or record keeping (if any) was happening.
This sewer service arrangement is in violation of current Code requirements:
1 12-2-4: -Private Sewers, Connections and Repairs.
A . Buildings to Have Separate Connections . Each premises , property or building(s) situated on a premises
or property in a manner which would allow the premises or property to be subdivided and the building(s)
sold separately shall be served by a separate service connection directly to the nearest main without
crossing other adjoining premises or properties , and no connection shall be made by extending the
service from one property , premises or building to another property , prem ises or building . Each
separate building in a planned unit development shall have a separate sewe r service line . Exceptions to
this requirement may be granted by the City Manager or designee with the concurrence of the Water
and Sewer Board upon a review of a written request of the property owner, in which the property owner
illustrates with both written and graphic descriptions , why the exception should be granted . Existing
premises , properties or buildings wh ich do not conform to th is requirement may maintain their service
connection configurations unless and until such time , in the opinion of t he City Manager or des ignee
w ith the concurrence of the Water and Sewer Board , the service must be separated.
It is the Utilities Staff recommendation that the homeowners be allowed to keep this piping
arrangement provided that the Utilities Department will make these owners well aware of the
situation and its drawbacks, and that the Department will record at Arapahoe County a notice
against all three properties advising any prospective buyers of the situat ion .
Metro Wastewater Reclamation District has been made aware of thi s situation and their
response (see the attached letter) is that they will seek no change in t his situation and they will
view Englewood as being responsible for its outcome.
DISTRICT COURT, ARAPAHOE COUNTY, STATE
OF COLORADO EFILEI) Document
Arapahoe County Justice Center CO Arapahoe County District Court
7325 S. Potomac Street
8th JD
r Filing Date: DN' I) 2010 11:49AM M~"
Filing ID: 34770249
Englewood, Colorado 80112
l~eview Cleric N/A
A COURT USE ONLY A
Plaintiff: KIM KURCZEWSKI
Defendant: WATER AND SEWER BOARD, CITY
OF ENGLEWOOD
Case No. 10CV2391
Div. 407
ORDER REGARDING PLAINTIFF'S MOTION FOR PRELIMINARY
INJUNCTION
This matter comes before the Court for consideration of Plaintiffs Motion for
Preliminary Injunction ("Motion"). The Court has read the Motion and the Defendant's
Response. The Plaintiff has not requested a hearing. The Court no te s that the Plaintiff
has not filed a Reply. The Court also considers the law applicable to the issues raised by
the Motion. The Court now enters the following Order.
On November 4, 2010, the Plaintiff filed this matter seeking an injunction
preventing the Defendant from enclosing a section of the Englewood City Ditch (the
"Ditch") with pipe. In support of the injunction, the Plaintiff relies on her belief that the
open channel of the Ditch is more aesthetically pleasing than the proposed enclosed
covered area. In support of the plan to enclose the Ditch, the Board reasoned that the
enclosed section of the Ditch would prevent damage to the adjacent road, prevent
flooding of properties below the elevation of the west bank of the ditch, and would have
the added benefit of enhancing the safety of the area.
FACTS
According to Plaintiffs Motion and the attachments thereto , Plaintiff is a
homeowner in the 4100 block of South Huron Street in the City of Englewood ("the
City" or "Englewood"). Across the street from her home is the Ditch that seasonally
carries water for the City. The portion of the Ditch in question is a 280 foot open earth-
lined stretch. The Defendant has established that this stretch has th e potential to flood
and cause damage to adjacent properties which lie below the elevation of the banks of the
1
ditch. Also, the Defendant has established additional erosion on the east bank could
cause subsidence of the adjacent roadway, thereby necessitating costly repairs, and in a
flood event, such a failure could be catastrophic.
Currently, the Ditch with its open channel seasonally carries water during the
spring and summer months, from approximately April 1 until October 31. The east bank
is near South Huron street, and the west bank borders private residential properties. The
north end of the Ditch drains into a pipe which goes under West Oxford A venue. The
proposal to enclose the 280 feet of the seasonally-used Ditch would result in a covered
flat vegetated area with no exposed pipe. This proposal would eliminate erosion on each
bank of the Ditch. It would also help eliminate the possibility of flooding properties on
the west bank. Furthermore, enclosing the stretch of the Ditch with pipe would have the
added advantage of reducing risk and liability exposure to the City .
While the Defendant was soliciting bids for the proposed piping, some area
residents approached a representative of the Defendant and voiced their dissatisfaction
with the plan. The representative noted that the residents could attend the Defendant's
meetings and provide their comments there.
In response to concerns by a few of the area residents, the Defendant sanctioned
an engineering study to evaluate alternatives for minimizing potential liability, increasing
safety, and minimizing damage to the roadway. The engineering firm found that
installing the 280 feet of pipe would result in the most cost effective measure to reduce
safety risks, while protecting the adjacent road and property from potential damage. Two
other options evaluated included construction of a stabilization wall along the east side of
the ditch and a concrete-lined flow channel. These two options were found to be
ineffective and more costly than simply enclosing the channel and covering it with earth
and vegetation. As such, the Defendant approved the plan to enclose the stretch of the
Ditch. This claim for injunctive relief followed.
The City has a limited window to complete the project as the Ditch must be able
to carry water during the April 1 to October 31 period. The Ditch in question carries
water not only for the City, but also other entities such as Denver Water. The project was
slotted to be completed this winter as the erosion of the east bank is seriously threatening
the integrity of the nearby road. Additionally, the west bank is showing signs of stress,
which in tum threatens the homes below the elevation of the Ditch. Furthermore, the
approved project must be completed this winter because Denver Water intends to
increase the amount of water in the Ditch to irrigate Harvard Gulch Park and Golf
Course. This increase will increase erosion of the banks thereby increasing the
possibility of road collapse and flooding of nearby homes. The project was scheduled to
start on or about December 1, 2010.
LAW
Pursuant to Colorado Rule of Civil Procedure 65(g), injunctive relief may "be
granted upon the motion of any party at any time after an action is commenced, and
2
before or in connection with final judgment." Though an evidentiary hearing may be
conducted, a hearing is not required. Colo. R. Civ. Proc. 65. Granting or denial of an
injunction is within the sound discretion of the trial court. Litinsky v. Querard, 683 P.2d
816, 817 (Colo. App. 1984).
In seeking a preliminary injunction, the Plaintiff is required to demonstrate an
ability to satisfy six distinct factors meriting an injunction. Rathke v. MacFarlane, 648
P.2d 648, 654 (Colo. 1982). The absence or inability to demonstrate any one of the
various factors bars a claim for a preliminary injunction. Keller Corp. v. Kelley, 187 P.3d
1133, 1137 (Colo. App. 2008). A trial court should deny a request for injunction if it
determines that any one of the factors has not been met. Baseline Farms Two, LLP v.
Hennings, 26 P.3d 1029, 1213 (Colo. App. 2001). "The power to grant a preliminary
injunction should be exercised sparingly and cautiously and with a full conviction on the
part of the trial court of its urgent necessity." Sanger v. Dennis, 148 P.3d 404, 409 (Colo.
App. 2006) (citing Rathke and Tesmer). The six factors that must be evaluated are:
(1) a reasonable probability of success on the merits, (2) a danger ofreal,
immediate, and irreparable injury which may be prevented by injunctive relief, (3)
that there is no plain, speedy, and adequate remedy at law, (4) that the granting of
a preliminary injunction will not disserve the public interest, (5) that the balance
of equities favors the injunction, and (6) that the injunction will preserve the
status quo pending a trial on the merits.
Rathke, 648 P.2d at 654. Though a party seeking a preliminary injunction is not required
to present its entire case, the party must have sufficient evidence to satisfy all six factors.
Litinsky, 683 P.2d at 819.
The Plaintiff cannot meet several of the necessary Rathke factors, and the lack of a
single one is fatal to a request for injunction.
The first factor requires a court to substantively evaluate the issues as it would during
a trial. Dallman v. Ritter, 225 P.3d 610, 621(Colo.2010). If a party fails to establish
that there is a reasonable probability of success on the merits, a preliminary injunction
cannot issue. Tesmer v. Colo. High Sch. Activities Ass 'n, 140 P.3d 249, 253 (Colo. App.
2006).
The Plaintiff asserts that the value of her home will diminish due to the enclosure of
the Ditch. This contention is highly speculative and it is unlikely that Plaintiff will
succeed on this claim. The Plaintiffs property will not be altered by the actions of the
Defendant. She attributes a reduction in the "good will value" of her property. But since
there will be no physical invasion of her property, the Plaintiff must allege, in some
fashion, a regulatory taking. Plaintiff can prove a regulatory taking either by showing a
per se taking or under a fact specific inquiry. Animas Valley Sand & Gravel Co., Inc. v.
Bd. ofCty. Com 'rs for the County of La Plata, 38 P.3d 59, 65 (2001).
3
To prove a per se taking, Plaintiff must show that the government action does not
specifically advance any legitimate governmental interest or that the government action
denies most or all economically viable use of the land. In this matter, the action of the
Defendant is clearly based on the interest of the public and the government and the action
does not deprive the Plaintiff of any, Jet alone most or all use of her land. As Jong as the
government entity complies with applicable regulations, such as zon ing, and does not
create a nuisance or trespass, the entity is generally allowed to act in the interest of the
greater public at large when making changes to their own land. See City of Englewood v.
Rich, 686 P .2d 780, 781 (Colo. 1984); Clark v. Town of Estes Park, 686 P.2d 777 (Colo.
1984).
By following their plan, the Defendant is not creating a nuisance, nor a trespass, and
is acting with the interest of the greater public. The Defendant seeks to mitigate potential
damage to adjacent properties and the parallel roadway. As the piping project seeks to
reduce liability, and thus potential costs to the City, the project also benefits the Plaintiff.
Therefore, the facts clearly demonstrate that the Plaintiff is not likely to succeed at a trial
on the merits.
This touches upon the second factor. The Plaintiff cannot establish that the grant of a
preliminary injunction will not disserve the public interest. The City, through the
Defendant, is not required to wait for a catastrophic failure or flood event before it acts in
the interest of the health, safety, and welfare of its residents. U.S. D isposal Sys., Inc. v.
City of North Glenn, 567 P.2d 365, 367 (Colo. 1977). The Defendant has chosen to
enclose the open channel to reduce the likelihood of erosion and subsidence, protect the
adjacent road, and prevent claims arising from potential flooding of properties situated
below the ditch in elevation. Denver Water's plans to increase the flows in the Ditch
increase the chances of flooding and damage to the nearby road. The enclosure of the
ditch increases safety and reduces potential liability. The Defendant is acting with the
interests of the public.
As an additional consideration, the Defendant has established that the project can
only be completed in a short window during this winter. Issuance o f an injunction would
significantly increase costs for the City by requiring the project to wait another year,
thereby causing the City to incur costs ofrescinding or delaying the scheduled project. A
preliminary injunction would disserve the public interest.
Plaintiff must demonstrate "a danger ofreal, imminent, and irreparable harm."
Irreparable harm is often defined as that which a monetary award does not adequately
compensate. Gilitz v. Bellock, 171P.3d1274, 1278-79 (Colo. App. 2007). As such,
injunctive relief is only available if there is no legal remedy which "provides full,
complete, and adequate relief." Id. at 1279 . Thus, an injury is only irreparable when
monetary damages are difficult to ascertain or where there is no pecuniary standard upon
which to measure damages. Id. Monetary damages would not be difficult to establish as
appraisal of property is a well-recognized practice. A comparison between the current
appraised value of Plaintiffs property with an appraisal of Plaintiffs property when the
4
project is completed would provide a calculation of damages. This factor cannot be
satisfied .
Injunctive relief cannot be gr anted when there is an adequate remedy at law. B ens on
v. Nelson, 725 P.2d 71, 72 (Colo . App. 1986). Relevant factors to examine when
determining whether an adequate remedy at law exists include: whether damages can be
proven with reasonable certainty; whether the defendant is solvent and capable of
responding to a money judgment; whether the harm alleged is continuing or will require
plaintiff to resort to multiple litigation to effect the legal remedy, an d the difficulty of
obtaining; by the use of money, a substitute for the promised performance. Id. The
plaintiff has several potential cl aims which, if legally and factually v iable, could provide
adequate relief. Such potential claims could seek damages for a regulatory taking or
some sort of promissory estoppel. For this analysis it is immaterial whether Plaintiff
could succeed on any potential claims.
Finally, the Court must examine the balance of equities. The D e fendant is seeking to
reduce liability exposure and prevent the unnecessary expenditure of money for the entire
tax base and adjacent community. The Plaintiff is seeking to maintain the subjective
aesthetic value of a seasonally used ditch. The Defendant seeks to serve the greater good .
The timing of the project demands immediate action to benefit the c ommunity . Delay
would disserve the community .
ORDER
The Plaintiff has not established the requirements for issuance of an injunction
and the Court denies her request to prohibit the Defendant from pip ing the Ditch along
the 4100 block of South Huron Street. This is the only reliefrequested in this case and
with the denial of the request the case is dismissed .
So ordered this 9th day of December, 2010.
BY THE COURT:
MICHAEL SPEAR
District Court Judge
5
Date
February 22, 2011
INITIATED BY
Utilities Department
COUNCIL COMMUNICATION
Agenda Item Subject
Wastewater Collection
System Maintenance
Ag reement
STAFF SOURCE
Stewart H. Fonda , Director of Utilities
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
Similar Wastewater Collection System Maintenance Agreements with City of Cherry Hills
Village , the City of Sheridan and South Englewood Sanitation Districts have been previously
passed by Council.
RECOMMENDED ACTION
Council approval, by Ordinance , of the Wastewater Collection System Maintenance
Agreement.
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
The purpose of the Wastewater Collection System Maintenance Agreement is to provide a
uniform maintenance agreement for all sanitation districts for whom Englewood elects to
provide these services .
The proposed Wastewater System Maintenance Agreement states that Englewood will
provide wastewater collection system maintenance in a designated sanitation district in
exchange for an annual fee. Routine maintenance charges shall be divided among the
customers in each sewer service area and included in their annual sewer billing. Englewood
would also respond to requests to locate sewer mains in the collect ion system.
The sanitation district conveys to Englewood a license, but not ownership, over the
wastewater collections facilities. Englewood will provide routine and non-routine maintenance ,
repair and replacement services. Routine flushing and cleaning shall not exceed depths in
excess of 1 O' and lengths longer than 1 O'. Non-routine repairs would include point repairs
deeper and longer than 1 O', excessive ground water and excessive slope or vegetation . The
City will annually clean and inspect all maintenance area lines, respond to all emergency calls
and take corrective action, locate district lines and answer inquires concerning sanitary sewer
service .
FINANCIAL IMPACT
Customers in the sanitation districts shall have additional fees added to their existing
wastewater treatment bills to cover the cost of providing this maintenance service. The
amount added for normal, routine flushing and maintenance serv ices shall be at the same rate .
that Englewood charges for normal, routine flushing and cleaning within the Englewood
Wastewater Collection area. The cost of nonroutine repairs shall be charged directly to and
paid by the sanitation district as a separate item.
LIST OF ATTACHMENTS
Wastewater Collection System Maintenance Agreement
Ordinance
Wastewater Coll. Maintenance Agr.
WASTEWATER COLLECTION SYSTEM MAINTENANCE AGREEMENT
An Agreement, dated this _______________ day of
, between the ----------------------------
(System Owner) and the City of Englewood (Englewood), regarding the maintenance of a
certain wastewater collection system:
Whereas, the System Owner owns and operates a sanitary sewer transmission system
consisting of easements, collector and transmission lines, cleanouts and manholes
(collectively "facilities"), providing sanitary sewer service to its users in parts of
Arapahoe County and
Whereas, the System Owner's system is shown on Exhibit "A" attached hereto; and
Whereas, System Owner does not currently own or operate any wastewater collection
maintenance equipment, and
Whereas, Englewood owns and operates its own system of sanitary sewer transmission
lines, exclusive of the System Owner's system, and has the equipment and personnel
available to maintain and operate the System Owner's system as well as its own system;
and
Now, therefore, System Owner and Englewood hereby covenant and agree that:
1. Englewood shall provide normal, routine flushing and cleaning maintenance services
for the Collection System, as shown in Attachment A, as needed to provide continuous
and economical service within the System Owner Collection System. Flushing and
cleaning of the sewer shall be considered normal routine maintenance. Englewood shall
respond to requests to locate the sewer mains and manholes in this collection area.
Englewood will not be responsible for locating privately owned sewer service laterals in
this collection system other than to indicate where the laterals are connected to the mains
to the best of their knowledge as indicated by its' records.
Englewood's maintenance of all System Owner facilities, except for the construction of
new or additional facilities, shall include, but not limited to:
(a) The annual cleaning and inspection of all System Owner facilities
(manholes, cleanouts and transmission lines), such cleaning and inspecting to
include, but not be limited to, visual and TV inspections, root-sawing, chemical
line treatment and the jet flushing of lines.
(b) Responding to all emergency calls and effecting the appropriate remedial
action and cleanup, if necessary. The System Owner will pay for the cleanup
resulting from a backup in any System Owner user's individual service line
caused by a malfunction in a System Owner line. If the malfunction in a System
Owner line is occasioned by Englewood's negligence in maintaining that line,
Englewood shall pay for the cleanup Englewood, without prior approval from the
System Owner, is authorized to contract for any such cleanup, which the System
Owner will pay.
(c) Marking all System Owner facilities upon no tice from the statewide one-
call system, UNCC or its successor, pursuant to C.R.S. 9-1.5-101, et seq.,
marking the same in the manner and within the time established . Englewood shall
be responsible for the marking only, and the System Owner will pay the monthly
fees to UNCC or its successor to notify Englewood to make such markings.
2. System Owner agrees that it will assume ownership of any existing wastewater
collection system facilities within the Collection System to facilitate a maintenance
agreement with Englewood. Any additional service facilities needed to serve the area
shall be constructed to Englewood standards, not at Englewood's expense, and System
Owner agrees to assume ownership of the facilities of the collection System upon
deeding to System Owner by the property owners. Ownership shall be by written
conveyance and each such conveyance must be approved by Englewood
3. System Owner shall continue to own the Collection System. Any rights-of-way
utilized in the Collection System shall continue to be held in System Owner's name and
shall be maintained by System Owner. System Owner further agrees to acquire and hold
rights-of-ways or easements of sufficient size to permit operation and maintenance
activities on any public or private property where existing or future facilities are located,
and to maintain those easements and rights-of-ways free of landscaping, structures or
other obstructions which would interfere with Englewood's maintenance obligations
under this contract. Englewood shall not be obligated to maintain sewer lines where
adequate right-of-way free and clear of landscaping or obstructions does not exist. In
such circumstances, if authorized in writing by System Owner, Englewood at its option,
may attempt to perform the maintenance without any liability whatsoever for damage to
private property.
Prior to Englewood initiating the maintenance for the collection system, the collection
system shall be televised and videotaped to determine the condition of the system. The
cost of his procedure shall be borne by System Owner. Any repair or rehabilitation
necessitated by the review of the tapes shall be at the sole expense of System Owner
4. Customers on the Collection System shall have additional fe e s added to their existing
wastewater treatment bills to cover the cost of providing this maintenance service. The
amount added for normal, routine flushing and cleaning maintenance services shall be at
a rate which is based on the same estimated annual cost per liner foot of sewer main that
Englewood experiences for normal , routine flushing and cleaning within the Englewood
Wastewater Collection area. The rate may be changed from time to time, but he amount
shall be the rate necessary for Englewood to recover its normal maintenance costs in this
sewer service area of. System Owner. It is the intent of this agreement that Englewood
recovers from each sewer serv ice area in System Owner the amount of revenue necessary
to cover its reasonable maintenance costs and avoid a situation where the citizens of
Englewood subsidize those customers in System Owner. The routine maintenance
charges shall be divided among the customers in each sewer service area as directed by
System Owner. For this reason the customers in different sewer service areas may have
different maintenance charges on their annual bills. The cost of non-routine repairs shall
be charged directly to and paid by System Owner as a separate item.
In the alternative, for the services rendered as hereinafter define d, the System Owner may
elect to pay to Englewood$ per year during the term of this
agreement, payable quarterly iri arrears, by the 10th day of the month following the end
of each calendar quarter, one-fourth (1/4) of the annual amount. Payments for any partial
calendar quarters at the beginning or the end of this agreement shall be prorated based on
the number of days of service provided by the Qty divided by the number of calendar
days in the quarter affected. All payments, pursuant to this agreement, shall be to the
City of Englewood, Department of Utilities, and remitted in care of the Director of
Utilities at 1000 Englewood Parkway, Englewood, CO 80110. This does not cover non-
routine repairs.
5. System Owner, by this agreement grants and conveys to Englewood a license, but not
ownership, over all the wastewater facilities in the Collection System. System Owner
agrees that it will not exercise any dominion whatsoever over any of the wastewater
collection facilities in the collection System which are inconsistent with the performance
by Englewood of its' rights and obligations hereunder. It is agreed that "license," as used
in this Agreement, shall mean the right to use, connect, disconnect, modify, rehabilitate,
extend, enlarge, replace, improve, convey, abandon or otherwise dispose of any and all of
the wastewater facilities, but only in so far as is reasonably necessary to perform
Englewood's maintenance operations under this agreement. Shou ld System Owner not
approve the replacement or improvement of some portion of the Collection system which
does not meet Englewood's minimum standards, Englewood may, at it's option, continue
to maintain that portion to the best o f its ability, but shall not be held responsible for any
inadequacies or failures of said portion which may occur as a result of the substandard
condition.
6. System Owner shall issue street cut permits to Englewood at n o charge when such
permits are necessary for Collection System maintenance work. System Owner shall be
responsible for asphalt or concrete replacement in street cuts made by Englewood for
Collection System maintenance .
7. System Owner agrees that Englewood is not obligated to enlar ge or extend or bring up
to standards any existing facilities in the Collection System.
8. This agreement is contingent on System Owner having a current Standard Connector's
Agreement with Englewood . If the Standard Connector's Agreement expires and is not
renewed , Englewood has the option of discontinuing maintenance service to the
Collection System, and cease collecting fees for the maintenance service.
9. The System Owner agrees that all applicable code provisions and rules and regulations
of the City of Englewood, including amendments thereto during the term of the contract,
shall be the minimum standards for the System Owner's system. The System Owner
further agrees to abide by all applicable State and Federal laws, rules , regulations or
permits, including those of the Environmental Protection Agency as they become
effective or implemented or upon notice from the City. The System Owner shall employ
or contract the services of a Certified Collection System Operator as required by the
Colorado Water Quality Control Act, Article 9 of Title 25, C.R.S . System Owner agrees
to exercise its' authority to assist Englewood in enforcing its' applicable sanitary sewer
system ordinances and rules including those made to protect the collection and transport
systems and the treatment facilities, and to assure that any new installations in the
collection System are to the standards of Englewood, and to assure collection of
delinquent accounts .
10 . The provision of maintenance service by Englewood for the collection system does
not release System Owner from satisfying the responsibilities and obligations set forward
in the Standard Connector's Agreement, nor does it incur upon Englewood any liability
resulting from the maintenance of the Collection System.
11. No enlargement of the Collection System or any other amendment of this Agreement
shall be made unless it is by mutual agreement.
12. It is agreed that for failure of System Owner or Englewood to perform this
Agreement in all its essential parts , either Party may terminate wastewater collection
maintenance to the Collection System. Prior to such termination, the terminating Party
shall provide written notice to the other Party of the deficiency and provide adequate time
to correct these deficiencies, not to exceed 6 months.
13. The term of this agreement is for a period of three (3) years from the date of
execution and automatically renewed for six (6) subsequent three (3) year periods .
Englewood or System Owner may discontinue, for any reason at any time, with written
notification not less than 6 months prior to the desired ending dat e. Notwithstanding
anything contained in this agreement to the contrary, in the event no funds or insufficient
funds are appropriated and budgeted by the governing body or are otherwise unavailable
by any means whatsoever in any following fiscal period, the government entities subj ect
to TABOR limitations may terminate this agreement at the end of any fiscal year.
14. System Owner shall have the ability to place appropriate and legal charges on the
sewer bills sent to customers within the service area. Englewood agrees to collect such
charges and reimburse them to System Owner. Englewood shall have the ability to
charge System Owner a reasonable and customary administrative fee to bill and collect
any such charges.
15. In the event that any provisions of this agreement are in conflict with the Standard
Connector's Agreement of System Owner, the Connector's Agreement shall govern.
16. The City of Englewood shall not be responsible or liable for damages to any property
which may result from its connection to the Sewer Collection System whatsoever
provided, however, that the City of Englewood shall have performed due diligence in
maintaining the Sewer Collection System, which due diligence shall mean that
Englewood shall flush or clean each sewer main not less than once per calendar year.
17. Reports . Englewood will render reports on the cleaning, inspection, maintenance
and general operations of the System Owner's system quarterly on or before the end of
the month following each calendar quarter during the term of this agreement and, within
the next business day, provide reports of all emergency responses , and the System Owner
will provide contact persons and telephone numbers to Englewood for such purposes.
18. Notices. All notices pursuant to this agreement shall be in writing, sent certified
mail, return receipt requested or hand-delivered, notice being given when received,
addressed to each of the parties, with a copy to each party's attorney, as follows:
City of Englewood
Department of Utilities
c/o Stewart H. Fonda
Director of Utilities
1000 Englewood Parkway
Daniel L. Brotzman
City Attorney
1000 Englewood Parkway
Englewood, CO 80110
Englewood, CO 80110
(System Owner)
Address
City, State Zip
System Owner's Attorney
Address
City, State Zip
Each party agrees to give notice to the other of any change in its representatives or their
address.
19. Miscellaneous. This agreement represents the complete understanding of the parties,
and each, by the signature of its representatives below, agrees, covenants and warrants to
and with the other that each has full authority to enter into, bind and obligate the party for
whom each signs. This agreement may not be assigned by either party without the
advance written approval of the other; and shall not be amended or modified, except in
writing, which modification or amendment shall not be effective until the same is reduced
to writing and executed by both parties hereto.
IN WITNESS WHEREOF this instrument has been executed as of the day and
year first above written.
CITY OF ENGLEWOOD
Stewart H. Fonda
Director of Utilities
City of Englewood
Chairman
Englewood Water and Sewer Board
Date
Date
System Owner
By: ___________ _
Date
Wastewater Coll. Maint. Agr.doc
MEMORANDUM
To: Stu Fonda, Director of Utilities
From : John Bock, Utilities Manager of Administration ~
Date: December 3, 2010
Subject: Jerry Furman Water Investigation
On November 16th, 2010, Field Service Technicians from the Wa t er Department went to the
Marks Apartments at 1715 E. Girard Ave ., Jerry Furman's apartment complex, to investigate Mr.
Furman's water quality complaints. The Technicians were able to obtain samples from the club
house, a nearby fire hydrant and from inside Mr. Furman's apartment. Two samples were
taken at each location, one was sent to the lab at the Allan Plant for testing and one was
brought back to Civic Center for taste a comparison . Allen Plant personnel also obtained a
sample that was sent to the lab at the Denver Water Department for bacteriological testing.
The lab tests that came back from both the Allan Plant lab and the Denver Water Department
lab indicated the water to be safe, meeting all State and Federal standards.
Five members of the Utilities Department staff compared the taste of the three samples and
found them to be identically good. No taste or odor anomalies could be detected.
COUNCIL COMMUNICATION
Date Agenda Item Subject
February 22, 2011
INITIATED BY
Utilities Department
Greenwood Village
Sanitation District
Wastewater Connector's
Agreement
STAFF SOURCE
Stewart H. Fonda, Director of Utilities
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
City Council approved a standard Sanitary Sewer Connector's Agreement in January, 1988.
RECOMMENDED ACTION
At their January 11, 2011 meeting the Englewood Water and Sewer Board recommended
Council approval of the Greenwood Village Sanitation District Wast ewater Connector's
Agreement.
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
Sanitary sewer service is provided to districts outside of the Englewood corporate boundaries
through the standard connector's agreement. The Littleton/Englewood Wastewater Treatment
Plant is able to receive and treat sewage transmitted by various districts. The attached
agreement addresses this service with the district that owns and maintains the sewer mains.
In the Greenwood Village Sanitation District there are 424 taps. The Greenwood Village
Sanitation District Sanitation District will continue to own the lines and will be responsible for
capital improvements in its system. The attached map shows the Greenwood Village
Sanitation District.
The City Attorney's office has reviewed and approved the standard Connector's Agreement.
FINANCIAL IMPACT
None.
LIST OF ATTACHMENTS
Resolution
Greenwood Village Sanitation District Wastewater Connector's Agreement
Map
Connectors Agr -South Arapahoe San . Dist.doc
COUNCIL COMMUNICATION
Date Agenda Item Subject
February 22, 2011
INITIATED BY
Utilities Department
G reenwood Village
Sanitation District
Wastewater Connector's
Agreement
STAFF SOURCE
Stewart H. Fonda , Director of Utilities
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
City Council approved a standard Sanitary Sewer Connector's Agreement in January, 1988.
RECOMMENDED ACTION
At their January 11 , 2011 meeting the Englewood Water and Sewe r Board recommended
Council approval of the Greenwood Village Sanitation District Wastewater Connector's
Agreement.
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
Sanitary sewer service is provided to districts outside of the Englewood corporate boundaries
through the standard connector's agreement. The Littleton/Englewood Wastewater Treatment
Plant is able to receive and treat sewage transmitted by various districts. The attached
agreement addresses this service with the district that owns and maintains the sewer mains.
In the Greenwood Village Sanitation District there are 424 taps. The Greenwood Village
Sanitation District Sanitation District will continue to own the li nes and will be responsible for
capital improvements in its system. The attached map shows the Greenwood Village
Sanitation District.
The City Attorney's office has reviewed and approved the standard Connector's Agreement.
FINANCIAL IMPACT
None.
LIST OF ATTACHMENTS
Resolution
Greenwood Village Sanitation District Wastewater Connector's Agreement
Map
Connectors Agr -South Arapahoe San . Dist.doc
WASTEWATER
CONNECTOR'S AGREEMENT
For Districts
Sewer Contract No. ___ _
-K'~MENT, made and enteced ;nto th;s /.,* day of -~~~~-~---'20/D tobeeffectiveasof~ lg ,20/0;byand
between the CITY OF ENGLEWOOD, COLORADO, a municipal corporation, hereinafter
referred to as ''City," acting by and through its duly elected, qualified and authorized Mayor and
City Clerk, and GREENWOOD VILLAGE GENERAL Ilvl:PROVEMENT DISTRICT NO. 1, a
quasi-municipal corporation and political subdivision of the State of Colorado (District),
hereinafter called "District," acting by and through its authorized Representative.
\VITNESSETH
WHEREAS, the City owns and operates a sewage system, including a sewage treatment plant
which is jointly owned and operated with the City of Littleton, so situated physically as to be
able to receive and treat the sewage from a designated area served by the District and gathered by
the District's sanitary-sewage system: and
WHEREAS, it is the desire of the District to utilize the facilities owned by the City for the
treatment of sewage and the City is wi llin g to serve the District for treatment of sewage w1der
ce11ain conditions;
NOW, THEREFORE, IN CONSIDERATION of the promises and for other good and
valuable consideration her.einafter set fo11h, it is mutually agreed by the pa11ies as follows :
1. The City hereby agrees under the conditions hereinafter set fo r th , to treat the sewage
originating from the District's sanitary sewer system within the area served by the
District as approved by the City and as indicated in the description attached hereto.
incorporated herein and marked as ''Exhibit A."
The District specifically agrees to prevent sewage from an y area other than that
described herein, from being discharged into the District's sanitary sewage system
c01rnected to the City's trunk line and to prevent connections to the system from or in
any area other than those described herein.
2 . In the operation of the District's sanitary sewer system, the District agrees that all
applicab le Code provisions and rules and regulations of the City, including amendments
thereto during the term of the contract, shall be the minimum standards for the District 's
system. The District further agrees to abide by all applicable s tate and federal laws.
rules, regulations, or pennits, including those of the Environmental Protection Agency
(the EPA) as they become effective or implemented or upon notice from the City. The
District shall infonn all users, contractors and subcontractors o f such standards, rules and
regulations upon inquiry from such persons, and shall nor furnish any infom1ation
inconsistent therewith . In this regard, it shall be the responsibi lity of the District to
obtain the applicable requirements from the appropriate governing body . The City shall
attempt to maintain and provide information on all requirement s to the District; however,
1
the City does not guarantee the accuracy or completeness of government regulations
other than the City's own regulations.
3. Regarding the provision of sewer service, the City's pennitti ng requirements shall be
followed by the District and its users. All sewer plans, specifications and methods of
work within the District shall be submitted to the City in writ ing and approved by the
City prior to any construction or tap in the District's designat ed area. No pennit shall be
final and no service shall be provided to property until construction is approved, in
writing by the City.
4. The District shall be responsible for the proper maintenance of its sewer system and shall
rectify any problems or conditions which have been detennin ed by the District or the
City to be detrimental to the City's treatment process or system. Should the City
detennine that any discharge enters the sewer system contrary to applicable laws,
ordinances, statutes, rules, regulations or perm.its, the District agrees to proceed at once
to take whatever lawful means may be necessary to rectify any such problem or
condition.
5 . The City shall have the right to allocate service under this Contract, and the City may
deny additional service for any utility-related reason, but in no event will the City
tenninate or refuse any service without cause. The City shall have the right to disconnect
service to any area arnJexed to the District when such annexat ion takes place without
prior written City approval.
Within one year of this agreement, the District shall provide the City with an estimate of
the number of equivalent service taps needed for the next five (5) years under cuffent
zoning and plarmed build out in the District's area as shown on Exhibit A. The District
shall monitor zoning changes within its area to estimate its tap requirements and provide
the City with notice of tap requirement. for the next five (5) year period of time in a fom1
satisfactory to the City. Notice of these requirements shall be given to the City on each
anniversary date of this Agreement.
6. The City may impose and collect reasonable fees, tolls and charges, which shall be
unifonn as to all outside-City users for the services provided by the City under this
Connector's Agreement.
The City shall bill the District users directly for all applicable City charges for services
rendered under this Agreement. Should any user not pay the City, the City shall bill the
District and the District shall pay the amount due to City within forty-five (45) days of
such billing. These charges are subject to adjustment by the City from time to time .
When such adjustment to these charges are made, the City sha ll give the District fo1ty-
five ( 45) days advance written notice.
7 . Subject to the tenns of the Taxpayer's Bill of Rights (TABOR), the tern1 of this
Agreement is for a period of three (3) years from the date of execution and automatically
renewed for six (6) subsequent three (3) year periods w1less ei ther pa1ty gives a
minimwn of six (6) months written notice, during which time the District agrees that all
effluent produced from taps within the District shall not be in violation of any federal,
state or City laws, rules or regulations. or any other applicable governmental regulations
or the pennits w1der which the City operates its sewage treatment system . The City
2
agrees, during the term hereof, to treat said effluent and to maintain adequate facilities
for treating the same.
8. The District agrees that it will maintain, at its own expense, all lines now owned and
operated by the District, it being specifically agreed that the City assumes no
responsibility should any of the District's lines become clogged, damaged, or require
maintenance. The District shall. if it deems necessary, notify its users of the District's
procedure to remedy service disruption.
9. The City is providing only sewage treatment service and, pursuant thereto; pemlits
incidental to the use of the City's sewage lines shall be governed only by this individual
Contract with the District and the City does not, by this Contract, offer treatment service
except in strict accordance with the tenns hereof. This Contract does not offer, and shall
not be construed as offering, sewage treatment service to the public generally or to any
area outside the limits of the District's service area described in Exhibit A.
10 . This Contract may not be assigned, sold or transferred by the District without the City's
written consent.
11. Should any federal law, rule, pernlit or regulation or should a decree or order of a court
render void or unenforceable any provision of th.is Contract. in whole or in part , the
remainder shall remain in full force and effect.
12. The District shall enforce this Agreement and each of its tenns and conditions within the
area described in "Exhibit A.'' The District shall refuse to serve a user or potential user;
disconnect the service of any user pursuant to appropriate law ; or take other appropriate
action in the event of:
a. Nonpayment of such user of any charge made by the Ci ty for services;
b. Any violation or noncompliance by such user with the terms of th.is Agreement;
c . Violation or noncompliance by such user with the applicable laws, rules, pennits
or regulations of the City, the United States government , including the EPA, the
State of Colorado, including the Department of Health, or other law, rule, pemlit or
applicable regulation.
13. Continued breach of this Agreement by the District and/or its users shall be considered
cause for the City to tenninate this Agreement. Should the District fail to promptly
rectify a breach of any provisions identified herein, after notice thereof, the City may
take such steps and do such work as it deems necessary to enforce this Agreement ,
including litigation and specifically a right to injunction or specific perfonnance against
the District or any of its users as is necessary to protect the City's system and operations .
The prevailing party shall be entitled to expenses and costs of suit, including attorney
fees.
14. Should more than one district be connected to a sewer line , all districts on the sewer line
who are in breach of th.is Agreement shall be jointly and severally liable for any such
breach of this Agreement and each such district shall immediately, after notice, rectify
3
any problem or condition det1imental to the treatment process arising within its legal
boundaries . When more than one district is connected to a sewer line, and the City
discovers any violation of the terms of this connector's agreement; the City shall not be
required to prove which district is at fault but shall make available to all such affected
districts all infonnation developed or accumulated by the City pertaining to such breach .
Nothing contained herein shall preclude a claim for indemnity or contribution by any
District against another District connected to a common sewer line . CRS-13-21-11 I .5
shall govem the percentage of liability of any district on a common sewer line in the
event the City seeks to impose liability based upon negligence or fault.
15. This Contract shall not be used as a legal defense or prohibition to the mandatory
consolidation of facilities by either party as may be required by the laws of the State of
Colorado of all existing sewer collection systems and facilities to a governmental entity
created to assume responsibility for sewer service in the area in which both the City and
State are a part under statutory or constitutional authority .
CITY OF ENGLEWOOD, COLORADO
James K. Woodward. Mayor
ATTEST:
Loucrishia A. Ellis, City Clerk
GREENWOOD VILLAGE GENERAL IMPROVEMENT DISTRICT NO. 1,
a quasi-municipal corporation and political subdivision of the State of Colorado (District)
APPROVED AS TO FORM:
T~~ttomey
4
BELLEVIEW AVE
GREENWOOD VILLAGE DIS1RICT
._ ____ ..,.._ .. ORCHARD RO
c ao
> I-
a::
LIJ
>
z
=>
COUNCIL COMMUNICATION
Date Agenda Item Subject
February 22, 2011
INITIATED BY
Utilities Department
South Arapahoe Sanitation
Dis t rict Wastewater
Connector's Agreement
STAFF SOURCE
Stewart H. Fonda, Di rector of Utilities
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
City Council approved a standard Sanitary Sewer Connector's Agreement in January, 1988.
RECOMMENDED ACTION
At their January 11, 2011 meeting the Englewood Water and Sewer Board recommended
Council approval of the South Arapahoe Sanitation District Wastewat er Connector's
Agreement.
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
Sanitary sewer service is provided to districts outside of the Englewood corporate boundaries
through the standard connector's agreement. The Littleton/Englewood Wastewater Treatment
Plant is able to receive and treat sewage transmitted by various districts. The attached
agreement addresses this service with the district that owns and maintains the sewer mains.
In the South Arapahoe Sanitation District there are 9,750 taps. The South Arapahoe
Sanitation District will continue to own the lines and will be responsib le for capital
improvements in its system . The attached map shows the South Arapahoe Sanitation District.
The City Attorney's office has reviewed and approved the standard Connector's Agreement.
FINANCIAL IMPACT
None.
LIST OF ATTACHMENTS
Resolution
South Arapahoe Sanitation District Wastewater Connector's Agreement
Map
Connectors Agr -South A rapahoe San . Dist.doc
Date
February 22, 2011
INITIATED BY
Utilities Department
COUNCIL COMMUNICATION
Agenda Item Subject
South Arapahoe Sanitation
District Wastewater
Connector's Agreement
STAFF SOURCE
Stewart H. Fonda, Director of Utilities
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
City Council approved a st andard Sanitary Sewer Connector's Agreement in January, 1988.
RECOMMENDED ACTION
At their January 11, 2011 meeting the Englewood Water and Sewer Board recommended
Council approval of the South Arapahoe Sanitation District Wastewater Connector's
Agreement.
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
Sanitary sewer service is provided to districts outside of the Englewood corporate boundaries
through the standard connector's agreement. The Littleton/Englewood Wastewater Treatment
Plant is able to receive and treat sewage transmitted by various districts. The attached
agreement addresses this service with the district that owns and maintains the sewer mains.
In the South Arapahoe Sanitation District there are 9,750 taps. The South Arapahoe
Sanitation District will continue to own the lines and will be responsible for capital
improvements in its system. The attached map shows the South Arapahoe Sanitation District.
The City Attorney's office has reviewed and approved the standard Connector's Agreement.
FINANCIAL IMPACT
None.
LIST OF ATTACHMENTS
Resolution
South Arapahoe Sanitation District Wastewater Connector's Agreement
Map
Connectors Agr -South Arapahoe San . Dist.doc
WASTEWATER
CONNECTOR 'S AGREEMENT
For Districts
Sewer Contract No.
THIS AGREEMENT, made and entered into this day of
----
_________ , 20 __ to be effective as of , 20 _; by and
between the CITY OF ENGLEWOOD , COLORADO, a municipal corporation, hereinafter
referred to as "City," acting by and through its duly elected, qualified and authorized Mayor and
City Clerk, and the SOUTH ARAPAHOE SANITATION DISTRICT, a quasi-municipal
corporation and subdivision of the State of Colorado, hereinafter called "District," acting by and
through its authorized Representative.
WTI'NESSETH
WHEREAS, the City owns and operates a sewage system, including a sewage treatment plant
which is jointly owned and operated with the City of Littleton, so situated physically as to be
able to receive and treat the sewage from a designated area served by the District and gathered by
the District's sanitary-sewage system; and
WHEREAS , it is the desire of the District to utilize the facilities owned by the City for the
treatment of sewage and the City is willing to serve the District for treatment of sewage under
certain conditions ;
NOW, THEREFORE, IN CONSIDERATION of the promises and for other good and
valuable consideration hereinafter set forth, it is mutually agreed by the parties as follows:
1. The City hereby agrees under the conditions hereinafter set forth, to treat the sewage
originating from the District 's sanitary sewer system within the area served by the
District as approved by the City and as indicated in the description attached hereto,
incorporated herein and marked as "Exhibit A."
The District specifically agrees to prevent sewage from any area other than that
described herein, from being discharged into the District's sanitary sewage system
connected to the City 's trunk line and to prevent connections to the system from or in
any area other than those described herein.
2. In the operation of the District's sanitary sewer system, the Di stri ct agrees that all
applicable Code provisions and rules and regulations of the City , including amendments
thereto during the term of the contract, shall be the minimum standards fo r the District 's
system. The District further agrees to abide by all applicable stat e and federal laws,
rules , regulations , or permits, including those of the Environmental Protection Agency
(the EPA) as they become effective or implemented or upon n otice from the City. The
District shall inform all users , contractors and subcontractors of such standards, rules and
regulations upon inquiry from such persons , and shall not furnish any information
inconsistent therewith. In this regard, it shall be the responsibility of the District to
obtain the applicable requirements from the appropriate governing body. The City shall
attempt to maintain and provide information on all requirements to the District; however,
1
the City does not guarantee the accuracy or completeness of government regulations
other than the City's own regulations.
3. Regarding the provision of sewer service, the City's permitting requirements shall be
followed by the District and its users. All sewer plans, specifications and methods of
work within the District shall be submitted to the City in writing and approved by the
City prior to any construction or tap in the District's designated area. No permit shall be
final and no service shall be provided to property until construction is approved, in
writing by the City.
4 . The District shall be responsible for the proper maintenance of its sewer system and shall
rectify any problems or conditions which have been determined by the District or the
City to be detrimental to the City's treatment process or system. Should the City
determine that any discharge enters the sewer system contrary to applicable laws,
ordinances, statutes, rules, regulations or permits, the District agrees to proceed at once
to take whatever lawful means may be necessary to rectify any such problem or
condition.
5. The City shall have the right to allocate service under this Contract, and the City may
deny additional service for any utility-related reason, but in no event will the City
terminate or refuse any service without cause. The City shall have the right to disconnect
service to any area annexed to the District when such annexation takes place without
prior written City approval.
Within one year of this agreement, the District shall provide the City with an estimate of
the number of equivalent service taps needed for the next five (5) years under current
zoning and planned build out in the District's area as shown on Exhibit A. The District
shall monitor zoning changes within its area to estimate its tap requirements and provide
the City with notice of tap requirement for the next five (5) year period of time in a form
satisfactory to the City. Notice of these requirements shall be given to the City on each
anniversary date of this Agreement.
6. The City may impose and collect reasonable fees, tolls and charges, which shall be
uniform as to all outside-City users for the services provided by the City under this
Connector's Agreement.
The City shall bill the District users directly for all applicable City charges for services
rendered under this Agreement. Should any user not pay the City, the City shall bill the
District and the District shall pay the amount due to City within forty-five ( 45) days of
such billing. These charges are subject to adjustment by the City from time to time.
When such adjustment to these charges are made, the City shall give the District forty-
five ( 45) days advance written notice.
7 . Subject to the terms of the Taxpayer's Bill of Rights (TABOR), the term ofthis
Agreement is for a period of three (3) years from the date of execution and automatically
renewed for six (6) subsequent three (3) year periods unless either party gives a
minimum of six ( 6) months written notice, during which time the District agrees that all
effluent produced from taps within the District shall not be in violation of any federal,
state or City laws , rules or regulations, or any other applicable governmental regulations
or the permits under which the City operates its sewage treatment system. The City
2
agrees, during the term hereof, to treat said effluent and to maintain adequate facilities
for treating the same.
8. The District agrees that it will maintain, at its own expense, all lines now owned and
operated by the District, it being specifically agreed that the City assumes no
responsibility should any of the District's lines become clogged, damaged, or require
maintenance. The District shall, if it deems necessary, notify its users of the District's
procedure to remedy service disruption.
9 . The City is providing only sewage treatment service and, pursuant thereto; permits
incidental to the use of the City 's sewage lines shall be governed only by this individual
Contract with the District and the City does not, by this Contract, offer treatment service
except in strict accordance with the terms hereof. This Contract does not offer, and shall
not be construed as offering, sewage treatment service to the public generally or to any
area outside the limits of the District's service area described in Exhibit A.
10 . This Contract may not be assigned, sold or transferred by the District without the City's
written consent.
11. Should any federal law, rule, permit or regulation or should a decree or order of a court
render void or unenforceable any provision of this Contract, in whole or in part, the
remainder shall remain in full force and effect.
12. The District shall enforce this Agreement and each of its terms and conditions within the
area described in "Exhibit A." The District shall refuse to serve a user or potential user;
disconnect the service of any user pursuant to appropriate law; or take other appropriate
action in the event of:
a. Nonpayment of such user of any charge made by the City for services;
b. Any violation or noncompliance by such user with the terms of this Agreement;
c . Violation or noncompliance by such user with the applicable laws, rules, permits
or regulations of the City, the United States government, including the EPA, the
State of Colorado, including the Department of Health, or other law, rule, permit or
applicable regulation.
13. Continued breach of this Agreement by the District and/or its users shall be considered
cause for the City to terminate this Agreement. Should the District fail to promptly
rectify a breach of any provisions identified herein, after notice thereof, the City may
take such steps and do such work as it deems necessary to enforce this Agreement,
including litigation and specifically a right to injunction or specific performance against
the District or any of its users as is necessary to protect the City's system and operations.
The prevailing party shall be entitled to expenses and costs of suit, including attorney
fees.
14. Should more than one district be connected to a sewer line, all districts on the sewer line
who are in breach of this Agreement shall be jointly and severally liable for any such
breach of this Agreement and each such district shall immediately, after notice, rectify
any problem or condition detrimental to the treatment process arising within its legal
boundaries. When more than one district is connected to a sewer line, and the City
3
discovers any violation of the terms ofthis connector's agreement; the City shall not be
required to prove which district is at fault but shall make available to all such affected
districts all information developed or accumulated by the City pertaining to such breach.
Nothing contained herein shall preclude a claim for indemnity or contribution by any
District against another District connected to a common sewer line . CRS-13-21-111.5
shall govern the percentage of liability of any district on a common sewer line in the
event the City seeks to impose liability based upon negligence or fault.
15 . This Contract shall not be used as a legal defense or prohibition to the mandatory
consolidation of facilities by either party as may be required by the laws of the State of
Colorado of all existing sewer collection systems and facilities to a governmental entity
created to assume responsibility for sewer service in the area in which both the City and
State are a part under statutory or constitutional authority.
CITY OF ENGLEWOOD, COLORADO
,Mayor
ATTEST:
, City Clerk
SOUTH ARAPAHOE SANITATIONDISTRICT
STATE OF COLORADO
COUNTY OF _____ _
, Chairman
)
) SS.
)
The foregoing instrument was acknowledged before me this __ day of _____ _
20~,by ___________ _
Witness my hand and official seal.
My Commission expires: ------
NOTARY PUBLIC
4
ORCHARD RD
COUNTY LINE RD
BERG HILL GREENLEAF & RUSCITTI LLP
ATTORNEYS & COUNSELORS AT L AW
1712 Pearl Street • Boulder, Colorado 80302
David G. Hill
Partner
Daniel L. Brotzman, Esq.
City of Englewood
1000 Englewood Parkway
Englewood, CO 80110-0110
Re: October Invoice
Dear Dan:
Tel: 303.402.1600 • Fax: 303.402.1601
bhgrlaw.com
November 5, 2010
_.,/ /\ ,\\.
I" , . I ..
()
I '·' ' . t ; . ..
/ -.
dgh@bhgrlaw.com
,·
. .:.,_i;',J
Enclosed please find our invoices for professional services on water matters for October 1,
2010 , through October 31, 2010, in the amount of $29,189.47, with a total for the year of
$388 ,639.40.
The amount for this billing cycle on major cases of particular significance is listed below:
I Name I Amount I No . I
FRICO (02CW404 and 03CW442) Change $ 10,094.73 504
Thornton-Aurora Effluent Trade (1OCWl49) 9,703.24 734
Aurora (07CW037) Brighton Ditch 1,823.00 698
Stu Fonda has asked us to provide brief descriptions of the reasons for Englewood's
involvement in all cases which appear on our bills each month, as we ll as a brief summary of the
. work performed by this firm during the month. The following paragraphs contain these descriptions
with respect to the matters reflected on the enclosed invoices:
Introduction. Please understand that this letter is a con fi dential attorney-client
communication. Please keep it confidential.
The largest bill for October concerns the apparent effort ofFRICO , United and East Cherry
Creek (the Applicants) to expand the Milton Reservoir diversions. Milton has a 1909 priority. It
is a very large off-channel reservoir located generally to the east of the town of Platteville, in an area
Daniel L. Brotzman
November 5, 2010
Page2
known as Beebe Draw. It is well downstream from Barr Lake. It fills fr o m two sources: first, the
Platte Valley Canal, which diverts from the river near Platteville. Second, it fills from the seepage
from Barr Lake and the return flows from irrigation in Beebe Draw. The seepage and return flows
enter Milton from the Beebe Canal, a man-made drainage ditch which ex tends north from Barr Lake
to Milton, and from the gravel alluvium underlying Beebe Draw.
FRICO, et al., propose to drill wells in Beebe Draw which will intercept th e historic flows
which have gone into Milton. The water from the wells will be used for m unicipal purposes. The
consequent elimination of the historic Beebe Draw flows into Milton will cause Milton to take more
water from the river, resulting in more calls against Englewood rights, either from Milton itself or
from other water rights which are shorted by the increased Milton draft.
It is doubtful that the Beebe Canal flows into Milton are part of the 1909 Milton right, and
the Milton farmers are at considerable risk that the Milton right will be cut back by the amount of
the Beebe Draw inflows, leaving the Milton right limited to what has hist orically been taken from
the river. That would be a disaster for the farmers.
With that fear of the Milton farmers in mind, we contacted the other opposer s and developed
a tentative settlement proposal under which objections to the new wells would be limited, and no
assertions would be made that the Milton right should be cut back, provided that Milton's draws
from the river would be limited to the historic amounts. At first the Applicants seemed quite
interested. But after discussions, the Applicants refused further discussions about limiting the
Milton draws on the river to the historic levels.
It seems apparent that the Applicants are determined to expand the amount which Milton
takes from the river, and that settlement efforts have collapsed, at least for the moment.
The case involves much more than Milton Reservoir. In toto, it is an elaborate "house of
cards" scheme to take water from Beebe Draw and the old 70 Ranch, near Kersey, by wells and
transfer the well water upstream to provide municipal water. There are numerous active opposers,
each tending to be interested in a particular aspect of the scheme, which has many, many aspects.
The case is now set for trial in the spring of 2011, and our expert reports are due soon. The opposers
may seek to postpone the trial, because Applfoants have changed their scheme and hence their
engineering reports in many different ways, very recently, causing big difficulties for the engineers
of the opposers.
We are trying to limit Englewood's efforts to the Beebe Draw/Milton problem, and hope
perhaps to resolve a number of those issues by pre-trial motions. Denver and Centennial are
Daniel L. Brotzman
November 5, 2010
Page 3
interested in that problem. Aurora, Central Colorado, Public Service Company, Bijou Irrigation
Company and others are actively challenging other aspects of the plan.
The second-largest bill is for continuing work on the efforts of Thornton, Metro Sewer and
Aurora to invalidate decrees and agreements Englewood obtained with Thornton a number of years
ago. The pro bl em is this: Thornton changed a number of ditch rights which divert from Clear Creek
from agricultural to municipal use . The historic return flows from agricultural use entered the South
Platte River (or Clear Creek) above the Fulton Ditch, the Brighton Ditch, and the Brantner Ditch.
Those ditches are among the most senior on the river. When they are unsatisfied, they can and
sometimes do call out Englewood's core rights. The historic agricultural return flows served to
reduce those calls.
In connection with Thornton's changes, Englewood obtained decree prov1s1ons and
agreements which required Thornton to treat sufficient wastewater at the present Metro Sewer plant
to make up the historic agricultural return flows with the effluent. That reproduces the reduction in
calls which once resulted from the agricultural return flows. If Thornton proposed to cease such
treatment at present Metro, Thornton was required to file a water court application and prove non-
injury from the proposed new treatment regime.
Thornton (and Metro) now desire that Thornton's effluent be treated at a new treatment plant
below Brighton, the outfall of which is below the Fulton, Brighton and Brantner ditches. That would
increase the calls from those ditches. However, Thornton, Aurora and Metro reached a compromise
whereby Aurora and Thornton would swap effluent and Aurora's effluent released at Metro would
make up Thornton's return flow requirements. Aurora would get a corresponding amount of
Thornton effluent at the new treatment plant. That is a good idea.
Unfortunately, it turns out that the Aurora/Thornton agreement is terminable at will by
Aurora and Thornton, and no third party can complain of the termination, and no water court
approval is required. That means Thornton and Aurora could terminate their deal, leaving no
replacement effluent in the river above the three ditches, and no one else could complain.
Thornton and Aurora filed a declaratory judgment action seeking approval of their
arrangement. The agreement and declaratory judgment action, in which Metro is also a plaintiff,
violate the decree provisions and agreements reached between Englewood and Thornton. We have
filed a motion to dismiss, with an accompanying brief, plaintiffs have responded, and our reply is
due shortly. Public Service, East Cherry Creek, Henrylyn and the State Engineer are also opposing
and have filed similar motions. Our case appears strong.
Daniel L. Brotzman
November 5, 2010
Page 4
The big problem is of course the ability of Thornton and Aurora to terminate at will, without
a water court proceeding, leaving the senior ditches to make more calls.
We have recently received a letter from Thornton's counsel informally proposing what may
work into a sensible settlement. In general, Thornton seems willing to concede that the agreement
could not be terminated without a water court proceeding and proof of non-injury. We will of course
actively pursue this. It is not clear to what extent Metro Sewer will go along. Metro Sewer seems
intent on eliminating all Water Court decrees which specify that wastewater treatment at a particular
location will be necessary to satisfy obligations to make historic return flows or to make exchanges.
But we will make every effort to get the matter settled.
The final case, which has a much smaller bill, concerns Aurora's change of Brighton Ditch
shares. At this point we are still working to correct what we perceive to be some errors in the
engineering and proposed decree. It is likely that the case will settle amicably.
The remainder of the cases are described below.
1. General (#001): This matter is our general file for work not attributable to specific
cases. In some instances, the work is not specific to a particular matter. In other instances, the time
spent on any individual matter is not large enough to justify a separate bill, but the time on the group
of matters is significant. This includes charges related to general calendaring, reviewing various
daily incoming pleadings and correspondence, overall case management and other activities that are
not case specific. It usually includes preparation of many statements of opposition.
2. Colorado Division of Wildlife (90CW123) (#215): Applicant seeks 75 acre-feet of
storage in Chatfield Reservoir for fish, wildlife and maintenance of storage reserve. It also seeks
augmentation and exchange rights for replacement of depletions the Chat field Fish Unit. Englewood
entered this case because ofits location and because it relates to the fish hatchery. We reviewed an
entry of appearance by Joanne Herlihy as counsel for Thornton.
3. Town of Castle Rock (92CW144) (#296): This case involves new water rights at
Denver's Strontia Springs Dam upstream from Englewood's Union Avenue Intake and extension
of a decreed augmentation plan. Englewood needs to make sure the proper accounting and priority
date are used in the new water rights and to monitor the augmentation plan. We reviewed order
granting new deadline to file amendment to application and discussed case status with our water
engineers and Applicant's counsel.
4. McDonald (92CW152 and 98CW347) (#297): This case involves an application for
direct flow and storage rights on unnamed tributaries of Plum Creek. Englewood's interest was to
BERG HILL GREENLEAF & RUSCITTI LLP
ATTORNEYS & COUNSELORS AT LAW
David G. Hill
Partner
Daniel L. Brotzman, Esq.
City of Englewood
1000 Englewood Parkway
Englewood, CO 80110-0110
Re: November Invoice
Dear Dan:
1712 Pearl Street • Boulder, Colorado 80302
Tel: 303.402.1600 • Fax: 303.402.1601
bhgrlaw.com
December 7, 2010
'~,'.
i .. /
;·-:---._... ·)
dgh@bhgrlaw.com
Enclosed please find our invoices for professional services on water matters for November 1,
2010, through November 30, 2010, in the amount of $26,990.90, with a total for the year of
$415,630.30.
The amount for this billing cycle on major cases of particular significance is listed below:
I Name I Amount I No. I
FRJCO (02CW404 and 03CW442) Change · $ 15 ,930.48 504
Thornton-Aurora Effluent Trade (1OCWl49) 7,837.59 734
Stu Fonda has asked us to provide brief descriptions of the reasons for Englewood's
involvement in all cases which appear on our bills each month, as well as a brief summary of the
work performed by this firm during the month. The following paragraphs contain these descriptions
with respect to the matters reflected on the enclosed invoices:
Introduction. Please understand that this letter is a confidential attorney-client
communication. Please keep it confidential.
In the interest of the budget, the bill has been reduced by $5 ,637.50 from standard hourly
rates.
Daniel L. Brotzman
December 7, 2010
Pagel
There are two large bills. The first is for the ongoing efforts of FRI CO and United Water and
Sanitation District, which is controlled by a speculator named Robert Lembke, to get more water
from the river for municipal purposes. The second is the ongoing dispute with Metro, Thornton and
Aurora over the effluent swap at Metro Sewer. I will discuss both below.
As to the FRI CO/United matter, settlement efforts continue. They will be discussed below.
Success is still problematic.
The FRI CO/United case is a highly complex scheme to pump large quantities of water which
is tributary to the river, which United will then sell to various entities far upstream, including East
Cherry Creek Valley WSD and the Arapahoe County Water and Wastewater Authority, among
others. The increased draft on the river, if allowed, will short a number of water users and cause
increased calls. Several aspects of the scheme are inadequate or unlawful, and it is so complex that
accounting and administration are practically impossible. It is an invitation to unlawful
over-diversion. It is also difficult to describe in a short letter, because the scheme reaches from the
river below Greeley upstream to Chatfield and thence upstream into Douglas County, and has
innumerable debatable aspects. There are 106 opposers in the case. The active opposers, as of now,
appear to be Englewood, Centennial, Denver, the Northern Colorado Water Conservancy District,
Bijou Irrigation Company, Central Colorado, Aurora, Henrylyn and Equus Farms (Phil Anschutz).
FRICO and Henrylyn, who are usually allies, appear to be in a serious fight with each other.
Englewood's first concern is that pumping from Beebe Draw upstream of Milton Reservoir
will reduce historic flows into Milton from Beebe Draw, and cause Milton to take more water from
the river itself. The increased Milton diversions will cause calls on Englewood's McLellan right,
which provides Englewood with essential soft water, and also provides water to sell to Centennial
Water and Sanitation District. Milton Reservoir has a capacity of roughly 26,000 acre feet and a
1909 priority date. It historically has received perhaps 5,000 to 7,000 acre feet of inflow from the
Beebe Canal, and another large amount from underground flows out of the Beebe Draw alluvium.
The amount of underground flows are still being calculated. However, historic diversions from the
river appear to have been around 14,000 acre feet per annum, and the balance of the fill (less
carryover) comes from Beebe Draw. The proposed pumping would reduce or eliminate those flows,
which would be made up, as noted, by increased diversions by Milton from the river.
We are trying to settle by isolating on the Milton expansion issue. Our leverage is that the
inflows into Milton from Beebe Draw are not decreed for Milton, so Milton has been taking
undecreed water for generations . The Milton shareholders are quite concerned that the Water Court
might find that Milton's lawful historic use is based only on the 14,000 which has been lawfully
taken from the river, leaving Milton with a great shortfall in lawful diversions with which to fill the
reservoir. In essence, we have proposed that the Milton diversions from the river.be capped at the
',
Daniel L. Brotzman
December 7, 2010
Page 3
historic level (about 14,000 alt), and that Milton will not call or divert at the Burlington Canal
headgate, (Milton is decreed to allow that, although it hasn't happened.) In return, Englewood and
a number of other opposers would agree that the historic Beebe Draw inflows into Milton will not
be challenged as being unlawful. If we can get out on that basis, it would be a good thing. A number
of the active objectors have verbally expressed tentative agreement.
At first, FRI CO and the other Applicants would not even respond to our proposal. However,
they have recently expressed interest and wish to reopen discussions. They say th at the key to the
proposed settlement would be an okay from the State Engineer, and that there is little point in
discussions unless the State Engineer will go along. So we have recently sent an outline of our
proposal to counsel for the State Engineer (who is active in the case). In a phone conversation, the
lawyer for the State Engineer, Chad Wallace, expressed interest. He is discussing the proposal with
his people. We have not heard back from him yet. (That is not a reason to be discouraged; the State
Engineer bureaucracy moves slowly.)
In more detail, the essence of the proposed scheme is a follows. FRI CO/United and the other
Applicants (Applicants) will make a 2002 appropriation of the flows which have historically gone
from Beebe Draw into Milton Reservoir, thus apparently withdrawing them by pumping. In addition
Applicants will make a 2002 appropriation from the river, in a very large amount (100,000 alt). This
appropriation will very seldom be satisfied, if ever. It would take a major floo d to fill the whole
amoUJJ.t. However, small amounts would be available during runoff in wet years, and sometimes
during strong summer thunderstorm occurrences. The water from the 2002 appropriations would
be put into recharge ponds in the upper part of Beebe Draw. The water would perc olate slowly into
the Beebe Draw alluvium, and move slowly downhill in Beebe Draw, towards the river. Applicants
contend that the water so introduced into Beebe Draw is in "transient groundwater storage".
Applicants then propose to pump out the water so stored, at its then-current location, and use it for
municipal purposes, or alternatively, ifit is about to escape to the river, pump it into recharge ponds
lower down in Beebe Draw, whence it will again percolate slowly into transient groundwater storage
and thus be saved from escaping to the river.
It is not clear whether "transient groundwater storage" is legally acceptable. However, if it
is, the Applicants must be able to locate, quantify and account for the stored water and its withdrawal
at all times. They must also be able to determine and account for the reservoir capacity (i .e., the
initial capacity and the unused capacity in the alluvium). Finally, Applicants have suggested that
they will preserve at least some of the historic flows into Milton (although that suggestion is very
vague). Applicants propose to locate and account for the stored water, and the preservation of flows
to Milton (if that is to be achieved) by a computer model. The model is thoroughly inadequate for
the proposed task, and cannot locate or quantify the water, according to Martin and Wood and the
engineers for other opposers. Applicants do not propose test wells or monitoring wells to validate
' .
Daniel L. Brotzman
December 7, 2010
Page4
the location and amount of the water as determined by the computer model. They simply propose
to pump whenever and wherever the inadequate model says they have water. Nor have the
Applicants adequately determined the storage capacity of the aquifer, the unused portion thereof,
how much water will escape , or how much the reservoir capacity wou ld be reduced by heavy
precipitation which infiltrates into the alluvium. Finally, they have not described the capacity level
at which unacceptable flooding or saturation of the surface will occur.
To add to the complexities, Applicants have proposed the same process for an area called 70
Ranch, which straddles the river below the confluence of Beebe Draw and the river. Applicants
propose to put water into storage there , from the 2002 application and from changed rights in the
Illinois Ditch, and "exchange" that water up to the wells in Beebe Draw above Milton, thus
expanding the amount they can pump out above Milton. That exchange is unlawful, and the same
computer modeling inadequacies apply.
In short, unless coristrained, Applicants will just do a great deal of pumping with no adequate
accounting, and increase Milton draws on the river.
There is more to the application. Applicants propose storage in n ew gravel pit reservoirs , and
exchanges upstream in order to get water to Douglas County. There are problems with both,
although they are not the present focus of our efforts.
We will push the settlement efforts, but we must file our expert reports by December 15, or
we will be unable to effectively appear at trial, which is set for next April.
The second large bill concerns the Aurora/Thornton effluent swap. If you will recall, in the
early 90' s Thornton changed a number of Clear Creek water rights from agricultural to municipal.
The historic return flows from agricultural use had flowed into the river above the Fulton Ditch and
other senior ditches in the Brighton area. Those ditches are sufficiently senior to call out
Englewood's rights, if the senior ditches are unsatisfied. The historic agricultural return flows
helped to eliminate those calls. As a part of the Thornton change decree s, Joe Tom Wood and I
negotiated provisions which required Thornton to replace the agricultural return flows with its
effluent from sewage treated at present Metro Sewer. Thornton and Metro Sewer now wish to treat
Thornton's effluent at a new Metro plant to be constructed below Brighton, so Thornton's effluent
would not go into the river above the senior ditches. For a time Thornton and Metro contemplated
construction of a pipe and pump stations to pump some of Thornton's effluent upstream and dump
it into the river above the Fulton Ditch. The cost was going to be horrendous, of course, and would
have been shared between Thornton and all the rest of the Metro members. So Thornton and Aurora
came up with a smart solution. Aurora will trade some of its effluent from present Metro for
Thornton's effluent from new Metro. That's a good idea.
Daniel L. Brotzman
December 7, 2010
Page 5
Unfortunately, in the process of reaching court approval, Thornton, Aurora and Metro have
filed a declaratory judgment action seeking to invalidate the Englewood/Thornton decree provisions
and related Englewood/Thornton agreements, and to invalidate all other decrees, anywhere, which
specify a location for wastewater treatment. There are a number of such decrees, some of which are
quite beneficial to Englewood, and Englewood negotiated hard for some of them. Based on
conversations at settlement meetings, I would say that Metro is behind that effort.
Thornton's counsel and I seem to be able to reach verbal agreement on allowing the effluent
trade . We have done so several times. Unfortunately, the "bullet point" outline of a settlement
which Thornton's counsel sent to us included, perhaps inadvertently, the Metro demand to invalidate
a number of decrees, including the Englewood/Thornton decree and agreements. That won't work.
I complained to Thornton's counsel, who has promised to send a detailed draft of a settlement
agreement which will not include those provisions. It has not yet arrived. The agreement would
require approval by Aurora and Metro. We will see if Thornton's counsel can get Metro (and
Aurora) to remove the troublesome provisions.
In the meantime, Englewood, Public Service, the State Engineer and others have filed
motions saying, in effect, that Metro can't invalidate all those decrees. There is good basis for the
motions. The motions are ready for a ruling from the Court, but no ruling has yet issued.
We hope to resolve this without further litigation. We will of course keep Dan Brotzman and
Stu Fonda posted on developments.
The remainder of the cases are described below.
1. General (#001): This matter is our general file for work not attributable to specific
cases. In some instances, the work is not specific to a particular matter. In other instances, the time
spent on any individual matter is not large enough to justify a separate bill, but the time on the group
of matters is significant. This includes charges related to general calendaring, reviewing various
daily incoming pleadings and correspondence, overall case management and other activities that are
not case specific. It usually includes preparation of many statements of opposit ion.
2. Town of Castle Rock (92CW144) (#296): This case involves new water rights at
Denver's Strontia Springs Dam upstream from Englewood's Union Avenue Intake and extension
of a decreed augmentation plan. Englewood needs to make sure the proper accounting and priority
date are used in the new water rights and to monitor the augmentation plan. We reviewed pleadings
regarding dismissing of certain claims and to file an amendment to the application.