HomeMy WebLinkAbout2006-09-05 (Regular) Meeting Agenda PacketRegular City Council Meeting
September 5, 2006
Ordinance #~4, 35, 36, 37, 38, 39
Resolution# ~76, 77, 78, 79, 80, 81, 82, 83
ENGLEWOOD CITY COUNCIL
ENGLEWOOD, ARAPAHOE COUNTY, COLORADO
Regular Session
September 5, 2006
1 . Call to Order
The regular meeting of the Englewood City Council was called to order by Mayor Wolosyn at 7 :35 p.m .
2 . Invocation
The invocation was given by Council Member Barrentine.
3 . Pledge of Allegiance
The Pledge of Allegiance was led by Mayor Wolosyn.
4 . Roll Call
Present:
Absent:
Council Members Tomasso, Moore, Barrentine, Oakley, Mccaslin,
Woodward, Wolosyn
None
A quorum was present.
Also present: City Manager Sears
City Attorney Brotzman
Deputy City Manager Flaherty
City Clerk Ellis
Deputy City Clerk Bush
Director Olson, Safety Services
Court Administrator Wolfe
Senior Planner Langon , Community Development
Manager Stitt , Community Development
Director Black, Parks and Recreation
Parks Supervisor Kottwitz, Parks and Recreation
Police Sergeant Watson , Safety Services
Fire Division Operations Ch ief Pattarozzi , Safety Serv ices
Fire Batta li on Ch ief Fox , Safety Services
5 . Consideration of Minutes of Previous Session
(a ) COUNCIL MEMBER TOMASSO MOVED , AND IT WAS SECONDED , TO APPROVE THE
MINUTES OF THE REGULAR CITY COUNCIL MEETING OF AUGUST 21, 2006.
Motion carried .
Ayes : Counc il Members Barrent ine, Mccasl in , Wolosyn, Woodwa rd ,
Tomasso , Oakley
N ays : None
Ab stain : Counci l Membe r Moore
6 . Recogn ition of Scheduled Public Comment
(a) Englewood Safety Services Director Olson said what I would like to do first of all is ask that
Kraig Stovall , our Fire 01v1sion Training Chief, please step forward and join me up here. This is really an honor
for m to be able to pr ent Chief Stovall with what is called the Executive Fire Officer certification for the
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September 5, 2006
Page 2
National Fire Academy. This is a really important program ... it is a real distinct honor because of what is
involved ... which is , literally, four years of going back to the Fire Academy for two weeks at a time to a graduate
level course back there and then after each one of these classes, he is required to , basically , do a thes is ... a
report , a very extensive report ... which is reviewed by some pretty high level people in academia to see whether
he passes those courses or not. So , it is a very extensive four year program and very difficult to achieve . Pr ior
to Chief Stovall gaining this, there was only one other person in the City of Englewood 's Fire Department history
who has achieved this and that was myself, about 13 years ago . I just looked at his certificate here , which I am
going to grab . Now my certificate was about one third the size of this , so they have really improved the
program . Then again my program only lasted three years . There are very few people in the State , let alone the
Country, that have actually achieved this program , because it is very selective to get into it. And, Kraig literally
did a fantastic job and got excellent grades on all of his reports and as usual , did a very thorough job of
achieving this very select award that he has received . So, again, this is a very select group throughout the
country, of Executive Fire Officers ... a high level of achievement. I would like to read what the certification
states ... mine you can hardly read, but this one is a little more readable . It says, "From the United States Fire
Administration National Fire Academy" ... and this is under now the Department of Homeland Security and
FEMA, so it is just evolved under many different groups ... but "in recognition of successful completion of the
requisite courses of study and applied research projects, the National Fire Academy under the authority granted
by the 93'd Congress of the United States of America and on recommendation of the faculty , confers the title of
Executive Fire Officer upon Kraig S. Stovall with all honors, privileges and responsibilities thereon" signed this
1 i h day of March, 2006 ." And it is signed by the Superintendent of the National Fire Academy and the
Administrator of the United States Fire Administration . So , I think from all of us and his fellow firefighters who
are out there and Kraig 's family out there as well , I th ink th is is a fantastic honor and we just wanted to do this in
front of Council , because this has not happened very often ... and actually this is the first time in front of Counc il
that th is award has been presented to one of our fine employees . He has been with the City now for 26 years
w ith many more to come . D irector Olson said so Kraig , congratulations . Chief Stovall sa id thank you .
Mayor Wolosyn sa id congratulations Kraig . There was applause .
Chief Stovall said I am kind of humbled to see all of my compatriots out here tonight and I just want to thank
them all for coming and for honoring me. I want to thank Director Olson and Division Chief Mike Pattarozzi and
also former Division Chief Kieth Lockwood who gave me their support and encouragement through this four
year process . I appreciate the honor that you have bestowed upon me tonight. It wouldn 't be fitt ing to accept
this honor without honoring my Lord and Savior Jesus Christ who gives me strength and all the abil ities that I do
have to do this job . I also want to thank my family , without whose support and encouragement I wouldn 't have
been able to accomplish th is task . And I want to thank you all for the pr iv ilege of serv ing th is community and
serv ing with these fine men and women as a member of the Fire Division of Englewood . I also want to take just
a moment to encou rage you in your c ircles of influence to support the National Fire Academy . Year by yea r
they seem to str ug gle for budgetary support and , in fact , many t imes they are slated for , bas ically , budgeta ry
execution, if you will, and for whatever opportunity you have to interact with our State Represe ntat ives and
Senators to encourage them to continue to fund this program . There is no finer education that we can send our
people back to get. .. and at virtually no cost other than just supplying food for two weeks for our people . They
provide our air fare , they provide our lodging and the training is free through some of the finest instructors and
trainers in the Fire Service in the country. So, again, it is a real privilege to be here before you . I am honored to
be able to receive this in front of you and it is an honor to serve you . Thank you .
Mayor Wolosyn said thank you . There was applause .
7 . Recogn ition of Un scheduled Publi c Comm ent
(a) Doug Cohn, a resident of Englewood , said you all are going to consider an emergency
ordinance amending Title 7, prohibiting residency of sex offenders . The vote on that is on a first reading tonight .
I read that over the weekend and I have some concerns . I completely agree with what this law in intended to
do , but there is a gaping hole that needs to be addressed before you put it into law. The law seems to be
directed at landlords and people getting ready to sell the ir houses, in addition to the people that you are actually
aiming at. I guess I have several quest ions . For the convicted sex offenders ... as they decide whether to come
to Englewood or not...landlords and people selling their houses ... how are we going to know whether these folks
Englewood City Council
September 5, 2006
Page3
are on the list? What d irections are you going to give us as landlords and home sellers? What are we expected
to do to not find ourselves in violation of the new law? What are our responsibilities as landlords and sellers?
Are we going to have any responsibility? When I looked at the map in the packet, it looks like there is about
three acres along the South Platte River that isn't covered by the ordinance and the homeless guys already
have that piece . So it looks like the whole rest of the City is going to be covered by the ordinance . I have a little
apartment house over on G irard and Grant and I am wondering , as I have prospective tenants , how am I going
to know whether these folks a re on a list any where? Do I call the Englewood police? Do I call the CBI for a
CBI check? Are you all going to incorporate in the ordinance , either the allowance for or the requirement, that
any prospective tenant bring with them an NCIC report as part of the application packet? I guess I am feeling ,
as a landlord, a little bit exposed here. If somebody ends up in one of my apartments who is from somewhere
else who neglected to check in with his probation officer, and he ends up in one of my apartments , what kind of
a liability do I have? All of these kinds of questions just aren't addressed in the ordinance at al l. What happens
if a tenant commits a crime while he is living in Englewood? What is my responsibility as a landlord to monitor
the activities of my tenants? What if the crime becomes known after the guy has moved in? One of the
problems, if a prospective tenant comes and I accept the money for the first months rent and then we discover
that he is one of the perpetrators, it is real hard for me to throw him out, with all the tenants rights these days, so
I've got a fellow in my apartment who is on the list and there is nothing I can do about it. I guess I am
concerned about these kinds of things that didn't seem to be at all addressed in the emergency ordinance that
you guys are considering tonight. I guess I would urge you, if the sellers of homes and landlords are not going
to have any responsibility ... you need to say that real clear ... and if we are going to have some responsib ility, it
would be real handy to know what those responsibilities are. Just one last point, in kind of the record keep ing of
the whole thing : the house next door to me is on the sex registered list as a house where a predator lives and
nine years ago there was a fellow who rented the basement for about six months who was convicted of being a
sexual predator. He rented it from the previous owner of the house. F ive years ago, a brand new fam ily moved
into the house and the house was st ill on the list and these folks are now getting an increasing amoun t of
harassment from folks who perceive that the people living there now have someth ing to do w ith this guy who
was there nine years ago and was there for six months . I guess my question to you in th is matter is ... what ca n
you all do to fix this record keeping problem that my neighbor has? And what can be done in the ordinance to
ensure that mistakes ... I'm not exactly sure if you would even call this a mistake and the guy was there n ine
years ago and he d id live there for six months ... but when the records are out of date , how are they go ing to be
cleaned up? I appreciate your time , thank you .
Mayor Wolosyn said thank you . Quest ions relat ive to the o rd inance w ill be addressed whe n we reach that
agenda item . Mr. Cohn said okay, thank you .
8 . Communications , Proclamations and Appointments
(a) A proc lamatio n designa t in g th e week of Septem be r 17 throu gh Septem ber 23, 2006 as
Constitution Week was considered .
COUNC IL MEMB ER WOO DWARD MOV ED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 8 (a) •
A PROCLAMAT ION D ES IG NATING THE W EEK OF SE PTE MB ER 17 T HRO UG H SEPTEMBER 23, 2006 AS
CONSTITUTION WE EK .
Mayor Wolosyn asked if there was any discussion .
Mayor Wolosyn said I chose to put this on the agenda, because I think that the United States has an elegant
and effective Constitution that we should all read from time to time and try, I think, to emulate when we ,
ourselves , make policy .
Vo te res ult s:
Mot ion carr ied .
Ayes : Council Members Barrentine , Mccaslin , Moore , Wolosyn , Woodward ,
Tomasso, Oakley
Nays : None
Englewood City Council
September 5, 2006
Page4
Mayor Wolosyn asked if there was anyone here to accept the proclamation . The re was no one . She said we
w ill see that it gets to the proper person . Thank you .
(b) A recommendation from the Englewood Municipal Court to adopt a resolut ion reappointing
Marcia O'Brien as an Associate Judge for the City of Englewood was considered .
COUNCIL MEMBER WOODWARD MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 8 (b) •
RESOLUTION NO. 75.
RESOLUTION NO. 75 , SERIES OF 2006
A RESOLUTION FOR REAPPOINTMENT OF MARCIA G. O'BRIEN , AS ASSOCIATE MUNICIPAL JUDGE
FOR THE CITY OF ENGLEWOOD, COLORADO .
Mayor Wolosyn asked if there was any discussion . There was none.
Vote results:
Motion carried .
Ayes : Council Members Barrentine , Mccaslin, Moore, Wolosyn, Woodward ,
Tomasso, Oakley
Nays : None
9 . Consent Agenda
(a) Approval of Ord inances on First Read ing
There were no additional items submitted for approval on first reading . (See Agenda Item 11 (a).)
COUNCIL MEMBER WOODWARD MOVED, AND IT WAS SECONDED, TO APPROVE CONSENT AGENDA
ITEM 9 (b) (i).
(b) Approval of Ordinances on Second Read ing
(i) ORDINANCE NO . 33, SERIES OF 2006 (COUNCIL BILL NO . 32 , INTRODUCED BY
COUNCIL MEMBER WOODWARD)
AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT ENTITLED "AMENDED AND
R ESTAT ED WASTEWATER TRANSMISSION AGREEMEN T" BETWEEN SOUTH ARAPAHOE SANITATION
DISTRICT, THE BOARD OF COU NTY COMMISSI ON ERS OF T HE CO U NTY OF A RAPAHOE, SO UTHGATE
SANITATION DISTRICT, SOUTH ENGLEWOOD SAN ITATION DISTRICT NO . 1, WASTE MANAGEMENT OF
COLORADO , INC . AND THE CITY OF ENGLEWOOD , COLORADO .
Vote res ults:
Motion carr ied .
Ayes : Council Members Barrentine . Mccaslin, Moo re , W olosyn , Woodward ,
Tomasso , Oak ley
Nays : None
(c) Resolutions and Motions
There we re no add iti onal resolut ions or motions submitted for approval. (See Agenda Item 11 (c).)
10. Public Hearing Items
No public hearing was scheduled b efo re Co uncil.
Englewood City Council
September 5, 2006
Page 5
11 . Ordinances, Resolution and Motions
(a) Approval of Ordinances on First Reading
(i) City Attorney Brotzman presented a recommendat ion f rom the City Attorney 's Office to
adopt an emergency b ill for an ordinance approving regulations proh ibiting sexual predators and certa in sex
offenders from establishing residency near areas where children congregate . He said th is matter actually
began with Council , based on two issues ... one was a sexual predator that was going to be housed on
Broadway in a motel and the second issue was Greenwood Village passing a similar , but not exact , ord inance
restricting sexual predators residing in Greenwood Village . This ordinance addresses estab lishing a new
residence by a sexual predator or very, very specific categories of sexual offenders . Council's request was to
look at recidivism and the types of offenses that were comm itted by the sexual offender . I do want to thank
Chief Vandermee , Sergeant Englert and Kelly Mart in of the Safety Services Department that worked with me
on narrowing the categories down to the ones that you now see , which includes sexual predators, sexual
offenders convicted of a felony, sexual offenders that have multiple convictions or sexual offenders whose
offenses involve multiple victims . We tried to narrow this down to those offenders that Council wanted to look
at. In doing so, the measurements and the distances that we adopted really were aimed at a very severe type
of sexual offender. You are not seeing very many places , but the white areas on the map , that John Voboril in
Community Development did for us , doesn 't show very many locations that a person that has to reg ister under
this act, can live in Englewood . That is by design , because we are dealing with sexual predators and very
severe sexual offenders. These are not prostitutes , these are not indecent exposure cases ... these are very
severe cases . That is why you are seeing the distancing from schools and daycare centers, parks , etc . that
are listed in the ordinance . Th is is truly a imed at the sexual offender. Five days ties in w ith reg istration . A
sexual offender that is required to register has to do so within five days . They actually go to the Safety
Services Department. .. they actua ll y s it down and meet w ith a detect ive . If you pass th is , the detective w ill be
showing them , if they fall into one of these categories , what is acceptable or what is not. There is another
category, as Mr . Cohn has po inted out , that does address landlords , but you have to know that they are
requ ired to register and fall into one of those categories . We have a landlord in town that does that. They are
getting recommendations and referrals for sexual offenders . That group will have specific knowledge ,
because they are getting a specific recommendat ion . They would fall under this category and could fall awry
of this category , because they have specific knowledge of where that sexual offender is coming from . As to
regular landlords , this doesn 't apply . Now , you could get somebody who actually s igns up fo r an apartment
and then falls into one of these categories and the detective will then tell h im you may not live there ... he w ill
then be break ing the lease . Every lease that I have seen has a provision that allows for that very cont ingency .
Counc il Member Barrent ine sa id a cont ingency that if they a re breaking the law by liv ing there? Mr. Brotzman
sai d that if they would be breakin g the law, that the lea se is null a nd vo id . Ms . Ba rrent ine sa id co rrect and you
sai d w ith in fi ve days of them moving in t hat they have to go check? Mr. Brot z man said co rrect. Ms. Barrentine
said okay and could you point out in this, the other comment that you made, that it only says landlords who are
aware ... who have prior awareness . Where are you saying that that is covered? Mr. Brotzman said it is 7-3-3 -
B ... Mayor Wolosyn said it is on page 3 ... "with the knowledge that." Mr. Brotzman said there is a knowledge
requirement in there . Ms . Barrentine said thank you .
Mr. Brotzman said I do want to mention one thing . Currently Englewood has not established a walk-to-school
route . That could be established working with the schools . It w ill not be a prohibition until the City actually
adopts a walk-to-school route, so nobody can be in violation of that currently . There is also an unusual
provision ... well felons are an unusual provision in that certain felons ... Felony 2 is simply no longer there except
you could have been convicted of a Felony 2 so we kept that in place .
Mayor Wolosyn asked if there were anymore questions or discussion .
Council Member Woodward said I have one other question and I had talked to Dan about it in a different section
but under the ... center of page 1 ... where as children congregate more frequently without adult supervision at
schools , parks and playgrounds ... and I am just wondering , is that a place at schools where we could add "and
its designated bus stops" because we do have des ignated bus stops for schools . And that doesn 't get back into
the d ist ance requ irements , that is still part of the preamble part of it.
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September 5, 2006
Page 6
Attorney Brotzman said I believe bus stops are actually covered.
Mayor Wolosyn said yes, here it is "designated public or private school bus stops" ... under 7-3-4-C . Mr.
Brotzman said its actually ... 7-3-3-A and it is included in Private School/Bus Stop/Walk-To-School Route or
recreational trip .
Council Member Woodward said but we don't have a walk-to-school route yet. Mr. Brotzman said correct, but
public or private school bus stops would be included. Mr. Woodward said okay.
Council Member Woodward said the only other thing is ... my comment is that I know a lot of time was put into
this ordinance in reading all of the stuff that has been provided us over the last month regarding the court cases
in Little Rock, the Miami ordinance, the Greenwood Village ordinance, and the Indianapolis information, I think
within this ordinance you have really hit it. It is very specific. It appears to be based upon what I have read on
those other court cases ... that it meets the requirements for being specific and I think you have done a really
good job on it. Personally I am very pleased with it. Mr . Brotzman said thank you .
Council Member Moore said I was just going to comment on the landlord provision . Because I understand the
concern raised that you have to read this to realize that you don't have a responsibility as a landlord to do these
things and it is probably hard to write what you don't have to do. But at the same time, the provision is
necessary, because of the situation we've seen where there is a landlord that makes a habit of doing this . We
need to be able to stop it at the source . And, presumably when the law here is calling for knowledge, would the
burden be on us to prove that knowledge? Mr. Brotzman said absolutely. Mr. Moore said that is the key that
the burden of proof that the landlord has that knowledge, is going to be on the City or the prosecution and that
will allow us to deal with the situation that we need to deal with , but hopefully not creating undue hardships on
landlords just doing what they normally , rightfully do . I toyed with ... can we get rid of that clause altogether ... !
think it is necessary given the situation that we have already seen . That is my two cents .
Mayor Wolosyn asked if there were any other questions or comments . There were none .
Council Member Barrentine said I mean it still raises a question on how somebody would handle it in the
meantime ... you know if they find out...except if it is in the process , then somebody has committed a crime
during the time that they have been there . So, yeah, it is unfortunate that for one tenth of one percent of some
situation, that you have to try to put something like that in there to prevent the one situation that is going on , but
I don't see that it would cause any of the problems ... where there was a concern . Because, as you pointed out ,
they would have to know . And, any other situation after they are already in there, you already have a violation
of the lease so, I mean, I don 't think you have a problem . Okay ... thank you .
COUNCIL MEMBER WOODWARD MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (a)
(i) • COUNCIL BILL NO. 35.
COUNCIL BILL NO . 35, INTRODUCED BY COUNCIL MEMBER WOODWARD
A BILL FOR AN ORDINANCE AMENDING TITLE 7 , OF THE ENGLEWOOD MUNICIPAL CODE 2000, BY THE
ADDITION OF A NEW CHAPTER 3, PROHIBITING SEXUAL PREDATORS AND CERTAIN SEX OFFENDERS
FROM ESTABLISHING RESIDENCY NEAR AREAS WHERE CHILDREN CONGREGATE AND DECLARING
AN EMERGENCY.
Mayor Wolosyn asked if there was any more discussion . There was none.
Vote results :
Motion carried .
Ayes : Council Members Barrentine , Mccaslin, Moore , Wolosyn , Woodward ,
Tomasso, Oakley
Nays : None
Englewood City Council
September 5, 2006
Page 7
(b) Approval of Ordinances on Second Reading
There were no additional items submitted for approval on second read ing . (See Agenda Item 9 -Consent
Agenda .)
(c) Resolutions and Motions
(i) Senior Planner Langon presented a recommendation from the Community
Development Department to approve, by motion , a professional services agreement with Tacito Design, Inc . for
analysis and recommendations for potential sign code amendments . She said before you is a request to
approve by motion a professional services agreement with Tacito Design , Inc. in the amount of $19,400 .00 , for
review, analysis and recommendations of potential sign code amendments . This is funding that is coming from
existing Community Development 2006 budgeted Professional Services funds and this was discussed at the
August 7'h City Council meeting . It is part of the UDC Phase 2 rewrites and amendments, as we will work on
stand-alone sections of the Code. At that meeting, Director Simpson discussed the need for updates to the sign
code. Tacito Design will work w ith us to prepare recommendations for future amendments . She said if there
are any questions, I will be happy to address them .
Council Member Mccaslin said I've talked to a couple of businesses up at about 4400 South Broadway ... some
of the signs in one area exceed the limit, but now they can't do the same thing . Is this also going to address
existing conditions? Ms . Langon said we will probably address ... certainly new signs and then existing
signs ... that is one of the recommendations that Tacito would be look ing at as to what happens to signs that are
non-conforming or maybe some of the recommendat ions may be to increase the sign limits , so that some of
those business owners would be able to have the signs that were allowed years ago . But , that is all part of the
review and recommendat ion .
Mayor Wolosyn asked if there were any other questions . There were none .
COUNCIL MEMBER MOORE MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (c) (i) -
A PROFESSIONAL SERVICES AGREEMENT WITH T ACITO DESIGN, INC. FOR ANALYSIS AND
RECOMMENDATIONS FOR POTENTIAL SIGN CODE AMENDMENTS .
Mayor Wolosyn asked if there was any discuss ion . There was none.
Vote results:
Motion carried .
Ayes : Counc il Members Barrentine , Mccasl in , Moore , Wolo syn, Woodward ,
Tomasso , Oakle y
Nays : No ne
Mayor Wolosyn said thank you Tricia .
(ii) Director Black presented a recommendation from the Parks and Recreation Department
to approve, by motion, a contract with M ilestone Constructi on for the purchase and installation of a
manufactured pedestrian bridge in Cushing Park, in the amount of $74,890 .00 . He said if Council awards the
bid tonight, we will wait until after the first part of October before we install the bridge . Putting the abutment in
and the bridge requires that we drain the lake in Cushing Park and the lake provides irrigation for the Park . So ,
that is the reason we waited this long in the year before we awarded the bid and that is the reason we will wait
until after the first part of October ... until we drain the lake and blow out the irrigation system , before we start the
project.
Mayor Wolosyn said thank you Jerrell . Are there any questions?
Council Member Mccaslin said how long will this project take? Mr . Black said it should take about 30 days .
Mayo r Wolosyn asked if there were any other questions .
Englewood City Council
September 5, 2006
Pages
Council Member Woodward said what is the construction of the bridge? Mr. Black said well , the construction
really is the abutments . We had to reengineer the abutments there and then the bridge will go on and attach to
the abutments. The problem was that we had a crack in the abutments and then had to engineer the entire
abutment part there. Mr. Woodward said I guess what I meant was what kind of material w ill the actual bridge
be? Will it be a wood bridge going back across or will we have a concrete one? Mr. Black said Mark , do you
want to address that?
Parks Supervisor Kottwitz said the answer to the question is that it is made out of steel and the floor will be
made out of concrete. Mr. Woodward said okay.
Mayor Wolosyn said thank you , are there any other questions . There were none.
COUNCIL MEMBER WOODWARD MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (c)
(ii) • A CONTRACT WITH MILESTONE CONSTRUCTION FOR THE PURCHASE AND INSTALLATION OF A
MANUFACTURED PEDESTRIAN BRIDGE IN CUSHING PARK , IN THE AMOUNT OF $74,890.00.
Mayor Wolosyn asked if there was any further discussion . There was none.
Vote results:
Motion carried .
Ayes : Council Members Barrentine , Mccaslin , Moore , Wolosyn , Woodward,
Tomasso , Oakley
Nays : None
Mayor Wolosyn sa id thanks Jerrell. Mr. Black said thank you very much .
12 . General Discussion
(a) Mayor's Choice
(i) Mayor Wolosyn said I don 't know if we all had th is in our packet. .. on the Urban Land
Institute . The ir Fall conference is going to be in Denver this year and it is one of those conferences that have
top ics that are all provocative and really are related to what we do in Englewood . We are very urban . S ince it
doesn 't requ ire any travel and I have been told it is $500 .00 for j ust reg istering ... I would li ke to attend . We have
money in the budget and I encourage anybody else , if they have the time, to go and do it. However, since I
don 't have th is written up and I still don 't have the exact amount , I'm wonderi ng if in two weeks it will still be time
enough to register. Ci ty Manager Sears said yo u co uld b ring it forward on the 181
h. Mayor Wolosyn said I will
just bring it forward on the 181h.
(ii) Mayor Wolosyn said Bishop Elementary is celebrating its 501
h Birthday on the 161
h of
September. I think the granddaughter of Mr. Bishop is going to be in town from North Carolina and we were all
issued an invitation . However, I was talking to Lin da a nd I said I think it would be nice if we could have a
proclamation honoring 50 years of B ish op a nd she wrote up some w hereas clauses for me and if Co uncil
agrees , I would like to bri ng it forward at our next meeting on the 181
h . Then they can read that at the party on
the 161
h . I think it is a nice thing to do . If I don't hear any objections , I am going to go ahead .
(iii) Mayor Wolosyn said I would like to thank Gary for getting that letter off to Cal Marsella
about the Art shuttle and the possibility of keeping it going . We don 't have a contractual agreement , but there is
certainly ... in the letter that is on the flip side ... enough of a commitment from RTD , that I think it is great that we
are follow ing up on it now.
(iv)
Englewood Days .
Mayor Wolosyn said we will all be there next Saturday ... th is coming Saturday ... down at
(b) Council Members' Choice
Englewood City Council
September 5, 2006
Page9
(i) Council Member Barrentine sa id we d id have our final meeting fo r the Englewood Days
today , before the b ig event on Saturday. Hopefully, the weather will hold ou t. Doug has already gotten
assurance ... he said at the meeting that the weather will be fine for that day. Again, I can 't state enough ... not
only from Englewood all the way up and down South Broadway , but also Sheridan bus inesses and a lot of
Littleton businesses have ch imed in and supported th is. I am just so impressed w ith the citizens in the
commun ity coming forward and really supporting th is. There are a lot of people doing a lot of work for this . And
to have a celebration afterwards , we are having a little celebration at my house at 5 o'clock after the event and
everybody is welcome to come. A community event and a community celebration of what we have
accomplished . I hope it is successful and hope we have a fun time . Doug, I am amazed that you 've got that
much time and you are checking out our ordinances too. I am impressed . You just need a little bit more to do .
We will never keep you busy enough if we haven 't been able to do it to this point ... we certainly won 't. Thank
you very much for all the hard work that you have done . It is greatly appreciated .
(ii) Council Member Mccaslin said I would just like to thank you for bringing up the Bishop
birthday. My wife has put a lot of time into this and I think it helps spur that relationship that we talked about
with the City and Council and the School District. If we support their programs , they can kind of rec iprocate at
times . So , thank you for the Proclamation and everything .
Mayor Wolosyn said I think that is a nice way to honor that community also .
(iii) Council Member Tomasso said I attended the fi rst BID meeting last week . Ted Vasilas
was elected President, Rick Reese was elected Secretary , and Bob Laughlin was elected the Treasurer . I th ink
Bob Voth is the V ice -Pres iden t. It was just one of those beg inn ing meetings, where they all got together , sat
down and worked out all the details and signed all the papers .
(iv) Council Membe r Woodward :
1. He said first I would like to congratulate Joan Weber. We received in our packet last week recognition
of an award she rece ived . Joan Weber, from our Human Resources Department, received a State Blue Ribbon
Commission award for health care reform from the State of Colorado and signed by the Governor. I just want to
say great work and congratulations on that. Please pass that on to her.
2. He sa id I d id a ride-along with Gary Condreay Fr iday n ight during the graveyard shift, when they were
havin g a DUI sting k ind of go ing on , wh ich was real interest ing and very educat iona l. There were a number of
traffic officers and patrol officer ... it was a great night and thanks to Gary for that wonderful education .
3. He said with regard to En glewood Days, I mentioned to Doug last week and also have menti oned to a
number of the people from the Englewood High School and the school administration , that obviously not this
year, but very possibly next year, there may be the opportunity to combine Englewood Days and Englewood
Homecoming and make it an even larger event. And, more inclusive ... bring the schools in ... the Englewood
High School Parade could be possibly expanded , to bring some other bands in town and I think it would get the
businesses and the sch oo ls w o rking toge ther ... together with the City and we may see a sa v ings overall for
Public Works and Safety Services . All these things are happening ... an d maybe Englewood Days t ruly coul d be
more than one day ... maybe a few days . I know the school ... from the people I have been tal king to are very
receptive to that type of partnering . I would just love to see something like that happen later in Sep tember or
early October ... however that fits into how Homecoming is selected ... and maybe a Fall Festival and Farmers
Market and that sort of thing ... a Harvest Festival. Thank you .
13 . City Manager's Report
(a) City Manager Sears said I am going to be out of town for a couple of days this weekend and
into the first part of next week to the International City Management Conference . Because of all the activities,
I'm not sure about going, but I get recognized for 35 years of service through the International Association , so I
felt that it was important to go . Mike will be here for next Monday nights meeting and I will be back next
W dnesday to finish out the budget.
Englewood City Council
September 5, 2006
Page 10
Mayor Wolosyn said thank you .
14 . City Attorney's Report
(a) City Attorney Brotzman said congratulations for 35 years of service. Mr. Sears said thanks .
15. Adjournment
LOSYN MOVED TO ADJOURN . The meeting adjourned at 8 :17 p .m.
tf r;.
1 .
2.
3.
4 .
5.
AGENDA FOR THE
REGULAR MEETING OF
THE ENGLEWOOD CITY COUNCIL
Tuesday, September 5, 2006
7:30 p.m.
Englewood Ci v ic Center -Council Chambers
1 000 Englewood Park w ay
Engle w ood, CO 80110
Call to order. '7.'3~
Invocation.~
Pledge of Allegiance. ~
RollCall. t2t/ 7 ~
Consideration of Minutes of Prev ious Session .
(Jf17.>l/ fJ-tJ-/a . Minutes from the Regular City Council meeting of August 2 1, 2006.~
-rr~(~1JJ .-txmR£)
6 . Recognition of Scheduled Public Comment. (Please limit y our presentation to ten minutes.)
a. Englewood Safety Services Director Chris Olson will acknowledge Fire Training Services
Chief Kraig Sto vall for his completion of the National Fire Academy's Executi ve Fire
Offi ce r Program.
7. Re cogni tion of Unschedu led Publ ic Comment. (Pl ease l imit your presentation to five minutes.
Time for unscheduled public comment may be limited to 45 minutes and if limited shall be
continued to General Discussion.)
· a: . l)(AQ ~V --~Kl/ U-~LJ..IJIJ AJVt-f>1lL.{MJVM-1ru, II tt,)
8. Communicati ons, Proclamations, and Appointments.
&ffd '7-{) a.
Proclamation designating the wee k of September 1 7 through September 23, 2006 as
Consti tution Week. ~
b. Recommendation from the Englewood Municipal Court to adopt a Resolution
(). __ 11.. I)~ reappoin ting .~1arcia O'Brien as an Associate Judge for the City of Englewood.
~ :;; SOURCE: Tamara Wolfe, Court Administrator. ~
1-o
STAFF
Pl a e note : If you have a disability and need auxiliary aids or services , please notify the City of Englewood
(3 03 -7 62 -2 40 7) at least 48 hours in ad ance of when services are n eded . Thank you .
Englewood City Council Agenda
September 5 , 2006
Page 2
9. Consent Agenda Items.
a .
b.
Appr~f Ordinances on First Reading.
Approval of Ordinances on Second Reading.
rJ-12.i_ J c...33 i. Council Bill No. 32, approv ing the Amended and Restated Waste w ater a,iJ ? Transmission Agreement with County Line Landfill .~
c. -DResolutions and Motions.
10. Public Hearing Items . (No Public Hearing Scheduled.)
ff
11. Ordinances, Resolutions and Motions.
a. Approval of Ordinances on First Reading .
b .
C.
i. Council Bill No. 35 -Recommendation from the City Attorney's Office to adopt an
Emergency Bill for an Ordinance approv ing regulations prohibiting se xual
predators and certain se x offenders from establishing residency near are,aif .w_~e~e, , .__. JI
children congregate . STAFF SOURCE: Dan Brotzman, City Attorney.~
Apffl of Ordinances on Second Reading.
Resolutions and Motions.
i.
ii.
Re c ommendation from the Community Development Department to approve, by
Motion, a professional services agreement w ith Tacito Design, Inc. for anal y sis and
reco mmendations for potential sign code amendments. STAFF SOURCE: Tricia
Langon, Senior Planner.~
Recommendation from the Parks and Recreation D epartment to app rove, by
Motio..0, a bid for the purchase and insta ll ation of a manufactured pedestrian
bridge in Cushing Park . Staff recommends awarding the contract to the lowest
bidder, Milestone Construction, in the amount of $74,890 . STAFF SOURCE:
Jerrell Bla ck, Director of Parks and Recreation and Mark Kottwitz, Parks
Supervisor.~
11. General Dis c ussion .
a. Mayo r 's Choice.
b . Cou ncil Members' Choice.
Englewood City Council Agenda
September 5, 2006
Page 3
13. City Manager's Report.
14. City Attorney's Report.
15. Adjournment. f; /I/~
The following minutes were transmitted to City Council in August 2006.
• Board of Adjustment and Appeals minutes of June 14, 2006.
• Cultural Arts Commission minutes of July 5, 2006
• Firefighters' Pension Board minutes of February 9, 2006.
• Englewood Housing Authority minutes of April 5, June 7, and July 5, 2006.
• Liquor Licensing Authority Telephone Poll of August 2, 2006.
• Parks and Recreation Commission m inutes of July 13 , 2006
• Police Officers' Pension Board minutes of February 9, 2006 .
• Public Library Board minutes of June 13, and July 11 , 2006 .
1.
2.
3.
4 .
5.
AGENDA FOR THE
REGULAR MEETING OF
THE ENGLEWOOD CITY COUNCIL
Tuesday, September 5, 2006
7:30 p.m.
Englewood Civic Center -Council Chambers
1 000 Englewood Parkway
Englewood, CO 80110
Call to order. '7.'j~
Invocation.~
Pledge of Allegiance. ~
RollCall. t2tJ 7 ~
Consideration of Minutes of Previous Session.
(Jf'll:JI/ ~-/a. Minutes from the Regular City Council meeting of August 21, 2006.~
Tr"'(~1JJ: 11.MJRE_)
6. Recognition of Scheduled Public Comment. (Please limit your presentation to ten minutes.)
a. Englewood Safety Services Director Chris Olson will acknowledge Fire Training Services
Chief Kraig Stovall for his completion of the National Fire Academy's Executive Fire
Officer Program .
7. Recognition of Unscheduled Public Comment. (Please lim it yo ur presentation to five minutes .
Time for unscheduled public comment may be limited to 45 minutes and if limited shall be
continued to General Discussion.)
·a. QA~~()-~KIIA-t-~LJ./JflA}ljt-f>1t.L{M~ !ft.II lllf-1)
8. Communications, Proclamations , and Appointments.
&f;d '7-{) a .
Proclamation designating th e week of September 17 through September 23, 2006 as
Constitution Week. ~
b . Recommendation from the Englewood Municipal Court to adopt a Resolution
/). __ JJ. IJ~ reappointing .~1arcia O 'Brien as an Associate Judge for the City of Englewood.
t:Jk,1'J?' -..; SOURCE: Tamara Wolfe, Court Administrator. ~
'7-o
STAFF
Englewood City Council Agenda
September 5, 2006
Page 2
9. Consent Agenda Items.
a.
b.
Appr~f Ordinances on First Reading .
Approval of Ordinances on Second Reading .
Council Bill No. 32, approving the Amended and Restated Wastewater
Transmission Agreement with County Line Landfill.~-
MJ_Jjc33 i.
~1-0 -rr ~ c. Resolutions and Motions. g
10. Public Hearing Items . (No Public Hearing Scheduled .)
ff
11. Ordinances, Resolutions and Motions.
a. Approval of Ordinances on First Reading.
b .
C.
i. Council Bill No. 35 -Recommendation from the City Attorney's Office to adopt an
Emergency Bill for an Ordinance approving regulations prohibiting sexual
predators and certain sex offenders from establishing residency near ar~a..5 .w_~erl~ ~ .__. J1
children congregate. STAFF SOURCE: Dan Brotzman, City Attorney.~
Ap~I of Ordinances on Second Reading.
Resolutions and Motions.
i.
ii.
Recommendation from the Community Development Department to approve, by
Motion, a professional services agreement with Tacito Design, Inc. for analysis and
recommendations for potential sign code amendments. STAFF SOURCE: Tricia
Langon, Senior Planner.~
Recommendation from the Parks and Recreation Department to approve, by
Motion, a bid for the purchase and installation of a manufactured pedestrian
bridge in Cushing Park. Staff recommends awarding the contract to the lowest
bidder, Milestone Construction, in the amount of $74,890. STAFF SOURCE:
Jerrell Black, Director of Parks and Recreation and Mark Kottwitz, Parks
Supervisor.~
1 2 . General Discussion .
a. Mayor's Choice.
b . Council Members ' Choice.
Englewood City Council Agenda
September 5, 2006
Page 3
13. City Manager's Report.
14. City Attorney's Report.
15. Adjournment. f; / '7 ~-
The following minutes were transmitted to City Council in August 2006.
• Board of Adjustment and Appeals minutes of June 14, 2006 .
• Cultural Arts Commission minutes of July 5, 2006
• Firefighters' Pension Board minutes of February 9, 2006.
• Englewood Housing Authority minutes of April 5, June 7, and July 5, 2006.
• Liquor Licensing Authority Telephone Poll of August 2 , 2006.
• Parks and Recreation Commission minutes of July 13, 2006
• Police Officers' Pension Board minutes of February 9, 2006 .
• Public Library Board minutes of June 13 , and July 11 , 2006 .
PUBLIC COMMENT ROSTER
AGENDA ITEM 7
UNSCHEDULED PUBLIC COMMENT
DATE: SEPTEMBER 5, 2006
PLEASE LIMIT YOUR PRESENTATION TO FIVE MINUTES
PLEASE PRINT
NAME ADDRESS TOPIC
NAME ADDRESS TOPIC
1 . Call to Order
ENGLEWOOD CITY COUNCIL
ENGLEWOOD, ARAPAHOE COUNTY, COLORADO
Regular Session
August21,2006
Ill
The regular meeting of the Englewood City Council was called to order by Mayor Wolosyn at 7 :35 p .m .
2 . Invocation
The invocation was given by Council Member Barrentine.
3. Pledge of Allegiance
The Pledge of Allegiance was led by Mayor Wolosyn .
4 . Roll Call
Present:
Absent:
A quorum was present.
Council Members Tomasso, Barrentine, Oakley, Mccaslin,
Woodward, Wolosyn
Council Member Moore
Also present: City Manager Sears
City Attorney Brotzman
Deputy Cit , ''anager Flaherty
City Clerk Ellis
Deputy City Clerk Bush
Director Olson, Safety Services
Director Fonda , Utilities
Manager of Open Space Lee, Parks and Recreation
Director Kahm, Public Works
Police Sergeant Watson, Safety Services
Engineering/Capital Projects Administrator Henderson, Public Works
5. Consideration of Minutes of Previous Session
(a) COUNCIL MEMBER TOMASSO MOVED, AND IT WAS SECONDED, TO APPROVE THE
MINUTES OF THE REGULAR CITY COUNCIL MEETING OF AUGUST 7, 2006.
Mayor Wolosyn asked if there was any d isc ussion . There was none .
Vote results :
Ayes :
Nays :
Ab sent:
Mot ion carried .
Council Membe rs Barrentine , Mccaslin , Wolosyn , Woodward ,
Tomasso. Oakley
None
Council Member Moore
6 . Recognition of Scheduled Public Comment
Ther were no scheduled visitors .
Englewood City Council
August 21, 2006
Page2
7 . Recognition of Unscheduled Public Comment
(a) Doug Cohn, an Englewood resident, said I just wanted to come and say thank you . The Car Show
plans are coming along pretty well. The yellow piece of paper you have on your desk shows the sponsors. There
are a goodly number of folks, right here in town, who thought the car show seemed like a really good idea and they
have contributed gift certificates, money and those kinds of things to make it happen . I wanted to say thank you
also to the fellows in Public Works, Safety Service, Finance, Community Development , Parks and Rec and the
street guys . I'm not exactly sure where the street guys are from, but that is probably Public Works ... and to all the
City Council for all the things you have done so far in the planning for the Englewood Day event. We are going to
have some kind of neat things going on . The second piece of paper, the white one, is a coloring contest that we
are having . A group called Positively Englewood is going to donate three brand new bicycles as first prizes . A new
store on Broadway, Jerry's Artarama, is going to provide also another grand prize for a budding artist. The posters
are available around town and they will be displayed in the stores up to the time of the show. The Englewood
Chamber of Commerce is going to have the Taste of Englewood that day, so if you get kind of hungry after looking
at all the tractors, monster trucks, classic cars and military vehicles you can drop by and get a little taste of food .
There will be three live bands playing in the Lincoln Street parking lot, so you can sit down and enjoy a little bit of
liiht music as well. So, I just wanted to extend a personal invitation to you all to come out on Saturday, September
9 and join us for the party on Broadway . Thank you .
Mayor Wolosyn said thank you, Doug .
Council Member Mccaslin said are these coloring contest entries going to be distributed through the schools or
what? Mr . Cohn said yes, my daughter-in-law is on the PTSA group at Cherrelyn and she was going to talk to her
Principal today and see who she needed to contact at the other elementary schools and, hopefully , that will be
done within a couple of days . Mr . Mccaslin said okay . Mr . Cohn said I think it would be great to have a contest
within the schools and between the schools and I hope the Positively Englewood guys will have a real hard time
choosing a winner come Saturday.
Council Member Barrentine said what they are going to do is go ahead and display the entries with the personal
information folded to the back . Hopefully, that will be a nice kick for them, because the businesses are putting
these in their windows downtown, as well. It will be nice , but we don't want to identify the kids .
Mayor Wolosyn said okay , thank you, we will see you there .
Ms . Barrentine said thanks for all your hard work on this .
8 . Communications, Proclamations and Appointments
(a)
considered .
A letter from Vic Calonder announcing his resignation from the Urban Renewal Authority was
COUNCIL MEMBER TOMASSO MOVED, AND IT WAS SECONDED, TO ACCEPT THE LETTER FROM VIC
CALONDER ANNOUNCING HIS RESIGNATION FROM THE URBAN RENEWAL AUTHORITY.
Motion carried .
Ayes : Council Members Barrentine, Mccaslin , Wolosyn, Woodward ,
Tomasso , Oakley
Nays : None
Absent: Council Member Moore
(b) A proclamation regarding National Alcohol and Drug Add iction Recovery was cons idered .
COUNCIL MEMBER WOODWARD MOVED, AND IT WAS SECONDED, TO APPROVE A PROCLAMATION
REGARDING NATIONAL ALCOHOL AND DRUG ADDICTION RECOVERY .
Vote results :
Ayes : Council Members Barrentine , Mccaslin , Wolosyn , Wood ward ,
Englewood City Council
August 21, 2006
Page 3
Nays:
Absen t:
Motion carried .
Tomasso , Oakley
None
Council Member Moo re
Mayor Wolosyn said is there anyone here to receive this? There was no one . Ms. Wolosyn sa id we wi ll make sure
it is delivered to the proper people .
9 . Consent Agenda
COUNCIL MEMBER WOODWARD MOVED, AND IT WAS SECONDED, TO APPROVE CONSENT AGENDA
ITEMS 9 (a) (i), 9 (b) (i) and (ii).
(a) Approval of Ordinances on First Reading
(i) COUNCIL BILL NO. 32 , INTRODUCED BY COUNCIL MEMBER WOODWARD
A BILL FOR AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT ENTITLED
"AMENDED AND RESTATED WASTEWATER TRANSMISSION AGREEMENT" BETWEEN SOUTH ARAPAHOE
SANITATION DISTRICT, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF ARAPAHOE ,
SOUTHGATE SANITATION DISTRICT, SOUTH ENGLEWOOD SANITATION DISTRICT NO . 1 , WASTE
MANAGEMENT OF COLORADO, INC . AND THE CITY OF ENGLEWOOD , COLORADO .
(b) Approval of Ordinances on Second Reading
(i) ORDINANCE NO . 3 1, SERIES OF 2006 (COUNCIL BILL NO . 24 , INTRODUCED BY
COUNCIL MEMBER WOODWARD)
AN ORDINANCE AUTHORIZING A CONTRACT ENTITLED AGREEMENT REGARDING DESIGN , EASEMENT
ACQUISITION AND CONSTRUCTION RELATED TO THE BIG DRY CREEK TRAIL BETWEEN LEHOW AVENUE
AND BROADWAY BETWEEN THE CITY OF ENGLEWOOD , COLORADO AND THE SOUTH SUBURBAN PARKS
FOUNDATION .
(i i) ORDINANCE NO . 32 , SE RIES OF 2006 (COUNCIL BILL NO . 34 , INTRODU CE D BY
COUNCIL MEMBER WOODWARD)
AN ORDINANC E AU T HORI ZI NG AN IN TE RGOVERNM ENT AL AGREE MENT E NT ITLE D "E ME RGE NCY
ACCESS AGREE MENT CITY OF ENGLEWOOD WATER PI PELINE REP AIR JULY 28, 2006", RELATED TO THE
REPAIR OF A BROKEN WATER PIPELINE BETWEEN THE CITY OF ENGLEWOOD, COLORADO AND THE
DEPARTMENT OF NATURAL RESOURCES , COLORADO WATER CONSERVATION BOARD .
Vote results:
Ayes :
Nays :
Absent:
Motion carried .
Council Members Barrentine , Mccaslin, Wolosyn, Woodward ,
Tomasso, Oakley
None
Council Member Moore
(c) Resolutions and Motions
There were no additional resolutions or motions submitted for approval. (See Agenda Item 11 (c).)
10 . Public Hearing Items
No public hearing was scheduled before Council.
Englewood City Council
August21,2006
Page 4
11 . Ordinances, Resolution and Motions
(a) Approval of Ordinances on First Reading
There were no additional items submitted for approval on first reading . (See Agenda Item 9 -Consent Agenda .)
(b) Approval of Ordinances on Second Reading
There were no additional items submitted for approval on second reading . (See Agenda Item 9 -Consent Agenda .)
(c) Resolutions and Motions
(i) Manager of Open Space Lee presented a recommendation from the Parks and Recreation
Department to approve, by motion, a contract for professional services during the golf course redevelopment for
golf course construction observation . He said I am here before you tonight to request that you approve, by motion,
a contract for professional services for golf course construction oversight. The construction management of the
City will be better suited if we monitor the key elements of the construction project. Some of the construction
elements include : depth of cap cover over the landfill , irrigation system installation, greens mix , drainage
installation and contouring and seeding. The scope of services is estimated to be around $100,000 .00 and funding
for that will come out of the $650 ,000 .00 that is being put forth by Miller Weingarten . Along with those funds are
consideration for a new pump station ... environmental consultants , wetland remediation and fencing along the
eastern perimeter . And with that, if you have any questions I would be happy to answer them .
Mayor Wolosyn asked if there were any questions .
Council Member Woodward said would this document be subject to the final execution of the development
agreement and the total deal? Mr . Lee said yes , that is correct. Mr . Woodward said I believe , as I recall, it has
been executed , but the contractor has not been engaged to spend any of his dollars as of yet, is that right? Mr. Lee
said that is correct. Mr. Woodward said okay , thank you .
City Attorney Brotzman said there is actually a notification requirement in the contract that the Parks people have to
g ive him notice to start . So , obviously they won 't give him not ice unt il everything is taken care of. Mr. Woodward
sa id okay.
Counc il Membe r Ba rr ent ine said be ing that we won 't incu r any observation costs unless there is someth ing to
ob serve ? Mr . Lee sa id that is correct, unless the deal is brough t forwa rd , t hen the re w ill be no profess iona l
co nsul tan t fees or consulta nt.
COUNCIL MEMBER WOODWARD MOVED, AND IT WAS SECONDED , TO APPROVE AGENDA ITEM 11 (c ) (i)
-A C ON T RACT FOR PRO FE SSIONAL SERVICES DURING TH E GOLF COURSE REDEVE LOPMENT FOR
GOLF COURSE CONSTR UCT ION OBSE RVAT ION .
Mayo r Wolosyn as ked if t here was any more d iscuss ion . There was none .
Vot e results :
Aye s :
Nays :
Ab sent:
Motion carried .
Council Members Barrentine , Mccasl in , Wolosyn , Woodward ,
Tomasso , Oakley
None
Coun ci l Member Moo re
Mayor Wolosyn said thank you Dave .
(Ii) Director Kahm presented a recommendation from t I Public Works Department to
pprove , by motion, awarding the contract for the 2006 Micro-Surfacing Program to Broadaway Holdings LLC, in
th mount of $297 ,960 .00 . H said in the Council Communication you received tonight, you can quickly see that
)
Englewood City Council
August 21, 2006
Page 5
Englewood has been successfully placing slurry and micro-surfacing programs on our City streets for a total of 20
years . We had one failure in 1986 and at that time I worked with the Street Division folks and we decided we didn 't
want a second one, so we did our research . We joined an organization called , at that time it was the International
Slurry Seal Association, because what they primarily did in those days was slurry seals . Later, as micro-surfacing
became a more prominent product , they changed the name of that organization to the International Slurry Surfacing
Association. We actually went to a seminar in a different state ... and what we found was the local ISSA contracto r
that we had been using, really was using old technology . And, we ended up putting some slurry on our streets and
we couldn't open our streets up to local traffic for three days ... and of course, that wasn't acceptable to us . We
found out about a product called quick-set slurry and we learned about it. The early slurry products, I might point
out , were based on placing aggregates and emulsified asphalt on roadways , mostly in warm climates . Those
products depended on sunshine and temperatures to cure to where you could put traffic back on them . About the
time, in the late 80's when we learned about the products , we found that there were quick-sets where the industry
had actually progressed and they were dealing now with chemistry that caused the product to break, as opposed to
drying . We learned about products that you could drive on in two hours and that is what we wanted for our
Englewood streets . So we proceeded to join the ISSA . We learned that the successful products in the South were
coming from a place called Granite Mountain , where there were literally millions of cubic yards of crusher fines from
the manufacturing chips for chip seals on roads . If you recall, years ago we would put a tack coat down , then put
chips on top of that and roll it in . We had a lot of problems with that, because we got broken windshields and kids
falling on the chips and being cut up and those types of things, so that was kind of falling out of favor . But, we also
knew that here, we had been working with chip seals and we knew that Asphalt Paving in Golden , Colorado had a
quarry and they had been selling chips ... a high quality chip ... for many, many years . So we anticipated that we
were going to go up to Asphalt Paving and find a great big mountain of aggregate that had no value . In fact , when
we got there, we found no great big mountain, because that byproduct. .. the aggregate at Asphalt Paving's Golden
quarry, is one of the hardest aggregates in the State of Colorado ... second only , to my knowledge , to diamonds . If
you can find a diamond in Colorado it is harder . So with that in mind , we got up there and found that they were
us ing the byproduct in hot mix to st iffen it up and make it a more quality product. An example being , the only way
they could put asphalt in at DIA when they built all the taxiways out there, was to re -enforce that asphalt. .. hot mix
product. .. with those fines from Asphalt Paving . So , there was a demand . In fact, it turned out that that aggregate ,
not only was it not a waste pile , but it was selling for five times what most aggregates were selling for along the
front range ... most river aggregates . But ,we set out. .. we wanted to use that rock, because it is one of the most
durable rocks in the State and it is really close ... just being up here at Golden . We had very little knowledge, but we
knew we wanted to do something with our Englewood streets ... we needed a maintenance option . So , we set out
and we hired the then Director of Research and Development for the ISSA ... Ben Benedict, he was in Dayton , Oh io .
We hired him to design a mix for us and we got down to the nitty-gritty. We were concerned ... in the early days we
mostly worried about, what is the charge on the aggregate , what is the charge in the emulsion ... because , if you put
two pos iti ves together they repe l. .. two negat ives repe l. We found that out in our 1986 failure . We had a contracto r
that was putting a negativ e asphalt w ith a negative aggregate and the result being that we had some stuff that was
done on Qu incy that was gone in two weeks . It didn 't stay very long at all ... it just came back off the streets . We
went to the trouble to understand what our streets were made of. We actually took and cut sections out of our
roadways , because our street system had been built over a number of years, but basically the same asphalt
products . We actually cut squares of asphalt out and shipped them to Dayton , Ohio to make sure that (1) whatever
we developed would have adhesion ... it would stick to the existing street and (2) then there would be a mix that
would have cohesion, so that it would stick together and so we would have a solid product. We also learned in
dealing with the ISSA at that time, that world-wide , they told us , there were a potential two million possible slurry
and micro-surfacing mixes . If you take all the crudes that are out there and all the asphalt products , all the
emulsions and mixed them ... it is kind of like the lotto ... there are a lot of combinations . But we were also told
forever , that only 4 percent of those two million will be successful products . That is 80 ,0 00 out of two million . We
had already had one that was in the other 1,920 ,000 ... so we were looking for success . We went to the trouble to
have a product designed . At that time , there were only two micro-surfacing products ... emulsion products ... in the
cou ntry that were available for what we were trying to do . One was manufactured by Ergon ... at that time it was
coming from Jackson , Miss issipp i. The other was from Koch and the name of their product was Ralumac . When
all the lab work was done , they came back to us and said that the only product that would work with this
aggregate ... because the aggregate has a lot of chemistry to it and they call It hot rock , it reacts rapidly to
emulsions ... but the only one that would work was the Ergon product. We were also told that Its manufacture was
Venezuelan crude wh ich meant that we probably had one of the top three micro-surfac ing products systems in the
Country and in fact, in the World . So we went on and we wanted to get a contractor to do some work for us, but
Englewood City Council
August 21, 2006
Page 6
what we ran into with the ISSA was, it was an industry group and since we had one of their members located in
Colorado, none of the contractors in Kansas would come to Colorado and work for us, because they were
respecting the other fellow's territory . At that time, we met Mr . Jake Broadaway who was running Bituminus
Asphalt Sealing Specialist, and he was the President of ISSA. So, the street folks ... and I believe Mr . Oakley was
there ... the street folks and myself , we sat down and we shamed him. as the President of that organization, into
coming to Colorado and putting some quickset products on our streets . As a result of that, over a three-year
period, he was pretty much drummed out of the ISSA. They had a code and that was a long time ago and things
are different today, I am sure ... but he ended up being drummed out of that organization . We went on ... from 1987,
1988, 1989 and 1990 and we did slurries ... we did quickset slurry . We then found that micro-surfacing was out
there . Slurry is a product. .. you are mixing the aggregate with the emulsion. but you are putting down a single
thickness . The chemistry only allows it to go down one thickness so if you are putting down a Type 2 ... which is
what we use on our streets typically ... the largest aggregate will pass through, basically, a quarter inch screen ... so
it gives you an idea of the thickness, less than a quarter of an inch . And it gives you a good seal and it gives you
new wearing course, so it does those things . Since we were importing our emulsion halfway across the country
anyway, micro-surfing emulsion allows you to go in and do those same things but it also has the chemistry that
allows you the capability of re-profiling your streets, filling the ruts like we did on Broadway last year ... where we
were filling 2" to 2 Yi" deep ruts ... you can't do that with a slurry . But we found that the micro-surfacing emulsion
just wasn't very much more expensive than slurry, at that time, so we elected, starting in 1991, to go to micro-
surfacing . It gave us more flexibility and a better bang for our buck . In all those years, this is the first year we have
come to you with a bid . All those years we negotiated with Bituminous Asphalt Sealing Specialists, because they
were the only contractor that had ever approached us about working here . Like I said, we shamed them into
coming the first time, they always gave us a good job, we had a good relationship with them and we always got a
good product. We had 19 years of success with them . Over the years that they worked here, they also took the
product that we designed ... two years Cherry Hills Village bid a project just like ours, they specified that emulsion,
that aggregate , two years they bid it and two years BASS was successful in getting their bid each year , but they
had the advantage of already being here because they were here doing our job, so they didn't have to remobilize .
Last year Greenwood Village took our specifications ... last year which is a little different spec ... but they bid last year
using that same aggregate and same emulsion we used and the low bidder was lntermountain Resurfacing out of
Salt Lake City ... who came to town , bought the aggregate from Asphalt Paving , decided that the micro-surfacing
was going to be too hard for them to lay, so they talked Greenwood Village into just doing slurry last year. Last
year Arvada took our product and they contracted on the side with Bituminous Asphalt Sealing Specialists and they
laid a project about half the size of ours in Arvada last year . So, other people have followed our lead and done
what we are doing . Early this year, we had a request from a contractor ... the base company is in Kansas and the
paving part of it is in Arkansas ... that they would like to bid our project. So we looked at it and said why not . It has
been a long time and all , but a couple of things had happened to us . One : the emulsion supplier that we used all
those many years ... we were still getting emulsion out of, it didn 't matter ... from Jacksonville , they moved that
operat ion to Waco , Texas ... but we were still importing asphalt all the way from Waco ... but they had hit a little bit of
a hitch, because there had been a little problem in Venezuela and with overthrowing the government and they
couldn't get that crude any longer . So they had shipped the crude oils and we weren't as satisfied with the product
as we had been previously ... and they had also shipped the products without telling us and we took exception to
that. So last year, we found a smaller emulsion manufacturer in Port Allen, Louisiana that had access to a really
good crude oil. They had a good slate . They buy from Marathon and we know that it has got a heavy and a light
Arab crude in it. It has also got some Maya which a lot of people don't like because it comes from Mexico , but
there is really nothing wrong with it. But we had a smaller, family owned operation that was willing to take their
emulsion and modify their emulsion for our small project. Most of the big guys ... they manufacture emulsion 50,000
gallons at a time and what they want to do then, they want everybody to have a mixed design that fits what they
have already got on the shelf, as opposed to coming up with something that really works for us . But we worked
with those folks last year . They spent a lot of money on mixed design . We came up with a mix that we thought we
liked . Last year we shipped 28 tons of aggregate down to Arkansas ... a little place called Lake Village ... because
BASS was working there . We had the fellow from Port Allen brought us up an emulsion from his operation . We
also had a load of emulsion brought over from Waco . Texas so that we could lay a test section and compare the
two . We felt , by far , that the product from Louisiana was superior to what we had been getting from Waco . So . last
year we went ahead and we used that product in our micro last year . We had problems last year when we first
started, because there is an additive that you use in this product that retards the break time ... it gives you more time
to work it. .. and they were using a product , they were using aluminum sulfate and what happened when we first
started ... if th y put enough retarder , enough aluminum ulfate in to the product to make it workable , then it starts
l
Englewood City Council
August 21, 2006
Page 7
turning brown instead of being black. There was nothing wrong with it from a functional standpoint, but we had
always felt pride in the fact that the micro was black . So BASS stayed with it last year and we were work ing on
Broadway last year, really tough conditions, we had anticipated we would be able to do five blocks a day ... for us to
go out on Broadway and deal with 40,000 cars a day and work through downtown Englewood and not disrupt all
the businesses on Broadway ... we were able to do two blocks a day . So what that meant was the contractor could
start south bound ... we had a real system ... start south bound at 7 :30 in the morning and they had to be off of
Broadway ... they had to be done ... by 2 in the afternoon so we could open it up to PM traffic and so they were
getting half days . Last year our contractor never complained once , he just did what he had to do . But we wrestled
with the product, to get it black they had to use very little additive, which means they didn 't have much time for hand
work . I am not perfectly thrilled with the texture we got on the surface , but the product is durable . If you have been
out there, you can see that the ruts are holding. It is doing everything it is supposed to do, but I wasn 't thrilled with
the texture . So, this year in light of the fact that it had been requested that we bid , I brought in a consultant ... an
expert in the industry that has worked with us in ISSA since 1991 . We rewrote our specs so that they would be
biddable . We turned around and hired a lab ... Vestal Lab in New York state to do the mix design for us . We came
up with a different additive, in fact , it is interesting, the additive that we ended up using in this mix is an additive that
Ben Benedict designed for us in 1991 . The additive is real effective . We like the m ix design . We sent a truck load
of aggregate down to Port Allen, Louisiana ... actually a little town about 40 miles west of there . I hired BASS
because they were on a project down there to go over and lay a truck load for us . I sent Del Montgomery, from the
Street Department, down there to witness it. We taped it and we believe that we have, again , developed a superior
product that will work on our Englewood streets . We went to bid this year . We invited five contractors that I felt
were qualified to do this work. I included the fellow from BASS who is now Broadaway Holdings ... included him
because of our many years of experience with him . The other four contractors were selected out of the ISSA
register . I have knowledge of three of the four ... have had many years knowledge . One was lntermountain out of
Salt Lake. I invited Ballou out of Kansas. I invited Vance who is located in Kansas, but their paving operation is in
Arkansas and I inv ited a contractor that I have heard a lot about over the years, out of Arizona . So, I invited five
qualified contractors, we got a pre-bid conference , which was mandatory and three showed up ... that would be
Vance and BASS and Broadaway Holdings . There were a lot of questions . Instantly two of those folks took
exception to the fact that we were specing our own mix and they felt like they could better tell us what we wanted
for our streets and better tell us what our construction schedule should be . There were some issues about the
product being proprietary . The emulsion mix from Louisiana is proprietary. That fellow owns that design on how he
manufactures that emulsion . My guys had understood ... they were thinking the whole mix design was proprietary ,
so in the specification they hadn 't given the m ix design . So we put that in an addendum and we sent out a two
page addendum. Two of the contractors acknowledged the addendum ... that would be Broadaway Hold ings and
Ballou . The third contractor would not acknowledge the addendum, so we sent out a second addendum in written
form and again we only had response from those two ... the third contractor did not even respond to the written
addendum . So , we had a bid opening and Broadaway Hold ings was the low bidder. That information is here .
There is a spread sheet. Ballou also bid ... they were about 16% higher and conditioned the ir bid . They were happy
to come do the work , but they didn 't want to guarantee the ir work . The bid document from Vance was sent back to
us with no bid . So , that is what our bid process consisted of. I think we did a thorough job. I think we haven't done
anything different as far as specing quality product and schedules that best serves the City of Englewood ... the
same thing we have done for 19 years . And so based on those things , we ask that you award that contract to
Broadaway Holdings .
Mayor Wolosyn said before I open it up for questioning ... there is a letter included in our packet from Vance
Brothers and going through it , you've actually answered the one question that I really have a hard time with when it
sa id that "we require that the emulsified asphalt be purchased from a producer in South Louisiana" and goes on to
say "there is a plant within 30 miles of Englewood that is capable of supplying this product." However, I am hearing
you say that , that is really not the case ... that it is a proprietary formula peculiar to this place in Louisiana and this is
what we have worked with and it is part of what we want. .. this product laid on our streets .
Director Kahm said if we knew of an emulsion manufacturer that had a proven design that would work with th is
aggregate that was 30 m iles from here, we would be happy . Our experience has been ... ! can only assume he is
referring to Koch Asphalt and Koch , a few years ago , was merged with somebody else that has a name that starts
with S involved in it. The history w ith Koch was that when we started out , it wouldn't work . Not too many years
after we started doing this work and we were using BASS and using Ergon emulsion , the fellow that was selling for
Koch in this area happened to be a good friend of Jake Broadaway and said he could produce an emulsion for u
Englewood City Council
August 21, 2006
Page 8
that would be cheaper and it would be closer. And so we said fine, so he took the product , he took the Asphalt
Paving Company aggregate and came back months later and said it won't work . We can 't make it work . So we
said fine . I want to say it has been ten years ago probably, but Koch came to us and said we can do this, we can
make this and so we said fine . So they spent a lot of time in the lab ... keep in mind that this testing costs ... to go
through a full test and come up with a mix design , is probably about $10,000 .00 . So they went to the trouble to do
that , and they came back and said it works and here are the test results and whatever . So , we set out that
particular year and we bought 5 ,000 gallons of Koch emulsion ... intending to use it. When we got in field conditions ,
as opposed to nice controlled lab conditions ... in field conditions ... we started and I can still remember that we were
down on Decatur, south of Union, and as the temperature came up in the morning ... they started laying it about 6:30
and at 7:30 the temperature came up a little bit ... this was in May ... and it would no longer lay . The chemistry wasn't
right. So, that is the experience that I have had with that emulsion . Later that year , the same contractor ... and I'm
not trying to slam them ... because that is prior to the people that are at Vance now ... but Vance took that trucker,
that tanker of emulsion and they invited 50 State eng ineers to a test to demonstrate how this stuff works , on 1-70,
just up the hill from 470. And after it wouldn't work and we had failed in the field and they brought 50 engineers in
and showed them that they couldn't lay it either ... so, that is what I know. Over the years, for awhile, Cobitco
Emulsions, which is up at about 58 1
h and 1-25 , had a license from Ergon and they manufactured our emulsion for
three years up at Commerce City, we used it. It sounds like we are bringing emulsion across the country, you've
got to remember the stuff has to get here in whatever form . The only difference is, is that we are moving water,
instead of just pure asphalt, from a freight standpoint ... so it is a little more costly . We wou!d love it if there was
really an emulsion that would work . The letter states that there is all this stuff that has been done using that
emulsion up and down the front range ... probably with slurry product. We started using that gray granite way back
in 1987 and I think everybody that does slurries, throughout the metro area, still uses that gray granite because that
is the best rock around . There are other people ... Cobitco ... there are several people that can manufacture
emulsion that works with the slurry product, but not with micro-surfacing . We will always be looking for that. We
always hoped that there would be a market developed for micro here , but what you really need is the
State ... because other states use this on the interstates and everything else ... use micro-surfacing ... but every
opportunity that came along to develop market here , my opinion is , that the contractor shot themselves in the foot
fighting over it every time and managed to not make it happen . Wayne and I went down years ago , when the State
did a test section down at Pueblo on 1-25 and the contractor brought in a substandard aggregate and we were
down there a few days after they started and it was already failing . And I was down there three months later and it
was gone . The cheapest product is not necessarily the best product, when it comes to micro systems .
Mayor Wolosyn said I am right in my understanding that this emulsion , this surface that works for us , really can only
be obtained from Louisiana? M r . Kahm said that is the source that I am aware of. Ms . Wolosyn said you know it,
the way I look at this is that this is an expensive investment that we do every year and it is good to have as many
problems solved as we can, go in g in . I think tha t to locate the person who does the right surfacing is the way to
minimize the cost to everyone . Mr. Kahm said like I said, I don't know of a local source . I know th is , that when I
first talked to Vance ... when they approached us ... and they've got a plant in Kansas City and initia lly his statement
to me was ... well you know you are going to have to import an emulsion from out of State no matter what you do .
So , I don't know where the comment comes as far as a source being here .
Mayor Wolosyn said it means that they didn 't apply , also . Does anybody else have any questions?
Council Member Barrentine said they make some accusations here on how much difference they believe that the
price would be ... anywhere from $55 .00 to $110 .00 less per ton . You know, I have a huge amount of respect for
you and your Department, I think that that's mirrored in the asset that we have been given under the new
governmental accounting of what our streets really are valued ... as an asset to the City . Before , that was a
requirement and being included and we have paid attention to that and you have done a beautiful job . I am not
questioning that you would prefer to use this material, but I have a couple of the questions they brought up , I th ink I
would like some answers to ... in that some of the examples that you brought up are, you know, ten years old . We
have been doing this for 18 years ... 17 years you said ... so I know that there were some unsuccessful attempts to
try and use some other materials, but still , if it's ten years ago , it's ten years ago . If we have in place , right now , the
opportunity for other people to adequately assess what it is we are looking for so that they can come up with a
competing product , if they have it . The accusation that they make in number 6 Is that they weren 't allowed the
laboratory d sign ... th full mount of that or access to the testing . I believe that is another number, and if you
could ddr that. . I think that is number 3 nd number 6 .
Englewood City Council
August 21, 2006
Page 9
Mr . Kahm said yes , if I could . Number 6 ... when we pu t ou t the addendum right after the pre-bid meeting ... they
were provided with the mix des ign .
Ms . Barrentine said I'm sorry ... l don 't want to leave that vague out there . On number 6 the ir question is ... "that the
PWD has procured a m ix of des ign from a certified laboratory , however, they have fa iled to supply the potential
bidders with the results of the ent ire mix design ." Number 3 ... they brought up ... "the PWD has directed contractors
to use specific suppliers but requires the contractors to be held financially responsible for any and all testing that
the engineer , may, at his discretion , require and that these tests can be expensive ."
Mr . Kahm said in the addendum that was sent to them ... the one that they would not acknowledge ... we specifically
pointed out in the addendum ... the section they are referr ing to, is who was the buyer that had to pay for the
testing ... and the addendum absolutely said the City would pay for the testing . So, that was a non-issue that had
been answered in the addendum . On number 6 ... the mixed design was sent out in the addendum pertaining to 3 .1
request for mixing . It says "our mix design is emulsion 13%, water 7 to 9%, cement .25%, K-3 additive .04 to .10 %.
We also let them know that the additive, when we did our test section, we are putting additive in it at .04 to
.10% ... that is not very much. And so , based on the information we got from Vestal Lab , we cut that additive and we
went with one part of 25% of addit ive and 75% water ... and cut it to make it more fluid and easier to measure . We
knew that from our field work and so we even provided that in the addendum . Ms . Barrentine said it is unfortunate
that they didn't acknowledge the addendum . At any time did they try to give you another product that they thought
was ... ? Mr . Kahm said sure, but if I could, in number 8 he starts a sentence "in the addendum it states" so he
wouldn't acknowledge the addendum ... twice ... but he admits in number 8 that he received the addendum . He said
so those other questions he asked had been answered in the addendum and he asked them again anyway.
Ms . Barrentine sa id d id they, at anyt ime, try to suppl y what t hey bel ieved to be a comparable product? Mr . Kahm
sa id no . Ms . Barrentine said okay . Mr . Kahm sa id in fact , I was cur ious because I don 't know of anyone t hat ha s
done any micro-surfacing in the metropolitan area , other than us and other than the folks that have used what we
are using and the contractor that we have used for years . I was curious ... ! called Asphalt Paving and they said that
they could assure me that Vance has not bought a pound of their aggregate in the last six or seven years . Ms .
Barrentine said so they didn't say , we think that we 've got a product that is similar to th is and we wouldn 't take a
look at it? She said in that case , I think it was a little irresponsible of them to put dollar figures to what they th ink it
would be , when they didn 't supply a bid , but tha t is just my opin ion .
Mr . Kahm said but they didn 't and as far as the talk about what we paid last year versus what it should have cost , I
wa nt to po int out that the third b idder ... the one that did g ive us a numbe r ... is Ballou Construct ion and they have
be en in the business every bit as long as Vance . And Ballou gave us a numbe r , they j ust d idn 't w a nt to be
res pon si ble for it. But if you will note ... that is an ISSA contract. .. look what the ir number is . Th is is expens ive stu ff.
We are not p u tt ing the ch eapes t st uff on th e st ree t s th at yo u can buy, but we are al so getti ng th e resul ts. I do n't
know of a metropolitan city that hasn 't had a failure with micro or slurring in the last ten years .
Ms . Barrentine said thanks for answering those questions . I appreciate it. Mr . Kahm said sure .
Mayor Wolosyn said I have a question just for clarification . Whenever they don't want to guarantee the product. .. I
mean, we are telling them they buy the pr oduct from the place in Louisiana , so is it the application of the product
that we want them to guarantee? Mr . Kahm said yes, we said we will guarantee the quality of the products ... we
test them , we have confidence in them . The ISSA, again , is an industry group , and in the early days when we met
them , they controlled micros and slurries , because they had all the technology ... no one else had it. And so they
got accustomed ... part of their job was going to somebody that ... like us in 1986, when we didn't know
anything ... and telling us what we needed and we believed them . And, we only did that one time and we learned
that wasn't the best route . I have continued my $100 .00 a year governmental membership , because it gives me
access to all their technology . But the fact is, every year when I look at their membership it is dwindling , because
th is is all out in the public domain . This stuff is being taught in college now . They don 't control it and they don 't
own it any more . And so, that is something they are struggling with . The fellows that really brought all of th is
together iust aren't getting as much of the action as they would like to be getting, so ... l can understand that too .
)
Englewood City Council
August 21, 2006
Page 10
Mayor Wolosyn said I second Laurett in thanking you for helping us understand this . Mr. Kahm said and I will
always continue to look for other sources and if we can find one , we will gladly buy the product here . But . even if
we are buying product here , you will probably always see us try to control the system itself, because we don 't want
to be in that 1,920,000 group of failures again . Mr. Kahm said unless we are directed otherwise, we will continue to
be supportive of downtown and Broadway businesses by minimizing the impact of this work on those businesses
and on the traveling public . I think that is our responsibility .
Council Member Woodward said I think that is really important and that is something , I think , in an off way that they
are trying to address in item number 7 here ... is how productivity is held to a minimum . Well yes, it is held to a
minimum, but we are providing for the citizens of not only this City but everybody that is moving to the north and to
the south .
Mr. Kahm said last year we did Broadway all the way from Yale full width to Hampden and then filled ruts all the
way down to Quincy. We went through that and by only working those half days , technically , we were actually on
Broadway 17 or 18 days ... and during that time, I had one complaint from one business and I had two complaints
from the motoring public . So, if we are trying to take care of the citizens and the taxpayers out there, I think we are
doing a good job .
Mayor Wolosyn asked if there were any other questions .
Council Member Woodward said I have some questions . You know , Rick , I was out there and watching some of
the appl ications and have been watching this over the past year and I am really impressed with the end product. I'll
say it isn't very pretty, but it is really effective in one year periods . Just to clarify , you say the full width between
Highway 285 and Grand Avenue will be covered ... does that mean that we are covering from what we covered last
year , from 285 down to Qu in cy , w ith the ruts ... now we are go ing from gutter to gutter there?
Mr . Kahm said we will go gutter to gutter where we filled the ruts at the north end of that section and when we get
down to the area where we will be doing the median project , we will only pull the ruts , so that the median project
next year won 't affect that pavement. Mr . Woodward said okay , so that area between Quincy and Hampden ... that
w ill actually improve the look . Mr. Kahm said it will improve the look and this year's project with this additive and
with what we saw in the test section , will give us a much better looking project as well . The durability will be there,
but it will also be aesthetically more pleasing . Mr . Woodward said okay.
Mr . Woodward sa id my last question . Broadway Holdings , LLC ... are they a local firm? I am just curious as to how
they come up with Broadway Holdings and it happens to be the work they are doing on Broadway. Mr . Kahm said
there is an extra 'a' in there ... it is actually Broadaway and th is is James Broadaway who has owned BASS and as
he is getting older, he has moved th ings around and everyth ing is now part of h is hold ings company . Mr.
Woodward said very good, I didn't see that , I'm sorry. Mr . Kahm said he still does business as BASS .
Mayor Wolosyn asked if there were any other questions .
Council Member Oakley said I would like to state that the proof of this product , we see every day on our streets .
We started our reconstruction projects in 1956 with a 20 year life expectancy and to date none of these streets
have had to be reconstructed ... so you can do the math . This was no accident. This was started by Kells
Waggoner. The maintenance surfacing that we had available at that time ... which was just a chip seal. .. but never
the less it was something to extend the life and when we saw that we needed to go to something more serious
than that , we went to slurry seal and then to micro-surfacing . The proof is there . The product is there . We pay a
little bit more for it, but it is a quality product. It is tried and true . And for a contractor to come in here and try to
force us , or convince us , that we are wrong ... that upsets me . That is all I've got to say about it.
Mayor Wolosyn asked if there was any more discussion . There was none .
COUNCIL MEMBER WOODWARD MOVED , AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (c) (ii)
-AWARD THE CONTRACT FOR THE 2006 MICRO-SURFACING PROGRAM TO BROADAWAY HOLDINGS
LLC, IN THE AMOUNT OF $297,960.00 .
Englewood City Council
August 21, 2006
Page 11
Mayor Wolosyn asked if there was any more discuss ion . There was none .
Vote results:
Ayes :
Nays :
Absen t:
Motion carried .
Council Members Barrentine , Mccaslin , Wolosyn , Woodward,
Tomasso, Oakley
None
Council Member Moore
Mayor Wolosyn said thank you Rick , very much .
12 . General Discussion
(a) Mayor's Choice
(i) Mayor Wolosyn said there has been a request for a liaison to the BID . The liaison would
act like any Council liaison ... attend the meetings and help Council to understand and keep Council very informed of
what the BID is doing . And I know Mr . Woodward has suggested that he would like to do this . So, if there are no
objections ...
Council Member Barrentine said actually I am very interested in taking that position . I had a lot of concerns about
the BID . I think it should be somebody who is not presently involved with the Chamber or with the ACE Committee .
I've worked a great deal w ith the businesses in doing the Englewood Days and these would be along the lines that
they would be want ing to use some of the BID mon ies fo r ... so I am interested in taking th is pos it ion .
Mayor Wolosyn said J im isn 't on the Chamber and he isn 't on ACE .
Council Member Woodwa rd sa id I have been attending the ACE meetings ...
Counci l Member Barrentine sa id I have been pretty involved in do ing some of the BID stuff ... working on th is w ith
the comm ittee and I am very interested in taking that pos ition .
Council Member Tomasso said I would be interested in that also , since I have worked with Old Town Englewood for
severa l years now and w ith several of the ir Car Shows and helped them with tha t. I attended a lot of tho s e
meeti ngs . And I have also helped with the BID and I was very supportive of them obta ining the BID .
Council Me m ber Woo dward sai d I would li ke to withd ra w in fa vo r of Ray be ing appointed to th at po siti o n.
Council Member Barrentine said my only concern would be that I have no dog in this fight. I am not a busi ness
owner in this community and I really believe that I could do a better job of representing Council and the citizens on
there . I have no personal interest. .. because I have no business in the area . My objectivity was brought to the
forefront, from the beginn ing , with my concerns about how the BID would be formed and our involvement in there
and I think I have both sides ' interests at heart w ithout having my own agenda involved .
Mayor Wolosyn said is the BID just like any other commission or public meeting that anybody can attend? City
Attorney Brotzman said correct. Ms . Wolosyn said do we have to have a liaison? It said we may. Attorney
Brotzman said it does say may .
Mayor Wolosyn sa id could we have two or could we say that for the next, or through the election we are going to
hold off and have people go to the public meetings and report back or ... ? City Attorney Brotzman said any of the
above .
Mayor Wolosyn sa id then we can have two? Mr. Brotzman said sure . Ms. Wolosyn sa id then I think I am going
ahead and let's have two . It will g ive us a broad representation ... Mr. Tomasso and Ms . Barrentine . Ms . Wolosyn
said I th ink that will give us a broad representation and v iew point when we hear back from both of you , as I hope
w will ... it's going to be an in tense few months .
Englewood City Council
August 21, 2006
Page 12
Counc il Member Woodward said I just want to make one comment that once ... if and when the BID is approved by
the bus inesses and land owners and goes into affect , I think it is important for those businesses to understand and
have the one ex officio member from Council. I know in the past there has been some bad blood , so to speak , and
I just th ink it is important tha t we have one member there represen ti ng us and only one membe r. That is all I
wanted to say.
Mayor Wolosyn said I will take that into consideration . Thank you .
(ii) Mayor Wolosyn sa id next Saturday is both Funfest and the 5K . Both of these things have
participants from three of our Boards and Commissions . The 5K is sponsored by Keep Englewood Beautiful.
hope people get out and support it. And the Funfest...the Parks and Recreation Commission and the Arts
Commission take part in that.
(b) Council Members ' Choice
(i) Council Member Barrentine :
1. She said I wanted to thank Doug Cohn for bringing the information on Englewood Days and I am very
impressed by the amount of support ... all along, up and down Broadway ... Sheridan and some Littleton bus inesses
and a lot of support in the community for this event. .. and a lot of support from Public Works , Chris Olson and
Safety Services as well , and the Community Development Department. When we have that kind of collaboration , it
is just fantastic , so I just wanted to say thanks .
2 . She said I also wanted to say thanks to Vance Brothers . Because of their letter , I probably learned a lot
more about slurry and micro-surfacing than I would have ever thought. However, one th ing that I have always bee n
impressed with is that our Departments are never afraid to answer questions and I think it is wonderful that they
brought the questions forward, regardless of their agenda . All the departments in Englewood have always been
willing to step forward and answer the hard questions that get brought forth . And I think that that needs to happen
and that availability is important. I appreciated the information , but I appreciate that they brought the questions
forward too . So, thank you for all your hard work in putting that together. It is appreciated .
(ii) Council Member Mccaslin :
1. He sa id I would like to thank Joe Sack , his staff and some City employees for the picnic that was held las t
week at the Malley Center for the voluntee rs . It was grea t. We had a pretty good turnout and it was fun to see that
people are enjoy ing the Malley Center and we are help ing the se ni ors of Eng lewood .
2 . He said the other one I would like to thank is Dan Brotzman , Sam Watson and Jim Woodward for helping to
clear up some issues related to the cleaning up and maintaining abandoned and foreclosed properties in
Englewood . I think it is very important. The last couple of weeks some issues were brought up as far as what we
should do and I think they helped clear up some things . So thanks very much .
(iii) Council Member Oakley:
1. He said I too attend ed t he Malley Center function and I was glad to be there .
2 . He said also I would like to commend Rick on the presentation he gave tonight. This letter made it
necessary. It took a little time and I think you will appreciate Rick's knowledge in this area when you notice that he
used no notes . He knows his stuff. Thanks Rick .
(iv) Council Member Tomasso said one issue that I brought up last year at the Car Show ... is
the City going out and marketing itself during the Car Show, since we have all these visitors in town? Bas ically , we
have a lot of car oriented businesses ... be they paint shops, restorat ion shops , parts shops ... and this is a perfect
t ime . We have all these visitors coming into town , it is a perfect time to go out and market the town , show what we
have to offer and how friendly the town really is. I th ink it is an opportunity that the City should take advantage of.
Englewood City Council
August 21, 2006
Page 13
(v) Council Member Woodward :
1. He said a number of us attended the opening and dedication of the off-leash park ... Englewood Canine
Corral. I think it was a real success. I understand that in the first week it was vandalized a couple of times, which
was really disappointing. Having gone down there , kind of policed it myself and watched what is going on down
there , it is fascinating . It is still fascinating to me to see the number of people and the number of dogs and how
these dogs react...it is really something. And I think it is a very successful dog park . And Dave Lee , thank you and
Jerrell Black and Parks and Recreation .
2. He said I also wanted to mention Funfest is coming up this Saturday at 10 o'clock, at Belleview Park . And
the KEB 5K ... we are still looking for plenty of registrations . I just wanted to mention that dogs on-leash are
welcome, as they were last year and we had some in there, mothers and fathers with strollers and children and
walkers, so please come and have a good time . Thank you .
13 . City Manager's Report
(a) City Manager Sears said we received word late tonight about a School/City Committee meeting
tomorrow night. I know we have been trying to put together dates for a long time . The meeting is tomorrow night at
4 :30 . Ray and Jim will be there on behalf of the Council and staff will also attend .
(b) City Manager Sears said a reminder again that next Monday night is the Board and Commission
Appreciation evening and that is going to be at Centennial Park at 6:00 p.m. So mark your calendar. We have a
couple of nice things to hand out.
14 . City Attorney's Report
City Attorney Brotzman did not have any matters to bring before Council.
15 . Adjournment
~ ~URN. The meeting adjourned at 8:33 p .m
Englewood City Council
Sept. 5, 2006
Comments on The Emergency Ordinance Amending Title 7 EMC Prohibiting Residency
of Sex Offenders .
I agree completely with what this law is intended to do, but there is a gaping hole
that needs to be addressed before being added to the Code.
The law seems to be directed at landlords and those selling homes who will be
providing housing to the perps . J have several questions :
• What directions are you giving to the landlords and home sellers?
• What are we expected to do to not be in violation of the law?
• What are our responsibilities as landlords and sellers?
• How are you going to inform landlords of their responsibilities? •
We need to build into the statute a method for landlords and home sellers to
follow . When we get a prospective tenant:
• Shall we check with the Englewood police?
• Seek a CBI report?
• Will you allow or require prospective tenants to buy an NCIC check and
bring that to us as part of their application?
What happens if a tenant commits a crime while living in Englewood?
• What is the landlord 's responsibility to monitor tenants?
• What if the crime becomes known?
What happens if the landlord follows the guidelines, but rents to a sex offender
because the offense was unknown, you should write in protection from prosecution for
the lancJlord ·s .
Just on e last point 011 record keeping : the house next door to me is listed as a
place where one of these people lives . The perp lived there 9 years ago for about 6
months, renting from the previous owner. 5 years ago, a young family bought the home
and moved in and their house is on the registry . They have been getting some harassment
and some people will not walk down our street because of the listing. This old
i11formation is causing a lot of trouble for them . How are you going to fix this problem
for these residents how can you keep it from happening again to some one else?
Doug Cohn, 303 -76 2-8873 dougscnr@ msn .com
PROCLAMATION
WHEREAS , the Const itution of the United States of America, the guardian of our
liberties, embodies the principles of limited government in a Republic dedicated to rule by Jaw ;
and
WHEREAS , S eptember 2006 marks the two hundred nin eteenth annive rsary of the
framing of the Constitution of the United States of America by the Constitutional
Convention ; and
WHEREAS , it is fitting and proper to accord official recognition to this magnificent
document and its memorable anniversary and to the patriotic celebrations which will
commemo;ate it; and
WHEREAS , Public Law 915 guarantees the issuing of a proclamation each year by
the President of the United States of America designating September 17 through 23 as
Constitution Week.
NOW THEREFORE, I, Olga Wolosyn , Mayor of the City of Englewood, Colorado ,
hereby proclaim the week of September 17 through September 23, 2006 as :
CONSTITUTION WEEK
and urge all citizens of Englewood, Colorado , to reaffirm the ideals the Framers of the
Constitution had in 1787 by vigilantly protecting the freedoms guaranteed to us through this
guardian of our liberties .
GIVEN under my ha nd and seal this 5th day of September , 2006 .
Olga Wolosyn, Mayor
8a
COUNCIL COMMUNICATION
Date: Agenda Item: Subject:
September 5, 2006 8b Associate Judge Marcia O'Brien Reappointment
Initiated By: Staff Source:
Municipal Court Tamara Wolfe, Court Administrator
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
The Municipal Court supports City Council's goal of providing appropriate service levels by
requesting that they continue to appoint Associate Judges to serve the City of Englewood.
RECOMMENDED ACTION
Recommendation from Presiding Judge Vincent Atencio to adopt a Resolution reappointing Marcia
O'Brien to serve a four-year term as an Associate Judge for the City of Englewood, commencing
September 5, 2006 and expiring September 4, 2010.
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
Associate judges are required in order for the Court to maintain a full time, full service schedule.
The judges fill in for the Presiding Judge when there is a conflict of interest, illness or vacation.
Ms. O'Brien meets the qualifications required to serve as an Associate Judge. An additional
Associate Judge is required at this time in order to preserve adequate service levels.
FINANCIAL IMPACT
There is no additional financial impact as associate judge fees are included in the annual budget.
LIST OF ATTACHMENTS
Resolution
RESOLUTION NO.
SERIES OF 2006
A RESOLUTION FOR REAPPOINTMENT OF MARCIA G. O'BRIEN, AS ASSOCIATE
MUNICIPAL JUDGE FOR THE CITY OF ENGLEWOOD, COLORADO.
WHEREAS , pursuant to Arti c le IX , Part II , Section 68 , of the Englewood Home Rule Charter,
"Council may appoint one or more associate judges, who shall sit at such times and upon such
causes as shall be determined by the presiding municipal judge;" and
WHEREAS , Associate Judges are appointed for four year staggered terms ; and
WHEREAS , Marcia O 'Brien 's present term expired September 15 , 2005 ; and
WHEREAS , Associate Judge Cohn serves until 1/31/09; Associate Judge Smith serves until
1/18/2009; and Associate Judge Sprecace serves until 3/1/2008 ; and
WHEREAS , Judge Vincent Atencio requests the Council appoint Marcia O 'Brien to another
four year term as an Associate Judge for the City of Englewood ;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD, COLORADO, THAT:
Section l . Marcia O 'Brien, shall be and hereby is reappointed as Associate Mun icipal Judge
in and for the City of Englewood , Colorado, for a term commencing September 5, 2006 and
ex piring September 4 , 20 l 0 .
ADOPTED AND APPROVED this 5th of September, 2006 .
ATTEST: Ol ga Wolosyn , Mayor
Loucrishia A . Ellis , City Clerk
I, Loucrishia A . Ellis, City Clerk for the City of Englewood , Colorado, hereby certify the
above is a true copy of Reso lut ion No . __ , Series of 200 6.
Loucrishia A. Ellis , City Clerk
ORDINANCE NO.
SERIES OF 2006
BY AUTHORITY
COUNCLL BILL NO. 32
INTRODUCED BY COUNCIL
MEMBER WOODWARD
AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT
ENTITLED "AMENDED AND RESTATED WASTEWATER TRANSMISSION
AGREEMENT'' BETWEEN SOUTH ARAPAHOE SANITATION DISTRICT, THE
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF ARAPAHOE,
SOUTHGATE SANITATION DISTRICT, SOUTH ENGLEWOOD SANITATION
DISTRICT NO. 1, WASTE MANAGEMENT OF COLORADO, INC. AND THE CITY
OF ENGLEWOOD, COLORADO.
WHEREAS, Waste Management of Colorado is the operator and manager of the
County Line Landfill, which is owned by Douglas County and located in Douglas
County at the intersection of S . Colorado Blvd. and County Line Road; and
WHEREAS , rainfall and natural drainage have caused storm waters containing
contaminants or potential contaminants to collect at the Landfill; and
WHEREAS , South Arapahoe Sanitation District owns public sewer facilities in the
vicinity of the Landfill; and
WHEREAS, South Arapahoe's mains flow into the Big Dry Creek lnterceptor, which
is owned in various segments by Southgate Sanitation District and the City of
Englewood and, which is operated pursuant to the 1990 Basin Interceptor Agreement;
and
WHEREAS, the lnterceptor delivers sewage flows from South Arapahoe 's service
area to the Littleton/Englewood Wastewater Treatment Plant; and
WHEREAS , in 1985, South Arapahoe, the County, Waste Management Colorado and
Englewood entered into a Wastewater Transmission Agreement, pursuant to which storm
waters collected at the Landfill have been transmitted to the Wastewater Treatment
Plant, this Agreement was extended and modified by an Amendment in 1990; and
WHEREAS , under the 1985 Agreement Waste Management Colorado installed a lift
station and dewatering sump , which were then connected to the south Arapahoe sanitary
sewer system, which is called the "Landfill Tap "; and
WHEREAS , in 1995 in recognition of changed circumstances, the parties entered into
a restated and amended version of the 1985 Agreement to add an additional tap, referred
to as the "Fairways Tap" and to make other changes ; and
WHEREAS , The I 99S Agreement was extended twice and expired May 2005, upon
expiration, the agreement required that the taps be disconnected from South Arapahoe 's
sys tem ; and
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9 bi
WHEREAS , the passage of this Ordinance will authorize the proposed amended
agreement allowing County Line Landfill to continue to discharge accumulated
groundwater and condensate to the collection system of the LIE Wastewater Treatment
Plant under the conditions of a Wastewater Contribution Permit; and
WHEREAS , the Wastewater Contribution Permit is reevaluated every year, after the
facility inspection ; and
WHEREAS , the Englewood Water and Sewer Board recommended Council approval
of the Amended and Restated Wastewater Transmission Agreement with County Line
Landfill at their July 11 , 2006 meeting; and
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ENGLEWOOD, COLORADO, AS FOLLOWS :
Section 1. The Intergovernmental Agreement entitled "Amended and Restated
Wastewater Transmission Agreement" between South Arapahoe Sanitation District, the
Board of County Commissioners of the County of Arapahoe, Southgate Sanitation
District, South Englewood Sanitation District No. I , Waste Management of Colorado,
Inc . and the City of Englewood, Colorado, attached as "Exhibit A", is hereby accepted
and approved by the Englewood City Council.
Section 2. The Mayor is authorized to execute and the City Clerk to attest and seal the
Intergovernmental Agreement for and on behalf of the City of Englewood, Colorado .
Introduced, read in full , and passed on first reading on the 21st day of August, 2006 .
Published as a Bill for an Ordinance on the 25th day of August, 2006.
Read by title and passed on final reading on the 5th day of September, 2006.
Published by title as Ordinance No._, Series of 2006, on the 8th day of September,
2006.
ATTEST: Olga Wolosyn , Mayor
Loucrishia A . Ellis, City Clerk
I, Loucrishia A. Elli s, City Cle rk of the City of Englewood, Colorado, hereby certify
that the above and foregoing is a true copy of the Ordinance passed on final reading and
published by title as Ordinance No ._, Series of 2006 .
Loucrishia A. Ellis
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AMENDED AND RESTATED WASTEWATER TRANSMISSION AGREEMENT
THIS AMENDED AND RESTATED WAS TEW ATER TRANSMISSION AGREEMENT
(" Agreement") is made and entered into effective as of June 19, 2006 , by and between
SOUTH ARAPAHOE SANITATION DISTRICT , a Colorado quasi-municipal corporation
("SOUTH ARAPAHOE"); the BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF ARAPAHOE, a body corporate and politic of the State of Colorado (the
"COUNTY"); and WASTE MANAGEMENT OF COLORADO , INC., a corporation
("WMC").
RECITALS
A. The COUNTY owns County Line Landfill (the "Landfill"), located in Douglas
County, Colorado at the intersection of South Colorado Boulevard and County Line Road.
B. WMC is the operator and manager of the Landfill pursuant to an agreement
with the COUNTY.
C. Rainfall and natural drainage have caused storm waters containing
contaminants or potential contaminants to collect at the Landfill.
D. SOUTH ARAPAHOE owns public sewer facilities in the vicinity of the
Landfill.
E . SOUTH ARAPAHO E's mains flow into the Big Dry Creek Interceptor (the
"Interceptor"), which is owned in various segments by Southgate Sanitation District
("SOUTHGATE") and the City of Englewood ("ENGLEWOOD"), and which is operated
pursuant to a Basin Interceptor Agreement dated as of August 1, 1990 (the "BIA"). The
Interceptor delivers sewage flows from SOUTH ARAPAHOE 's service area to the Bi-City
Tr eatment Plant (the "Plant") owned jointly by ENGLEWOOD and the City of Littleton;
ENGLEWOOD oper ates and manages the Plant pursuant to an agreement with the City of
Littleton.
F . On or a bout January 2 1, 1985 , SOUTH ARAPAHOE, the COUNTY,
ENGLEWO OD and WMC e ntered into a Wast ewat er Transmission Agreement (the "198 5
Agreement") pursuant to which storm waters collected at the Land fill have been tran smitted
to the Plant. The 1985 Agreement was extended and modified by an Amendment dated
October 1, 1990 (the "Amendment").
G. Under the 1985 Agreement, WMC installed a lift station and dewatering sump,
which were then connected to the SOUTH ARAPAHOE sanitary sewer system. This
connection to SOUTH ARAPAHOE facilities is hereinafter cal led the "Landfill Tap."
H. On or about March 31, 1995, in recognition of changed circum stances, the parties
nt r d into a restated and amended version or' the 1985 agreement to add an additional tap,
refe1Ted to as the "Fairways Tap," and to make other changes. The 1995 agreement was
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extended twice, and the last extension expired May 15, 2005 . Upon expiration, the agreements
require that the taps be disconnected from SOUTH ARAPAHOE'S system .
I. The dewatering of the Landfill is essentially complete, but it will be useful to the
COUNTY and WMC to continue the connection of the Landfill Tap to SOUTH ARAPAHOE 'S
system, in order to discharge a small amount of "condensate" that continues to collect in the lift
station vault, together with ground water that is introduced intentionally to provide sufficient
fluid volume to permit the lift station pumps to operate properly. It is anticipated that the
combined volume of condensate and ground water ("combined discharge volume") will not
exceed 600 gallons per month .
J. SOUTH ARAPAHOE and the other participants in the BIA have no objection to
the continuation of the Landfill Tap connection, subject to the terms and conditions hereof.
AGREEMENT
FOR AND IN CONSIDERATION of the mutual promises and undertakings set forth herein, the
parties agree as follows:
1. Limited Scope of Agreement. The purpose of this Agreement is to permit the use
of SOUTH ARAPAHOE facilities and the Interceptor to convey discharge resulting from
"condensate" and ground water as above recited, and only from the Landfill and only for a
limited period of time. This Agreement shall not be construed or asserted as the basis of any
offer or willingness or ability on the part of SOUTH ARAPAHOE, SOUTHGATE, or
ENGLEWOOD to provide sanitary sewer service to the public generally or to any area outside
the specific limits of the Landfill , except as is specifically provided herein.
2. Landfill Tap . The Landfill Tap shall be governed by this Agreement. A drawing
depicting the location of the Landfill Tap connection is attached hereto as Exhibit A, and
incorporated herein by reference. The Landfill Tap connection shall not be altered or modified
in any manner without express prior written consent SOUTH ARAPAHOE .
3. Fairways Tap. If not done by the date of execution hereof, the Fairways Tap shall
be physically disconnected from the SOUTH ARAPAHOE system and prop erly abandoned per
SOUTH ARAPAHOE'S directives no later than August 1, 2006, at the expense of WMC and the
COUNTY. WMC shall give SOUTH ARAPAHOE at least seventy-two hours' advance notice
before performing the disconnection.
4. C01mections Limited. WMC and the COUNTY shall prevent t he c01mection of
sewer lines from any area other than the Landfill through the Landfill Tap . In addition to any
other remedies herein provided, SOUTH ARAPAHOE shall have the right immediately to
disconnect facilities serving any other area regardless of where the unauthorized connection is
made and to charge the COUNTY and WMC for the costs thereof.
5 . Other Agreements/Permits.
5 .1 In the performance of their obligations under this Agreement, the
COUNTY and WMC will satisfy, adhere to, and be bound by all of the performance standards,
terms, and conditions contained in the following contracts:
a. NEW WASTEWATER CONTRIBUTION PERMIT # 90-02 with
an effective date of May 16 , 2005, and an expiration date of May 15 , 2008, permitting WMC to
discharge to the Plant; and
b. Connector's Agreement between the COUNTY and
ENGLEWOOD dated August 20, 1984, as amended by Amendment dated June 27, 1987 and
Consolidated Amendments to Agreements dated July 2, 1990; and
c. First Amendment to the Consolidated Amendments to
Agreements dated March 21, 1995.
A violation or breach of any of such standards, terms, or conditions will be deemed a violation
or breach of this Agreement and will be cause for termination hereof, without regard to
whether either of the referenced contracts are in force at the time of the alleged violation or
breach.
5.2 Additionally, the COUNTY and WMC understand and agree that all the
rights and privileges granted them by SOUTH ARAPAHOE herein are subject to the
provisions of the Connector's Agreement between SOUTH ARAPAHOE and ENGLEWOOD
and any successor agreements.
5.3 All service furnished hereunder by SOUTH ARAPAHOE,
SOUTHGATE, and ENGLEWOOD shall be subject to applicable Rules and Regulations of
SOUTH ARAPAHOE and SOUTHGATE, to the ENGLEWOOD Wastewater Utility
ordinance, and to any and all treatment permits issued by ENGLEWOOD for the discharge
from the Taps , all as now or hereafter constituted.
6. Ta p Allo cations . T he tap allo catio ns of SO UTH ARAPAHOE under
ENGLEWOOD's tap allocation program, if any, are not affected by either the Landfill Tap or
the Fairways Tap.
7. Connection Charges.
7 .1 Notwithstanding the prov1s1ons of Section 5 above, because of th e
limited term of this Agreement and the time and rate restrictions on discharge in Section 10
below, there shall be no additional SOUTH ARAPAHOE tap fee for the continuati on of the
Landfill Tap. ·
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7 .2 Also because of said limi t ations and restrictions , the Landfill Tap shall
not be deemed a connection to the Interceptor under the BIA. If, ho wever , discharge from the
Landfill Tap causes any impact upon any gallons -per-day capac ity entitl ements under the BIA ,
such capacity impact shall'be deemed attributable to SOUTH ARAPAHOE . In such event the
COUNTY and WMC shall be liable for the payment of Line Charges under the BIA, calculated
as provided therein , and SOUTH ARAPAHOE may impose such tap fees or syste m
dev elopment charges upon the Landfill Tap as are applicable generally within that District. In
lieu of the foregoing , ho wever , SOUTH ARAPAHOE may, at its discretion but not later than
sixty (60) days after notice of In t erceptor capacity impact is given to SOUTH ARAPAHOE ,
the COUNTY and WMC by SOUTHGATE or ENGLEWOOD , alter the t ime and rat e
restrictions on Landfill discharge into its sys tem so as to eliminate the cap acity impact upon
the Interceptor.
7 .3 The agreement to waive connection charges is based upon the
understanding and assumption that the "condensate" phase of the Landfill dewatering program
is temporary. If the Landfill Tap has not been disconnected at or before the expiration of this
Agreement as stated in 14.1, at the election of SOUTH ARAPAHOE in its sole and unlimited
discretion, the Landfill Tap may be deemed permanent. Upon a determination to such effect by
re solution of the SOUTH ARAPAHOE Board of Directors following reasonable notice to and
an opportunity for the COUNTY and WMC to be heard, all connection charges and tap fees
attributable to the Landfill Tap will be due and payable within 30 days thereafter, at the then
curr ent amounts and calculation formulae, and the Landfill Tap will be account ed for under the
BIA as a new connect ion to the SOUTH ARAPAHOE system as of that date . The Landfill Tap
w ill no t, however, count against the Taps for which SOUTHGATE agreed t o pay Line Charg es
under the May 31 , 1990 Agreement between SOUTH ARAPAHOE and SOUTHGATE. In the
event the Landfill Tap is determined to be permanent, the COUNTY and WMC shall
thereafter be jointly and severally liable to pay Line Charges and maintenance charges
attributable to the Landfill Tap directly to ENGLEWOOD. If as of the expiration of this
Agree ment SOUTH ARAPAHOE has not determined the Landfill Tap to be permanent as
provi ded abov e, the Landfill Tap shall be prompt ly and permanently disconnect ed and properl y
abandoned in accordance with SOUTH ARAPAHOE directives .
8. Maint enance Char ge s .
8.1 The SOUTH ARAPAHOE annual service charge for the Landfill Tap
shall be Five Hundred Dollars ($500.00). Such fees shall be paid in advance, on the date of the
execution hereof and on each anniversary thereafter while this Agreement is in effect.
8.2 Because of the negligible flows expected from the Landfill Tap, the
COUNTY and WMC shall not be liable for any maintenance charges imposed pursuant to the
BIA. It is recognized that if the volume of discharge exceeds expectations, payment of such
maintenance charges may be imposed as a condition of continued connection of the Landfill Tap.
9. Costs Reimbursement. The COUNTY and WMC shall be jointly obligated to
reimburse SOUTH ARAPAHOE lhe one-time sum of One Thousand Dollars ($1,000.00) for the
engineering and le gal fees incurred in responding to the request by the COUNTY and WMC for
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this Agreement. These expenses include but are not limited to drafting of this Agreement by
SOUTH ARAPAHOE'S legal counsel and the review of same by the consulting engineer. Such
reimbursement shall be paid on or before August I , 2006.
10. Discharge Limitations. It is agreed that the total combined discharge volume
shall not exceed a running average of six hundred (600) gallons per month. This discharge may
be accomplished at a rate not to exceed twenty (20) gallons per minute at any time , or, between
the hours of 10:00 a.m. and 4 :00 p.m., the rate may be increased to a maximum of one hundred
twenty (120) gallons per minute for not more than five consecutive minutes.
11. Emergency Shutoff. SOUTH ARAPAHOE, SOUTHGATE, and ENGLEWOOD
shall at all times have the right, without liability for damages to the COUNTY or WMC, to
interrupt the discharge of Landfill wastewater in the event of a blockage or rupture anywhere
within the SOUTH ARAPAHOE system, the Interceptor or the Plant.
12. Monitoring; Reporting.
12.1 During the term of this Agreement, the COUNTY and WMC will furnish
SOUTH ARAPAHOE, SOUTHGATE, and ENGLEWOOD with copies of all flow charts,
analytical reports, tests , and test results involving the wastewater removal program submitted by
them to the Colorado Department of Health . Additionally, SOUTH ARAPAHOE may monitor
the Landfill Tap , review any flow charts, analytical reports , and tests made by any of the parties,
and have access to the Landfill Taps to ex amine , inspect, and make such tests of the Landfill
w astewater as it deems necessary, provided that in exercising its rights hereunder SOUTH
ARAPAHOE does not interfere unreasonably with the operation of the Landfill Taps or impose
an unreasonable administrative burden on WMC . The COUNTY and WMC shall reimburse
SOUTH ARAPAHOE for all costs and expenses incurred in connection with any examination
and testing which does not duplicate information previously provided to SOUTH ARAPAHOE
by the COUNTY and WMC hereunder.
12.2 The COUNTY and WMC shall monitor contaminants present in the
d ischarge at the Landfill Tap, and shall provide copies of the documents submitted to the
C olorado Department of Public Health and Environment to SO UTH ARAPAHOE and
S OUTH GA TE, and shall n otify SOU TH ARAPAHOE and SO UTH GA TE immedi ately of any
changes or new toxic or hazardous material foun d .
13 . Cure of Violations. The COUNTY and WMC shall correct any violations or
breaches of this Agreement, or other conditions reasonably determined by SOUTH
ARAPAHOE, SOUTH GA TE or ENGLEWOOD to be injurious to SOUTH ARAPAHOE
facilities, the Interceptor, or the Plant. Upon the failme of the COUNTY or WMC to take
appropriate corrective action after notice by SOUTH ARAPAHOE, SOUTHGATE or
ENGLEWOOD, any or all of said parties shall have any or all of the following remedies:
w1dertake such corrective action as it dee·ms necessary to halt landfill discharge into SOUTH
ARAPAH E facilities; disconnect the Landfill Tap from OUTH ARAPAHOE facilities; and
bt::in injunct ive or other relief fr om any court of ornp1::t1::nl juri di tion. uch remedies shall be
umulative, and the COUNTY and WMC shall be jointly and se erally r sponsible and liable to
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SOUTH ARAPAHOE, SOUTHGATE and ENGLEWOOD, as appropriate, for all expenses ,
including engineering and attorney fees , incurred in connection with the corrective work . In the
event of litigation, the prevailing party shall be entitled to recover its expenses and costs of suit,
including attorney fees and other professional fees and charges.
14 . Term; Termination.
14 .1 Unless sooner terminated for any reason elsewhere provided, this
Agreement shall extend to and until June 20, 2008.
14.2 Any party may terminate this Agreement sooner for any of the following
reasons:
a. ENGLEWOOD terminates the aforesaid NEW WASTEWATER
CONTRIBUTION PERMIT # 90-02, or refuses for any reason to treat discharge from the
Landfill Tap;
b. Any party commits a material breach of any provision hereof and
fails to cure the same within sixty (60) days after service of written notice of breach upon it,
which notice shall identify with particularity the act or omission complained of and the cure that
is demanded;
c. SOUTH ARAPAHOE reasonably determines that the rate of
discharge substantially exceeds the limitation set forth in Section 10 above ;
d . The Landfill wastewater drainage contemplated by this
Agreement is completed.
14.3 Upon the termination of this Agreement, the Landfill Tap shall be
disconnected permanently from SOUTH ARAPAHOE facilities in accordance with all
applicable regulations of governmental agencies having jurisdiction, including without
limitation, the Colorado Department of Public Health and Environment. All work involved in
suc h disconne ction shall be subject further to the approval of SOUTH ARAPAHOE. The
COUNTY a nd WMC sha ll pay all of the co sts incurred in the disconnection of the COUNTY
system, including the inspection and other costs of SO U TH ARAP AHO E's consul ting
engineer.
14.4 If for any reason the Landfill Tap is disconnected from SOUTH
ARAPAHOE facilities before all "condensate" is removed from the Landfill, the COUNTY
and WMC acknowledge and agree that an acceptab le a lternative mean s of removin g such
remaining "condensate" exists in the form of trucking, a nd that t h e removal of wastewater
from the Landfill through SOUTH ARAPAHOE facilities and the Interceptor as provided in
this Agreement, while less expensive, is riot necessary for public h ealth or re lated reasons.
6
15. Transmission Liabilities Limited. Neither SOUTH ARAPAHOE nor
SOUTHGATE shall have any liability to ENGLEWOOD for damage to the Plant caused by
discharge from the Taps, but nothing herein shall be construed to relieve SOUTH
ARAPAHOE from liability or responsibility for its failure or refusal promptly to carry out
reasonable and lawful di r ectives from ENGLEWOOD to assist ENGLEWOOD in stopping
the discharge of hazardous wastes from the Taps . Further, nothing in this section shall be
construed to prohibit ENGLEWOOD from including costs to repair damage to the Plant
caused by discharge from the Taps in the revenue requirements for its treatment charges
applicable generally to all customers served by the Plant.
16. Miscellaneous Provisions.
16.1 The COUNTY and WMC shall indemnify and save harmless SOUTH
ARAPAHOE, SOUTHGATE and ENGLEWOOD, their officers, employees, and agents,
against any and all claims, damages, actions, or causes of action and expenses, including attorney
fees to which they or any of them may be subjected by reason of or in connection with the
construction, operation, modification, replacement, maintenance, repair, or removal of the
Landfill Tap, or the use of SOUTH ARAPAHOE facilities or the Interceptor by the COUNTY
and WMC. As to the COUNTY, the foregoing indemnification agreement shall be limited by
and subject to the rights, defenses and limitations upon liability available to the COUNTY
pursuant to the Colorado Governmental Immunity Act, CRS §24-10-101 et. seq, and nothing
herein shall be construed to waive or limit any such rights or defenses . Neither WMC nor the
COUNTY shall be required to defend, indemnify or hold harmless any party for any acts ,
omissions or negligence of such party, its contractors , agents , or employees.
16 .2 This Agreement shall not be assigned, sold or transferred by the COUNTY
or WMC without the written consent of SOUTH ARAPAHOE.
16.3 This Agreement shall not be used as a legal defense or prohibition to a
mandatory consolidation of all existing sewer collection systems and facilities into a single
governmental entity created to assume responsibility for sewer service in the area in which th e
COUNTY, ENGLEWOOD , and SOUTH ARAPAHOE are a part, under stat utory or
constitutional authority, as may be the cas e.
16.4 This Agreement supersedes, terminates and replaces the 1985 Agreem ent
the 1995 Agreement, and all amendments and extensions of either, in their entirety .
16.5 The above and foregoing constitutes the whole agreement between th e
parties an d no additional or different oral representation, promise or agreement shall be bindin g
upon any of the parties hereto with respect to the subject matter of this Agreement.
7
fN WITNESS WHEREOF, the parties have set their hands and s eal s, effective th e d a y and year
fir st above written.
ATTEST:
Paul Schwarzweller, Secretary
(SEAL)
ATTEST:
Nancy A. Doty, Clerk of the Board
(SEAL)
ATTEST:
Assistant Secretary
SOUTH ARAPAHOE SANITA TION DISTRICT
By
Steve Daldegan, Pre sident
BOARD OF COUNTY COMMISSIONERS,
COUNTY OF ARAPAHOE
By
Chairman
Date:
WASTE MANAGEMENT OF COLORADO , INC .
By
Robert P . Camico, President
8
CONSENT OF SOUTH ENGLEWOOD SANITATION DISTRICT NO. 1
SOUTH ENGLEWOOD SANITATION DISTRICT NO . 1, being a party to the Basin
Interceptor Agreement, consents to all tenns and provisions of the above and foregoing
AMENDED AND REST A TED WASTEWATER TRANSMISSION AGREEMENT.
Dated this ____ day of ________ , 2006 .
SOUTH ENGLEWOOD SANITATION
DISTRICT NO. 1
By
President
ATTEST:
By
Secretary
CONSENT OF CITY OF ENGLEWOOD
THE CITY OF ENGLEWOOD, being a party to the Basin Interceptor Agreement and one of the
owners of the Littleton-Englewood Wastewater Treatment Plant, consents to all terms and
provisions of the above and foregoing AMENDED AND RESTATED WASTEWATER
TRANSMISSION AGREEMENT.
Dated this ____ day of ________ , 2006.
CITY OF ENGLEWOOD, COLORADO
AITEST:
By
Title
Date
Title-City Clerk, Loucrishia A. Ellis
(SEAL)
Olga Wolosyn, Mayor
CONSENT OF SOUTHGATE SANITATION DISTRJCT
SOUTH GA TE SANITATION DISTRJCT, being a party to the Basin Interceptor Agreement,
consents to all terms and provisions of the above and foregoing AMENDED AND REST A TED
WASTEWATER TRANSMISSION AGREEMENT .
Dated this ____ day of ________ , 2006.
ATTEST:
By
Secretary
SOUTHGATE SANITATION DISTRICT
By
President
10
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MUNICIPAL
GOLF COURSE
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7900 S. COLORADO BL VD .
LANDF"lll TAP
CONNECTION
SOUTH ARAPAHOE
SANITATION DISTRICT
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EXHIBI T A
600
COUNCIL COMMUNICATION
Date: Agenda Item:
September 5, 2006 11 a i
Initiated By:
City Attorney
Subject:
Emergency Ordinance Amending Title 7,
EMC Prohibiting Residency of Sex Offenders
Staff Source:
Dan Brotzman, City Attorney
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
Addition of a new Chapter, prohibiting sexual predators and certain sex offenders from establishing
residency near areas where children congregate and declaring an emergency.
RECOMMENDED ACTION
Approval of the attached Ordinance.
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
The City Council of the City of Englewood, Colorado is concerned about the numerous occurrences
whereby convicted sexual predators and certain sex offenders who have been released from custody
repeat the unlawful acts for which they had originally been convicted. The City has narrowly tailored
this Ordinance to address sexual predators pursuant to 18-3-414.5 C.R.S. and those sexual offenders
convicted of a felony; that have multiple convictions or that have multiple victims resulting in the
offender being required to register under the Colorado Sex Offender Registration Act, C.R .S. Section
16-22 -101 , et. Seq ..
The Englewood City Council finds that the recidivism rate for released sexual predators and the
specified sex offenders is high, especially for those who commit their crimes against children. The
City Council desires to provide for the maximum protection of the health, safety, and welfare of
citizens in the City, especially where children congregate more frequently without adult supervision
such as schools, parks, and playgrounds .
FINANCIAL IMPACT
N/A
LIST OF ATTACHMENTS
Safety Services Memorandum
Proposed Emergency Ordinance
Categories of Se Offend rs
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Director Chris Olson
Division Chief Vandermee
August 17, 2006
Council Request 06-113, Categories of Sex Offenders
This request was submitted by City Council Person Laurett Barrentine at the study
session on August 14, 2006.
During a discussion on registered sex offenders Ms . Barrentine referenced a website
that she had visited that provided a color coding for various levels of registered sex
offenders. She asked if we could provide this same break down as we explore the
possibility of regulating sex offenders in the City of Englewood .
It was determined that the website that Ms . Barrentine was referencing is
www.familywatchdog .us .
While this website does breakdown the crimes committed by these sex offenders into
four categories ; child victims , rape , sexual battery, and other offense, it does not
adequately identify the various levels of offenders. It fails to identify felon versus
m isdemeanor. It does not provide a definition for the term "rape " versus sexual assault
nor does it effectively describe what constitutes sexual battery. The category of "other
offense" is not defined .
We have broken our registered sex offenders down into much m 1.. J identifiable and
manageable categories.
There are currently 77 registered sex offenders in the City of Englewood . This number
changes on nearly a daily basis as offenders move in and out of the city.
7 1 of these sex offenders are adults while only 6 are j uven ile s.
All of the offenders are males .
51 of the offenders knew or were related to their victims while 21 of the victims were
unknown to the offender.
66 of the victims were juveniles at the time of the offense and 11 victims were adults.
61 of the offenders committed felonious crimes while 16 committed misdemeanors.
55 of the offenders committed a single criminal act, 22 were repeat offenders .
Thomas E. Vandermee
Police Operations Divis ion Chief
ORDINANCE NO.
SERIES OF 2 006
BY AUTHORITY
A BILL FOR
!I ti!
COUNCIL BILL NO. 35
INTRODUCED BY COUNCIL
MEMBER ____ _
AN ORDINANCE AMENDING TITLE 7, OF THE ENGLEWOOD MUNICIPAL
CODE 2000, BY THE ADDITION OF A NEW CHAPTER 3, PROHIBITING SEXUAL
PREDATORS AND CERTAIN SEX OFFENDERS FROM ESTABLISHING
RESIDENCY NEAR AREAS WHERE CHILDREN CON GREGA TE AND
DECLARING AN EMERGENCY.
WHEREAS, the City Council of the City of Englewood, Colorado is concerned about
the numerous occurrences whereby convicted sexual predators and certain sex off enders
who have been released from custody repeat the unlawful acts for which they had
originally been convicted ; and
WHEREAS, the Englewood City Council finds that the recidivism rate for released
sexual predators and the specified sex offenders is high, especially for those who commit
their crimes against children ; and
WHEREAS, the City is an attractive place of residence for families w ith children; and
WHEREAS, the City has narrowly tailored this Ordinance to address sexual predators
pursuant to 18-3-414.5 C.R.S . and those sexual offenders convicted of a felon y; that have
multiple convictions or that have multiple victims resulting in the offender being required
to register under the Colorado Sex Offender Registration Act, C .R .S . Section 16-22-101 ,
et. seq.; and
WHEREAS, children congregate more frequentl y without adult supervision at schools, <
parks and playgrounds ; and
WHEREAS, the City Council de s ire s to prov ide for the maxi mum protect io n of the
health , safety and we lfare of citizens in the C ity;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCfL OF THE CITY OF
ENGLEWOOD, COLORADO, AS FOLLOWS :
Section I . The City Council of the City of Englewood hereby approves amending Title
7 of the Englewood Municipal Code 2000, with the addition of a new Chapter 3, and for
the immediate preservation of the public property, health, peace and safety, it is hereby
declared that an emergency exists and that this Ordinance shall take effect upon its final
pas sage to read as follows :
-1-
~ PB9liWIJEQ RESIDENCY Pf SEX QffENDERs
7-3-J :. findings and Integt.
a. The City Council hereby finds that sexual predators and the specified sex offenders
who use physjcal yjolence or who prey on children present an extreme threat to the
public safety. Sexual predators and the specjfied sex offenders have a high rate of
recidiyjsm. makjng the cost of sex offender yjctimiz.atjon to society at large
extremely hjgh. Remoyjng such offenders from regular proximity to places where
children are located and limiting the frequency of contact js likely to reduce the risk
of an offense.
Ji . Ihjs Chapter js intended to serve the City's compeHing interest to promote. protect
and improve the publjc health, safety and welfare by creating areas. around locations
where children regularly congregate in concentrated numbers. where sexual
predators and specjfied sexual offenders are prohibited from establishjng temporary
or permanent residence.
~: Definitions, For pumoses ofthjs Chapter, the following terms shall have the
following meanjngs:
"Pennanent residence" means a place where a person abjdes, lodges. or resides for
five £5} or more consecutive days .
''TemooraD' residence" means a nlace where a person abides, lodges, or resides for a
period of five £5} or more days in the aggregate during any calendar year and which
is not the person 's pennanent residence, or a place where a person routjnely ahjdes.
lodges. or resides for a period of five £5} or more consecutive or nonconsecutive days
in any month and which is not the person's pennanent address .
"Walk-to-school route " means a route officjaHy desjgpated by the City for use by
children walkjng to or from a public or prjyate school, and sho wn on maps
maintained by the City 's Police Department and ayajlable for public inspection.
7-3-3; frohihitiops.
It shall be unlawful for:
Any person who has been found to be a sexually violent predator pursuant to
18-3-414 ,5 C.R.s.: or
Any person regujred to regjster under the Colorado Sex Offender
Regjstration Act. c.R.s. Section !6-22 -101, et. seq. who has been;
a. convicted of a felony for an offense requiring regjstratjon; or
b.. has multjple conyjctjons for offenses regujrjng regjstratjon; or
£A whose offen e(s) regujring regj . tratjon jnvo1ved rouJtjple yjctjms
-2-
B .
to establish a pennanent residence or temporary residence within two thousand feet
<2,000 '} of any school, park, or playground or within one thousand feet (1,000 '} of
any licensed day care center, recreation center or swimming pool <other than pools
located at pri vate, single-family residences} or any property located adjacent to any
designated public or private school bus stop, walk-to-school route, or recreational
trail.
It is unlawful to let or rent any portion of any property, place, structure, trailer or
other vehicle with the knowledge that it will be used as a permanent or temporary
residence by any person prohibited from establishing such pennanent or temporary
residence pursuant to this Chapter.
7-3-4: Exceptions. A person is not guilty ofa violation of this Section if:
a. The person established the pennanent or temporary residence prior to the effective
date of this ordinance: provided, however, that this exception shaH not apply if the
person committed the offense, for which registration under the Colorado Sex
Offender Registration Act is required, after the effective date of this ordinance:
,a. The person is placed in the residence pursuant to a State of Colorado foster care
program: or
~-The scho ol, de signated public or private school bus stop, walk-to-school route,
li ce nsed da y care center, park, playground, swimming pool, recreational trail or
re creati on center was opened after the per son established the pennanent or
temporary re sidence, and is not replacing an existing school, designated public or
private school bus stop, walk-to-school route, licensed day care center, park,
playground, swimming pool, recreational trajl or recreation center .
7-3-5; Me,syr;emegt. For pumo ses of detennining the mjnimum djstance separation
required herein, the measurement shall be made by following a straight line from the
outer property line of the property on which the school, licensed day ca re center,
park, pl aygr ound, sw imming pool or recr eation center is located to the nearest point
on the oute r pro pe rty lin e of th e property on which the pennanen t or temporary
resi dence is loca ted.
Section 2 . Safety Clauses. The City Council he re by fi nd s, determines, and d eclares
that this Ordinance is promulgated under the general police power of the City of
Englewood , that it is promulgated for the health , safety, and welfare of the public , and
that this Ordinance is necessary for the preservation of health and safety and for the
protection of public convenience and welfare. The City Coun ci l fu rth er determines t hat
the Ordinance bears a rationa l re lation to th e proper legis lative o bject so ught to be
obtained .
ec t ion 3 . Severability. If any clause , sentence, paragra ph , or part of this Ordinance
or the application thereof to any per on or circumsta nces sha ll for any reason be
adjudged by a court of competent jurisdiction invalid, suc h j ud gment sha ll not affect,
impair or invalidate the remainder of thi Ordinance or it application to other persons or
cir um lance .
-3-
Section 4 . Inconsistent Ordinances. All other Ordinances or portions thereof
inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed
to the extent of such inconsistency or conflict.
Section 5. Effect of repeal or modification. The repeal or modification of any
provision of the Code of the City of Englewood by this Ordinance shall not release,
extinguish, alter, modify , or change in whole or in part any penalty, forfeiture , or
liability, either civil or criminal , which shall have been incurred under such provision,
and each provision shall be treated and held as still remaining in force for the purposes
of sustaining any and all proper actions , suits , proceedings, and prosecutions for the
enforcement of the penalty, forfeiture , or liability, as well as for the purpose of
sustaining any judgment, decree , or order which can or may be rendered , entered, or
made in such actions , suits, proceedings, or prosecutions.
Section 6 . Penalty . The Penalty Provision of Section 1-4-1 EMC shall apply to each
and every violation of this Ordinance .
Introduced, read in full , and passed on first reading as an emergency Ordinance on the
5th day of September, 2006.
Published as an emergency Bill for an Ordinance on the 8th day of September, 2006.
Olga Wolosyn , Mayor
ATTEST :
Loucrishia A . Ellis , City Clerk
I, Loucrishia A. Ellis, City Clerk of the City of Englewood, Colorado, hereby certify that
the above and foregoing is a true copy of an emergency Bill for an Ordinance, introdu ced ,
read in full , and pa ssed on fir st reading on the 5th day of September, 2006 .
Loucrishia A. Ellis
-4 -
Proposed Sex Offender Residency Ban Map: Version 3
School , Park , Playground, Rec . or Daycare Property
1000 Foot Buffer (Recreational and Daycare Facilities)
2000 Foot Buffer (Schools , Playrounds , Parks)
-Arterial and Collector Streets
-Local Streets
1:1 City Boundary
18 -3-4 13.5 Criminal Code
18-3-413.5. Use of closed circuit television
offenses. (Repealed)
Title 18 -page 424
child victims of sexual
Source: L. 96: Entire sec tion added, p. 677, § I , effective May 2 . L. 2003: lP(l )(a)
amended, p . 974, § 7 , effective April 17 . L. 2004: (2)(a)(V) amended, p . 13 80 , § 7
effective July I. L. 2005: Entire sec tion repealed , p . 427 , § 8 , effec tive April 29 . '
18-3-414. Payment of treatment costs for the victim or victims of a sexual offense
against a d1ild. (I) In additi on to any o th e r pen alty provide d by Jaw, the court may o rder
any person who is convicted of an unl awful sexual offense, as de fined in section 18-3 -411
(I ), or o f inc est, as defin ed in section 18 -6-30 1, when the vic tim was under the age of fifteen
ac the time of the co mmi ss io n of th e offense, to meet a ll or any portion of the finan cial
obligations of treatment prescribed for th e victim or victims of hi s or her offen se.
(2) At the time of sentencing, the court may order that an offender describe d in
subsection (I) of this section be put on a period of proba tion for the purpose of pa ying the
treatment cos ts of the victim or victims .
Source: L. 83: Entire section added, p. 694, § 5, effectiv e June 15. L. 2003: Entire
section amended, p . 974, § 8, effective April 17 .
Cross references : For provi s ion s concerning payment of treatment costs for child abuse victim s
which are si milar to the provi sions of thi s se ction , see§ 18 -6-401.4.
18-3-414.5. Sexually violent predator. (1) As us e d in this section, unless the context
otherwise require s:
(a) "Sexually violent predator" means an offender:
(I) Who is eighteen years of age or older as of the date the offense is committed or who
is less than eighteen years of age as of the date the offense is committed but is t1ied as an
adult purs ua nt to section 19-2-517 or 19-2-518 , C.R.S.;
(ll) Who has been co nvicted on or after July I , 1999, of one of the following offenses
committed on or after July 1, 1997 :
(A) Sexual assa ult , in violation of section 18-3-402 or sexu al assault in the first deg ree,
in violati on of section 18-3-402 , as .it ex.is le d prior to Jul y I, 2000 ;
(B ) Sexual assault in the second deg ree, in vio latio n of section 18-3-403, as it exis ted
ptior to July 1, 2000 ; ·
(C) Unlawful sex ua l contac t, in violation of section J 8-3-=4~ (1 .5) or (2) or se xual
assa ult in th e third degree, in vio lati on of section 18 -3-404 (1.5) or (2), as it existed prior
to July 1, 2000;
(D) Sexual assault on a c hild , in vio lati o n o f section J8~3-4Q~; or
(E) S ex ual assault o n a c hild by one in a position of uu st, in vio lation of section
8-3-405.31
(III) Whose victi m was a stra nger to the offe nd er or a perso n with wh om the offender
establi shed or promoted a relationship primarily for the purpose of sex ual vic timi zation; and
(IV) Who, based upon the results of a ri sk assessment screenin g instrument developed
by the divi sion of c1iminal justice in consu lt ation wi th and approved by the sex offender
man agement board es tab li shed pursuant to section 16-11.7-103 (I), C.R.S., is likely to
s ub seq ue ntl y" commit o ne or more of the o ffen ses specified in s ubparagraph (II) of this
paragraph (a) under th e circu m stan ce de cribed in subparagraph (III ) of thi s paragraph (a).
(b) "Convic ted " includes havin g pl ea ded guilty or nolo cont e nd e re.
(2) At th e time a presentence investigation report is conduc te d for a defendant who is
co n vic te d of on e of the offenses specified in subparagraph (TI) of paragraph (a) of
s ub secti o n (I) of thi s sec ti o n , the probation departm e nt s hall , in coordination with th e
eva luato r co mpl e tin g th e m e ntal health sex offen e s pec ifi c eva luati o n, complete the
ex u a lly v iole nt predator risk asses ment. Ba se d on th e res ult s of such assessment , th e co u11
, ha ll make specific findings of fact a nd e nt er an order co nce rnin g whether the defenda nt is
a sex ually vio lent predator. If th e defendant i fo und to be a sexua ll y viole nt predator, th e
-
i:
I. -~
---------------..------------------.;.,.
Title 18 -page 425 Offe nses Again s t th e Perso n 18-3-4 15 .5
defenda nt s ha ll be re quire d to register purs ua nt lo the provi sion s of section 16-22-108, ·
C.R .S . .
(3) When considering rel e ase on parol e for an offender who w as convicte d of one of the
offenses specified in subparagraph (II) of paragraph (a) of s uo section (I) of this sec tion , the
parole board shall make spec ific findings concerning whether the offender is a sexually
violent predator, based on the results of a sexually viol e nt predator a s s essment conducted
by the department of corrections . If the parole board finds that the offender is a sexually
violent predator, the offender shall be required to register purs uant to the provisions of
section 16-22-108, C.R.S .
Source: L. 97: Entire section added, p. 1564, § JO , effective July l. L. 98: Entire
section amended, p . 397 , § 2 , effective April 21. L. 99: Entire section amended, p . 1148,
§ 9 , effective July I. L. 2000: (I )(a)(Il)(A), (I )(a)(Il)(B ), and (l )(a)(Il)(C) amended, p .
706, § 31 , effective July I . L. 2001: (2) am e nded, p . 657 , § 4, effective May 30. L. 200~:
(2) and (3) amended, p . 1186, § 22, effective July I .
ANNOTATION
Law reviews. F o r article, "Constitutional
Challenge s to Sex Offe nder Registration and
Community Notifi cati o n L aws", se e 30 Colo .
Law. 5 1 (Febru ary 2001 ).
Trial court 's adjudication of defendant as a
sexually violent predator under this section
did not violate defendant's right to trial un-
der Apprendi v. New Jersey. Lifetime duty to
re g ister as a sex offe nd er and p os ting of de fen-
dant 's personal information o n internet were not
additi onal puni s hm e nts giving Ji se to right to
uial by jury. People v. Ste ad, 66 P.3 d 11 7 (Colo .
App. 200 2).
Court improperly found defendant to be a
sexually violent predator under this secti on
when th ere was no evid ence in th e record to
es tabli sh that th e victim w as a stranger or th at
th e defend ant es ta bli shed or promoted a rela -
tion ship for the purpose of sexual vi ctimization .
Peopl e v. Wo ellhaf, 87 P.3d 142 (Colo . App .
2003 ), rev 'd o n o th er grounds, 105 P.3 d 209
(Colo . 200 5).
18-3-415. Acquired immune deficiency syndrome testing for persons charged with
any sexual offense. Any adult or juvenile who is b ound ove r for tri a l for a ny sex ual offe nse
in vo l vin g sex ual pene tration a s de fin e d in sec ti on 18 -3 -401 (6 ), subsequent to a prelimin ary
heating or after h av in g waived the 1i g ht to a pre limin ary hearing, or a ny pe rson who is
indi cted fo r o r is conv ic te d o f any s uch offense, sh a ll be o rd e re d by the c ourt to submit to
a d iagnos tic tes t fo r th e hum a n immun odefi c ie ncy virus (HI V) th a t causes acqui re d immune
deficie ncy sy ndrom e , said d iagnos tic tes t to be ord ered in conj un ction w it h th e di agnostic
tes t o rdered pursuant to section 18-3 -415.5. The res ults of s uch diagnostic test s hall be
reported to the court or the court 's designee, who shall th e n di sclose the results lo any
vic tim o f th e sexual offense who reques ts such di sclos ure . Review and disclosure of
diagno tic test results by the courts shall be closed and co nfidential , and any tran saction
re cord re lating th ereto s hall also be closed and confiden tial. If the person who is bound
over for trial o r who is indicted for or convicted of any such offense voluntari ly submits lo
a diagnostic tes t for th e h uma n im mu nodeficiency vi111s (H IV), the fact o f such person's
vo lunt ary s ubmi ss ion s hall be admissible in m it iga t ion of sent e nce if the pe rs o n is con victed
of 1h e charged offe nse .
So u rce: L. 88: Entire sec ti o n add e d , p . 728, § I , effec tiv e July I . L. 93: Entire sec ti o n
amended , p . 17 3 1, § 16 . effec ti ve July I. L . 99 : Entire sec tion amended , p . I 003 , § I 0 ,
e ffec ti ve M:iy 29 . L. 2000 : E ntire ecti o n amended , p. 451, § I , e ffective April 24 .
·russ references: (I) For th e provi ion allowi ng th e tes t to he done without th e knowledge and
1.:o nsc nt of th e person . see § 25-4-14 05 (8) a)(V).
(2) Por th e lcgi lativc d ec larati on contained in th e 1999 act amending th i sec ti o n , see sec ti o n I
uf chapter 254. Sessio n Law of Co lorado 19 9 .
18-3 --US.S . cquired immune dcfkil•ncy yndrome te ·ting for per ·on charged
wilh ce rtain sex ual often e . mnndntory sentencing. (I ) or purpo e f thi ection,
-·----...__~--
16-22-108 Criminal Proceedings Title 16 -page 444
register with the local law enforcement agency in each jurisdiction in which the perso n
resides . Each s uch person shall initially register or, if sentenced on or after January I , 2005,
confilm hi s or her initial regi stration within five bu si ness days after release from incarcer-
ation for commission of the offense requiring registration or within five business day s after
receiving notice of the duty to regi ster, if the person was not incarcerated . Such person shall
register with the local law enforcement agency during business hours by completing a
standardized registration form provided to such person by the local law enforcement agency
and paying the regi stration fee imposed by the loc a l l aw enforcement agency as provided
in subsection (7) of this secti o n . The CBI s ha ll provide standardized registration fmms to
the local law e nforcement agencies pursuant to sec tion 16-22-109.
(b) Except as otherwise provided in paragraph (d ) of this subsection (I), each person
who is required lo register pursuant to section 16-22-103 s hall reregister on the person's
first birthday following initial registration and annually on the person's birthday thereafter.
If a person's birthday falls on a Saturday, Sunday, or holiday, the person shall reregister on
the first business day following his or her birthday. Such person shall reregister pursuant lo
this paragraph (b) with the local law enforcement agency of each jurisdiction in which the
person resides on his or her birthday, in the manner provided in paragraph (a) of this
subsection () ).
(c) Each person who is required to regi ster purs uant to section 16-22-103 and who
establishes an additional residence shall, within five business days after establishing an
additional residence in any city, town, county, or city and county within Colorado, register
with the local law enforcement agency of the jurisdiction in which he or she establishes the
additional residence. Such person shall register in said jurisdiction in the manner provided
in paragraph (a) of this subsection (I) and shall reregister as provided in paragraph (b) of
this subsection (I) or paragraph (d) of this subsection (I), whichever is applicable, in said
jurisdiction so long as the person resides in said ju1isdiction.
(d) (I) Any person who is a sexually violent predator and any person who is convicted
as an adult of any of the offenses specified in subparagraph (II) of this paragraph (d) has a
duty to register for the remainder of his or her natural Life; except that, if the person receives
a defe1Ted judgment and sentence for one of the offenses specified in subparagraph (Il) of
this paragraph (d ), the person may petition the court for di scontinuation of the .duty to
register as provi ded in section 16-22-113 (I) (d). In addition to registering as required in
paragraph (a) of thi s s ubsection (I), such person shall reregister ninety days after the date
he or she was released from incarceration for commission of the offense requiring
registration , or ninety day s after the date he or she received notice of the duty to register,
if the person was not incarcerated, and every ninety days thereafter until such person's
birthday. Such person shall reregi s ter on hi s or her bitthday and shall reregister every ninety
days thereafter. If a person 's birthday or other reregi stration day falls on a Saturday, Sunday,
or holiday, the person shall reregi ster on the fir s t business day following his or her birthday
or other reregistration day. Such person shall reregister purs uant to this paragraph (d) with
the local law enforcement agency of each jurisdiction in which the person re sides on the
reregistra tion date, in the manner provided in paragraph (a) of this subsection (I).
(1.5) (A) A person convi c ted of an offense in another state or jurisdiction, including but
not limited to a military or federal juri sdiction, who, as a re sult of the conviction, is required
to register quarterly as a sex offender in the state or jurisdiction of convicti on is required to
register as provided in subparagraph (I) of thi s paragraph (d ) so long as the person is a
temporary or permanent resident of Colorado .
(BJ A person convicted o f an offense in another state or jurisdiction, including but not
limited to a military or federa l ju1isdiction, which convicti o n would require the person to
register as provided in subparagraph (I) of this paragraph (d) if the convi c tion occun-ed in
Colorado, is required to register as provided in . aid subparagraph (l ) so long as th e person
is a temporary or permanent re si dent of Colorado .
(II ) The provisions of thi s paragraph (d) shall app ly to person convicted of one or more
of th e following offenses:
(A) Felony sex ual assault, in vio lati o n of sec tion J 8 --402, C.R .S ., or sex ual assa ult in
th e first degree , in vio lati on of sec tion 18-3-402 , .R.S., a it exis ted prior to July I , :WOO,
Title 16 -page 445 Colorado Sex Offender Reg istrati o n Act 16-22-108
or felony sexual as sault in the second degree , in vio lati o n o f section 18-3-403 , C.R .S ., as
it existed prior to July 1, 2000 ; or
(B) Sexual a ssault on a c hild in violation of section 18-3 -405, C.R .S .; or
(C) Sexual assault on a child by one in a pos ition of tru st, in violation of section
18 -3-405 .3, C.R.S .; or
(D) Sexual assault on a cli e nt by a psychotherapi st, in violation of section 18-3-405 .5,
C.R .S.; or ·
(E) Incest, in violation of section 18-6-301 , C .R .S.; or
(F) Aggravated incest, in violation of section 18-6-302, C .R.S .
(e) Notwithstanding the time period for registration specified in paragraph (a) of this
subsection (1 ), any person who is discharged from the departme nt of corrections of this state
or another state without supervision shall regi s ter in the manner provided in paragraph (a)
of this subsection (I) no later than the next bu siness day following di scharge .
(2) Persons who reside within the corporate limits of any c ity, town , or city and county
shall register at the office of the chief law enforcement officer of su c h city, town , or city and
county ; except th at , if there is no chief law enforcement officer of the city, town, or city and
county in which a person re sides , the person sh a ll register at the office of the county sheriff
of the county in which the person re sides . Persons who reside outside of the corporate limits
of any city, town, or c ity and county s ha ll regi ster a t the office of the c ounty sheriff of the
county wh e re such pe rson res id es.
(3) Any person who is required to register pursua nt to section 16 -22-103 shall be
required to register each time suc h pe r son :
(a) Ch a ng es s uc h pe rson 's address, regardless of wh e ther such pe rson has mov e d to a
new addres s within the juri sdi c ti o n o f the law e nforce ment age ncy with which such person
previ ous ly regi s te red ;
(b) Legally c ha nges such pe rson's na me;
(c ) E stablishes an additi onal res ide nce in another j uri s dicti o n or an additiona l res idenc e
in th e sa me jurisdiction ;
(d) Becomes e mployed or c ha nges employ me nt or e m ployment location , if e mpl o yed
at a n in stitution of postsec ondary e ducation ;
(e) Becomes e nroll e d or c ha nges e nro llme nt i n a n in stitution of po stsecondary e du ca-
tio n, or c hanges th e locati on o f e nro llme nt ; or
(f) Becomes a vo lunteer or c h anges th e vo lunteer work loca tio n, if volunteerin g at an
instituti on o f pos tsecond ary edu catio n .
(4) (a) Any time a perso n w ho is req uired to register pu rsuant to secti o n 16-22-103
ceases to re si de at an address, the person shall notify the local law enforcement agency of
the jurisdiction in whi c h sa id address is locate d by completing a written registration
cance llation form, available from the local law enforcement agency. At a minimum , the
registration ca ncellation form shall indicate the address at which the person will no longer
re si de and all addres es at which the per ·on will reside . The person shall file the registration
ca ncellation fonn within five bu s ine ss days after ceasing to reside at an address. A local law
e nforce ment agency that receive a registration cancellation form sha ll electronica ll y notify
the Bl of the regi stration cancellation. If the person move s to another ta te, th e CBI shall
promptly notify the agency re spons ible for regi tration in the new sta te.
(b) If a person fail s to submit th e regi s tration cancellation form as required in paragraph
(a) of thi s s ub sec tion (4) and the address at which the person is no longer res iding is a group
facility, officials at suc h faci lity may provide infonnation co nce rning the person's cessation
o f reside ncy to th e lo cal law c nfor e mcnl agency of the juri diction in which th e address i
loc:ncd . If the: µt:1bu11 is a juve11ilt: or devdopmentally di abled and fails to ·ubmil the
reg, trati on ca ncellati o n fonn as required in paragraph a) of thi s sub ection (4) and the
addre s, ac which the person is no longer residing i the re idence of hi s or her pare nt or legal
guardian. the per on' parent r legal g uardian may provide information con eming the
perbon'. cc . ation of residency 10 the I al law en~ rcem nt agency of the juri dicti n in
wh, h !he addre 'S i~ located . ny law enf rcemcnt gen y that re eivc uch inf m1ution
hull retie t in iL re rd th t ch per on no I n er re ide t aid gr up fa ility r th
P ent ' or legal guardian' re id n e and hall Iran mil u h inf nn tion to th Bl.
Pr o v,~ion o inf rmation hy, group fa ility or I pc, n'. pur ·nt or l al u rdi n pur u nl
18-3-402 Criminal Code Title 18 -page 396
the scope of conduct the general assembly.
sought to criminalize . People v. Woellhaf, 105
P.3d 209 (Colo. 2005).
Ejaculation of semen onto clothing cover-
ing another person's intimate parts may con-
stitute "touching" for purposes of establishing
"sexual contact". People v. Vinson, 42 P.3d 86
(Colo . App. 2002).
"Consent" and the affirmative defense of
consent discussed in People v. Williams, 899
P.2d 306 (Colo . App . 1995).
Jury instruction on "consent" properly
provided to jury. The instruction substantially
track ed the language of this section. The slight
variance from the statute was only to clarify
properly that the definition was applicable to
first degree sexual assault. The definition was
important 10 explain to the jury the specialized
meaning of "consent" in the context of sexual
assault. People v. Pahlavan, 83 P.3d 1138 (Colo .
App . 2003).
The term "pattern of sexual abuse" is
clearly and unambiguously defined in this sec-
tion and, therefore, the sentencing enhancement
provision of § 18-3-405 (2)(c) which incorpo -
rates that le1m is not unconstitutionally vague .
People v. Longoria, 862 P.2d 266 (Colo . 1993).
The phrase "two or more incidents of sex-
ual contact " in the definition of "pattern of
sexual abuse" means that the sexual contacts
must occur during distinct episodes of sexual
assault and be separated by time or an interven-
ing event. People v. Woellhaf, 87 P.3d 142
(Colo . App . 2003 ), rev'd on other grounds , 105
P.3d 209 (Colo . 2005).
A defendant can be charged with one pat·
tern count for each underlying substantive
count. People v. Bobrik, 87 P.3 d 865 (C olo .
App . 2003).
Evidence sufficient to establish victim was
"physically helpless". Record demonstrated
that there was sufficient evidence from which
the jury could find that the victim was unable to
indi cate a willingness lo act and therefore
"physically helpless" within the statutory defi-
niti on of that term . Th ere wa s testimony that the
victim was virtually unable to converse and
required total care ; that she needed as sistance in
everything she did ; th at wh ile s he could at tim es
res pond to a s imple yes-or-n o q ue stion, her an-
s wers co uld be nonsensic al or inac cura te; that
she was ph ysicall y incapable o f protectin g her-
se lf against any auack ; that she was in a locked
facility for her own protection, because she
would otherwise wander away; and tha t the
Alzheimer's di sease affected her both mentally
and physically. People v. Klausner, 74 P.3d 4 2 1
(Colo. App . 2003).
Trial court co mmitt ed reversible error by
refu sing defend ant s' requ es t to in stru ct the
jury on the affirmative defense of consent
where the evidence bearing on the possible ex-
istence of consent, while not strong, at least
satisfied the "scintilla" standard required for an
instruction on an affirmative defense . People v.
Cruz, 903 P.2d 1198 (Colo. App . 1995).
Because the alleged victim's alleged con-
sent would have "negative[d] an element of
the [sexual assault] offense", the trial court
was required to instruct the jury on the af-
firmative defense of consent. People v. Cruz,
903 P.2d 1198 (Colo . App . 1995).
A stepparent is in a position of trust for
purposes of this section . People v. Brown, 749
P.2d 436 (Colo . App. 1987); People v. Brown,
761 P.2d 261 (Colo . App. 1988).
Jury could conclude that defendant was
"in a position of trust" relative to the victim
within the meaning of the applicable statute,
where defendant Jived in the same residence
with the victim and her family and contributed
to the hou sehold income , the victim spent hours
alone with the defendant in his room , the victim
was the only child the defendant allowed in his
room, and neither the victim's mother nor any
other individual intervened during the time that
the victim was alone in the defendant's room .
People v. Luman, 994 P.2d 432 (Colo. App.
1999) (decided prior to 1990 amendment).
Upon talcing the victim to defendant's home
where the two of them were to be alone, defen-
dant assumed responsibility for the welfare and
supervision of the child both en route and in the
home. People v. Duncan, 31 P.3d 874 (Colo.
App. 2001).
Any deficiency in instructions with respect
to definition of sexual contact was harmless
error when evidence concerning defendant's
touching of victim could not reasonably be con -
strued as being for any purpose other than sex·
ual arousal, gratification, or abuse. People in
Interest of B.D .S., 739 P.2d 902 (Colo. App .
1987).
Trial court properly refused to instruct
jury concerning consent as an affirmative de·
fense in sexual assault case. Affirmative de-
fense not warranted where one victim testified
that s he did not resist or cry out when defendant
as saulted her and another testified that her fail -
ure to res ist or cry out was motivated by fear and
that h er submi ss ion was induced by fear, People
v. Braley, 879 P.2d 410 (Colo. Ap p . 1993).
Appli ed in People v. Osborn, 42 Colo. App .
376, 599 P.2d 937 (1979); People v. Fimo, 199
Co lo . 215, 606 P.2d 129 1 (1980); People v.
Opson, 632 P.2d 602 (Colo . App . 1980); People
v. Rey nolds, 638 P.2d 43 (Colo. 1981 ); People v.
Mack, 638 P.2d 257 (Colo . 1981 ); People v.
Thatc her, 638 P.2d 760 (Colo . 198 1 ); People v.
Salazar, 648 P.2d 157 (Co lo . A pp . 198 1 ).
18 -3-402. Sexual ass ault. (]) Any ac tor who knowing ly in fl ic ts sex ual intrusio n or
sexua l penetration on a vic tim co mmits sexua l assa ult if:
Title 18 -page 397 Offenses Against the Person 18 -3-402
(a) The actor causes submission of the victim by means of sufficient consequence
reasonably calculated to cause submission against the victim's will; or
(b) The actor knows that the victim is incapable of appraising the nature of the victim's
conduct; or
(c) The actor knows that the victim submits en-oneously, believing the actor to be the
victim 's spouse; or
(d) At the time of the commission of the act, the victim is less than fifteen years of age
and the actor is at least four years older than the victim and is not the spouse of the victim;
or
(e) At the time of the commission of the act, the victim is at least fifteen years of age
but less than seventeen years of age and the actor is at least ten years older than the victim
and is not the spouse of the victim; or
(f) The victim is in custody of law or detained in a hospital or other institution and the
actor has supervisory or disciplinary autho1ity over the victim and uses this position of
authority to coerce the victim to submit, unless the act is incident to a lawful search; or
(g) The actor, while purporting to offer a medical service, engages in treatment or
examination of a victim for other than a bona fide medical purpose or in a manner
substantially inconsistent with reasonable medical practices; or
(h) The victim is physically helpless and the actor knows the victim is physically
helpless and the victim has not consented .
(2) Sexual assault is a class 4 (elony , except as provided in subsections (3), (3.5), (4),
and (5) of this section.
(3) If committed under the circumstances of paragraph (e) of subsection (1) of this
section, sexual assault is a class I misdemeanor and is an extraordinary 1isk c1ime that is
subject to the modified sentencing range specified in section 18-1.3-501 (3).
(3 .5) Sexual assault is a class 3 felony if committed under the circumstances described
in paragraph (h) of subsection (I) of this section.
(4) Sexual assault is a class 3 felony if it is attended by any one or more of the
following circumstances :
(a) The actor causes submission of the victim through the actual application of physical
force or phy sica l violence; or
(b) Th e actor ca us es submi ss ion of the victim by thr ea t of imminent de ath, serio us
bodily injury, extreme pain , or kidnapping, to be inflicted on any one, and th e vi ctim
believes that the ac tor has the present ability to exec ut e the se threats; or
(c) The actor causes submi ssio n of the victim by threatening to retaliate in the future
against the victim, or any oth er person , and the victim reasonably believes that the acto r will
execute this threat. As used in thi s paragraph (c), "to retaliate" includes threats of
kidnapping, death, serious bodily injury, or extreme pain; or
(d) The actor has substantia lly impaired th e victim's power to appraise or contro l the
victim's conduct by emp loying, without the victim's conse nt , any drug, into xica nt , or other
me ans for th e purpose of causi ng submi ss ion .
(c) (De le ted by amendment , L. 2002, p. 1578 , § 2, effective July 1, 2002 .)
(5) (a) Sexual assau lt is a class 2 fe lony if a ny one or more of th e following
circ um stances exist:
(I) In the co mmis sion of th e sex ual assault , the ac tor is physically aided or abe tt ed by
ont: o r more other person ; or
ll l) The vi ti111 uffer ser iou bodily injury ; or
(III) Tlw :1 tor i. armed with a deadly weapo n or an article usecl or fashioned in a
111.11111 ·r to ca use a pt.:r. n to reasonably be lieve that the article is a dead ly weapon or
n:p1CM.'11t s ct b.dly or therwi e that the actor is armed with a deadly weapon and us es the
lk:idly wrap )11 , arti le , or repre 'Cn tati on to cause ubmi s. ion of the victim .
th) (]) If a dcft.:ndant is convicted of sex ual assault pur uant to tlti subsection (5), the
q,1111 h,1 11 scn tt:n e the dcft.:ndant in ac ordan e with e ti on 18 -1.3 -40 I (8) (e). A person
l lllll tl'lcd ,olcl , of , ,,ual a,,ault pur uant to thi sub ection (5) hall not be entenced
1111dt•1 th· 11111c of ,·,ul ·n " pro is1 n f . cction I -1. -40 ('.?). Any cnten e for a
·,1n1 lll11111 tllllkt tht, ,ub l' ·11111 C.'i) ~h:ill b n c utive to ny bCnl n e for a c nvicti n
t.11 .1 , 11111~· of 1111kn,·c 11ndt'1 ,l"IHm I · l 1-40 .
....
18-3 -402 Crimina l Code T itle 18 -page 39 8
(II) The prov is ions of thi s p arag raph (b) shall a pply to o ffen ses committed pri o r to
N o vember 1, 19 9 8 .
(6 ) Any pe rson co nvicted of felony sexu a l assault committed on o r after N o ve mb er 1,
1998, unde r any of the circums tan ces d es cribed in this section shall be sent e nced i n
accordanc e with th e pro vision s o f p art 10 of arti c le 1.3 o f thi s title.
Source: L. 75: Entire part R &RE , p . 628. § I , effective July 1 . L. 77: (I) a me nd e d , p .
9 62 , § I 5 , e ff ective July 1. L. 83: lP(l ) ame nded , p. 698 , § 1, e ffec tive .July 1. L. 85: (2)
R&RE a nd (3) and (4 ) amende d , pp . 666 , 667 , §§ I , 2, e ffec tiv e July 1. L. 95: (4)
ame nde d, p . 12 52, § 9 , e ff e cti ve July 1. L. 9H: (4 ) a m e nd e d , p . 1293 , § 13 , eff ectiv e
No ve mbe r 1. L. 2000: Entire sec ti o n R&R E . p . 69 8 , § I 8, e ffecti ve July 1. L. 2002:
(l){g), (2), a nd (4 )(e) am e nd e d a nd (l )(h) and (3 .5) adde d , p . 1578 , §§ I , 2, e ffecti ve Jul y
I ; (5 )(b )(l ) and (6) am e nd ed , p . 1512, § 189, e ffec tiv e Octo ber I. L. 2004: (3) and (6)
ame nd e d , p. 6 35 , § 5 , effectiv e Augus t 4 .
Editor 's note: Thi s sec ti on was co nt ain ed in a part that was repealed and ree nac ted in 197 5.
Prov isions of thi s sec ti on, as ii exi sled in 197 5, are similar to th ose conl ain ed in 18-3-40 1 as said
sec ti o n ex isted in 1974, 1h e yea r pri or to th e re peal and reena ctm ent of thi s part.
Cross references : For th e le gislativ e dec lara1i on co ntained in the 200 2 act amendin g sub sec ti ons
(5)(h)(IJ and (6), se e se cli on I of chapter 3 18, Session Laws of Colorad o 2002.
ANNOTATION
I. General Consid era tion .
II. Element s of Off ense.
III. Tri al and Pro sec u1ion .
A. In General.
B . Indi ctm ent or In fo rm ati on.
C. Evid ence .
D. Jury.
E . ln stm cti ons.
IV. Verdi ct and Sent ence .
I. GENERAL CONSIDERATION.
Am. Jur.2d. See 65 Am . Jur.2d, Rap e,§§ 1-
10 .
C.J.S. See 75 C.J .S., Rape, §§ I , 4, 15 -2 5.
Law reviews. For arti cle , "Crim inality of
Voluntary Sex ual Ac ts in Co lora do", see 40 U.
Co lo. L. Rev. 268 (196 8). For articl e, "Refo rm
Rape Legislati on : A Ne w Stand ard of Sex ual
Res pon sib il ity", see 49 U. Co lo . L. Rev. 185
( 1978 ). For art ic le, "Mens Rea an d th e Colo-
rad o Cri minal Code", se e 52 U. Colo. L. Rev .
167 (19 8 1).
Annotator's not e. Sin ce § 18 -3-402 is sim -
ilar to § 18-3 -402 as ii exis ted pri or to il s 2000
repea l and ree nac tm enl , and fo rm er § 18-3-402
1s si milar to for mer § 18 -3-40 I, as ii ex isted
prior to !h e 1975 rcvi io n of !In s pa rt . and
§ 40 -2-25, C.R.S . 1963, and laws ant ece dent
1h cre10, releva nt case co nstru ing th o c provi -
sions have bee n in clu de d in lh e a1111 01a1i ons 10
thi s sec tio n.
This secti o n is not un con stitutionall y ,·ague
where it se t 0111 th e ac t, th e req111 st1 e menta l
sta te. and lh~ on 1cn 1 of th e threa t used 10 force
the , ictim 's suhm1 ssi n. nnd each of th e e clc -
ment s is defin ed. Peo ple v. Thatch er, 63 8 P.2d
760 (Co lo . I 981 ).
This section docs not violate equal protec-
tion. Puttin g a vi ctim of se xual ass ault in fear -
and in danger -of lo sing life and limb is a
grav er and more morally repreh ensib le ac l than
subjec ting th e victim lo lesser threa ts. Th e 1wo
kind s of threa ts are co nslituti onall y di stin gui sh-
abl e. St a tute s prosc aibin g ac ts base d on thi s
di stincti on do not vi olate equal pro tec ti on. Peo-
ple v. Thatcher, 638 P.2d 760 (Colo. 198 l).
Prohibition against double punishment for
same criminal act is not vi olated where a de -
fendant is found guilt y of first deg ree kidn ap-
pin g and fir st deg ree sex ual ass ault fo r th e same
crimin al e pi so de . Peo pl e v. Moliua , 41 Co lo .
App . 128 , 584 P.2d 63 4 (1 97 8).
It is clear that the general assembly in•
tended to impose a more severe puni shment
in situations in which more than one person
commits the sexual ass ault. People v. Osborne ,
973 P.2d 666 (Colo. Ap p. 1998).
Rape and inc es t were separate and di stinct
crim es wi1 h ce rt ain di ffere nt ele ment s esse ntia l
10 th eir pro of; e ith er or both of these crimes may
be charge d in an app rop ri ate fa c1u al si tu ati on.
McGee v. Peop le, I 60 Co lo . 46, 4 13 P.2d 90 I
(1966).
Before Jul y 1. 1977 , "kno wingly" wa not
statut o ry c lement of fir s t dci;rce sex ual as-
sault, and it was not necess ary, tit rcfore. to
in clude 1ha1 fac tor 111 1h c de li nit io n of 1he ca im c.
so long as th e ge nera l int ent fa I r was covere d
elsew here in lit e in tru tio n. Peo pl e v. Mall as.
44 olo. App . 1'.19, 6 18 P.2d 75 ( 19 0). aff d.
645 P.2d 25 4 (Co lo. 19 ~).
l\frr ~c r doc tr ine inappl ic nlil c to cun1•ic·
,
Title 18 -page 399 Offt:n ses Again st the Perso n 18 -3-402
lions f'or kidna11ping, assault, and robbery.
The merg er doctrine does not apply to a si ng le
tran sact ion res ulting in co nvi cti o ns under § 18-
3-30 I (I J(a), this se<.:tion, and § 18 -4-301 ( 1 ).
Peop le v. Bridges, 199 Colo. 520, 612 P.2d 1110
(1980).
For lesser included offense of crime of
ra11e, see People v. Futamata, 140 Colo . 233,
343 P.2d 1058 (1959); People v. Barger, 191
Colo . 152, 550 P.2d 1281 (1976); People v.
Hansen, 191 Colo. 175 , 551 P.2d 710 (1976).
Section 18-3-409 and this section are sev-
erable so that even if the former were invali -
dated . the latter would still be capable of en-
forcement. Peop le v. Brown, 632 P.2d 1025
(Colo. 19 8 1 ).
Even if the defendant's 18-year-old wife
could not be prosecuted for having sex with a
IS-year-old girl, the defendant co uld still be
prosecuted for ph otograp hin g his wife with the
girl pursuant to § 18 -6-403 . People v. Camp-
be ll , 94 P.3 d 11 86 (Co lo . App. 2004).
'ictim's submission to assault insufficient
ct cs s ion for first degree kidnapping. Proof
t r the victim's subm issi n to a sex ual assault is
no t s uffici ent per se to establish th e concession
required for first degree kidnapping . People v.
Bridges, 199 Colo . 520. 612 P.2 d 111 0 ( 1980).
Voluntary Intoxication not defense. The
mental culpability requirement of both seco nd
degree kidnapping and fir s t degree sex ual as-
sa ult is "knowingly '"; therefore. th ey are. by
sta tut ry definiti o n, genera l intent c1i111es and
voluntary int ox ication is not a defense to either
crime . Pc pie v. Vi g il. ~ nlo . Ap:J . 12 1, 602
P.2d X 4 ( 1979).
For con s titutionalit y of former s tatute rc-
l:1ting to devia te sex uul lnterl'Ourse by force
or it s l'truivulcnt, sec Peo pl · v. Beaver, 190
o lo . 55 4. 5'1 9 P.2d 13 1 ( 1976).
For les,cr included offl•nsc of former cri me
of clc viu lr ·cxual intercourse b force or its
l·1111ivul!'nt. ~ce Peop le v. 11 :u gc r, 19 1 Colo. 15 2,
.. 0 P .!d 1-8 1 (IQ76)
For cn~cs t·onstruini; furmcr s tatute relat -
int.: lo clt•vlall' 't'Xual inll'rcourst• hy 101cc or ib
l'l)1t t1,1k11t. ~cc fa 111 11 v Peo pl e, 114 o lo . 120.
16 2 l '.!d ~<17 t l 1l-15J, ll u ·11a v P ·o plc, 168
'o lo. 276. 450 I' :!d ( 8 ( I 96 1J ); Whil e v. Pco-
pk , 177 Co lo . .18 6, -1')4 P.:!d 58.S ( I 7:!).
T he olTt·n~t'S of fir st 111111 seco nd d egree
M'Xllul a,,ault urc n111llmll y c:1.d11~ive. •con d
dl' 'll"C ,c,11.11 a,5.1u ll ,., 11nt n k~ er 111<:lud ed
11lll'll'l' o l th· 11111c o f 111,1 de gree ,c,uai a,
,,lllli l'l'11pk v Slueld,. ll22 I' 2d I. ( o ln.
111'11) <1,'H"l\111• Peop le v • ilhu1 11 . '07 P.2d
I lt1 7 t<'ulo pp t•l<l(l))
I ht'l'l" i, 1111 1nl'q,:1•r 111'1\I el'II \I hat II u, for-
llll'rl~ h r,t d1 ·i.:n•t• , ,ual a~,uult und ~l'co nd
d1 •i.:n •1• 11"111111 n en 11 h111h 1111 oh n l the pwof
••I tll<'II\ h,1,hi\ 1111111y ltlmu"h the 111f hllllln
u l 1·11 u11 t,,-.hl\ 1111111) f,11 p111 po,,·, of lh
t' 11 .1 1 ., 111It I lllllr 1.11,nl thl' li,1, 11 1 Idem
for which ont:: cou ld be co nvic ted, it was not an
element or th t: offe nse i tsc l r. People v. Martinez,
32 P.3d 520 (Co lo . App. 200 I ).
ApJJlied in Peoplt! ex rel. VanMeveren v.
District Court, 195 Colo. I. 575 P.2d 405
( 197 8); Pe op le v. Rey nold s. 195 Colo. 386, 578
P.2d 647 (1978); Peopl e v. McK enna , 19 6 Colo.
367, 585 P.2 d 275 (1978); People v. Blalo ck,
197 Colo . 320, 592 P.2d 406 (1979); People v.
Jacobs, I 98 Colo . 75, 596 P.2 d I I 87 (1979);
People v. Mikkleson. 42 Colo . App . 77. 593 P.2 d
975 (1979); People v. Osbo rn, 42 Colo . App.
376, 599 P.2d 937 (1979); People v. Deleon, 44
Colo . App . 126. 613 P.2d 639 (1980); People v.
Frysig. 628 P.2d I 004 (Co lo . 1981 ); People v.
William s, 628 P.2d IO 11 (Co lo. 1981 ); People v.
Francis, 630 P.2d 82 (Colo. 1981 ); People v.
Jordan , 630 P.2d 613 (Colo . 1981); People v.
Martinez. 634 P.2 d 26 (Co lo. 198 1 ); People v.
Anderso n, 637 P.2d 354 (Colo. 198 1 ); Pe op le v.
Smith , 638 P.2d I (Co lo . 1981); People v. Mack,
638 P.2d 257 (Co lo. 1981 ); People v. Evans, 630
P.2d 94 (Colo . App . 198 1); People v. Crespin,
63 1 P.2 d 1144 (Colo . App. 1981 ); People v.
Hamling, 634 P.2d I 023 (Co lo . App . 1981 );
People v. Sharpless. 635 P.2d 896 (Co lo . App .
1981 ): People v. Flowers, 644 P.2d 916 (Co lo .
1982); People v. Constant. 645 P.2 d 843 (Co lo.
1982); People v. Phillips, 652 P.2d 575 (Colo .
1982); People v. White, 656 P.2d 690 (Colo.
1983); People v. Clark, 662 P.2d 1100 (Co lo .
App . 1982); People v, Bridges , 662 P.2 d 161
(Co lo . 1983); People v. Di strict Court, 663 P.2d
6 16 (Colo . 1983); People v. Brandt, 664 P.2d
7 12 (Co lo . 1983); People v. Vigil, 718 P.2d 496
(Co lo . 1986).
'
II. ELEMENTS OF OFFENSE.
Victim mu st s how resistance or that resis-
tance wn s overcome by fear. To co nstitut e th e
cri me of rupe th ere mu st be th e utm os t re lu c-
tance nnd resis tan ce on th e part o f the fe male
cn 111pln111ant , or her will mu s t be o vercome by
fear and terror so extreme as to preclude rcsis -
t:111c e . B1gc1al't v. Peop le. 30 Colo . 298, 70 P.
,m(l 90:!l .
T his et:11 011 reco g ni zes th e offe nse eve n
tho ugh th e1e 1s no ac tual rc ~istan ce where the
t'l!mal e perso n is preve111ed from re s istan ce hy
threa ts of 1111111 cd1u te and great bodily harm .
a co mpani ed hy appa rent power o f ex ec uti o n.
Peop le v. ru1 :1111 nta . 14 0 o io. 233. 34 P.2 d
1058 t 1959).
18-3-402 Criminal Code Ti tie 18 -page 400
Sexual intercourse for the purposes of sex-
ual assault does not include si mulated inter-
course. People v. Jurado, 30 P.3d 769 (Colo.
App . 2001).
Where the jury is properly instructed as lo
the elements of the offense and the term
"knowingly," the jury should properly focus
on whether the defendant knowingly caused
submission of the victim through the applica-
tion of physical force or violence. The defen-
dant's awareness of th e victim's non-consent is
neither an element of the offense nor a topic for
argument to the jury. People v. Dunton, 881 P.2d
390 (Colo. App . 1994).
Proof of defendant's awareness of noncon-
sent is not necessary under this section , except
under the circumstances de scribed in subsection
(1 )(e). In all other circumstances, the prohibited
conduct by its very nature negates the existence
of the victim's consent. Dunton v. People, 898
P.2d 571 (Colo. 1995).
And it is not error for trial court to refuse
jury instruction on the affnmati ve defense of
consent where the statute equates the victim 's
nonconsent with proof that defendant had
caused the victim's submission by means "of
sufficient consequence reasonably calculated to
cause submission against the victim's will". In
such case, the jury can only convict a defendant
after concluding that the prosecution has proved
the victim's lack of consent beyond a reasonable
doubt. People v. Martinez, 36 P.3d I 54 (Colo.
App. 2001).
Submission induced by fear of great bodily
harm does not constitute consent, especially
where the tlu·eat s are accompanied by a demon-
stration of actual force. Cortez v. People, 155
Colo. 317, 394 P.2d 346 (1964).
The term "extreme pain " is one of ordi-
nary and not technical usage. People v. Alh o,
195 Colo. 102, 575 P.2d 427 (]978).
Extreme pain measure of criminal conduct.
The term "extreme pain" as used in subsection
(1 )(b) of this section is a measure of criminal
conduct and a ga uge for determining whether
the threat was the cause for the victim's submis-
sion; it is not so vag ue or overbroad as to render
the sect ion unc onstituti onal. People v. A Ibo, 195
Colo . l 02 , 575 P.2d 427 (1978).
Element of submission through actual ap-
plication of physical force or physical vio-
lence is applied in People v. Cole, 926 P.2d 164
(Colo. App . 1996).
Term "attended" in subsection (3) is ap-
plied in People v. Cole, 926 P.2d 164 (Colo .
App. 1996).
III. TRIAL AND PROSECUTION .
A . In General.
Where acts were continuous people may be
compelled to rely on certain act. Where in a
prosecution under this section of a male for
having carnal knowledge of an unmanied fe-
male, it appearing that the illicit intercourse was
continuous , the people may on motion be com-
pelled to select the occasion upon which they
will demand a conviction, and this selection
must be made before the accused is required to
proceed to his defense. The prosecutor is not
required to select any specific date, but must
individualize a ce1tain act upon which he will
rely. Laycock v. People , 66 Colo . 441, 182 P.
880 (1919). Where there was evidence of several dilfer-
ent acts committed at different times, it was
en-or to refuse to require the prosecuting attor-
ney to elect upon which offense he would rely
for a conviction. Schuette v. People, 33 Colo.
325, 80 P. 890 (1905).
On the trial of a statutory rape case, election
Principles of complicity apply to sexual
assault in the first degree such that, if the actor
or an accomplice is aimed with and uses a
deadly weapon , then both may be found to have
committed a class 2 felony. People v. Walford,
716 P.2d 137 (Colo . App . 1985).
Sexual assault is not a lesser included of-
fense of, and therefore not merged into, sec-
ond-degree kidnapping involving sexual as-
sault. People v. Henderson , 810 P.2d 1058
(Co lo. 1991 ); Peo ple v. McKnight, 813 P.2 d 331
(Colo 1991); People v. John so n , 815 P.2d 427
(Co lo. 1991 ); People v. Martinez, 32 P.3d 520
(Colo. App . 2001 ).
l•or fir st degree assault to be elevated from
of the dist1ict attorney to rely upon a particular
offense committed on or about a ce1tain date , at
the concl usion of the state 's case and before the
beginning of the case for the defense , held not to
violate the rule in Laycock v. People (66 Colo .
441, 182 P. 880 (1919)). Will s v. People , JOO
Colo . 127 , 66 P.2 d 329 (1937).
Leading questions addressed to prosecut-
ing witness 14 years of age on direct examina-
tion may be permitt ed in the discreti on of the
trial co urt , and th e supreme court will not re-
verse an ac ti o n on such ground unl ess it clearly
appears th at defendant was denied a fair uial .
Ewing v. People, 87 Colo . 6, 284 P. 34 1 ( 19'.\0).
a class 3 felony lo a class 2 felony, there must
be more than one person involved in the
sex ual assault. People v. Osborne, 973 P.2d 666
(Co lo . App . 1998).
Ev id ence in s uffi cient to support jury's deter-
min ati on th at defend an t physically aided or
abe tt ed in th e commis ion of the sexual ass ault.
People v. Osborne, 973 P.2d 666 (Co lo . App .
Discretionary power of co urt to permit di ·
trict attorney to reopen case. Pennission to th e
disu·ict an omey in a prosecution for rape to
reopen hi s case for the purpose of show in g the
age of defe ndant is properly gra nt ed by the co u1t
1998).
Title 18 -page 401 Offenses Against the Person 18-3-402
as within its discretionary powers . Monchego v.
People, I 05 Colo. 486, 99 P.2d 193 (1940).
B. Indictment or Information .
Information need not follow exact lan-
guage of section. It is sufficient that the offense
be charged in language from wliich the nature of
it may be readily understood by the accused and
the jury. Tracy v. People, 65 Colo . 226, 176 P.
280 (1918); Sarno v. People, 74 Colo . 528, 223
P. 41 (1924).
One count may contain different ways
crime committed. It is proper in one count of an
information to charge in all ways in which a
ctime may be committed by the use of the word
"and" even where the statute uses "or". Cortez
v. People, 155 Colo. 317 , 394 P.2d 346 (1964).
Information which contained substantially
same language as this section not defective as
de sc1i ption of charges permitted defendant to
adequately defend himself and ensur ed defen-
dant would not be prosecuted again for sa me
offense . People v. Mogul, 812 P.2d 705 (Co lo .
App . 1991 ).
C. Evidence .
Law reviews. For comment, "Ex pert Testi-
mony on Rape Trauma Syndrome in Colorado :
Broade nin g Admissibility to Address th e Ques -
tio n of Consent in Sexual Assault Prosecu-
tion s", see 61 U . Colo . L. Rev . 833 (1990).
Evidence necessary to prove act. Thoug h it
is true that the law doe s not require th e female's
stat eme nt of actual penetration , ncverthi:less,
so me evide nce other than an inference is esse n-
tial to prove th e act. Generally , it is held that
un c01Tobora ted evide nce by th e prosecution
mu st he dear an I convi ncin g or that it should be
scrut 1n1 zcd carefu ll y. Martin ez v. People, 160
Colo . 534, 422 P.2d 44 (1966).
Where the evidence of defendant's gui lt
w.is ovcrwhclmin:,; and the iss ue of whether th e
dcfcndanl ac1cd knowingly was 1101 co nt es ted al
ll 1al , lh e tnal co urt's error in in st111 c1in g th e jury
on lhc mcan 111 g o f "kn ow in gly" is 11 01 plain
c1101 in dl'.fcnuanl's co nvicti on for sex ual as -
au ll in lhe li1 5t degree . Espi noza v. Peop le, 712
P ~d 476 ( olo . 19 ).
'lrcu111st:111ccs te nding to dbcrcdil prose-
l'Utl'l'C. The faihue of th e pr ,ccutrix to avail
hc"c ll of """lance when al hand, IO 1cpllll lli t:
Js,,1ull ,II the c.11 lic l pm~1ble 1110111cnt , an d 10
all 1111111 c 1.1te ,lll 1111 011 to th e lllJulic 1ecc1ved
nd al 1c1 wanl cn mpla111cd of, nie 1rcum -
lJ1 11.:c , l 11d111, 10 di\ ll'dll lhc le um n of 1hc
P,ll l\ .i lk •cd Ill h,1, been oull al!cd Bueno v.
I',, pl r . I 'olo pp .• ~:? •• I' .• 4 ' ( I, 91).
I or l'omplalnt of pro, rntrl. ~ e,Jdenre,
r ll, 11 .11t l\,111 , I' oplc . ' 1 I 'l '. dl P
1, K1 I J lJ () l
Cmrnborative te slimony of prompt complaint
by an alleged victim is properly admitted in a
rape case , but even that exception is restricted to
the mere fact of complailll, and the details of the
occull"ence as related to an investigating officer
by a pro sec utrix and his opinions as to the
seriousness of the charge and the difficulties of
prosecuti on as told to the prosecuttix are never
admis sible in evidence . People v. Montague ,
181 Colo . 143,508 P.2 d 388 (1973).
A complaint about a sexual assault, made
soon after its occunence, can constitute co1Tob-
oration of the victim's testimony . People v.
Fien-o, 199 Co lo. 215 ,606 P.2d 1291 (1980).
In sexual ass ault cases, testimony tending to
prove the promptness of the victim's complaint
to the police is admissible cmrnboration evi-
dence. People v. Gallegos, 644 P.2d 920 (Colo .
1982).
An eleven-year-old victim's complaint to her
nine -year-old sister on the day immediately fol-
lowing a sexual assault by th eir father was suf-
ficient to co1Toborate the victim's testimony to
the effect that sex ual penetration had occun-ed
during the assault. People v. Fierro , 199 Colo .
215,606 P.2 d 129 1 (1980).
Evidence that the victim of a sex ual as sault
failed to make a complaint soon after the crime
is admissible as a circumstance which tends to
di sc redit that perso n's testimony . People v.
Oliver, 665 P.2d 152 (Colo . App . 1983).
Testimony of officer as to victim's credibil-
ity improper. Wh en a police offi ce r who inves -
tigates a rape co mpla int made by a pro secutrix ,
is pem,itted to tes tify as to statem ent s he made
to her abo ut hi s opinio ns on the selio usne ss and
difficulties experie nced by a pro sec utri x in rape
prosecutions. there is ell"or because the testi-
mony improperly lends credibility to the te sti -
mony of the prosec uting witness . Peop le v.
Mo ntagu e, 181 Colo. 143,508 P.2d 388 (197:l).
Permi ss ible poli ce te stimony is restricted to
the mere fact of the vic1im's complaint and may
not encompass the details related to the investi -
ga ting officer. Peo ple v. Gallego s, 644 P.2d 920
( o lo . 1982).
Testimony of pro secu tri x' ph ys ical handi-
cap is a dmiss ibl e on issue of her ability to re sist
forcible atta ck, notwilh standing co nl ent io n that
such tes rimony is offered so lely to invoke sym-
pathy. Peo ple v. Chavez. 179 Colo . 316, 500
P.2d 365 ( 1972).
Evidence as to day of offense. Under an
i11fu1111,lli n charging th e: 11111c of r;1pc· tn have
been co mmitt ed on a crtarn day. evidence is
admissible of any rape com mitt ed hy defendant
on the pro ecuting witne pri r 10 lhe filing of
the info1mn ti on and wt1hrn the tatutc of limita -
11 0 11 . lrn ette v. Pc pie . olo. 25, 0 P.
90 (I 0~)
1>proi.Imat dat uffklent wher th r I
c,·hlmc of cveral olfc,"'' . In a pr o~ecu11 n
frn I ape . thc1 h\'111 c, 1d Ill''-' of the commr 1011
' ~ ·:.
18-3-402
Criminal Code Titl e 1 8 • page 402
of several o ff enses, th e di strict att o rn ey is no t
required to fi x a definite date of the occtmence
up o n which he relie s fo r a conviction , th e time
bein g all eged as "on or ab out " a certain date.
The approximate da te is sufficient, th e specific
occasio n being d efinitely ide ntifi ed . Will s v.
People , 100 Co l o . 127 , 66 P.2d 329 (1937).
Birth of child is sullicicnt to es tablish sex-
ual intercourse. In a prosecut io n for rape, th e
fact that pro sec utri x gave bi rth to a child was
s uffi c ient ev id e nce to establi sh sex ual inter-
course . M onc hego v. Peo ple . I 05 C olo . 486, 99
P.2 d 193 (1940).
Evidence of abortion not error. Where de-
fendant co nvic ted o f statu tory rape conte nds
ad mi s sio n o f doctor's testim o ny to pro ~ecutrix'
th e rape uti c aborti o n is err or, court wi ll no t con-
sider such for fir st tim e on appe al. People v.
Chavez, 17 9 Colo. 3 16, 500 P.2d '.165 (J 972).
Evidence of intercourse in s uOicient. It can·
not be inferred 1n law that because defendant
intended to rape hi s victim or th at he r clo th es
were to rn that an ac t o f sex ual int ercour se took
place or that th ere was any penetration . The
lauer is mere conj ec ture and does not rise to the
d ignity p f legal proo f. Martinez v. People , J 60
Colo. 534, 422 P.2d 44 (1966).
Evidence s ufficient to support jury's con·
clusion that defendant used deadly weapon to
force victim to submit to fi rst-degree sexu al
assault. People v. Powell , 7 16 P.2d 1096 (Colo.
1986).
Other crimes related to force and were
properly admitted. Where evid ence of kidnap·
pin g, as sault, and th e fo rc ed commi ss io n of
ano th er sex ual ac t tend ed to prove th e res gestae
and th e force element of rape, it was not e!l"or t o
ad mit such ev id ence of oth er crim es b ecause
th ey were no t wholly ind epend ent o f th e offense
charged . White v. Peop le, 177 Colo. 386, 494
P.2d 585 (1972). ·
Aiding or abetting does not require phys i-
cal assistance durin g th e ac tual ac t of penetr a-
ti o n. People v. Beige\, 646 P.2d 948 (Colo . App .
Evi dence to s upport multiple conviction s.
Evidence of three separate and disti nct in cid ents
of sexu al ass au lt whic h occurred in three differ-
e nt ways, each in a separate tim e pe1iod, is
s uffi cient to support a finding of gu ilt y on thr ee
separate co unt s un der thi s section . People v.
Saars, 196 Co lo . 294, 584 P.2d 622 (1978).
Evidence in sutlicienl to support conviction.
A convicti o n for rape based solel y up o n th e
ev id e nce o f th e prosecutin g witness, who had
passed th e age o f con sent al th e time o f th e
all eged crime, wh ere th ere wa s no evidence as to
what fo rce wa s used or what re s istan ce was
made, and no ev id ence th at the conse nt of the
pro ecuting wi tn ess was ob tain ed or her re sis-
ta nce preve nt ed by any threat o f d efendant or
fe ar o f vio lence at hi s hand s , th e o nl y threat
testifi ed to bein g a thre at to kill her a nd lhe res t
of th e fami ly if she to ld of th e acts, ev id e nce was
in sufficient lo support conviction. Bigcraft v.
Peo pl e, 30 Colo. 298, 70 P. 417 (1902).
Evidence in s ufficient lo support co nviction
as a matter of law under the "physi cally
aided and abetted" standard of sub sect ion
(3)(a). People v. Higa, 7 35 P.2 d 203 (Colo . App .
1987). There was sullicienl evidence of the re-
quired element of penetration beyond a rea-
sonable doubt wh ere the victim t estifi ed to the
occunence of pe net ra ti o n and the codefendant
pleaded guilty to a crime involvi n g penetrat ion,
ad m itt ed intru sio n with his fi ngers, and admitted
he and the defendant "raped" th e vic tim . People
v. Lankford, 819 P.2 d 520 (Colo . App. 199 1).
The vi ctim 's testimony d escribin g soreness,
th e coun selor's testim o ny that both defendant
and th e victim were naked fr o m th e waist d ow n ,
and th e d efend ant's statement th at "it was con-
sen sual " were su fficient circumstanti al evi dence
to prove p enetration occU1l'C d . P eople v. Hoskay,
87 P.'.l d 194 (Co lo . App. 2003).
Trial court did not err in providing a dic-
tionary definition of the term "submi ss ion "
which did not include physi cal force or violence
in res po nse to a jury inquiry, whe re th e j ury was
1982).
Evidence sufficient lo support a general
verdict ba sed upon the alternative method s of
committing sexual as sault in th e fir st degree,
including the third alt ern ati ve o f causi n g th e
vi ctim · s submi ss ion wi th threat s of future ret al -
iati o n . James v. Peopl e, 727 P.2 d 85 0 (C o lo.
expli ci tl y instructed that o ne of th e element s of
firs t degree sexu al assault was that th e defend ant
cau sed th e victim's submi ssion throu gh the ac -
m al appl ication of ph ysical force o r phy sical
violence. Peo ple v. C111z, 923 P.2d 31 1 (Co lo.
1986).
Evidence suffi cien t to sustain conviction.
Harl an v. Peo pl e. 32 Colo . 397, 7 6 P. 792
(1904); B oegel v. P eo pl e, 95 Colo . 3 19, 35 P. 2 d
85S ( 19 34 ); Davi s v. Peopl e , 11 2 C olo . 4 52, 150
P.2d 67 (19 44 ); Annstc;1d v. Peo ple. 16 8 C o lo.
4 85,4 52 P.2d 8 (1969); Peo pl e v. Duran, Jr .. 179
o lo . 129. 498 P.2 d 9 37 (1972); Yesc as v. Peo-
ple, 197 Colo . '.179 , 59 3 , P.2d '.158 (1979); Peo pl e
v. Po well . 7 16 P.2d I 096 (Colo . 1986); Peo ple v.
Mogul. 8 12 P.2d 70 5 (Colo . A pp . 199 1 ).
App . 1996).
D . Jury.
Evi d ence determines if lesser offe nse is
submitted to jury. lt does no t fo ll o w fr om th e
conclu sio n that th e aggravate d assa ult need nol
he spec ifi call y pl eaded that a co urt is invariably
required to submit th e lesser in c lud ed crime to
the jury. There re main s the qUl:sti on wh ether th e
ev id ence j ustifi e thi s acti o n . O fte ntim es th e
ev id e nce prcch1d cs submi ss io n even wh en tl!e
o ff e nse i ch:irgrd in a se parm e count , ;1nd 1n
)
Title 18 -page 403 Offenses Against the Person 18-3-402
some cases the evidence is s uch that the jury
must determine the case on the greater offense
and that alone. People v. Futamata, 140 Colo .
233, 343 P.2d I 058 (1959).
Where there was uncontroverted evidence
that the sexual penetration was obtained by
means of physical force, it was not error for the
uial court to refuse to instruct the jury on the
lesser offense of second degree sexual assault.
People v. Naranjo, 200 Colo. I, 612 P.2d 1099
(1980).
Where the evidence is sufficient to support a
charge of assault with intent to commit rape, and
such as to justify a simultaneous acquillal of the
charge of rape, refusal of a trial court to submit
a verdict and instruction on assault with intent to
commit rape is e1Tor. People v. Futamata, 140
Colo . 233, 343 P.2d 1058 (1959).
Failure of the court to construct an assault
with intent to commit rape as a lesser included
offense of forcible rape does not affect substan-
tial 1ights of defendant, and is therefore not
cognizable as plain eITor where defendant was
convicted of statutory rape and at uial had de-
nied both assault and commission of act itself.
People v. Chavez, 179 Colo . 316, 500 P.2d 365
(1972).
Jury to evaluate threat. It is for the jury to
decide the magnitude of the threat and to eval-
uate the victim's belief of the defendant's ability
at the time the threats where made to cairy them
out. People v. Thatcher, 638 P.2d 760 (Colo.
198 1).
E. Instructions.
"Force" requires no further definition. The
trial co urt d oes not commit re vers ible errnr by
failing to define "force" in its in structions . An
instru~tion which cont ai ns the word "force",
with no further definition , is wrillen in plain
understandable Eng lish. People v. Jo hn son, 67 1
P.2d 1017 (Colo. App. 1983); People v. Powell ,
7 16 P.2 cl 1096 (Colo . 1986).
In structions as to corrohoration. In s tru ction
to th e effect that tes tim o ny of prosec utri x must
he co1rn borated by ot her evidence, s uch as ev-
iclcn e o f a s trn gg le, o r by making proof o f
co mplaint hy proseeutr ix at her earliest oppor-
lunity, 01 hy o th e r ev iden ce tending to prove th e
co 111mi ss io n of the o ffen se charged was he ld no t
subj ec t 10 1hc 1:nti cism thm it aut hnrized convic-
li o n of l'o rcibl e rape w1thmt1 any cmTohora tion
01 1c,11111 0 11y o l prn~erntnx wnh n:specl to the
qu ·,110 11 or whet her or n o t th e act of i,11c1coursc
11a ~i.:rnm pa111 cd by for c . Davis . Pe opl e . 112
o lu 452 . I O P.2d 67 CI 944 ).
'omplil'it instruction no l l'rror ~i mpl y he·
r;1 11,l· po,~ibilit of incon i t ent verdi ct. The
111:il n1 u11 did 1101 cn t, 111 ,1111 1111 o n 0 111plt c
111 .md 011 ,c,ua l a"au ll 14 ltl'tt th e dcfcnd.111
11,1, .11dcd 1 ,1h,·I1l·d h 01h,·1, 11nply b :tu c
lit,· Ill lill 'IIIIII . 14lt ctt 'll'l'l1 l0 '\"llt ·1.1:ntt ld le.td
lo an inconsi stent verdict. People v. Naranjo,
200 Colo. 11. 612 P.2d 1106 ( 1980).
Aiding or abetting must be established be-
yond a reasonable doubt. Jury instructions
which did not inform the jury that being "phys-
ically aided or abetted" had to be established
beyond a reasonable doubt, coupled with con-
flicting evidence presented at trial on the issue
of aiding or ab etting, requires reversal of defen-
dant's conviction for first degree sexual assault
as a class two felony . Beige! v. People, 683 P.2d
J 188 (Colo. 1984).
For deadly weapon sexual assault, it is sur-
ficient to instruct the jury that it needs to
consider whether a deadly weapon was used
to cause submission. The jury does not need to
dete1mine whether submission was obtained by
actual physical force or by sufficient conse-
quences reasonably calculated to cause submis-
sion . People v. Lehmkuhl, _ P.3d _ (Colo .
App. 2004).
Instruction on fear as substitute for force
required. In a prosecution for rape following a
vicious assault on a victim, the people are enti-
tled to an instruction which adequately and
clearly defines fear and apprehension of bodily
injury as a substitute for the ingredient of force .
People v. Futamata, 140 Colo. 233, 343 P.2d
1058 ( 1959).
Failure or trial court to include the sen-
tencing enhancement factor in the elemental
instruction 10 the substantive charge was not
plain e1rnr. People v. Tones, 701 P.2d 78 (Colo .
App . 1984).
The courts failure to give a straightfor-
ward negative response to the jurors' ques-
tion concerning the definition or "sexual pen-
etration" was harmless error. In order to
convic t the defendant of fir st degree sex ual as-
sa ult or incest the jurors had to accept th e vic-
tim's testimony because the victi m testified un -
eq uivocall y to ac tual sexua l intercourse while
the defendant denied any improper touching at
all. Peop le v. Fell , 832 P.2d IO 15 (Co lo . App.
199 1).
The trial co urt erred by failing to res1>ond
adequately to the jury 's question regarding
the difference between fir st and seco nd de·
grce sex ual as sault. A jury should be refetTed
back to th e instrnctions on ly when it is appare nt
th at it ha s overlooked so me portion of th e in·
stru c ti o ns or w he n the instructi o ns c learly an -
swer its inquiry. Peop le v. Shie lds, 805 P.2 d
1140 (Co lo . App . 1990).
The court mu s t take adec1uat e mea sure s to
in s ure that the jury under ·tands th e diffcr-
em:e betw ee n the principal clrnrged ofTen e
and th e lesser included ofTen e tf a le s er in ·
c lmkd off en c 1n . t1 uct1011 1, given . OUI-
nm. o . I :? 05 1 insufficient 10 :ippn e the
JLt ty of the d1ffe1 en e · between fi1 t and ond
de •rte .e\Ua l u, aull. :md . a ·1:0td 111 •I . the n
v1,110 11 Ji I lit ,1 de t l'C , ual .1, aull ,h11ulll h ·
18-3-403 Criminal Code Title 18 -p age 404
reversed. Pe ople v. Shields. 805 P.2d 1140
{Colo. App. 1990).
Sexual assault in the second degree is a
lesser included offense of sexual assa ult in th e
first degree. People v. Silburn, 807 P.2d 1167
(Co lo. App . 1990).
Trial court did not err in refusing to g ive
the consent defen se jury instruction tendered
by th e defe ndan t in a firs t degree sexual assau lt
case where the crime itse lf req uir es that the
prosec uti o n prove a lack of consent. People v.
Cruz, 923 P.2d 311 (Colo . App. 1996).
The jury was not in structed on both ele-
ments of alternati ve (c) and cou ld not have
assessed wh e ther tl1r:. prosec uti o n had proven
eac h e lement of that alternative beyo nd a rea -
so nabl e doubt. People v. Rodriguez, 9 14 P.2d
230 (Colo. 1996).
IV. VERDICT AND SENTENCE.
A sentence imposed beyond the presump-
tive range for a defendant co nvic ted of b oth
first degree sex ual ass ault with a deadly weapon
and a c rime of vio lence does no t deny equal
protec ti on of law since it can not be sa id th at the
se nt encin g statut es permit different degrees of
punishment for per so ns in th e defendant 's s itu -
ati on . Peo ple. v. Haymaker, 716 P.2d 110 (Colo .
1986).
A rational distinction exists in the se nte nc-
ing scheme for people convicted of fir st de-
gree sexual assault with a deadly weapon in
contrast to co nvi ct ions of the same c1ime with-
out a deadly weapon since the legi slature could
ra tion ally perceive that use of a deadly weapo n
during th e co ur se of s uch an assault is more
reprehen si ble and dangerous than commi ss ion
of such a crime without a deadly weapon. Peo-
ple v. Haymaker, 7 16 P.2d 110 (Colo. 1986).
disapprovi n g P eo ple v. Momoya, 709 P.2d 58
(Co lo . App . 1985), rev 'd, 736 P.2d 1208 (Co lo.
1987).
Ev id ence controls whether lesser includ ed
offense of assault with intent to rape can
s tand alone or fa ll on acqu itt al of forcible rape .
Miera v. Peop le, 164 Co lo . 254, 434 P.2d 122
(1967).
Section not incon sistent with § 18-3-405.
Ch,irges und e r eac h sec tion are dis tin gui shable
by th e nat ur e o f th e prohihited sex ual ac tivi ty.
Peo ple v. Hawkins, 728 P.2d 385 (Co lo . App.
1986).
Co nvicti o n of sexual assa ult und er thi s sec-
tion meets conviction of sex u a l offe nse cr iteri on
wi thin th e meanin g of § 18-1.3 -100 1 et st:q.
T he defendant is suhj ect to i11determinate se n-
tenc in g accordingly. People v. Klau s ner, 74 P.3d
421 (Colo . App . 2003).
Sentence found not excessive. A se nt ence of
27 to 50 years for sex ual assault in th e fir st
deg ree was no t excessive . People v. Hall . 619
P.2d 492 (Colo. 1980).
Sentence of six yea rs was not inapprop riate.
The prosec utor reco mmended a minimum sen-
te nce of four years, but it is not improper for the
sentencing court, on its ow n volition, to sen-
tence cont rary to the di strict attorney's re co m-
mendati on. People v. Fell , 832 P.2d 1015 (Co lo.
App. 1991).
Jury verdict co nvicting defendant of felony
menacing is not inconsistent wi th the jury 's
verdict acq uitting defendant of first degree sex-
ual as sau lt. Peo ple v. Frye, 872 P.2d 1316 (Colo .
App. 1993).
18-3-403. Sexual assault in the second degree. (Repealed )
Source: L. 75: E n tire part R &RE, p . 628. § 1, effecti ve Jul y 1. L. 77: IP(l ) amended,
p . 962. § 16, effective Jul y 1. L. 83: (l)(b) a nd (2) amended, p . 698, § 2, effective July l.
L. 88: (l)(e) amended. p. 725, § 1, effective July 1. L. 90: (l )(f) repealed, p . 1033 , § 25,
effect ive Jul y 1 . L. 99: (l)(e.5) added and (2) amended , p . 347, §§ 1, 2, effective July l.
L. 2000: Entire section repealed. p . 700, § 19, effective July 1.
18-3-404. Unl aw ful sex ual contact. (1) Any actor who knowingly s ubjects a victim
to any sexu a l contact comm its unlawful sexual contact if:
(a ) The actor knows that the victim does not consen t ; or
(b) The actor know s th a t the victim is incapable of appraisi n g th e nature o f the victim's
conduct: o r
(c) The vic tim is physically h e lpl ess an d the actor knows that the victim is physically
helpl ess a nd the vic tim h as not con sented; or
(d) The actor ha s ubs ta ntia lly impaire d th e victim's power to ap praise or control the
v ic tim 's condu ct by e mpl oyin g. w itho ut th e vict im 's consent , any drug, intoxica nt, o r o th er
mea n s for th e purpose o f cn u s in g s ubmi ss io n : or
(e) R e p ealed .
(f) The v i tim is in c u s to dy of Jaw or detained in a hospital o r o ther institutio n a nd th e
ac to r ha s supervisory or disciplinary au th o rit y over th e victim a nd u es thi s position of
a uth o rity. unlc~s incident to a law f ul earch, to ocrce the \'ict im to submit; o r
Title 18 -page 405 Offenses Ag ainst the Person 18 -3-404
(g) The actor engages in treatment or examination of a victim for other than bona fide
medical purposes or in a manner substan tially incon sistent with reasonable medical
practices .
(1 .5) Any person who knowingly, with or without sexual contact, induces or coerces a
child by any of the means set forth in section 18-3-402 to expose intimate parts or to e ngage
in any sexual contact, intrusion , or penetration with another person, for the purpose of the
actor 's own sexual gratification, commits unlawful sexual contact. For th e purposes of this
subsection (1 .5), the term "child" means any person under the age of eighteen years .
(1 .7) Any person who knowingly observes or takes a photograph of another person's
intimate paits without that person's consent, in a situation where the person observed has
a reasonable expectation of privacy, for the purpose of the observer's own sexual gratifi-
cation, commits unlawful sexual contact. For purposes of this subsection (1 .7), "photo-
graph" includes any photograph, motion picture, videotape, p1int, negative , slide, or other
mechanically, electronically, or chemically reproduced visual material.
(2) (a) Unlawful sexual contact is a class 1 misdemeanor and is an extraordinary risk
crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3 ).
(b) Notwithstanding the provisions of paragraph (a) of this subsection (2), unlawful
sexual contact is a class 4 felony if the actor compels the victim to submit by use of such
force, intimidation, or threat as s pecified in section 18 -3-402 (4) (a), (4 ) (b), or (4) (c) or if
the actor engages in the conduct de scribed in paragraph (g) of subsection (1) of this section
or subsection (1.5 ) of this sec tion .
(3) If a defendant is convicted of the class 4 felony of unl aw ful sexual contact purs uant
to paragraph (b ) of subsection (2) of this section, the cou11 shall sentence the defendant in
accordance with the provisions of section 18-1.3-406; except that this subsection (3) shall
not apply if the actor engages in the conduct described in paragraph (g) of subsection (1)
of this section .
Source: L. 75: Entire part R &RE, p . 629, § I , effective July 1. L. 77: IP(l ) amende d ,
p . 962, § 17, e ffective Jul y I. L. 86: (3) added, p . 777 , § 6 , effective July 1. L. 89: (1.5)
added and (2) and (3) amend ed. p . 830, § 41, effective July 1. L. 90: (1 )(e) repealed, p .
1033, § 25, e ffective July 1. L. 91: (3) amended, p . 191 2, § 2 1, e ffective June 1. L. 92:
(1.5) amended and (1.7) ad d ed. p. 404, § 15, effective Jun e 3 . L. 94: (1.5) and (1 .7 )
amended, p . 1717 . § 9, effec ti ve Jul y 1. L. 95: (3) amend ed , p . 1252, § 10 , effecti ve July
I. L. 96: ( I. 7) amended , p . 1581, § 4 , effect iv e Jul y I. L. 2000: IP()), ( 1.5), ( 1.7), (2), and
(3) amended, p . 700, § 20 , effective July 1. L. 2002: (3) amended, p . 1513, § 190 ,
effec tiv e October I . L. 2004: (2) a nd (3) amended, p . 6 35, § 6 , effective August 4 .
Edi tor 's 1101.c : Thi s . cc 1i un wa s cn nlain cd in a parl 1hat was repealed and reenact ed in 1975 .
Provisions ul' 1hi s scc li on, as 11 ex isled in 1975 , are si milar 10 !h ose co ntain ed in 18 -3-403, 18 -3-404.
and 18-3-4 10 as said sec li ons ex is led in 1974, lhe year prior 10 lh e repeal and rccna c1men1 of 1his part.
ross r •rc renl'cs: For lit e lcg is la11vc clcdaralion coma incd in lhe 2002 acl amending sub scc lion
Cl). s 'C scc 11 0 11 I of ch;1p1er 3 18. Se ssion Law s o r Co lorado 2002 .
ANNOTAT I ON
111 . ,Jur.2cl., cc 65 Am . Ju1.2d . Rape .§§ 15-
I·
j ,
)I
18-3-405 Criminal Code Title 18 -page 406
Defendant's prior conviction of assault did
not bur his subsequent conviction of sexual
assault, as offenses had distinct elements that
were not subsumed by each other. People v.
Williams, 736 P.2d 1229 (Colo . App . I 986).
Attempted third-degree sexual assault is a
lesser included offense of attempted first-de-
gree sexual assault. People v. Staggs, 740 P.2d
21 (Colo. App. 19 87).
The court's failure to give a s traightfor-
ward negative response to the jurors' ques-
tion concerning the definition of "sex ual pen-
etration" was harmless error. Because third
degree sex ual assaull may be com mitled without
proof of sexua l penetration , defendant's convic-
tion of that crime co uld not have been affected
by the la ck of response to the jurors' inquiry.
People v. Fell, 832 P.2d l O 15 (Co lo . App . 1991 ).
Jury instruction defining a variety of third
degree sexual assault different from the
charged offense was an improper co nstructive
amendment of the information after the close of
the evidence and is reversible ell'or per se . Peo-
ple v. Madden, 87 P.3 d 153 (Co lo . App . 2003).
To be used as a ground for discipline in an
attorney disciplinary proceeding sexua l as-
sau lt in the third degree need only be proved by
clear and convincing evidence . In re Egbune ,
971 P.2d 1065 (Co lo . 1999).
Notwithstanding the entry of attorney's
"Alford" plea in sexual assault proceedings,
for purpo se of disciplinary proceeding the attor-
ney was held to have actually committed the
act s nece ssa ry to accompli sh third degree sexual
assault and therefore the attorney knowingly had
sexual contact with a former client and with a
cu1Tenl client without either woman's consent.
People v. Bertagnolli, 922 P.2d 935 (Co lo.
1996).
Applied in People in Int erest of M.M., 43
Colo . App . 65 , 599 P.2d 968 (l 979); People v.
Opson, 632 P.2d 602 (Colo. App. 1980); People
v. Johnson, 653 P.2d 737 (Colo . 1982).
118-3405. 1 Sexual assault on a child. (1) Any actor who knowingly s ubjects another
no\ his or her spouse to any sexual contact commits sexual assault on a child if the victim
is less than fifteen years of age and the actor is at least four years older than the victim.
(2) Sexual assault on a child is a class 4 felony, but it is a class 3 felony if:
(a) The actor applies force against the victim in order to accomplish or facilitate sexual
contact; or
(b) The actor, in order to accomplish or facilitate sexual contact, tlU'e atens imminent
death, serious bodily inju1y, extreme pain, or kidnapping against the victim or anoU1er
person, and the vic tim believes that the actor has U1e present ability to execute the tlu·eat;
or
(c) The actor, in order to accomplish or facilitate sexual contact, threatens retaliation by
causing in the future the death or serious bodily injury, extreme pain, or kidnapping against
the victim or another person, and the victim believes that the actor will execute the threat;
or
(d) The actor commits the offense as a pait of a pattern of sexual abuse as desc1ibed in
subsection (I) of this section. No specific date or time must be alleged for the pattern of
sex ual abuse; except that the acts constituting the pattern of sexual abuse must have been
committed within ten years prior to or at any time after the offense charged in the
information or indictment. The offense charged in the information or indictment shall
constitute one of the incidents of sexual contact involving a child necessary to form a
pattern of sexual abuse as defined in section 18-3-401 (2.5).
(3) If a defendant is convicted of the class 3 felony of sexual assault on a child pursuant
to paragraphs (a) to (d) of subsection (2) of this section, the comt shall sentence the
defendant in accordance with the provisions of section 18-1.3-406.
Source: L. 75: Entire part R&RE, p. 630, § 1 , effective July l. L. 77: (1) amended, p.
962, § 18 , effective July 1 . L. 83: (5) amended, p . 693, § 2, effectiv e June I 5 . L. 86: (3)
added, p . 777, § 7, effective July I. L. 89: (2)(b) a nd (3) amended and (2)(c) ad d ed, p . 903,
§§ 2, 3, effective June I . L. 90: (2)(b) repealed, p . 1033, § 25, effective July I. L. 95 : (2)
and (3) amended. p . 1252, § 11, effecti ve Jul y I. L. 2002: (2)(d) amended, p . 1582, § 8,
effective July I ; (3) amended, p. 1513, § 191, effective October 1.
Editor's note : This sec ti on was conta in ed in a pa11 that was repea led and reenacted in 1975 .
Provi sions of this section, as it exis ted in 1975, are sim ilar to th ose co ntain ed in 18-3-408 as said
sec tion existed in 1974 , the year prior to the repeal a nd reenactment of this part.
C ro ss referen ces: For the legi slative de claration co nt ained in th e 2002 act ame ndin g subsection
('.\), see sectio n I of chapter 318, Session Law s of Colorado 2002.
1
Title 18 -page 407 Offenses Against the Person 18-3-405
ANNOTATION
Am. Jur.2d. See 65 Am. Jur.2d , Rape, § 15 .
C.J.S. See 75 C.J .S., Rape, § 6.
Law reviews. For note, "One Year Review of
Constitutional Law", see 41 Den . L. Ctr. J. 77
(1964). For article , "The Adolescent Sex Of-
fender: An Overview", see 16 Colo . Law. 1844
(1987).
Annotator's note. Since§ 18-3-405 is sim-
ilar to former § 18 -3-408, as it existed prior to
the 1975 revision of this part, and § 40-2-32,
C.R.S. 1963, and Jaws antecedent thereto, rele -
vant cases construing those provisions have
been included in the annotations to this section .
Enhanced crime of violence sentence on
conviction for pattern of sexual assault on a
child does not violate defendant's due process
and equal protection guarantees. Prosecution
not required to charge and prove a separate
c1ime of violence count pursuant to § 16-11 -
309 ( 4) and (5) for per se climes of violence
even though the elements of the pattern sentence
enhancer do not overlap with the elements of a
clime of violence. People v. Brown, 70 P.3d 489
(Colo . App . 2002).
Neither § 18-3-403 (1) nor subsection (1) is
lesser included offense of the other, as each
contains clements not found in the other. People
v. Opson, 632 P.2d 602 (Colo . App . 1980).
Convictions under both not double jeop-
ardy. Convictions for violations of § 18-3-
403()) and sub section ( 1) arising from the same
act do not constitute double jeopardy. People v.
Op so n, 632 P.2d 602 (Colo. App . 1980).
But, sexual assault on a child, as described
in s ubsection (1), is a lesser included offense
of second degree sexual assault, as described
in § l R-3-403 (l)(e). Accordingly, defendant
could not be convic ted of both offen ses, and the
court wa s required lo vacate the conviction that
would effec tuate as fully as possible the jury's
verdict. As such , th e court was required to con -
sider th e general as sembly's fe lony classitica -
ti o n of th e vari o us crimes co mm itted by the
de fenda nt . together with the length of sen tence s,
and maximize the j ur y 's verdict, which gives
eff ec t to the most se rious offen e . Pe ople v.
Ghol sto n, 26 P.3d I (Colo . App . 2000).
C onviction under this ection is not vio la -
tive of equa l protection 0 11 gro un ds that § 18 -
3-404 pro hibit s th e am e co ndu ct with a less er
p ·nalt y. S1 :11u1 ory cla ·safi cati ons ar e valid , even
if liffcrcncc in pro hrhat cd co ndu t is only a
mat1 c1 of deg ree . Peopl e v. Oliver. 745 P 2d 222
( n lo 19 7 ).
T hi s 'Cc liun doe not viola t e 1•qual prole •
lion uf tlw ln w 111111l'r the olorado on li -
1u1io11 lw..:.1u~c. alt hnu •h th · lell ny f~ n e of
'l'\ll J I ,l\,Jul t 11 11 a d11IJ h one 111 a po 111 n I
1111,1 .111 d till' 1na ~dcm ·.anrn ffcn~c ! e,ua l
,1, .,ult 111 th 1h11 d de 11 cc und c1 , I 1 404
,11 111' 111 1hr s:11111• 1·k1 11 ,·n1 , th r
two offenses contain elements which make them
distinguishable . The fact that a single act may
give 1ise to more than one criminal violation
does not, by itself, create an equal prote ction
problem . People v. Madril, 746 P.2 d 1329 (Colo.
1987).
Subsection (2)(c) does not violate due pro-
cess by allowing the prosecution to use evidence
of alleged uncharged crimes since evidence of
mulliple instances of sexual abuse is not similar
transaction evidence but rather evidence that
forms integral part of the offense . People v.
Bowring, 902 P.2d 911 (Colo . App . 1995).
Conduct proscribed by this section is dif-
ferent than conduct prescribed by § 18-6-
403, sexual exploitation of a child, and impos-
ing different penalties for the two sections does
not offend equal protection . People v. Slusher,
844 P.2d 1222 (Colo . App . 1992).
Subsection (2)(c) does not violate equal
protection of the law since the classification of
those charged with pattern sexual offense in-
volving children has a rational basis in fact and
is reasonably related to the legitimate govern-
mental interest of protecting young children .
People v. Bowring, 902 P.2d 911 (Co lo . App .
1995 ).
Subsection (2)(c) is not unconstitutionally
vague. People v. Longoria , 862 P.2d 266 (Colo.
1993 ); People v. Graham, 867 P.2d 68 (Co lo .
App . 1994); People v. Luman, 994 P.2d 432
(Co lo . App . 1999).
Subsection (2)(c) was possibly applied ex
post facto, th erefore, enhancement po1tion of
conviction is reverse d where several assaults
occurred befo re thi s law was enacted, the verdi ct
co uld have been based on an act that preceded
the law 's enactmen t, and the jury was not in -
structed that the conviction had to be based on
;rn act that occu11"cd after th e law 's passage .
People v. Graham, 867 P.2d 68 (Colo. App .
1994).
If the nets preceding the dale of the enact-
ment of the statute are included in the
charges. the jury mu st be ins tau cted not to con-
sid er them in dete11ni11ing defendan t's guilt or
innocence with re s pect to sexual abu se as a part
of a pallern of sexual abuse . If the jury is
permitted to co nsider th em. the statute , a ap ·
plied 10 the defendant , is retro spe cti ve and vi o-
lates the ex pos t fa cto pro hibiti on. Pe ople v.
Luman . 9 4 P.2d 4 2 ( olo. App . 1 9Cl).
uh el·lion (2)(c) did not violate the prohi -
bition again ·t e po st fa cto law sinc e the
defe ndant hJd th e I equ 1 at e fair warn ing of th e
con,equen c o l ommit1111 g rh e ofTc n e wath
"hach he ".l hu1 •e d Peo pl e v. 8 0 "11 11 • 02
I' ~d 11 f lo pp I q )
.'uh~rctlon (2 1( ) did not vlolat th prohl-
hil on 111:11 11 t l' po,t fiirto hrn an c th
, 11 mh 11 1 th .ii 11 ,,. •1 r il 1hr p.1t1 cm r 11:1 1 hu <'
t
.'j
;'{ !i.,
,'f ,,
l ~··
18-3-405 Criminal Code Title 18 -page 408
statute occun-ed after the statute's effective date .
People v. Bowring, 902 P.2d 911 (Colo·. App .
1995).
Although defendant's criminal acts were
committed prior to the effective date of sub-
section (2)(d), application of this subsection
to him did not violate the ex post facto clauses
of the federal and state constitutions, because
the general assembly had passed legislation in-
creasing the penalty for sexual assault as a pat-
tem of sexual abuse as early as 1989, before
defendant committed the acts for which he was
convicted . Because the acts were therefore not
innocent when committed and the changes to
subsection (2)(d) did not change the punishment
or dep1ive defendant of a defense, subsection
(2)(d) was not an ex .post facto law . People v.
Gholston, 26 P.3d l (Colo . App . 2000).
The 1982 amendment extending the statute
of limitations from a three -year pe1iod to a
seven-year pe1iod for the offense of sexual as-
sault on a child applies to all offenses which are
not time-barred as of the effective dale of the
amendatory legislation . People v. Whitesell, 729
P.2d 985 (Colo . 1986).
Section not inconsistent with § 18-3-402.
Charges under each section are distinguishable
by the nature of the prohibited sexual activity.
People v. Hawkins, 728 P.2d 385 (Colo . App.
1986).
Convictions on four separate counts of sex-
ual assault on a child, based upon different
types of sexual contact, but not clearly separate
incidents, violates constitutional prohibition
against double jeopardy. Defendant, therefore,
received more than one sentence for each single
contact, and the charges were multiplicative.
People v. Woellhaf, 105 P.3d 209 (Colo . 2005).
But, if evidence supports a conclusion that
the offenses were separated In time or loca-
tion, and comprised separate volitional de-
partures, defendant may be charged and con-
victed on separate offenses for identically
worded counts of sexual assault on a child with-
out violating constitutional prohibitions on dou-
ble jeopardy. Quintano v. People, I 05 P.3d 585
(Colo . 2005).
Ejaculation of semen onto clothing cover-
ing another person 's intimate parts may con-
stitute "touching" for purposes of establishing
the "sexual contact" element of sexual assault
on a child. People v. Vinson, 42 P.3d 86 (Colo.
App . 2002).
The term "pattern of sexual abuse" is
clearly and unambiguously defined in § 18-
3-401 (2 .5 ) and, therefore, the sentencing en-
hancement provision of subsection (2)(c) which
incorporates that term is not unconstitutionally
....... "---·-.. I ___ M;~ I!,<,') P'),i ')f,/; rrnln
increases the punishment for that offense from a
class 4 felony to a class 3 felony . People v.
Luman. 994 P.2d 432 (Colo . App. 1999).
A pattern count citing both the statute on
sexual assault on a child and the pattern
sentence enhancer is sufficient to charge both
charges. People v. Bobrik, 87 P.3d 865 (Colo .
App . 2003).
Defendant's position of trust in relation to
victim could not be used as aggravating factor
under § 18 -1-105 where it was also element of
substantive crime. People v. Garciadealba, 733
P.2d 1240 (Colo. App. 1986).
The crime of sexual assault on a child as
part of a pattern of sexual abuse is not a
lesser included offense of the crime of sexual
assault on a child by one in a position of trust.
In addition, neither of these are sentence en-
hancers for a person convicted of sexual assault
on a child. All are separate crimes and each
requires proof of facts not required by any of the
others. People v. Valdez, 874 P.2d 415 (Colo.
App. 1994).
Dismissal of specific counts alleging a viola-
tion of subsection (l) does .not preclude convic-
tion on subsection (2)(d). People v. Melillo, 976
P.2d 353 (Colo . App . 1998), affd, 25 P.3 d 769
(Colo. 2001).
Verdicts for sexual assault on a child as
part of a pattern of sexual abuse and sexual
assault on a child by one in a position of trust
were not inconsistent and were based upon
separate statutory provisions requiring proof of
different elements . People v. Hoefer, 961 P.2d
563 (Colo. App. 1998).
Where the jury instructions invited the
jury to find defendant guilty of a pattern of
sexual abuse count based on any two sexual
acts, regardless of when they occurred, the
conviction required reversal. Since the pattern
of sexual abuse under subsection (2)(d) is a
sentence enhancer to a crime charged under
subsection (1), only a count charged under sub-
section (1) can serve as the predicate offense,
and the jury must find the defendant guilty both
of the predicate offense and of another act of
sexual abuse occurring within l O years prior to
the period in which the predicate offense oc-
c un'Cd . Reversal of the conviction was required
where the jury instruction did not specify the
l 0 -year requirement. People v. Gholston, 26
P.3d I (Colo . App . 2000).
Jury verdict form for sexual assault on a
child should not have Included the word
"pattern" because pattern is a sentence en-
hancement and not a separate offense . However,
use of such instruction was not plain enor be-
cause there was no reasonable possibility that it
rnntrihnr ecl to defendant 's convictions . People
Title 18 -page 409 Offe nses Against the Perso n 18 -3-405
in the information. The period in the informa-
tion was less than ten years , therefore it would
have been impossible to lind the defe ndant
guilty of the enhancer unles s the jury found the
defendant committed two separate acts within
the period in the information . People v.
Honeysette, 53 P.3 d 714 (Colo . App . 200 2).
Enhanced penalty under subsection (2)(d)
improper when, based on jury instruction and
argument of prosecutor, jury could have found a
pattern of abuse from multiple sexual contacts
during a single sexual assault episode . Peo ple v.
Woellhaf, 87 P.3d 142 (Colo . App . 200 3), rev 'd
on other grounds, 105 P.3d 209 (Colo. 2005).
Former section held constitutional.
Galle gos v. People , 176 Colo. 191 , 489 P.2d
1301 (1971).
Purpose of former statute was to pl'otcct
morals of children. The evident purpose of
f01m er statute wa s to protec t children under a
certain age from tho se acts which would tend to
conupt their morals, so that th e question of the
co nse nt or non co nse nt of th ose included within
the law was not material, bec ause its p1im e
objec t was to protect the moral s of such yo uth .
Dekelt v. People, 44 Colo. 525, 99 P. 330
(1908); MarLinez v. People, 111 Colo . 52, 137
P.2d 690 (1943); Cross v. Peo pl e, 122 Co lo . 469,
223 P.2d 202 ( 1950).
F01mer sta tute was designed to protect chi l-
dren from de pravity and li cen ti ousness . Kidder
v. People , I 15 Colo . 72, 169 P.2d 181 (1946).
Former statute was nt!ither obscure nor
indefinite. It was designed to prote ct th e morals
of children in any place, and arbitrary rule s of
co nstru ction we re not to be invoked to res tri ct
it s meanin g. Martin ez v. Peo ple , I I I Co lo. 52,
t:l7 P.2d 69 0 (1943).
Evidence on age of juvenilc-dcrendant re-
quin•d. Wh ere th e pet it io n in de linq uency states
the respo ndent's age, a lth oug h § 19-3-106 and
rule 8, C.R.J .P., speci fy th at "jur isdictio nal ma t-
ters of the age and 1cside nce of th e child shall he
d cmcd ad mitt ed ... unl ess speci lica ll y de -
nicer , th e j uve nile-defe ndant 's age is not
th ereby ad mitt ed . and it is necessary to presen t
cvi lc nce spcc ilica ll y o n that clement of un of-
frnsc when it is cri ti ca l un de r th is sec tio n. Peo -
ple 111 In teres t of M. M ., 4 1 olo. App . 44, 582
l'.2d 692 ( 1978).
Effe ct of lack or evidence on four -cur ugc
dllTcrcntial .• in c the fo ur-year ngc d11f 1cn11al
1, .111 ci,•,c n11al clement of th vffcn . c. a vn i •
11 <111 c:innnt he ~u,1:1111 d whe1c 110 cv1dc:11ce wa
,11.Jd1K cd .1 . to that dc111cnt. People 111 Int 1cM of
~1 ~I . 4 I Culo . App .u, 2 P.2d 692 < I 7 l
E\ i d 1•tH'l' uf :ii,:e difT •rcnti11l :id m ilt ed. An
l'l n 1·11 H';11 11 ld d1ild':. ·st11na1e of her r.11hc1 ·s
,1 •1· J ;11,11111 .1 1 Jll e •t ~. t I th,111 hc1 own b
11 111\ t,1 111 ~1.11,1 1101 111hc1cntl .pen1J ll\e
.1 1i1 h1· \\ 1tlh llll p111h.111vc uht Pn pie v
I h'IIII !'IC) l 11 111 I . t,()o "-" I~( I 11()80)
Where evidence of m:iny acts, prosecution
compelled to select specific transaction for
conviction. Where there is evidence of many
acts, any one of which would constitute the
offense charged, the pro sec ution may be com-
pelled to se lect the tran sac ti on on which it relies
for a conviction , and althou gh it is not required
to identify the exact date of the offense, it mu st
individualize and select a specific act. People v.
Estorga, 200 Colo. 78. 612 P.2d 520 (1980);
People v. Quintano, 105 P.3 d 585 (Colo . 2005).
The appropriate "unit of prosecution" for
the crime of sexual assault on a child is "any
sex ual contact" not each separate offense of
touching within a single incident that encom -
pas ses a multitude of types of sex ual contacts .
People v. Woellhaf, 105 P.3d 209 (Colo . 2005)-.
Mental state required is "knowingly". The
general asse mbly intended that the mental state
requirement for this cli me be "knowingly", and
that this supersedes any indication of mens rea
suggested by the tenn "int entional " in § 18 -3-
401. Pe opl e v. Salazar, 648 P.2d 157 (Colo. App.
198 1).
Evidence of similar offenses committed by
accused against same child is admissible in
prosecutions for takin g indecent liberties with
th e child . Godfrey v. People, 168 Colo . 299,451
P.2d 29 1 ( 1969).
The exception to the genera l rule exc luding
evidence of oth er offenses allows such evide nce
to show design, moti ve, or int ent. The excep tion
is broadened in cases of sex ual offe nses . Hu erta
v. People, 168 Colo . 276, 450 P.2d 648 (1969).
Evidence of prior sex ual episodes wi th the
vi ctim which goes to prove a commo n plan,
sc heme , or des ign , is admi ss ible und e r § I 6-10 -
30 I (I). Peo pl e v. Whit ese l. 200 Col o . 36 2. 615
P.2d 678 (198 0).
Similar acts as to other pers ons cannot be
s hown in evidence. Hu er!.1 v. Peop le, 168 Co lo .
276, 450 P.2d 648 (1969).
Other offen ses inadmi silJle where guilty
knowledge is nece ssary condusion. Wh ere th e
int ent or guilt y kn ow ledge is :1 necessary co n-
c lu sio n rro m the ne t done, proo f of oth er of-
re n~cs of a simil ar charac ter is 111udmi ss ible , and
vio lates the rul e tha t the ev id ence mu st be co n-
fi ned to th e iss ue. Hu ert a v. People, I 68 Co lo.
276. 450 r.2d 648 < 1969).
Tl'~timony of prior offense s not prejudicial.
ach ol the w11 11cs~c · L ·stificd th nt de fenda nt
had p -rpc1ra tcd indece nt li berties on o ca io ns
pno1 to the ones w11h wl 11 ch he was charged .
Thc llnc~~c ga c 11 0 date or in any oth er
111annc1 1t.lcn111ied or tc 111ied abo ut any particu -
lm oc uncnlc In th1 ci1cum rnncc no clec uun
1 1cq1111ed he uu the evidence only tends to
ho n pa111 ul,11 u an a 11011. wht h in ch
rn tunc.:c "a the hnn 1 11011 chat •eel in the Ill · r, 1rn .t1111 · . m111 11 n I the 1e ·t,1d l,11 to
1h do thJt the JIii ·oult.l h.i c . umehow c n·
, 1c.1 u J dd nd.111t h 1 11111 • ct 11th •1 tn, 11 th•
f ••
18 -3-405.3 Crimin al Code Title J 8-page410
very one s with wh ic h he was charged . Nuwcls v.
People, 166 Colo. I 40, 442 P.2d 410 ( 1968).
Attempt to commit sexuul assault on child
is offense under Colorado law. People v.
Martinez, 42 C olo . App. 257, 592 P.2 d 1358
(1979).
Evidence sutncient to su pport conviction.
Rapue v. Peop le, 17 1 Colo . 324 , 466 P.2cl 925
(1970); Peo ple v. Ort ega, 672 P.2d 215 (Colo .
App. 1983).
Evidence insutncient for class 3 co nviction
sufficient for class 4 conviction. Evidence
which was in sufficient to s upport a cunvinion
for a cla ss 3 fdony charge was sufficient to
convict for a lesser included cla ss 4 felony .
People v. Whitese l , 200 Colo . 362 ,6 15 P.2d 678
(1980).
Verdicts of guilty under this section and of
contributing to juvenile delinquency. Ve rdicts
of guilt y under this section and also as to a co unt
of contributin g to juvenile delim]ltency were not
inconsistent. Wa1Ten v. People, 12 1 Colo . 118,
213 P.2d 381 (1949).
In a trial for commission of a crime under
subsection (2)(c), no limiting instructions
were required, as evidence of multiple sex ual
a bu se in cidents is not si mil ar tran sac tion evi-
dence but is evidence of an integral part of the
offense . People v. Graham, 867 P.2d 68 (Colo .
App . 1994).
Sen tence enhancement under su bsection
(2J(c) is not precl uded by fact that prior con-
duct contributing to th e establishment of pallcrn
sexual abuse occun·ed in ano ther state. Pe op le v.
Bowring, 902 P.2d 911 (Colo . App . 1995).
When a defendant is convicted of sex ual
assault on a child by one in a position of tru st,
the offense of sexual assault on a child is not
a le sser included offense. P eople v. Leske, 95 7
P.2d I 030 (Colo . 1998); People v. Duncan, 31
P.3d 874 (Colo. App . 2001 ).
A victim 's beli ef that defendant would con-
tinue to hold her against her will unless she
co mpli e d with his sex ual demands could con-
stitute a continuing threat of imminent kid-
nap sullicient to support defendant's conviction
for v io latin g subsection (2)(b). People v.
Zamora, 940 P.2d 939 (Colo. App . 1996).
Applied in Continental Liquor Co . v. Kalbin,
43 Colo. App . 438,608 P.2d 353 (1977); People
v. Lake, 195 Colo . 454, 580 P.2d 788 (1978);
People v. Cavalier, 41 Colo. App . 11 9, 584 P.2 d
92 (1978); People v. Boye tte , 635 P.2d 552
(Colo . 1981); People in Interest of W.C.L., 650
P.2d 1302 (Colo. App. 1982); People v. Green,
658 P.2d 28 1 (Colo . App . 1982); People v. Cor-
bett , 656 P.2d 687 (Colo . 1983); People v. Lind-
sey, 660 P.2 d 502 (Colo. 1983); People v. Wood,
743 P.2cl 422 (Colo. 1987); People v. Melillo , 25
P.3d 769 (Co lo . 2001).
lS:3-405.3 .. Sexual assault on a child by one in a position of trust. (1) Any ac tor
who knowingly s ubjects another not his or her s pouse to any sex ual contact commits sex ual
assault o n a child by one in a position of trust if the vic tim is a child Jess than eighteen years
of age and the actor commi ttin g the offense is one in a position of trust with respect to the
victi m .
(2) Sexual assault on a child by one in a position of trust is a class 3 felony if:
(a) The victim is Jess than fifteen years of age; or
(b) The actor commits the offense as a part of a pattern of sexual abu se as described in
subsec ti o n (I) of this section . No specific date or time need be alleged for the pattern of
sexual abuse; except that the acts constituting the pattern of sexual abuse must h ave been
committed within ten years prior to or at any time after the offense charged in the
infonnation o r indictment. The offense charged in the information or indictment shall
consti tute one of the incidents of sex ual contact involving a child necessary to form a
pattern of sex u a l abuse as defined in section 18-3-401 (2 .5).
(3) Sexual assault on a child by one in a pos ition of trnst is a class 4 felony if th e victim
is fifteen years of age or older but Jess th an eighteen years of age and the offense is not
committed as part of a pattern of sexual abuse, as described in paragraph (b) of subsection
(2) of thi s section .
( 4) If a defendant is convic ted of th e class 3 felony of sex ual assault o n a child pursuant
to paragraph (b) of ubsection (2) of this section, the court shall se nt ence the defendant in
accordance wi th th e provisions of ecti on I -1.3-406 .
ource: L. 90: Entire sec tion added, p . I 028, ~ 16, effective July 1. L. 98: Entire
sec ti on amended. p . 1444, § 33. effectiv e July I. L. 2002: (2)(b) amended, p . I 582, § 9,
effecti ve July I ; (4) amend ed. p. 1513, § 192 , effecti ve October I.
ross l'l·l'l-rcn ·cs: For th e legislative dec lara tion ontai nccl in th e 2002 net amending suh l'Ction
(4). see sc.:t1011 I of chapter 318. Session Law . of C'ol01ado 2002 .
Title 18 -page 411 Offenses Against the Person 18-3-405 .5
ANNOTATION
Application of this section lo the defendant
violated the ex post facto clauses of the fed·
eral and state constitutions because, while de-
fendant's conviction was based on incidents oc-
cun-ing between June I. 1990, and June I. 1991,
jurors were not clearly instructed that defe n-
dant's conviction had to be based on an act that
occun·ecl after July I, 1990, the effective date of
the statute. People v. Gholston, 26 P.3d I (Colo.
App . 2000).
Convictions on four separate counts of sex-
ual assault on a child, based upon different
types of sexual contact, but not clearly separate
incidents, violates constitutional prohibition
against double jeopardy. Defendant, therefore,
received more than one se ntence for each single
contact, and the charges were multiplicative .
People v. Woellhaf, 105 P.3d 209 (Colo . 2005).
The appropriate "unit of prosecution" for
the crime of sexual assault on a child is "any
sex ual contact" not each separate offense of
touching within a single incident that encom-
passes a multitude of types of sexual contacts.
People v. Woellhaf, 105 P.3d 209 (Co lo . 2005).
The crime of sexual assault on a child as
part of a pattern of sexual abuse is not a
lesser included offense or the crime of sexual
assault on a child by one in a position of trust.
In addition , neither of these are sentence en-
hance rs for a person convicted of sexual assa ult
on a c hild . All are sepa rate crimes and each
requires proo f of facts not required by any o f th e
oth ers. Peop le v. Vald ez, 874 P.2d 415 (Colo .
App. 1994).
The crime of sexual assault on a child is not
a lesse r included offen se or sex ual assault on a
child by one in a position of tru s t under
analy s is of either § I8 -l·-'08(5)(a) or 18 -1·
408 (S)(c). People v. Leske, 957 P.2d 1030
(Colo. 1998).
Violent crime sentencing for patterned en·
hanced counts of sexual assault on a child by
one in a position of trust only apply to of-
fenses committed on or afte1· July 1, 1998.
People v. Bobrik, 87 P.3d 865 (Colo . App.
2003).
Because this section requires a "know-
ingly" culpable mental state, the requisite in-
tent by the assailant could be demonstrated in a
juvenile proceeding. Swentkowski v. Dawson,
881 P.2d 437 (Colo. App . 1994).
Jury could conclude that defendant was
"in a position of trust" relative to the victim
within the meaning of the applicable statute,
where defendant lived in the same residence
with the victim and her family and cont1ibuted
lo the household income, the victim spent hours
alone with the defendant in his room, the victim
was the only child the defendant allowed in his
room, and neither the victim's mother nor any
other individual intervened dming the time that
the victim was alone in the defendant's room.
People v. Luman, 994 P.2 d 432 (Colo. App .
1999) (decided under law in effect prior to 1990
amendment 10 § 18 -3-40 1 (3 .5)).
Ejaculation of semen onto clothing cover-
ing another person's intimate parts may con-
stitute "touching" for purposes of establishing
the "sexual contact" element of sexual assault
on a child by o ne in a position of t111 st. People v.
Vin son , 42 P.3d 86 (Colo . App. 2002).
Enhanced penalty under subsection (2)(b)
improper when, based on jury instruction and
argument of pro sec utor, jury could have found a
patte rn of abuse fro m multiple sex ual contacts
during a single sex ual ass ault episode. P eople v.
Wocllhaf. 87 P.3 d 142 (Colo . App . 2003), rev'd
on other gro und s. I OS P.3 d 209 (Colo. 2005).
·18 -3-405.5 . Sexual assault on a client by a ps)•cholhcrapisl. (1) (a) Any actor who
knowingly intii cts sexua l penetra tion or sex ual intru sion on a vict im commits aggravated
~ 'X ual assault o n a clien t if:
(I) The actor is a psychcthcrapist and the victim is a cli e nt of the psychotherapist; or
(II J Th • actor is a psychotherapi st and th e vic tim is a client and the sex ual penetratio n
01 i111ru ~i< n o curred by mea ns of therap uiic cl ccp ti on.
(h) g •r:ivatcd sexua l assa ult on a client is a c la ss 4 felony .
(_) (a) ny actor who knowin g ly s ubjects a v i tim to any scxua l con tn ct commi ts
,cxua l a,~ault on a c lient if:
(I) The a ·tor i n p y h th erapi st and the victim is a lient of th e p ychothcrapist ; or
111 l Th · actor i a psy hoth cra pi ~t and th victim is a cli e nt and the exual con ta t
, c ·u1 n.:d hy mean of therapcuti · de cep ti n.
(b) S ·:..ua l n~!.nu lt n a li ent is a c la ~ I mi dl.:m anor.
1 l) Cnn . cnt b the client to th e sc:,.u. I penctrauun, iutru sio n. or ont. l h II n t
l1•11 ,111utc a dcfcthe to ~u h offense .
t , '\ u ·d in tlu
18-3-406 C rimin al Code Titl e 18 -pa ge 4 12
(b) "Psychoth erapi st" mean s any pe r son who performs or purports to perform psyc ho-
therapy, w he th er or no t s uch p erson is li cen sed by th e s tate p ur s u a nt to title 12 , C.R .S ., or
certifi ed by the sta te pur s uant to part 5 of article I of title 25 , C.R .S .
(c) "P sych ot herapy" means th e tr eatment, diagnosis , or co unselin g in a profess io na l
re lationship to assis t individu a ls or groups to a ll ev iate mental di sorders, und ersta nd
uncon sciou s or co n sc io us mo ti vatio n , resolve e motional, re lati o nship, or a tti t udin al co n-
flict s, or m o dify behaviors whi c h interfere with effec tive e m oti onal , soc ia l , or intell ec tu al
functioning .
(d) "Therapeutic decepti on " m eans a r epresent a ti o n by a psychotherapist th at ~ex ual
contact , penetrati on, or intru sio n by the psychotherapist is consis te nt with or p art o f th e
client's tre atment.
Source: L. 88: Entire section added, p . 726, § 1, effecti ve Jul y 1. L. 89: (3) amended ,
p . 831, § 42, e ffective July 1.
Cross references : For th e li censing of ment al health profess io nals, see article 4 3 of title 12 .
. ANNOTATION
Section is not unconstitutionally over-
broad. Neither the treating psy chotherapi st nor
th e psych otherapy cli e nt ha s a fund a me nt al con-
stitutional right to e ngage in sex ual intercourse
with each other duti ng the existence of the
p sychotherapi st-client relati onship . Ferguson v.
Peo ple, 824 P.2d 803 (Colo . 1992).
Although consent is eliminated as a de-
fense, prosecution must still prove mental
culpability of the crime. C1ime is not a stri ct
li ab ility offense. Ferguson v. People, 824 P.2d
803 (C o lo. 1992).
18-3-406. Criminality of conduct. (Repealed)
Source: L. 75: Entire part R &R E , p . 630, § 1, effective July I . L. 2001: Entire section
repealed, p . 859, § 5 , effective July I.
Editor's note: CutTent provi sion s relating t o criminality of conduct are contain e d in§ 18 -1-503.5.
18-3-407. Victim's and witness's prior history -evidentiary hearing -victim 's
identity -protective order. (1) Evidence · of specific in stances of the victim 's or a
wi tn ess's prior or s ub sequ e nt sex ual conduct, opi nion evidence of the v ic tim's or a
witnes s's sexual conduct, and re putati on evidence of the victi m 's or a witness's sex ual
conduc t may be admissible o nly at uial and shall n ot be admitted in any other proceeding
except at a proceeding purs uant to parag r a ph (c) of s ubsec tion (2) of thi s secti o n . At trial ,
s uch evidence shall be presumed to b e irrelevant except:
(a) Evidence of th e v icti m 's or witness' prior or s ubsequen t sex ual conduc t wi th th e
actor;
(b) Evidence of specific in t ances of sexual activity showing the so urce or ori gin of
semen, pregnancy, disea e, or any similar evidence of sexual intercourse offered for th e
purpose of s howing that the a c t or acts charged w e re or were not committ ed by the
d e fendant.
(2) lo a ny c riminal pro ecuti o n unde r secti o ns 18 -3-4 02 to 18 -3-4 05 .5, 1 -6-30 1,
18-6-302, 18-6-403, a nd 18 -6-404 , o r fo r a tt e mpt or con s p iracy t o commit a ny cri me un de r
secti o n 18-3 -402 to I -3-405.5, 18-6-30 1, 18 -6-3 0 2, 18 -6 -403, a nd 18 -6-4 0 4 , if evidcn e,
th a t is no t e x e pt e d under ubse ti on ( 1) o f th i sec ti o n, o f s pec ifi c in stan ce o f th e vi ti m ' s
o r a witn ess's pri o r o r sub sequ e nt e >..u al condu ·t, o r o pini o n ev id e nce o f th e victim· or a
witn es 's sex ual o ndu ct , o r re put ati n evide n e o f the v ictim 's or a witn es ·s ,cx ual
condu c t, o r ev id e n th at th e vic tim o r a witn e . h a a hi s to ry o f fal se re p o rtin g o f ~cx ual
assa ult i t be o ffe red a t tri a l, th e foll o wing pro edure hall b e foll ow e d :
(a) A w r itt n 111 ti n h all I e made at lea t thi rty d ays pri o r t tria l, unl ess later fo r good
au se show n . to th e co urt a nd to the oppos in g pa rti tating th a t th e m v in g party has an
19 -2 -5 17 C h i ldre n 's Cod e T ill e 19 -p age 138
Editor 's note: T his secti o n was fo rm erl y numbered as 19 -2-80 l (l ), 19 -2-8 02 (l ), 19-2-8 0 ~ (l ),
and 19-2-04 (I ). Prio r to relocati o n in 19 96, th ese secti o ns we re c o nt ain ed in a t itl e th at was re pealed
and ree na cte d in 1987 . P rov isio ns o f th ese sec ti o ns. as th ey ex isted in 19 87 . were contain ed in se ve ral
secti ons in 1986, th e year pri or to th e re peal and reenac tm ent o f thi s titl e . Fo r a d etail ed compariso n.
see th e "C hildren · s Cod e ( 1987 )" tab le loc at ed in th e back of th e ind ex .
Cro ss references: F or th e leg islati ve d eclarati o n co nt ai ned in th e 2002 act amendin g sub sec tion s
(3 ) and (4 )(a)(II). see sec tio n I o f cha pter 3 18. Session Law s o f Colo rad o 2002.
ANN OTATION
Annotator 's note. T he fo ll owi ng an no tati ons
include ca ses d ecid ed und er for mer prov isions
similar to thi s sec tio n .
Statute meets equal protection and due
process re quirements. St atutory sche me un der
whi ch juve nile ma y b e cl ass ifi ed as mandatory
sente nce offender ei th er upon pro b ati o n revoca-
ti o n o r upo n new adj ud icatio n o f d e linqu ency
and under whi ch pro sec ut o r has di screti on to
seek revocati o n r ath er th an ne w adj ud icatio n,
thu s avoiding necessit y fo r prelimin ary hearin g
and jury ttial , does not deny juve nile s equ al
protecti on no r unc o nstituti onall y de legate di s-
creti o n to prosec ut o r. P eopl e in Int ere st of D.G ..
7 33 P.2d 11 99 (C o lo . 1987 ).
Because fo rm er § 19-2-70 3 (4 ) provid es fo r
notice and a hearin g when a j uvenile has all eg-
edly vio lated pro bati o n and because th e pro se-
cuti o n mu st es tabli sh th e all ege d criminal of-
fe nse beyond a reaso nabl e do ubt , the statut ory
sche me und er whi ch pro bati o n revocati o n tri g-
gers mand atory sent ence offender statu s d oes
not deny due process . People in lnterest o f D .G .,
7 33 P.2d 11 99 (Colo . 1987 ).
Con stitutionall y void dispo sitions cannot
be used a s ba sis for enhanced punishment .
W here th e referee in two pri or d elinqu ency
heari ng s fai led to com ply wi th th e m an d ates of
C.R.J .P. 3 , th e pri or di s po siti o ns are constitu -
t ionall y void and cannot be used as th e b asi s for
e nh anced puni shm ent proceedi ngs under thi s
sect io n . People v. M.A.W ., 651 P.2d 433 (Co lo .
A pp . 1982).
Previou s adjudication need not be based on
felon y. TI1e un ambi guo us la nguage of fo nner
s ub sect io n (2)(b) req ui res two prior acts by a
child e ac h o f whi ch wo ul d h ave consti tut ed a
cri me if committ ed by an ad ult ; there is no meri t
in th e cont entio n that the sub secti o n m ust be
r ead lO include th e de fini tio n o f a re peat j uvenil e
o ffend er (fo rm er § 19 -1-103 (23 .5)) that wo uld
req uire o ne o f th e pre vio us adj udi ca ti o ns to be
ba sed o n a fe lo ny. Peo ple in In te rest of R.R .. 4 3
o l . App . 208, 607 P.2d 1013 (1979).
The ,·iolent ju\'e nile offender statu te docs
not create a separate and distinrt offen se ;
rat her, it i a di spo sit io na l tatute a s oc iat ed
wi th th e un derly in g delinq uent ac t and thus d oes
no t vi o late th is con stitut ional guarant ee of equal
pro tec ti o n . People in Int erest of D .G ., 725 P.2 d
11 66 (Colo . A pp . 1986).
Ju venile 's right to equal protection wa s not
violated by trial court 's refusal to grant ju-
venile , who was char ged as being a violent
juvenile offender, five rather than four pe·
remptory challenges w here j uvenil e fa il ed to
sho w th at th ere was un equ al tre atm e nt within
th e class of vio lent juve nile o ffenders . Altho ugh
an aggravated juve nil e o ffend er is entitled to
ti ve peremp io ry chall en ges under former § 19 -
2-804 (4)(b)(I) (now § 19-2-60 1 (3)(b )(I)), th e
c le ment s consti t uting an agg ravated juvenil e o f-
f ender di ffe r fr o m th ose constitutin g a vio lent
j u ve nil e o ffender. P eople in Interes t of
M .M .O .P., 873 P.2 d 24 (Colo . A pp . 1993).
Although violent juvenile offender was
granted four rather than the five peremptory
chall enges awarded to an aggra,•ated juvenile
offender, violent j uve nile offender's rig ht to
eq ual protecti o n was no t violated w here th e
element s co nstituting an aggra va ted j uvenil e of-
fe nd er differ fr o m tho se constitut in g a violent
j u ve nil e o ffe nd er. P eople in Interes t of
M .M.O.P., 873 P.2 d 24 (Colo . A pp . 1993).
Plain language of the statute does not re-
quire extra procedural requirements for en-
hanced sentencing of mandatory sentence of-
fenders; state need not pl ead and prove
previous adj udi cati ons beyond a reasonable
d o ubt. Peopl e v. J.J .H ., 17 P.3 d 159 (Colo .
2001).
Comparison to adult habitual criminal
pro secution not persua sive in interpreting the
procedures for se ntencing mandatory sen -
te nce offend ers, sin ce there are fu ndamental
differences b etw ee n th e juve nil e sy tern of jus-
ti ce and the adult syste m of justice ; th e goal s of
th e j uvenile system are to rem ain info rmal , fl ex-
ible . and focu sed o n rehabi litation, wherea , th e
adult criminal sy tern 's appro ac h is hardened in
procedure . goal . and penalties . Pe pi e v.
J.J .H .. 17 P.3d 159 (C o lo . 2001 ).
19-2-S 17. Direct filin g. (I ) (a ) A j uvenil e may be charge d by Lh e direct fi lin g of an
informat ion in th e di tri ct court or by indictme nt nl y whe n:
t I ) he juv e nil e i fo u11ee n y ar s of age r older and is all ege d 10 have co mmi11 ed a
cla ~~ 1 r la~ 2 fe lo n y : r
r
I
I
I
i
I
Title 19 -page 139 The Colorado Juvenile Justice Sy stem 19-2-517
(II) The juvenile is fourteen years of age or older and:
(A) Is alleged to have committed a felony enumerated as a crime of violence pursuant
to section 18-1.3-406, C .R.S .: or
(B) Is alleged to have committed a felony offense described in part I of article 12 of
title 18, C.R.S., except for the possession of a handgun by a juvenile, as set forth in section
18-12-108 .5, C .R .S.; or
(C) Is alleged to have used, or possessed and threatened the use of, a deadly weapon
during the commission of felony offenses against the person, which are set forth in article
3 of title 18, C.R.S .; or ·
(D) Is alleged to have committed vehicular homicide, as described in section 18 -3-106 ,
C.R .S ., vehicular assault, as described in section 18 -3-205 , C .R.S., or felonious arson, as
desc1ibed in part 1 of article 4 of title 18, C.R.S.; or
(III) The juvenile has, within the two previous years, been adjudicated a juvenile
delinquent for a delinquent act that constitutes a felony, is sixteen years of age or older. and
allegedly has committed a crime defined by section 18-1.3-401, C.R.S ., as a class 3 felony,
except felonies defined by section 18-3-402 (I) (d), C.R.S., or section 18 -3-403 (I) (e),
C.R.S ., as it existed prior to July I , 2000 ; or
(IV) The juvenile is fourteen years of age or older, has allegedly committed a
delinquent act that constitutes a felony , and has previously been subject to proceedings in
district court as a result of a direct filing pursuant to this section or a transfer pursuant to
section 19-2 -518 ; except that , if a juvenile is found not guilty in the district court of the prior
felony or any les ser included offense, the subsequent charge shall be remanded back to the
juvenile court; or
(V ) The juvenile is fourteen years of age or older, has allegedly committed a delinquent
act that constitutes a felony, and is determined to be an "habitual juvenile offender". For
the purposes of thi s sec ti o n, "habitual juvenile offender'' is defin ed in sec tion 19 -1-103
(61 ).
(b ) The offenses describe d in subparagraphs (I) to (V ) of paragraph (a) of this
s ubsection (l) shall include the attempt, conspiracy, solicitation , or complicity to commit
such offenses .
(2) Notwith s tandin g the provi sion s of section 19-2-518 , after filing c harges in the
juvenile co urt but prior to the time that the juvenile court conducts a transfer hearing , the
district attorney m ay file the same or different c harges against the juvenile by direct filing
of an informa tion in th e disuict co urt or by indi c tment pursuant to this sectio n. Upon sai d
fi ling or indictment in the di stri c t co urt . the juvenile court sh a ll no longe r have jurisdiction
over proceedings concerning said charges.
(3) (a) Whenever criminal charge are filed by information or indictment in the di tri c t
court pursuant to thi ec tion , the di s trict judge hall se ntence the juvenile a fo ll ow :
(I ) A an adult; or
(II ) To the youthful ff ender ystem in the department of correcti n in a cordance with
ection I -1.3-407. C.R . .. if the juvenile i convicted of an off en e de cribed in ubpara -
graph (II ) or (V) of paragraph (a) of ub ection (I) of thi ection; except that a juvenile
s hall be indigible for entcncing to the youthfu l offender y tem if th e juvenile i convicted
of:
(A) A la s I felony :
(B) la~s _ felony a · a re ult of a plea agreement in cases where the juvenile i
c ha rged with a la · I felony :
( ) cla~ 2 fel ny aml the j uvemle has one or m re prior convi tion for a crime f
violen ·e. a~ defined in~• ti n I -1. -40 , .R ... or pri r adjudi ati n r n ffen that
woulJ ·o n,111ute a .:rime of , ioh:n-. if c mrnittcd y an adult :
(0) cla~, 2 felony and th Ju,eml i i t en year f age r o ld er:
( ) Any e,ual offen e de \ ribed in e ti n I --r I --02 . .R ., or p 11 4 of
aruclc 3 of utlc I '. .R ; or
1 ~ J ,ecc nd r ub,cqucnt of~ n e de ri
pcr,nn rcrel\ cd a enten e to th dep nment or t ti
') ,ll'lll or th· plll r off en : r
19 -2-517 Children 's Code Title 19 -page I 40
(III) Pursuant to the provisions of this article. if the juvenile is less than sixteen years
of age at the time of commi ssion of the crime and is convicted of an offense other than a
class I or class 2 felony, a crime of violence as defined under section I 8-1 .3-406, C.R.S .,
or an offense described in subparagraph (V ). of paragraph (a) of subsection ( i) of this
section and the judge makes a finding of special circumstances.
(b) Repealed.
(c) The district court judge may sentence a juvenile pursuant to the provisions of this
anicle if the juvenile is convicted of a lesser included offense for which criminal charges
could not have been originally filed by information or indictment in the di st rict cou11
pursuant to thi s section .
(4) In the case of any person who is sentenced a ~ a juvenile pursuant to s ubsection (3)
of this section, section 19-2-908 (I) (a), regarding n , datory sent e nce offenders, se ction
19-2-908 (I) (b), regarding repeat juvenile offenders, section 19-2-908 (I) (c), regarding
violent juvenile offenders, and section 19-2-601 , regarding aggravated juvenile offenders ,
shall apply to the sentencing of such person .
(5) The court in its discretion may appoint a guardian ad !item for any juvenile charged
by the direct filing of an information in the district court or by indictment purs uant to this
section.
Source: L. 96: Entire article amended with relocations . p . 1640, § I , effective January
I , 1997 . L. 99: (3)(b) amended, p . 43 , § 2, effective March 15; (3)(a) amended, p . 1369,
§ I , effective July I . L. 2000: ( I )(a)(III) amended, p . 706, § 33 , effective July I . L. 2002:
(I )(a)(ll)(A), (I )(a)(Ill), (3)(a)(U), and (3)(a)(lll) amended , p . 1524, § 228, effective
October I. L. 2003: (l)(a)(Il}(B) amended, p . 649, § 6 , effective May 17 . L. 2004: (3)(b)
repealed, p . 244, § 4, effective April 5 .
Editor's note: This section was formerly numbered as I 9-2-805 . Prior to relocation in I 996 , the
said section 19 -2-805 was contained in a title that was repealed and reenacted in 1987 . Provisions of
that section , as it existed in I 987. are similar 10 tho se contained in I 9-1-I 04 as said ~ection exis1ed
in 1986 , the year prior to the repeal and reenactment of thi s title .
Cross references: For the legi slati ve declaration contained in the 2002 act amending subsections
(1 )(a)(m(A), (I )(a)(III), (3)(a)(II ), and (3)(a)(III ), see section I of chapter 3 I 8, Ses sion Laws of
Colorado 2002 .
ANNOTATION
Annotator's note. The following annotations
include cases decided under former provision s
si milar to this section .
District attorney may properly invoke con-
current jurisdiction of district court under
former§ 19-1 -104 (4)(b)(Il) and former§ 19 -
1-103 (9)(b)(U) in deciding to proceed again st a
per on between the ages of I 6 and 18 in di stri ct
rather than juvenile co urt . My ers v. Di strict
Court, 184 Colo . 81. 518 P.2d 836 (1974).
Former § 19-1-104 (4 )(b)(II) (similar pro-
visions now found in this section) is not an ex
po t facto law. Myers v. Di stri ct Co urt , I 84
Colo . 81. 518 P.2d 836 (1974).
And does not deny due process or equal
protection. The broad discretio n gra nted to a
d1 uict att orney by suh ectio n (4)(b)(II ) doe.
not deny du e proces~ and eq ual protection of th e
law . Myers v. Di tric t Co urt . I 4 Co lo. I . 5 1
P.2d 836 (1974).
Former§ 19 -1-tcl-' (4)(b)(ll) (·imilar pro-
,•ision now found in thi s ·ection) does not
punish a prior adjudication of delinquency,
but rather, it provides a mechanism whereby a
person between the ages of 16 and I 8 may be
treated as an adult if such person has a re i:ord of
juvenile delinquency and is alleged to have
committed a felony . Myers v. Disuict Court , 184
Colo . 81 ,518 P.2d 836 (1974).
District attorney may properly invoke con-
current jurisdiction of district court under
former§ 19-1-104 (4 )(b)(ll ) (simi lar provi sion
now fo und in this sec ti on) and former§ 19 -1-
103 (9)(b )(11 ) in dec idin g to proceed against a
person betw ee n th e ages of 16 and 18 in disuict
ra th er than j uveni le co u11 . Myers v. Di suict
Co u1t . 184 Co lo. 81. 5 18 P.2d 836 (1974); Peo-
ple v. Thorpe . 641 P.2 d 935 (Colo . I 982).
Allegation of the commission of a ,•iolcnt
felony, and not co nvic tio n, trigger di tr ic t
court 's subj ecl matt er j uri diction und er plain
lan guage of fo rm er § 19-2-05 (I (a)(ll)(A)
(now in thi s sec ti on). People v. Hu ghes. 9-4 6
P.2d 509 (Co lo. App . 1997).
Title 19 -page 141 The Colorado Juvenile Justice Sys tem 19-2-518
But for first degree burglary to be enumer-
ated as a crime or violence, and thus to allow
a direct filing, the prosecution must allege that
defendant used , posse ssed or threat ened the use
of a deadly weapon or caused serious bodily
injury. People v. Ball , 22 P.3d 574 (Colo . App .
2001).
District attorney has sole discretion in
charging as adult or juvenile. The statutory
scheme of former § 19-1-104 (4) (now this
section) is clear and vests the determination
whether a person shall be charged as an adult or
a juvenile solely in the discretion of the disuict
attorney. People v. Thorpe , 641 P.2d 935 (Colo.
1982).
And hearing not required prior to criminal
prosecution. A quasi-judicial hearing is not re -
quired to be held by the di strict attorn ey as a
precondition to his determination that a child 14
years of age or older alleged to have committed
a crime of violence defined as a class I felony
shall be prosecuted in a criminal proceeding.
People v. Thorpe, 641 P.2 d 935 (Colo. 1982 ).
Charges involving a minor should be re-
solved in adult court when the requirements
or the direct filing statute are satisfied as to
any charge. People v. Dalton. 70 P.3d 51 7
(Colo. App. 2002).
The district attorney may not directly file
charges in district court where th e id entical
charges were initiall y fil ed in juvenile co m1 and
a tran sfe r hearing is pendin g . (Dec ided pri or to
am e ndm ent of § 19-2-104 (l )(b ) s pec ifically
authorizin g direct fil ing und er s uch circ um -
s tances .) J .D.C . v. Di stri c t Co u11 Eight ee nth Jud .
Di st., 91 0 P.2 d 684 (Co lo. 1996).
Additional charges must be prosecuted in
same action. Wh en a cou11 has j uri sdi c tion to
e nt e rtain criminal proceedin gs agai nst a juve nil e
under fom1er § 19-1 -104 (4)(b)(ll), any add i-
ti o nal c harge s ari sing out f the same ac t or
se rie s of ac ts can and mu st be prosec uted in that
same ac1i on, even th o ug h th ey do not rise 10 th e
seriousness of class 3 felonies . Peo pl e v.
Jimin ez. 65 1 P.'.'.!d 395 (Co lo . 19 '.'.!).
A child und er 18 may be charged with a
fe lony onl y as prO\'id cd in form er § 19 -1-10-*
(4 ) (now th is secti on). Peop le ex rel. Tc:rre ll v.
DiMnct Court. 164 o lo . 4 37 . 4 35 P.2d 763
(1967 ); Peopk ex rel. Rodell o v. District Court ,
164 Colo . 530 , 4 36 P.2d 672 (1968 ); LR . v.
Peo ple , 171 Colo . 54. 464 P.2d 296 (1970);
Maddox v. Peopl e, 17 8 Co lo . 366 , 497 P.2d
1263 (1972).
A minor pursuant 10 former § 19-1-104 (4)
(now thi s section ) may be uied as an adult .
Romero v. Di strict Court, 178 Colo. 200 , 496
P.2d 1049 (1972).
A child under 14 years or age is not held
criminally responsible for actions , which if
committed by an adult , would constitute a fel-
ony. People ex rel. Terrell v. District Court, 164
Colo . 437. 435 P.2d 763 (1967).
District court had no jurisdiction to pro-
ceed by direct information charging felony
against 17-year-old. People ex rel. Rodello v.
Di strict Court, 164 Colo . 530, 436 P.2d 672
(1968).
Measuring two-year period set out in for-
mer§ 19-2-805 (now this section). The critical
two-year period of time as set out in former
§ 19-2-805 (now thi s section ) is measured from
the date of the previous adjudication of delin-
quen cy to th e da te of the commiss ion of th e
s ub sequent offen s e, and not from the previou s
adjudi cati o n to th e date of th e filing of the
information charging defendant with th e subse -
qu e nt offen se . Pe ople v. Trujill o, 983 P.2 d 124
(Colo. App . 1999).
Date child is adjudicated delinquent. For
purposes of former § 19-1-104 (4 )(b)(ll) (now
thi s secti on), th e date upon which one is adju -
dicated a delinquent child is th e dat e the trial
court made its wrillen findin gs a nd ent ered it s
judgment of d elinqu ency. Peopl e v. Alward , 654
P.2 d 327 (Co lo . App. 1982), ce rt . di smi ssed . 677
P.2 d 94 8 (Co lo. 1984).
Juvenile court had no jurisdiction to order
the placement or a juvenile in the custody or
the department or human services when th e
d istrict co urt ordered th at j uvenile he ld in
county jai l awaiting trial on charges filed again st
1h e juvenile as an adult . Peo ple v. Juveni le
Court , 9 15 P.2d 1274 (Co lo . 1996 ).
A trial co urt sent enci ng a ju ve nil e on a
direc t-fil ed char ge of a ,,iolent crim e reta ins
di sc reti on 10 impose a sc n1ence 10 1he de part -
ment o f correcti ns. Peo pl e . Espinoza. 990
P.2d 111 7 (Co lo . App . 1999).
19 -2 -5 18 . Trans fers. (I ) (a)
juvenile 10 be h e ld f r c riminal pr
The juvenile co urt may enter an
eedings in the di s tri c t c un if:
o rder certifying a
(I ) pctition filed in j u ve nil e o urt allege the juvenile i :
1A l T\h'h.: or th1rtt:c11 ~ l.':ir f a e a nd i a juvenile delinquent by \'i rtue o f h av in g
rn mmiucd a dclin4uen1 act that con titut a la s I o r la , 2 felony o r a rime f v1o lence,
a, ddined in ~c ·11on I -1 J--W . .R. .; r
cB) ·( urtL'i:11 ~ c.1r, o .1ge o r o lder a nd i a juvenile delinquent b vin u o f havi n g
rn mrmtl 'd a dclinquc111 .ie t 1h.it c n titutcs a fe lo n y : and
t II ) • flc1 inve t1ga11 m Jnd a hearin . the JU e n il oun find it w uld be contrary to
the hc,t 111tc1c,1, o the JU\ cmlc r n f th public to r tain juri di 11 0 11 .
19-2-518 Children 's Code Title 19 -page 142
(b) A petition may be transferred from the juvenile court to the district court only after
a hearing as provided in this section .
(c) If the crime alleged to have been committed is a felony defined by section 18-8-208 ,
C.R .S ., and no other crime is alleged to have been committed and the juvenile has been
adjudicated a juvenile delinquent for a delinquent act which constitutes a class 4 or 5 felony,
then the charge for the crime may not be filed directly in the district court, but the juvenile
court may transfer such charge to the district court pursuant to paragraph (a) of this
subsection (1 ).
(d) (I) Except as otherwise provided in subparagraph (ll) of thi s paragraph (d), in cases
in which criminal charges are transferred to the district court pursuant to the provisions of
this section , the judge of the district court shall sentence the juvenile pursuant to the
provisions of section 18-1.3-401 , C.R .S ., if the juvenile is:
(A) Convicted of a class 1 felony;
(B) Convicted of a crime of violence , as defined in section 18 -1.3-406 , C.R.S .; or
(C) Convicted of any other criminal charge specified in paragraph (a) of this subsection
(I) and the juvenile was previously adjudicated a mandatory sentence offender, a violent
juvenile offender, or an aggravated juvenile offender.
(II) In cases in which criminal charges are transferred to the district court pursuant to
the provisions of this section , the judge of the district cou11 may sentence to the youthful
offender system created in section 18 -1.3-407, C.R.S., any juvenile who would otherwise
be sentenced pursuant to the provisions of subparagraph (I) of this paragraph (d); except
that a juvenile shall be ineligible for sentencing to the youthful offender system if the
juvenile is convicted of:
(A) A class 1 felony ;
(B) A class 2 felony as a re sult of a plea agreement in cases where the juvenile is
charged with a class 1 felony ;
(C) A class 2 felony and the juvenile has one or more prior convictions for a crime of
violence, as defined in section 18-1 .3-406, C.R.S ., or prior adjudications for an offense that
would constitute a crime of violence if committed by an adult;
(D) A class 2 felony and the juvenile is sixteen years of age or older;
(E) Any sexual offense described in section 18-6-301 or 18-6-302, C.R.S., or part 4 of
article 3 of title 18 , C.R .S .
(ill) In cases in which criminal charges are u·ansferred to the district court pursuant to
the provisions of this section and the juvenile is not eligible for sentencing pursuant to
subparagraph (I) of this paragraph (d), the judge of the district court shall have the power
to make any disposition of the case that any juvenile court would have or to remand the case
to the juvenile court for disposition at its discretion .
(IV) lf, following transfer of criminal charges to the di strict court pursuant this
section, a juvenile is convicted of a lesser included offense for which criminal charges could
not originally have been transferred to the district court , the court shall sentence the juvenile
pursuant to the provisions of this article.
(e) Whenever a juvenile under the age of fourteen years is sentenced pursuant to section
18 -1.3-401 , C.R.S ., as provided in paragraph (d) of this subsection (I), the department of
corrections shall contract with th e department of human services to house and provide
services to the juvenile in a fa c ility operated by the department of human services until the
juvenile reache s the age of fourteen years . On reaching the age of fourteen years , the
juvenile shall be tra nsfe rred to an appropriate facility operated by the department of
correcti ons fo r th e compl e ti on of the j uv e nil e's se nt e nce.
(2) Aft er filin g charges in th e j uve nil e court but prior to th e time th at th e juve nil e co urt
conducts a tran fer hearing, the district atto rn ey may fi le the same or d ifferent charges
against th e j u ve nil e by direct fi ling of an info rm ati on in th e d is tric t court or by indictment
p urs uant to ection 19 -2-517 . Upon ai d fi ling or indic tme nt in th e di stric t court , th e
juvenile court sh all no longer have j uris di ction over p roceed ings co ncerning said charges .
(3) At th e tra nsfer heari ng, th e court s hall co nsid e r :
(a) Wh eth er th ere is probabl e cau e 10 beli eve th at th e juve nil e has committ ed a
de linquent act fo r whi ch waive r of juve nil e court j uri di c ti o n ove r th e juvenile and tra nsfer
10 th e di stric t court may be sought purs uant 10 sub ec tio n (I ) of th is ec ti on ; a nd
Title 19 -page 14 3 The Colorado Juvenile Justice System 19-2-518
(b) Whether the intere s ts of the juvenile or of the community would be better served by
the juvenile court's waiving its jurisdic tion over the juvenile and transferring jurisdiction
over him or her to the district court.
( 4) (a) The hearing shall be conducted as provided in section 19-1-106, and the court
shall make cenain that the juvenile and his or her parents , guardian , or legal cu stodian have
been fully infonned of their right to be represented by counsel.
(b ) In considering whether or not to waive juvenile com1 jurisdiction over the juvenile,
the juvenile court shall consider the following factors :
(I) The seriousness of the offen se and whether the protection of the community requires
isolation of the juvenile beyond that afforded by juvenile facilities;
(II) Whether the alleged offense was committed in an aggressive , violent, premeditated,
or willful manner;
(III) Whether the alleged offense was against persons or property, greater weight being
given to offenses against persons ;
(IV) The matu1ity of the juvenile as determined by considerations of the juvenile's
home , environment , emotional attitude , and pattern of living ;
(V) The record and previous hi story of the juvenile;
(VI) The likelihood of rehabilitation of the juvenile by use of facilities available to the
juvenile court ;
(VII ) Th e intere st of the community in the imposition of a punishment commensurate
with the gra vity of the offense ;
(VIII) Th e impac t o f the offe nse on the v ictim ;
(IX) Th at th e ju ve nil e was twic e prev iou sly adjudicated a delinquent juvenile for
de linqu e nt acts th at con stitute fel o ni es;
(X ) That th e juve nile wa s prev iously adjudicated a juvenile delinquent for a delinquent
act that con stitute s a crime of viol enc e, as defined in sec tion 18-1.3-406 , C.R.S .;
(XI) That th e ju ve nile wa s prev iously committed to the department of human services
fo ll o wing an adjudic ati o n for a delinquent act that constitutes a felony ;
(XII ) Th at th e ju venile is sixteen years of age or older at the time of the offense and the
present act con titut e a c1im e o f vio lence , as defined in section 18 -1.3 -406, C.R.S .;
(XIII ) Th a t th e juve nil e is sixtee n ye ar s of age or older at the tim e of the offense and
ha s bee n twice prev io usly adjudi cat ed a juve nil e delinquent for delinquent acts again st
pro pe rt y th a t co nsticut e fe loni e ; and
(XIV ) That th e ju ve nil e u ed . or possessed a nd threa tened th e us e of, a deadly weapon
in th e co mmi ss io n of a le linqu e nt ac t.
(c) T he amo unt of we ig ht to be g ive n to each o f th e fa c to rs li sted in paragraph (b) o f
this su bsec t io n ( 4) is disc re tio na ry with th e co urt ; exce pt th at a re cord of tw o or mo re
previous ly ustained pe titions for delinquent ac ts that co nsti tut e fe lo ni es or a record of two
or more juvenile proba tion re voca tion . based on acts that constitute felonies shall es tab lis h
prima facic evidence that to retain juri~diction in juvenile court wo ul d be co nt rary to the
bc~t interest. of the juvenile or f the community.
(dJ The in\uflicicncy of evidence pertaining to any one or more of the fac tors lis ted in
paragraph (hJ of thi s ~uh ~ec tion (4) ~hall no t in and of itse lf be determi nati ve of th e is ue
o f, ai,cr o f Juvenile co ur t ju1i dicti on.
t5) \\'hen a11 actio n ha heen remanded to the juvenile co urt pur uant to ec ti on
IC)-2-5 17 t I ) (:i ) t l VJ anJ the pro~ecution see h waiver of j uri5dic tio n purs uam to th is
~el·t1011. th.: cnu 1t '\ finding~ f1om the I rior 11an~fcr hearing regardi ng the factor Ii tcd in
paragraph r c I of ,uh,cct ion (-t) of thi ~ ,ecti n ~ha l I e tabli~h pr ima foc ie evide nce th at to
1 ·1:1111 ju ,, dir11n11 in ju, cn ,k ·nun woulJ he contrary to the bes t i111 cre ts of the juve n ile or
of th· ·111111m11111y .
16 \\'11tk11 i°cp,llt .111d 11tl ~·, 11a.1tc1i,1I\ rclat1n • 10 the JUVc111h!" mental. phy ical,
l'du ·.111011.11. .111d ,o ·1.11 hr tor m,1) he con idcred b the court. but the court. if o req uc~ted
h\ th e 1u,l·111k·. hr or her p:uent or •uar han . o r ther intcre tcd party, shall require th
r l'I un ,,, .1t•c n1.') p,cp.11111 1 the 1•·prn1 and th ·r material to appear and be ubject to both
d11 'd ,l lld <.Ill\ '\ 1111111,lllllll .
t 1 , .1 l II thl' ·,1u 11 llnd th.11 11 1un Jrction ll\ er juvenile h uld be w. ived, it hall
111,·1 .111 ,•rd ·1 to th.11 dkd . c ·c pl th.II u h oid ·r o i,cr hall be null and v id if the
19-2 -5 18 Children's Code Title 19 -page 144
district attorney fails to file an information in the criminal division of the district court
within five days of iss uance of the written order of waiver, exclusive of Saturdays , Sundays,
and court holidays. Upon foilure of the di strict attorney to file an infonnation within five
days of the issuance of the written order of waiver, exclusive of Saturdays, Sundays , and
court holidays , the juvenile court shall retain jurisdiction and shall proceed as provided in
this article.
(b) As a condition of the waiver of jurisdiction, the court in its discretion may provide
that a juvenile shall continue to be held in custody pending the filing of an information in
the criminal division of the district court. Where the juvenile has made bond in proceedings
in the juvenile court, the bond may be continued and made returnable in and transmitted to
the district court, where it shall continue in full force and effect unless modified by order
of the district court.
(8) If the court finds that it is in the best interests of the juvenile and of the public for
the court to retain jurisdiction, it shall proceed with the adjudicatory trial as provided in part
8 of this article.
Source: L. 96: Entire article amended with relocations, p . 1642 , § 1, effective January
1, 1997 . L. 99: (l)(d) amended, p . 1370, § 2, effective July 1. L. 2002: (l)(a)(f)(A),
(l)(d)(I), (l)(d)(II), (l)(e), (4)(b)(X), and (4)(b)(XII) amended, p . 1525 , § 229, effective
October I .
Editor's note: This section was formerly numbered as 19-2-806 . Prior to relocation in 1996, the
sai d section 19 -2-806 was contained in a title that was repealed and reenacted in 1987 . Provisions of
that section, as it existed in 1987, are similar to those contained in 19-1-104 and 19 -3-108 as said
sections existed in 1986, the year prior to the repeal and reenactment of this title .
Cross references: For the legislative declaration contained in the 2002 act amending subsections
(l)(a)(l)(A), (l)(d)(l), (l)(d )(II), (l)(e), (4)(b)(X), and (4)(b)(Xll), see section I of chapter 318,
Session Laws of Colorado 2002.
ANNOTATION
Law reviews. For note, "The Expanding
Scope of Prosecutorial Discretion in Charging
Juveniles as Adults : A Critical Look at People v.
Thorpe", see 54 U . Colo. L. Rev. 617 (1983).
Annotator's note. The following annotations
include cases decided under former provisions
similar 10 this sec tion .
Rules of procedure governing section. This
section is governed by the rules of juvenile
procedure and by th e rules of civil procedure if
there is no applicable rule of juvenile procedure .
Stroh v. Johnson, 194 Colo. 411, 572 P.2d 840
(1978).
Former§ 19-1-104 (4)(a) (now this section)
is not unconstitutional as denying due process
of law. People v. Moseley, 193 Colo. 256 , 566
P.2d 331 ( 1977).
Former§ 19 -1-104 (4)(a) does not con stitute
a violati on o f substantive due process nor an
equal pro tec ti o n vi olati on . Statute is a valid
exercise of prosec ut orial di sc reti o n a nd it is not
unrea so nabl e to tre at certain j uvenil e offe nders
differentl y fr om oth e rs . Peopl e v. Hu ghes , 946
P.2d 509 (Colo . App. 1997).
Fo rmer § 19-1-104 (4 )(a ) d oes not constitute
an unlawful delegati on o f k gislative power to
th e judic iary. People v. Moseley, 19 3 Co lo . 25 6 .
566 P.2d :rn ( 1977).
Jurisdiction transferable by juvenile court.
Only under certain narrow ly described circum-
stances may the juvenile court in a delinquency
proceeding enter an order certifying the child to
be held for criminal proceedings in the district
court. I.R . v. People , 171 Colo. 54, 464 P.2d 296
(1970).
Discretion of court in transfer bearing. The
design of this section is to permit the juvenile
court, in case of a les s serious felony, to deter-
mine in a transfer hearing whether, in the best
interests of the accused juvenile, the case should
be transferred to the criminal side of the court;
but in those circumstances where a more serious
felony is charged, as set forth in former § 19-
1-104 (4)(b) (now thi s section), no such discre-
tion lies in the court to retain th e case in the
juvenile side of the court when the district at -
torn e y elects to have th e ca se tran sferred for trial
as a criminal acti on . People v. Di strict Court ,
19 1 Co lo . 28, 549 P.2d 13 17 (1976); People v.
Th orpe , 641 P.2d 935 (Co lo . 198 2).
To transfer jurisdiction from juvenile court
to district court, the trial court must deter-
mine the following: ( 1) Whether there is "prob-
able cau e " to beli eve that the juvenile commit-
ted the off en c for which the pro ecution seek s a
wai ve r of jurisdi c ti on ; and (2) whether it would
Title 19 -page 145 The Colorado Juvenile Justice System 19-2 -5 18
be contrary to th e best intere sts of the juvenile or
the public to retain jurisdiction over the child .
People v. Lee, 989 P.2 d 777 (Colo . App . 1999).
The eight factors the court must consider
in determining the best interests of the juve-
nile and public are as follows: (I) The setious-
ness of the offense and whether the protection of
the community requires isolation of the juvenile
beyond that afforded by juvenile facilities; (2)
whether the alleged offense was committed in an
aggressive, violent, premeditated, or willful
manner; (3) whether the alleged offense was
against persons or property, greater weight being
given to offenses against persons ; (4) the matu-
tity of the juvenile as determined by consider-
ations of the juvenile's home, environment,
emotional attitude, and pattern of living ; (5) the
record and previous history of the juvenile; (6)
the likelihood of rehabilitation of the juvenile by
use of facilities available to the juvenile court;
(7) the interest of the community in th e imposi-
tion of a punishment commensurate with the
gravity of the offense ; and (8) the impact of the
offense on the victim. People v. Lee, 989 P.2d
777 (Colo. App . 19 99).
Transfer to district court was appropriate,
even though alleged offenses were against
property rather than a person , where the
court found the following factors: (I ) 1l1e
offe nses were committed in a premeditated and
willful manner; (2) defendant was more mature
than his chronological age ; (3) the interes t of the
community in th e imposition of punishment
commensurate with the offe nses supported
transfer because th e sc hool building that was the
object of the arson was impot1ant to th e com-
munity ; and (4) in li ght of th e hi storic nature of
the buildin g and the ri sk to the li ves o f the
firefighters who extingui s hed the blaze, th e im-
pact o f the offense on th e victim was quite
e ri o us. Peopl e v. Ri ve ra , 968 P.2 d I 06 1 (Co lo .
App . 1997).
Court considers interest of child or public.
At th e hearing pro vid ed fo r in thi s secti o n th e
juvenile.: court m;1y cons id er o nl y w hether it
wou ld be contrary to th e best int eres ts of th e
c hild or of' th e puh li c to re tai n juri ·dicti o n over
the c hild . If the cou11 find s th at a child sho uld he
held fo r c riminal procee din gs in th e di stri c t
co urt. it shall e nt er an o rd er cert ifyin g that fa ct
and tra nsfe r th e case to th e di stri ct court .
Maddux v. People , 178 u lo . 366, 497 P.2d
I 263 ( 19 72).
Thl' test u11tll•r ~uh sl'l'l iun IJ )(h l is whethl'r
the int r r1:,b of the ju,c11ilc ul' Ilic 1:u111111u11il y
\\oulu he bcncr ,crvcu by th e j u veni le court 's
wa1v1n g ih jurbd1Lt1on . Pco 1 lc v. Ri ve ra , 968
P.2J IOol (Culo . App . 1997).
ppl'arance wuivc s personal se rv ice. The
vo luntary appearance of juvcnile·s mother and
lu:r par11c1pat1011 111 th e tran fer heanng con,li -
tut -~ .1 wai, er of her light to personal ~crvi e .
People v. Disttict Court, 183 Colo. IOI , 515 P.2d
101 (1973).
The probable-cause phase of a transfer
hearing is equivalent to a preliminary hear-
ing. Thus, the case law on pre liminary hearings
applies to the probable -cause phase of tran sfer
hearings. People v. Juv enile Court. 813 P.2d 326
(Colo . 1991 ); Pe op le v. Hayes, 923 P.2d 22 1
(Colo. App. 1995 ).
Juvenile not entitled to another determina-
tion of probable cause. A juvenile who was
tran sfe rred lo the di stri c t court from the juvenile
court , after a transfer he:uing where probable
cause as to the offenses charged was determined,
was not entitled in the district court to another
detetmination of probable cause in the form of a
preliminary heating . People v. Flanigan, 189
Colo. 43 , 536 P.2d 41 (1975).
Due process does not require that the evi-
dence supporting a transfer in a juvenile pro-
ceeding be clear and convincing. People in
In1eresl of A .D .G ., 895 P.2d 1067 (Colo. App.
1994).
Nor is it necessat-y that the factors in su pp011
of transfer clearly and convincingly o utweigh
th e factor s in support o f retaining jutisdiction.
Peo ple in Inte re st of A .D .G .• 895 P.2d 1067
(Colo . App. 1994).
Evidence sufficient to meet probable cause
standard. To meet the standard of probable
cau se, the prosecution need only present evi-
dence sufficient to indu ce a person of ordinary
prudence and caution to ente11ain a reasonable
belief th at the defendant committed th e crime.
People v. Juvenile Court, 813 P.2d 326 (Colo.
1991).
Evidence presented at transfer hearing suf-
ficient to justify waiver of juvenile court ju-
risdiction. People in Int ere st of G.A .T .. 183
Colo. Ill , 515 P.2d 104 (1973).
A transfer order from juvenile to district
court is not a final judgment from wh ic h ap-
peal lies. D .H . v. Peopl e, 192 Colo . 54 2, 56 1
P.2d 5 (1977).
It is evident fr o m the prov isio ns o f sulm:c ti o n
(4 ) o f thi s secti on and §§ 19-3-106 and 19-3-
l 09 that an order o f th e juve nile divi s io n o f th e
di s tri c t court waiving juri sdicti o n is no t a final
di s positi o n o f the action . Peo ple in Interes t o f
D .H .. J7 Colo. App . 544, 552 P.2d 29 ( 1976),
a ff 'd , 192 Colo. 542 ,56 1 P 2d 5 (1977).
But is interlocutory in nature. A tran sfe r
orde r fro m juveni le to diMri ct cou11 is interloc -
ut ory in nature and 111 no ,cnse 1:0 111pl etc ly dc -
1crmin cs the right. of th e parties . U .H . v. Pc,i ple .
192 Colo. 54 2, 56 1 P.'.!d 5 (19 77 ).
Once a tran sfer order under sub sec tion
( 1 J(a) ha s been entered, juvenile court hu s no
further jurisdiction unless di strict <·ourt , In
its di sc re tion , choo ses to rcmund rnse to Ju·
ve nil e co urt for di spo sition . Pe ople v. nnand .
73 P.'.!d 7 ( o lo . App . 1993).
19-2 -601 Children's Code Title 19 -page 146
The district attorney may not directly file
charges in district court where the identical
charges were initially filed in juvenile court and
a transfer hearing is pending . (Decided prior 10
amendment of § 19 -2-104 (l )(bJ specifically
authorizing direct filing under s uch circum-
stances .) J .D .C . v. District Court Eighteenth Jud .
Dist., 910 P.2d 684 (Colo. 1996 ).
Whenever a juvenile court elects to waive
jurisdiction over a child and certifies child to
the criminal jurisdiction of a district court,
the district court retains jurisdiction over the
child, and it may properly impose se ntence for
any resulting felony convictions. Although this
section grants the district cou11 th e power to
di spose of the case as would a juvenile court, or
to remand the case to the juven ile court for
disposition , the decision to do so is within the
di scre tion of the district court. People v.
Hernandez, 690 P.2d 263 (Colo . App. 1984).
Trial court did not abuse its discretion in
transferring jurisdiction of a case from juve-
nile court to district court de spite defendant 's
arguments that he was not I 6 years old at the
time of alleged offense, that he had been previ-
ously adjudicated a delinquent on only one oc-
casion, and that he had not been previously
committed to departmcnl of inslitutions or been
adjudicated for any crime of violence . The court
properly relied on the fact that defendant had
been in juvenile system for offenses involving
sex ual aggression, that he appeared to pose a
threat to children , that he was on probation at th e
time of present offense, and that alleged offe nse
was a seriou o ne. People v. Armand, 873 P.2d 7
(Colo . App . 1993 ).
Abuse of juvenile court's discretion. Juve-
nile co urt abused its discretion during th e tran s-
fer hearin g by finding sua spon te that there was
probable cause to upport the lesser-included
offense of anempt to commit manslaughter
rather than attempt to commit first degree mur-
der as charged by th e people. People v. Juvenil e
Cuu11, 813 P.2d 326 (Co lo. 1991 ).
Under subsection (l)(d)(I), the court ma y
sentence a defendant as an adult or. in it s
discretion, as a juvenile or remand the case to
juvenile court unle ss the indi vidual falls within
one of th e classifications of juveniles who mu st
be sentenced as adults. People v. Rivera, 968
P.2d I 061 (Co lo. App. 1997).
Subsection (l)(d)(l) requires that a juve-
nile who is convicted of a crime of violence be
sentenced pursuant to § 18-1-105. Because
assault in the second degree under § 18 -3-203
( I )(g) is a per se crime of violence under § 16-
11-309, defendant's conviction under that stat-
ute is considered a conviction for a crime of
violence and therefore the court had no discre-
tion to impose a juvenile disposition but, rather,
was required to impose sentence under § 18 -1-
105 (9) and (9.7). People v. Lee, 989 P.2d 777
(Colo . App. 1999).
Applied in People v. Di stri ct Court, I 99 Colo.
I 97, 606 P.2 d 450 (I 980); People v. Thorpe, 64 I
P.2d 935 (Colo . 1982); People v. Zamora, 13
P.3d 8 13 (Co lo . App. 2000); People v. Hoang, I 3
P.3d 8 I 9 (Colo. App . 2000).
PART 6
SPECIAL PROCEEDINGS
19-2-601. Aggravated juvenile offender. ( 1) (a) In any action in delinque ncy alleg-
ing that a juvenile is an aggravated juvenile offender, as described in section 19-2-5 16 (4),
the petition shall allege by separate count that the juvenile is an aggravated juvenile
offender and that increased commitment is authorized .
(b) If the petition alleges that the juvenile is an aggravated juvenile offe nder, pursuant
to section 19 -2-516 (4), the petition shall identify by separate counts each alleged fo1mer
adj udi cation or probation revocation and , for each such count, shall include the date of
adj udi cation or revocation , th e court, and the specific act that formed the basis for the
adjudication or probation revocation . If the a ll eged prior adj udication or probation revo-
cation occun-ed outside of this state, the petition shall so allege and shall state that the
delinquent act that formed the basis for the adjudication or probation revocation would
constitute a felony in thi s sta te .
(2) (a) In any action in delinquency in which it is a ll eged that a juvenile is an
aggravated juvenile offender, the coun shall , at the juvenile's first appearance, advise the
juvenile of the effect and consequences of the allegation that the juvenile is an aggravated
juvenile offender.
(b) If a juvenile is alleged to be an aggravated juvenile offender pur uant to section
19 -2-516 (4), the juvenile . hall be required, at hi s or her first appearance before the coun,
to admit or deny any previou adjudications or probation revocation that are alleged in the
petition . A refu al to admi t or deny any uch adjudication or probation revocation shall be
considered a denial.
16-11. 7-103 Criminal Proceed in gs Titl e 16 -pa ge 290
(4) "Tr eat ment " mea ns th erapy. mo nit orin g, and sup ervis ion o f any sex offe nd er whi ch
co nform s to th e sta nd ard s c rea ted by th e boa rd pur suant to sec ti o n 16 -11 .7-103 .
Source: L. 92: Entire artic le a dd ed , p. 455 , § 3. effec ti ve Jun e 2. L. 95: (4) amend ed,
p. 465, § I 0 , effec tiv e Jul y I. L. 97: (2) amended. p. 1554 , § 8, effec ti ve Jul y I. L. 98:
(I) amend ed. p. 402. § 11. effec tiv e April 2 1. L. 2000: (1) amend ed , p. 920 , § 9 effec ti ve
Jul y I ; (3)(a). (3J(b J. and (3J(c) a me nd ed. p. 702 , § 23. eff ec tive Jul y I.
ANNOTATION
Even assuming that th e de partment of cor-
rection s ha s authority to classify as a sex
offender an inmate not found guilty of either
a listed sex offense or an offense of which the
underlying factual basis was a listed sex of-
fense, due process require s th at an inm ate be
afforded a hearin g when th e has is for such c la s-
si fication is no t a li sted sex o ffen se of which th e
inmat e stand s co nvi cted . Fish er v. Co lo . De pt. of
Con· .. 56 P.3d 12 10 (Co lo. App. 2002).
The word "history" in the definition of
"sex offender" can include the underlying
circumstances of the offense. Thu s , alth ough
the de fe nd ant pi ed guilt y to co ntributing to the
delinquency of a min o r. she met th e d e finiti o n of
a "sex offe nd er " bec ause she had e ngaged in
so licitin g for child pros tituti on. pandering of a
child . proc ur ement of a child fo r sex ual ex pl oi-
tati o n. and in d uce me nt of c hild pro stitution . T he
tri al co u11 th erefo re appropri ate ly se nt enced th e
defendant I n treatm e nt und e r th e prov isions of
thi s arti cle and requir ed th e defe nd ant to regis ter
as a se x offe nd er pursuant to § I 8-:'1-4 12.5 . Peo-
pl e v. Meidinger. 987 P.2 d 937 !Colo. App .
1999).
Although the defendant met the definition
of a "sex offender" ba sed on the underly in g
facts of the offense, the court could not im-
pose the sex offender surcharge pursuant to
§ 18-2 1-103, where de fendant pi ed guilt y to
co ntributin g to th e delinqu ency of a min or. an
offense th at is not a "sex offe nse " a defined in
sub sec ti on (3). People v. Meidinger. 987 P.2 d
93 7 (Colo. App. 1999).
16-11.7-103. Sex offender management board -creation -duties -repeal.
(I) There is here by created , in th e dep artm e nt of public sa fety. a sex offe nd er manage ment
boa rd that shall co nsist o f fif tee n memb ers. Th e memb ers hip of th e board sha ll re fl ec t. to
the ex tent pos sible , repre senta ti o n of urb an and rural memb ers. Th e memb ership of th e
boa rd shall co nsist of th e fo ll ow in g persons :
(a) One memb er rep rese ntin g the judicia l depa11ment appo int ed by th e chi ef ju sti ce of
th e s upreme co urt ;
(b) On e me mb er repre se ntin g th e d epanm ent of correction appoi nt ed by th e exec uti ve
director of suc h departm ent ;
(c) On e me mb er repr ese ntin g the de partm e nt of hum an erv ices ap po int ed by th e
exec uti ve direc tor of such departme nt ;
(d) One membe r represe ntin g th e department of publi c safety , divi sio n of crimin al
ju stice , app o int ed by the exec uti ve direc tor of such department :
(d.5) On e memb er appo int ed by th e ch ie f justic e of th e supr eme co urt who is a judge;
(e) (De le ted by amendm ent , L. 94 , p. 265 1, § 125, effec ti ve July I , I 994.)
(f) Thr ee memb ers appo int ed by th e exec uti ve director of th e depa11ment of publi c
sa fety who are li ce nsed men tal hea lth profe ss ional s wi th rec og ni zab le experti e in th e
trea tm e nt of sex o ffe nd ers;
(g) On e member appointed by th e exec uti ve dire ctor o f th e department of public sa fety
who is a di strict a!t omey ;
(h) On e me mber appointed by the executive dire c tor o f th e department o f public sa fet y
who i a member of a co mmunit y corrections boa rd :
(i) One me mber appointed by the execu ti ve dire cto r o f the department o f public afety
who is a public defender ;
(iJ On e me mb er appointed by th e executive direct r of th e departme nt of public sa fety
who i a re prese nt ative of law enforceme nt ;
(k) Two me mb er app o inted by th e execu ti ve director o f th e department o f publi c
~afe ty who arc recog ni ze d expert in th e fi e ld of ex abu se and wh o can n:prc c nt ex abu se
vi ctim s and victims' ri ght s orga nizations ; and
Titl e 16 -page 29 1 St a nd ardized Treatm ent Program
for Sex Offend ers -
16 -11.7 -103
(I) On e me mber app ointed by the exec uti ve direc tor of the de partm ent of public safe ty
who is a clinical polygraph exa min er.
( 1.5) (a) Notwithstanding th e provi sion s of sub sec ti on (I) of thi s sec tion , effective July
(, 2000. the me mbership of the sex offender manage ment board shall be increa se d to
twenty -o ne memb ers by the addition of th e following member s:
(l) One memb er, in addition to th ose appointed pursuant to paragraph (f) of sub se ction
(I) of thi s sec tion , appointed by the executive dire ctor of th e de partment of public safety
who is a li ce nsed ment a l health profe ss ional with recognizable ex perti se in the tre atm ent of
juvenil e sex offenders ;
(II ) On e member, in addition to tho se appointed pursuant to parag raph (k) of subsection
(I) of this section , appointed by the executi ve dire ctor of the dep a1tment of public safety
who is a recognized ex pe1t in the field of sex abuse and who can repre se nt sex abuse victims
and victims' right s organizations;
(llI) One me mber, appointed by th e executi ve director of the dep artment of hum an
services, who repre se nts the division of youth con-ections within the de partment of human
se rvic es;
(IV ) One member, appointed by the commissioner of education, who ha s expe1ience
dealing with ju ve nil e sex offenders in the public sc hool sys tem ;
(V) One member, appointed by the chief justice of the supr e me co urt , who is a ju ve nil e
magi strate with ex pertise in de aling with ju ve nil e sex offenders ; and
(V I) On e me mb er, appointed by the exec uti ve director of th e department of hum an
service s, who i a provi der of out -of-home placement se rvices and who has expertise in
providing servic es to juvenile sex offe nd ers.
(b) Th e memb er appoint ed on or after Jul y l, 2000, pur suant to paragraph (c) of
sub sec ti on ( 1) of thi s sec ti on shall have ex pe11i se in child welfare and case mana ge ment.
(c ) Members a pp oint ed on or after July I , 2000 , pur suant to parag rap hs (a). (i), and U)
of sub secti o n (I ) of this section , in addition to the req uire ment s specifie d in said paragra ph s,
sha ll have ex perti se in de a lin g with juvenile sex offenders .
(d) Of the me mber s appo int ed pursuant to parag raph (f) of sub sec ti on ( 1) of thi s sec ti on
on or after July I , 2000 . tw o sha ll hav e ex perti se in dea lin g with ad ult sex offe nd ers and one
shall have ex perti e in dea lin g with juvenile sex offe nders .
(e) No twith sta ndin g th e prov ision s of paragra ph (g ) of sub sec ti on (I ) of thi s sec ti on, th e
member appoi nt ed on or afte r Jul y I , 2000 , pur suant to sa id pa ragrap h shall be a pp ointed
by th e e xec uti ve director of th e Colorado di stri ct att orneys cou nci l, shall re pre sent th e
int ere ts of pro sec utin g att orne ys . and shall have expe rti se in dealing with adult and j uve nile
se x offe nders.
(2) Th e exec uti ve dir ec tor of the de partmen t of publi c safety shall app oint a pres idin g
office r fo r the board fro m among th e boa rd memb ers a pp oint ed pur suant to sub sec ti on (I)
of this sec tio n, whic h pre idin g offi ce r sha ll erve at th e pl eas ur e of such direc tor.
(3) <a) Any me mber of the board crea ted in sub ec ti on (l ) of thi s sec ti on who is
ap poin ted pur suant to paragra ph (a) to (e) o f sub sec ti on (I) of th is sec tio n hall se rve at th e
pica . ur c of th e offa:ia l wh o a pp oi nt ed u h me mb e r, fo r a term whi ch shall not exceed fo ur
year.. uch me mb er hall se rve with out additi onal co mp en ati on.
(b) An y me mbe r o f th e boa rd crea te d in sub sec ti on (I ) of thi s sec ti o n wh o i app oint ed
pur ~ua nt I para graph s (t) to (k ) of . ub sec ti on (I ) o f thi sec ti on shall erve fo r a term of
fo ur years . uch me mb e r sha ll se rve with out co mp e nsa ti on.
( l (IJ Th e me mbers of th e boa rd who arc th e fir st pe rso ns ap point ed pur suant to
.ubparag ra ph s (I J, (II ). and (Ill ) of pa ra gra ph (a) of ub ec ti on (1.5) of th is sec tion shall
eac h ~e rve a te rm of th ree yea rs. Sub ·equ ent me mb e rs a pp o int ed pur suant to aid para-
graph, ,hall serve terms of fo ur yea r . Such membe rs shall serve wi th out co mpe nsa ti on .
( 11 ) Ca.:h memh.:r ,1f the b ard who is appointed pursua nt to . ubparagraph IV). (V), r
( 1 l n f paragraph (a) o f sub~c tio n ( 1.5) of thi s sec tio n shall erve a ter m of fo ur yea rs .
u ·h mcm l er~ ha ll serve with out co mp e n ati on.
1-l l IP board sha ll can-y ou t the fo ll owi ng du ties :
( a I P11nr to January I. I 96. the board sha ll <leve l p and pre rib a tandardi1ed
p10.:cdur • for the evaluation and iden tifica tio n of ex offenders . u h proced ure hall
prm 11.lc for an evaluation and iden t ification of the offe nder and rec mrncnd beha ior
16-11.7 -103 Criminal Proceedings Title 16 -page 292
manage ment , monitoring, and treatment based upon the knowledge that sex offenders are
extremely habituated and that there is no known cure for the propensity to commit sex
abuse. The board shall develop and implement measures of success based upon a no-cure
policy for intervention. The board shall develop and implement methods of intervention for
sex offenders whi c h have a s a priorit y th e phy ~ical and psych o logical safety of victim s and
potential victim s and which are appropriate t• · the 11l'e d5 of the particular offender, so long
as there is no reduction of the safe ty of victim s and po tential victims.
(b) Prior to January I, 1996 , the board shall d e ve lop and implement guidelines and
standards for a s ys tem of programs for the treatment o f sex offenders which can be utilized
by offenders who are placed on probation, incarcerated with the de partment of correction s.
placed on parole . or placed in community corre cti o n,. The pro gram s developed pursuant to
this parag raph (b) s ha ll be as fle xible as po ss ibl e so th at suc h programs may be utilized by
each offender to prevent the offender from harming victims and potential victims . Such
programs shall be structured in such a manner that the program s provide a continuing
monito1ing process as well as a continuum of treatment programs for each offender as that
offender proceeds through the criminal justice s ystem and may include. but shall not be
limited to . group coun seling, indi vidual cou n~e ling , outpati e nt tre atment, inpatient treat-
ment, or treatment in a therapeutic community. Al so . suc h program s shall be developed in
such a manner that, to the extent pos sible. the programs may be ac ce ssed by all offenders
in the criminal justice system . The procedures for evaluation , identification , treatment, and
continued monitoring required to be developed pursuant to this paragraph (b) and paragraph
(a) of this subsection (4) shall be implemented only to the e xtent moneys are available in
the sex offender surcharge fund created in section 18-21-103 (3), C.R.S.
(c) The board shall develop a plan for the allocation of moneys deposited in the sex
offender surcharge fund created pursuant to section 18-21-103 (3), C.R.S .. among th e
judicial department, the depanment of corrections, the division of criminal justice of the
department of public safety, and the department of human services . In addition , the board
shall coordinate the expenditure of moneys from the sex offender surcharge fund with any
moneys expended by any of the departments de scribed in this paragraph (c) for the
identifi cation , evaluation, and treatment of sex offenders. The plan developed pursuant to
thi s section sh all be submitte d to the general a ssembly on or before January I , 1993 . For th e
fis c al year beginning July 1, 1993 , the general a ss embly shall appropri ate moneys from the
sex offender surc harge fund in accordance with such plan .
(c .5) On or before January 1, 1999, the board shall consult on and approve the risk
a ssessment screening in strument developed by the divi sion of criminal justice to assist the
sentencing court in determining the likelihood that an offender would commit one or more
of the offen ses specified in section 18-3 -414 .5 (I ) (a ) (II), C.R.S., under the circumstances
described in sec tion 18-3 -414.5 (1 ) (a ) (III ), C.R .S. No state general fund moneys shall be
used to develop the risk asse ss ment screening in strument. ln carrying out this duty, the
board shall consider sex offende r ri sk a ssessment research and shall consider as one element
the 1i sk po sed by a sex offe nd e r who suffers from a mental abnormality, psychosis , or
pers onality disorder that make s the person more likely to engage in sexually violent
pre datory offe nses. For purposes o f thi s sub section (4) only, "mental a bnormality " mean s
a congenital or ac quired conditi on that affec ts th e e motional or vo litional capacity of a
person in a m ann e r that predi sposes th at pe rso n to the commi ss io n of c1imin a l sexual acts
to a d egree th at ma kes th e pe rso n a signi fica nt ri sk to th e health a nd sa fety o f othe r pe rsons .
If a d efenda nt is fo und to be a e xua ll y vio le nt pre d a to r. th e defenda nt s ha ll be required to
regjs ter purs uant to article 22 of this ti tle .
(d ) (I) The board shall researc h a nd a na lyze th e effec tive ne s of th e evalu a ti o n,
id e ntifi ca ti on , a nd trea tm e nt procedures a nd prog ram s develo ped pur u ant to thi s articl e .
The b oa rd sh a ll aLo d evelo p and pre c ribe a sys te m for impl e me nta ti o n of the guid e lin es
a nd s ta nd ard s develo pe d p ur uant to pa ra graph (b ) o f thi s sub ecti on (4 ) a nd for tra c kin g
offend e rs who have been ubj ec ted to evalua tion, ide ntifi cati o n, and treatment pursu ant to
th is a rt icl e . In addit io n. th e boa rd sha ll <l evel p a system fo r mo nit o1in g o ffe nde r behav io rs
and offend e r adh ere nce to prescrib ed behav iora l c ha nges . The result s o f uc h trac kin g a nd
beh avi ora l mo n ito ri ng ha ll be a part o f any a na ly i made pur ua nt to th is paragraph (d ).
Title 16 -page 293 Standardized Trea tment Pro gra m
for Sex Offenders
16 -11.7 -103
(II ) The boa rd sha ll report its findings from the research and analysis conducted
pur suant to subp aragra ph (I) of thi s paragra ph (d) to th e ge neral assembly , in acco rdance
with section 24-1-136 (9), C.R.S ., no later th an Dece mber I , 2003.
(e) Pursuant to sec tion 18 -1.3-1009. C.R.S ., on or before July I , 1999 , the board , in
co llaboration with th e de partment of co1Tections. the judici a l de panment , and the state
board of parole shall develop criteria for me as urin g a sex offender 's progre ss in tr ea tment.
Such criteria shall assist the court and the state board of parole in determining whether a sex
offender may appropriately be release d from incarc era tion pursuant to sec tion 18 -1.3 -1006
(I ), C.R .S., or whether the sex offender's leve l of supervi sion may be reduced pur suant to
section 18 -1.3-1006 (2) (a) or 18-1.3-1008 , C.R.S .. or whether the sex offender may
appropriately be di sc harged from probation or parole pur suant to section 18-1.3-1006 or
18-1.3-1008 , C.R.S . At a minimum , the criteria shall be designed to assi st the court and the
state board of parole in determining whether the sex offender would po se an undue threat
to the community if he or she were released fr om incarceration , released to a reduced level
of supervision , or discharged from probation or parol e. The criteria shall not limit the
decision-making authority of the court or the state board of parole .
(f) Prior to July I , 2002 , the board shall de ve lop and prescribe a standardized proc edure
for the evaluation and identification of juve nile sex offenders. Such procedure shall provide
for an evaluation and identification of the juvenile offender and recommend behavior
manage ment. monitming , treatment. and compliance ba se d upon the knowledge that all
unlawful sex ual be hav ior po ses a ri sk to th e community. The board shall develop and
implement met hods of intervention for juvenile sex offenders th at ha ve as a priority the
ph ys ica l and psychological safety of vic tim s and potential vic tim s and th at are appropriate
to th e needs of th e particular juvenile offender, so long as there is no redu ction of th e safety
of victim s and potential vic tims .
(g) Pri or to Jul y I , 2002 , th e board shall develop and implement guidelin es and
stand ard s for a syste m of programs for the treatm ent of juvenile sex offenders that may be
utili zed fo r ju ve nil e offende rs who are placed on probati on, co mmitted to the de partment of
human erv ice s. placed on paro le or pl aced in out -of-ho me placement. Th e pro grams
deve loped pursuant to thi s paragrap h (g) shall be as fl exib le as poss ible so th at such
programs may be utili zed by eac h juvenile offe nd er to prevent him or her from haiming
vic tim and potential vic tim s. Such programs sha ll be stru ctured to provide a continuing
mon ito rin g proces as we ll as a co ntinuum of trea tm ent programs fo r each juvenile offe nd er
as he or she proce eds through th e j uve nil e justice sys tem and ma y include, but shall not be
limit ed to , group co un seling , individ ua l coun se lin g. outp atient treatment , inpatient tr ea t-
ment , or treatm ent in a th e rapeutic comm unit y. Such program s sha ll be developed in such
a mann er that. to th e ex te nt poss ibl e, th e prog ram s may be ac ce s ed by all juveni le offenders
in th e j uve nil e ju ti ce sys te m.
(h ) Pr io r tn Jul y I , 200 3. th e boa rd shall deve lop and impl e ment a sys te m by whi ch
I rogr·~~ a nd ~w.:ce~s in trea tm ent of j uve nile sex offe nd ers may be meas ur ed .
(i ) T h , board ha ll re ea rch and a na lyze th e e ffec ti ve nes of th e evalu ati on, id e nti fi-
catio n. and trea tm ent proce dures a nd prog ram deve loped pur uant to th i arti cle fo r
juve nile 5ex offe nde rs . The boa rd sha ll a lso deve lop a nd presc rib e a sys te m fo r impl e men-
ta tio n of th e guid e lin e and sta nd ard deve loped pur~u:mt to pa ra graph (f) of thi sub ecti on
(-1) and f r tr:i d .i ng j uve nil e sex off e nd e rs wh o have bee n subj ec ted to ev aluati on.
ide nti fica tio n. a nd tr ea tm e nt pur . uant to thi s articl e . In additi o n. th e boa rd sha ll deve lop a
sy te m for mo nito ring offe nd er be ha\'iors and ff e nder adh e re nce to presc ribe d be ha vioral
han •cs . T he res ult ~ of such tra ki ng a nd behavio ral monit orin g sha ll be a part of an y
ana ly,i s mad· I u N 1:i nt t thi paragrap h (i).
(j l The board ,ha ll rc,carc h and ana lyze th e :ifc ty i ~ucs rai~e d by livi ng a1Tange rn ent s
fn1 and 1h , loca t io n of ex offe nder wilh in th e mmuni ty. in c lu di ng but no t lim ited to
'>hared or mu tu red livi ng arra nge me nt . At a min imum . th e boa rd hall on id er th e iss ue
ra1.,cd h, the loca ti n of sex offe nd r re ide nces, espec ia ll y in prox im ity to publ ic or priva te
'>chno l, and child care facili tie ·, and publi no tifi atio n of lh e loca tio n of ex offe nde r
IC\ld ·nee, )n or before Marc h l 5, 2 , the boa rd ha ll pre pare and ubrn it a re p rt
l'< ncc111111g the re,car h and analy I c nducted pur ua nt to th i paragraph (j) nd any
rcl,lll'd le 'l'>bt1,e re mmendation .. Th b ard ha ll ubmit the report to Lhe ivil justi e
16-11.7-104 Criminal Proceedings Title 16 -page 294
and judiciary and the criminal justice committees of the house of representatives and the
judiciary committee of the senate. On or before July 1, 2004, the board shall adopt such
guidelines as it may deem appropriate regarding the living arrangements and location of sex
offenders . The board shall accomplish the requirements specified in this paragraph (j ) within
existing appropriations.
(k) Prior to July 1, 2003, the board, in collaboration with law enforcement agencies,
victim advocacy organizations, the department of education , and the depa11ment of public
safety, shall develop, for use by schools, the statement identified in section 22-1-124,
C.R .S., and educational materials regarding general information about sex offenders , safety
concerns related to sex offenders, and other relevant material. The board shall provide the
statement and materials to the department of education, and the department of education
shall make the statement and materials available to schools in the state.
(5) The board and the individual members thereof shall be immune from any liability,
whether civil or criminal, for the good faith performance of the duties of the board as
specified in this section .
(6) (a) This section is repealed, effective July 1, 2010.
(b) Prior to said repeal, the sex offender management board appointed pursuant to this
section shall be reviewed as provided for in section 24-34-104, C.R.S .
Source: L. 92: Entire article added , p. 457, § 3, effective June 2. L. 94: IP(I), (l)(c),
(l)(e), and (4)(c) amended, p. 2651, § 125, effective July I. L. 95: (4)(a) and (4)(b)
amended, p. 466, § 12, effective July 1. L. 96: (4)(b) and (4)(d) amended and (6) added,
pp. 734, 735, §§ I, 2 , effective July 1. L. 97: IP(]), (l)(f), (l)(j), and (l)(k) amended and
(1)(1) and (4)(c.5) added, p . 1565, §§ 11, 12, effective July I. L. 98: IP(I), (4)(c.5), and
(6)(b) amended and (1 )(d.5) added, pp . 401, 402 , §§ 9, 12, effective April 21 ; (4)(e) added,
p . 1288, § 3, effective November 1. L. 99: (4)(c.5) amended, p . 1149, § 10, effective July
1. L. 2000: (1.5), (3)(c), (4)(f), (4)(g), (4)(h), and (4)(i) added , pp . 921,922, §§ 10, 11 , 12 ,
effective July I. L. 2001: IP(l ), (4)(d), and (6)(a) amended, p . 238 , § l , effective March
28 . L. 2002: (4)(j) added , p . 143, § 2, effective March 27 ; (4)(c .5) amended, p . 1184, § 15 ,
July I ; (4)(e) amended, p . 1497, § 149 , effective October I. L. 2003: (4)(k) added. p . 632 ,
§ 2, effective March 18 .
Editor's note: Amendments to the introductory portion to sub sec ti on (I ) were harmonized b y
sections 9 and 12 of Hou se Bill 98 -1177 .
Cross references: For the legislative declaration contained in the 1994 act amending thi s section,
see section 1 of chapter 345 , Session Laws of Colorado 1994. For the legislative declaration contained
in the 2002 act amending subsection (4){e), see section 1 of chapter 318 , Sess ion Laws of Colorado
2002.
16-11.7-104. Sex offenders · evaluation and identification required. (1 ) On and
after January I, 1994, each sex offender who is to be considered for probation shall be
required , as a part of the presentence or probation investigation required pursuant to section
16-11-102, to submit to an evaluation for treatment, an evaluation for risk , procedures
required for monitoring of behavior to protect victims and potential victims , and an
identification developed purs uant to section 16 -11.7-103 (4) (a ).
(2) The evaluation and identification required by s ub secti o n ( 1) of thi s section shall be
at th e e xpen se of the person evaluated, ba sed upo n s uch person 's abilit y to pay for suc h
treatm ent.
Source: L. 92: Enti re arti cle added , p . 4 60 , § 3 , effec tive Jun e 2 .
Title 16 -page 443 Colorado Sex Offe nder Reg istration Act 16-22-108
(b) The provi s ions of this s ubsec tion (I) sha ll a pply 10 persons sentence d on or after
Janu ary I , 2005 .
(2) At least ten business days prior to the rel ease or di scharge of any person who has
been sentenced to the department of corrections and is required to register pursuant to
section 16-22-103 , the department of co1Tections shall provide notice , as described in
section 16 -22-1 OS , to the person of th e duty to regi ster in accordance with the provision s
of this article with the loc al law enforcement agency of each jurisdiction in which the
pers on resides. The person shall be required to sign th e notice as confirmation of recei pt and
to provide the person 's date of birth and the address at which the person intends to reside
upon release or discharge .
(3) Within five days, but not fewer than two day s . prior to the release or discharge of
any person who has been sentenced to the department of corrections and is required to
register pursuant to section 16-22-103 , the department shall notify the CBI and the local law
enforcement agency of the jurisdiction in which the person intends to reside of the date of
the pe rso n's release or di sc harg e. Such notice shall include the address at which the person
intends to reside upon release or di sc harge, provided by the person pursuant to subsection
(2) of this section, and the person's date of birth and the person 's current photograph if
requ ested by the CBI. In addition , s uch notice may include additional information con-
cerning the person , including but not limite d to any info1mation obta ined in conducting the
assess me nt to dete rmine whether th e person may be subject to community notificati o n
pursuant to section 16-13-9 03 .
(4) (a) Prior to th e re lease or di sc harge of any perso n who has been sen te nced to th e
departme nt of coJTections and is require d to register pursua nt to sec ti on 16-22-10 3,
de partment of correc ti ons pe rsonnel , if th e person is be in g released on parole. o r th e local
law enforcement agency of the jurisdiction in which th e pe rson intends to re s ide, if th e
person is be ing di sc harged, sha ll ve rify th at:
(I ) The a ddress p rov id e d by th e person purs ua nt to sub section (2) of this section is a
res id e nce ;
(II ) The occupants or owners of th e re s idence know of the pe rso n's hi story of unl aw ful
sex ua l be ha v ior ;
(III ) The occ up a nts or owners of th e re s idence h ave ag reed to a ll ow the pe rso n to reside
at the address; and
(IV) If the perso n is being re leased on parole, th e addre ss compli es with any conditi o ns
imp osed by th e parole bo ard .
(b ) If, in a tt emptin g to verify th e address provided by th e pe rso n, department of
correc tions personnel or loca l law e nforce ment officers determine that any of the informa-
ti on s pec ified in paragraph (a) of thi s ub section (4 ) is not uue , the perso n shall be deemed
to have provided false in fo rmati on to department personnel concerning th e address at which
th e per on intends to reside upon relea se .
(4.5) With regard to a person who has been e nten ed to th e d e partment o f con-ec ti o ns,
is re leased on paro le, and is req uired to re g iste r pursuant to section 16 -22-103 , th e
de partme nt s ha ll e lec troni ca ll y notify th e C BI of the date o n w hi c h th e perso n 's parole is
tc nninat e d , and th e de partm e nt shall noti fy th e CB I if th e pe rso n absconds or die s prior to
th e paro le te rmin a ti o n date. The Bl sha ll elec tro ni call y notify th e loca l law e nforcement
agc m:y f eac h juri di c ti on in which th e pe r o n res ide s of th e occ urrence of any of th e
eve nt s spec ifi e d in thi s ub ecti o n (4 .SJ .
(SJ In th e ca e of a juveni le who is require d to regi ste r pursuant to section 16 -22-10 3
a nd i c mmitt ed to th e department o f human ervices. aid departm e nt shall ha ve a nd carry
out th e duties . pecificd in thi s sec ti on for th e depa11m e n1 of correcti o ns wi th regard to ai d
jU\<.:11ik .
Source: L. 2002: En tire :Jl'ti le added. p . 11 65, § 1, effec ti ve Jul y I. L. 2003: ( I )(b)
Jmemkd. r . 759, .' 3. effective Mar h 25. L. 2004: {I/, (2). and (3) ame nd ed and (4 .5)
addeJ . p . 1111 . § 7. effec ti ve Ma y 27 .
16 -22-108 . Rt•gis tration . procl'<lure · frequency · plac · chan ge of addres • fee.
<I J WI ·ach per on "ho i1o required to regil,ter pur uant to ecti n 16-22-10 hall
16 -22-108 Criminal Proceedin gs Tit le 16 -page 444
regi ster with the local law enforcement agency in each juri sdi ction in which th e p erson
res id es . Each such perso n s hall initially reg ister or, if sent e nced on or afte r January I , 2005 ,
confirm hi s or her initial registration within five bu s in ess days after re lease from in carcer-
ation for commission of the offense requirin g registration or within fi ve busine ss days aft er
rece ivin g notice of th e duty to register. if the perso n was not in carcerated . Such person sha ll
regi ster with the local law enforcement agency during bu sin ess hours by completing a
standardized registration form prov ided to s uch perso n by the loca l law enforcement agency
and paying the registration fee imposed by the lo ca l law enforcement agency as provided
in sub sec tion (7) of thi s section . The CBI s hall provide s tandardi ze d regi strati on form s to
the local law enforcement agenci es pursuant to sec ti on 16 -22-109 .
(b) Except as otherwise provided in paragraph (d) of thi s sub sec tion (I), each person
who is require d to register pursuant to sec ti on 16 -22-103 shall rere g is ter on th e person · s
fir st birthday following initial re g istr ation a nd annu all y on th e perso n's birthd ay th ereafter.
If a perso n's birthday falls on a Saturday, Sunday , or holiday, the perso n shall reregister o n
the fir st bu s iness day following hi s or her birthday. Su ch perso n shall reregi ster pursuant to
thi s paragraph (b ) with the loca l law e nforcement agency of each jurisdicti on in w hi c h th e
person resides on hi s or her birthday, in th e mann e r provided in paragra ph (a) of thi s
subsection (I ).
(c) Each person who is required to register purs uant to section 16-22-103 and who
establishes an additional re s idence shall, within five bu sin ess days after es tabli shin g an
additional res idence in any city, town , county, or city and county within Colorado , register
with the local law enforcement agency of the jurisdiction in which he or she establishes th e
additional re sidence . Such person shall regi ster in sa id jurisdiction in the manner provided
in paragraph (a) of this subsection (I) and shall rere gister as pro vided in parag rap h (b) of
this subsection (I) or paragraph (d) of thi s sub sec tion (I ), whichever is applicable, in sa id
juri sd iction so lon g as the perso n res ide s in sai d jurisdi ct ion . '
(d) (I) Any person who is a sex ually v iolent predator and any person who is convicted
as an adult of any of the offenses s pecifi e d in subparagraph (II ) of thi s paragra ph (d ) ha s a
duty to reg ister for the remainder of hi s or her natural life ; except that , if the person receives
a deferred judgme nt and sentence for one of the offenses s pecifi ed in subparagrap h (11 ) of
thi s paragraph (d ), the person may petition the co urt for di sco ntinuation of th e duty to
register as provided in sec ti on 16 -22-11 3 (I ) (d). In addition to regi s teri ng as required in
paragra ph (a) of this sub section (I), such person sha ll re register nin ety da ys after th e date
he or she was released from incarceration for commi ssi on of the offense requiring
regi stration , or ninety days after the date he or she received noti ce of the duty to register,
if th e perso n was not incarcerated , and every ninety days thereafter until such perso n 's
birthday . Such pe rso n shall reregister on hi s or her birthday and s hall reregister every nin ety
days thereafte r. If a pe rson 's birthday or other reregistration day falls on a Saturd ay, Sunday ,
or ho lid ay, the perso n shall reregis ter on the fir st bu s iness day following hi s or her birthday
or oth er reregistration day. Su ch person sh all reregister pursuant to thi s parag raph (d) with
the local law enforceme nt agency of each jurisdiction in whi ch the person resides on the
reregi stration date , in the mann e r provided in paragra ph (a) of thi s s ub sec tion (I).
(1.5) (A) A person convicted of an offense in anothe r state or jurisdiction. includin g but
not limited to a military or federa l juri sdi c tion , who, as a result of th e conviction , is required
to re gister quarterly as a sex offe nd er in th e s tate or j uri sdi ction of convic ti on i required to
re gister as provided in sub paragraph (I) of thi s paragraph (d) so long as th e person is a
temporary or perm anent resid ent of Col o rado .
(B J A pe rso n convic ted of an offe nse in anoth er state or juri sdi c ti o n. in cl udin g but not
limit ed to a military or federal jurisdi ction . whi ch convicti o n would require th e pe rson to
regis ter a prov ided in ubparag ra ph (I ) o f thi s p aragraph (d) if the convicti on cc uned in
Colora do . is required to regi ter a pro vided in aid subparagraph (I ) o long a the pe r on
i a temporary or pe rmanent re s ident of Colorado .
(II ) The pro v is ions of thi s paragraph (d ) s hall apply to person s co n victed o f o ne or more
of th e fo llowing offe nse s :
(A ) Fe lo ny sexual a . ault , in violation of . ec ti o n 18 -3-40 2, C.R .S., or se xu al as ault in
th e fir t degree , in v iolation of sec tion I -3-402. .R.S ., as it exi ste d prior to Jul y I . 2000 .
Title 16 -page 445 Colorado Sex Offender Regi s tration Act 16-2 2-108
or felony sexual assault in the second degree, in viol a tion of section 18 -3-403, C.R .S ., a s
it existed prior to July I , 2000 ; or
(B) Sexual a ss ault on a child in viol a tion of section 18-3-405 , C.R .S .; or
(C ) Sexual assault on a child by one in a pos ition of tru st, in viol a tion of section
18 -3-405.3, C.R.S.; or
(D) Sexual assault on a client by a psychotherapi st, in violation of section 18-3-405.5 ,
C.R.S .; or
(E ) Incest, in violation of section 18 -6-301 , C.R.S .; or
(F ) Aggravated incest, in violation of section 18-6-302 , C.R.S .
(e ) Notwithstanding the time period for registration specified in paragraph (a) of thi s
subsection (I ), any person who is discharged from the department of corrections of this state
or another state without supervision shall register in the manner provided in paragraph (a)
of this subsection (1) no later than the next business day following discharge .
(2) Persons who reside within the corporate limits of any city, town, or city and county
shall register at the office of the chief law enforcement officer of such city, town , or city and
county ; except that, if there is no chief law enforcement offic er of the city, town, or city and
county in which a person re s ides, the person shall regi s ter at the office of the county sheriff
of the county in which the person resides. Persons who re side outside of the corporate limits
of any city, town , or city and county shall register at the office of the county sheriff of the
county where s uch person resides .
(3) Any person who is required to regi ster purs uant to section 16-22-103 shall be
required to regi s ter e ach time s uch person :
(a) Cha nges suc h person 's a ddress, regardle ss of whe ther s uc h pe rson has moved to a
new address within the jurisdi c tion of th e la w enforcement agency with which such person
previous ly re gi s tered ;
(b) Legally changes s uch person 's na me;
(c ) Establi she s an addition a l residenc e in another jurisdiction or an additional residence
in the same jurisdiction ;
(d) Bec om es employed or c ha nges employment or e mploy me nt loc a tion , if employed
at an in stitution of postseconda ry educa ti o n;
(e) Bec omes enroll e d or c ha nges enrollment in a n in stitution of postsecondary educa-
tion . or c hanges the locati o n of enrollme nt ; or
(f) Becomes a volunt ee r or changes th e volunteer work location , if vo lunteering at an
in stituti on of postsecond ary education .
(4) (a) Any tim e a pe rson wh o is requ ired to registe r pursuant to section 16 -22-103
ceases to resid e at an a ddress . th e pe rson s ha ll notify th e local law e nfo rceme nt age ncy o f
the juri sdi c ti o n in whi c h sa id address is locate d b y co mpl e tin g a writte n reg istrati o n
ca nce ll a ti o n fo rm. ava il ab le fro m th e local law e nfo rceme nt agency. At a minimum , th e
regis tration cancellat ion form shall indicate the address at which th e person wi ll no longer
reside and a ll addresses at which the person will reside . The person sha ll fi le the regis tration
cancellation fonn within five busine days after cea ing to reside at an address . A local law
enforcement agency t ha t receives a registration cancellation form shall e lectronically notify
the CB I of th e regis tra t ion cancellation . If the per on moves to another sta te, the C BI sh a ll
pro mptl y no tify th e age ncy responsib le fo r reg istra t io n in th e new s ta te.
(b) If a person fai ls to subm it th e regist ra t io n cancell at io n fo rm as re qu ired in pa rag ra ph
(a) of this ~u bsec tio n ( 4) and the address a t which th e per on is no lo nge r resid in g is a gro up
faci lit . officia ls at such faci lity may provide infonnat ion concerning th e per o n's cessa t io n
of residency to the local iaw enforcement agency of the jurisdiction in whic h the address is
locat ed . If the person is a j uveni le or deve lopmentall y disab led a nd fai ls to sub mit th e
regi stra ti n ance ll ation form as re4 uired in paragraph (a) of this ubse tio n (4) and t he
addre,, at which the per on is no longer re iding is the re sidence of h i or her pare nt or legal
uardian. the pers n · s parent or legal guardian may provide informat ion conce rn ing the
pcr,on ·, essa tion of residency to the local law enforcement agency of the j uri dic tion in
Which the address i located . Any law enforcement agen y that receives uch informa t ion
,hall rclkct in its records that the per on no longer re ide at said group facility or the
parent· 5 or le ga l guardian · s re idence and shall tran mit s uch infonnation to the CBI.
Provi-,1011 of inf rmation by a group facility or a per on' parent or legal guardian pur uant
16 -22-109 Crimin al Pro cee din gs Title 16 -page 44 6
to thi s para gra ph {b) shall not co nstitute a defe nse to a charge of failure to register as a sex
offender.
(5 ) During the initial reg istration pro cess for a temp orary res ident , the loca l law
enforcement agency with which the temporary re sid ent is reg isterin g shall pro vid e the
temporary res ident with th e registration infonnation spec ifi ed in sec ti on 16 -22-105 . A
temporary re sident who is required to register pursuant to the provisions of sec ti on
16-22-103 shall , within fi ve bu sine ss da ys after arrival in Colorado, reg ister with th e local
Jaw enforcement agency of each jurisdiction in which the temporary re sident re sid es.
(6) Any perso n required to register pur s uant to sec ti on 16-22-103, at the time the perso n
registers with any local law enforcement agency in this state , and thereafter when annually
reregistering on the perso n 's birthday or the fir st business day foll owing the birthday as
required in paragraph (b) of subsection (I) of this sec tion , shall sit for a current ph o tog raph
or image of himself or herse lf and shall supply a set of fingerprint s to ve rify the person's
identity. The perso n shall bear the co st of th e photo gra ph or image and fin ge rprint s.
(7) A local law enforcement agency may establish a registration fee to be paid by
persons registering and reregistering with the local law enforcement agency purs uant to the
provisions of this section . The amount of the fee shall refle ct the actual direc t costs in c urred
by th e local law enforcement agency in impl ementing th e pro visio ns of thi s article.
Source: L. 2002: Entire article added , p. 1167 . § I, effective July l ; (3) amended, p.
1201 , § 3, effective July I. L. 2004: ())(a), (l )(b), ())(d){I), (l )(d )(ll)(A), ())(e). (3)(d),
(5), and (6) amend ed and ())(d)(l.5) and (7) added , pp . 1112 . 1114 , §§ 8, 9, effective May
27 .
ANNOTATION
Defend11nt ch11rged under former version
of registration statute is properly registered if
he or she registers either on his or her birth-
day or the first business day thereafter. Court
ma y not infer th e in1 ent of 1h e ge neral ass embl y
by review of a sub se quent amendment to th e
statute, and plain meaning of p1ior statut e al-
lowed for regi stration on either day . People v.
Duncan,_ P.3 d _(Colo .App . 2004) (deci ded
und er former § 18 -3-4 12.5 (3 )(a)(l)).
16-22-109. Registration forms · local law enforcement agencies · duties. (I) The
d i re' tor of the CBI ha ll pr e cri be standardi ze d forms to be used to co mply with this article ,
a n( h CBI shall provide ·o pi es of s uch standardized forms to th e courts, probati on
de ;1artments , community c rr cc ti o n programs . the de partment of co1Tec ti ons. the de part -
me nt of human . ervi cc s. and loca l law e nforce ment agencies . Su c h tandardized forms may
be provided in electronic form. Such tandardized form shall be used to register perso ns
pursu ant to thi s article and to e nable pe rso ns to ca ncel regi stration , as nece ssary. The
standardized fonn shall provide th at the per ons required to regi ster pursuant to sec tion
16 -22-103 di sclo se s uch information a i required on the standardized forms . The infor-
mation required on th e stand ardized form . shall include , but ne e d not be limited to :
(a) The name. dat e o f birth . addres . a nd pla ce o f employment of the pe rso n req uired
to regi tcr. and , if th e place o f empl oy me nt i at an institution of po stseco ndary edu cati on,
all addrc se a nd loca ti on of th e institution o f po t eco ndary ed ucati o n at whi ch the per on
may be phy si ally loca ted :
(a .5) If th e per son is vo lunt eering at an in tituti on of po stseco nd ary ed ucation , all
addresse and loc ati n of the in stitut ion of po st econdary edu c ation at wh ich th e perso n
ma y be ph y. ically loca led :
(a .7) If th e pe rson enro ll or is enro ll ed in an in stituti on of a pos tsecond ary edu ca ti on.
a ll addresses and loc ati n o f the in stituti on o f pos tseco nd ary ed uca ti on at whi ch th e pe rso n
att e nd cla . sc o r oth en i e parti c ipat es in required ac ti viti e ;
(b ) All na mes use d at a ny time by th e per on required to reg i te r. in ·ludin g bo th alia sc
and leg al nam es;
c) For any pcrs n ~ ho i a temp o rary res id e nt of th e tat e. th e perso n· addre s in hi
o r her stal e o f pe rman ent res idenc e and th e perso n· pla ce o f e mpl oy ment in thi tat e or
the edu ati o nal in tituti on in whi ch he o r she i enroll ed in thi stat e and , if th e temporary
COUNCIL COMMUNICATION
Date: Agenda Item: Subject:
September 5, 2006 11 c i Unified Development Code Sign Code
Professional Services Agreement
Initiated By: Staff Source:
Community Development Department Tricia Langon, Senior Planner
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
During the August 7, 2006 Study Session, Council directed the Community Development
Department to prepare a professional services agreement for potential updates to Section 16-6-13:
Signs of the Unified Development Code.
RECOMMENDED ACTION
Staff recommends that Council approve, by Motion, a professional services agreement with Tacito
Design, Inc. for analysis and recommendations for potential sign code amendments.
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
The Unified Development Code (UDC), adopted in 2004, addressed only formatting changes to
Section 16-6-13: Signs. Regulatory amendments to stand-alone sections such as signs, landscaping,
and parking were planned during UDC's Phase 2 amendments.
This is a professional services agreement with Tacito Design, Inc. for $19,400. Tacito Design is a
metro area firm focusing on graphic design and signage systems. Tacito Design has worked with
Community Development to assist Englewood business owners in the Commercial Catalyst
Program, which provides grant funding for fac;ade and signage renovations. Tacito Design is familiar
with current sign regulations, sign design, as well as obstacles to good signage.
The agreement includes the following services: review current sign regulations for strengths and
challenges, research other sign codes, meet with interested stakeholders, prepare an outline of
findings, and provide specific recommendations to be used by staff in preparation of Unified
Development Code sign amendments.
FINANCIAL IMPACT
Funding for this agreement will come from exis ting Comm unity Development 2006 budgeted
professional services funds.
LIST OF ATTACHMENTS
Professional Services Agreement and Scope of Services from Tacito Design , In c.
-
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (the "Agreement") is made as of this 281h day of August ,
2006, (the "Effective Date") by Tacito Design, Inc ., a Colorado corporation ("Contractor"), and The City
of Englewood, Colorado, a municipal corporation organized under the laws of the state of Colorado
("City").
City desires that Contractor, from time to time, provide certain consulting services, systems integration
services, data conversion services, training services , and/or related services as described herein , and
Contractor desires to perform such services on behalf of City on the terms and conditions set forth
herein .
In consideration of the foregoing and the terms hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto ,
intending to be legally bound , agree as follows :
1. Definitions. The terms set forth below
shall be defined as follows:
(a) "Intellectual Property Rights "
shall mean any and all (by whatever name or
term known or designated) tangible and
intangible and now known or hereafter existing
(1) rights associate with works of authorship
throughout the universe , including but not
limited to copyrights, moral rights , and mask-
works , (2) trademark and trade name rights
and similar rights, (3) trade secret rights, (4)
patents , designs , algorithms and other
industrial property rights , (5) all other
intellectual and industrial property rights ( of
every kind and nature throughout the universe
and howeve r designated) (includ ing logos ,
"re nt al " rights and righ ts to remuneration),
whether arising by operati on of law, co ntract,
license, or otherwise, and (6) all registrations,
initial applications, renewals, extensions,
continuations, divisions or reissues hereof now
or hereafter in force (including any rights in any
of the foregoing).
(b) "Work Product" shall mean all
patents, patent applications, inventions,
designs, mask works, processes,
methodologies, copyrights and copyrightable
works , trade secrets including confidential
information, data, designs, manuals, training
materials and documentation, formulas ,
knowledge of manufacturing processes,
methods , prices, financial and accounting data,
products and product specifications and all
other Intellectual Property Rights created,
developed or prepared, documented and/or
delivered by Contractor, pursuant to the
provision of the Services.
2. Statements of Work. During the te rm
hereof and subject to the terms and conditions
contained herein , Contractor agrees to provide,
on an as requested basis , the consulting
services, systems integration services, data
conversion services, training services, and
related services (the "Services ") as further
described in Schedule A (the "Statement of
Work ", consisting of four (4) pages) for City ,
and in such add itional Statements of Work as
may be executed by each of the parties hereto
from time to time pursuant to th is Agreement.
Each State ment of Work sh all spe ci fy the
scope of work, specifications, basis of
compensation and payment schedule,
estimated length of time required to complete
each Statement of Work, including the
estimated start/finish d ates, a nd other re levant
information and shall incorporate all t erms and
conditions contained in t his Agreement
3. Perform ance of Serv ice s.
(a) Performa nce. Contractor shall
perform the Services necessary to complete all
projects outlined in a Statement of Work in a
timely and professional manner consistent with
the specifications , if any, set forth in the
Statement of Work, a nd in accordance with
industry standards. Contractor agrees to
exercise the highest degree of professionalism ,
and to utilize its expertise and creative talents
in completing the projects outlined in a
Statement of Work.
(b) Delays. Contractor agrees to
notify City promptly of any factor, occurrence,
or event coming to its attention that may affect
Contractor's ability to meet the requirements of
the Agreement, or that is likely to occasion any
material delay in completion of the projects
contemplated by this Agreement or any
Statement of Work . Such notice shall be given
in the event of any loss or reassignment of key
employees, threat of strike, or major equipment
failure. Time is expressly made of the essence
with respect to each and every term and
provision of this Agreement.
(c) Discrepancies. If anything
necessary for the clear understanding of the
Services has been omitted from the Agreement
specifications or it appears that various
instructions are in conflict, Vendor shall secure
written instructions from City 's project director
before proceeding with the performance of the
Services affected by such omissions or
discrepancies .
4 . Invoices and Payment. Unless
otherwise provided in a Statement of Work,
City shall pay the amounts agreed to in a
Sta tement of Work within thirty (30) days
following th e acceptance by City of the work
ca ll ed fo r in a Sta tem ent of Wo rk by Cit y.
Acceptance procedures shall be outlined in the
Statement of Work. If City disputes all or any
portion of an invoice for charges, then City
shall pay the undisputed portion of the invoice
by the due date and shall provide the following
notification with respect to the disputed portion
of the invoice . City shall notify Contractor as
soon as possible of the specific amount
disputed and shall provide reasonable detail as
to the basis for the dispute . The parties shall
then attempt to resolve the disputed portion of
such invoice as soon as possible . Upon
resolution of the disputed portion, City shall
pay to Contractor the resolved amount.
5. Taxes. City is not subject to
taxation . No federal or other taxes (excise,
luxury, transportation, sales, etc.) shall be
included in quoted prices. City shall not be
obligated to pay or reimburse Contractor for
any taxes attributable to the sale of any
Services which are imposed on or measured
by net or gross income, capital, net worth ,
franchise, privilege, any other taxes, or
assessments, nor any of the foregoing
imposed on or payable by Contractor. Upon
written notification by City and subsequent
verification by Contractor, Contractor shall
reimburse or credit , as applicable, City in a
timely manner, for any and all taxes
erroneously paid by City. City shall provide
Contractor with, and Contractor shall accept in
good faith, resale, direct pay, or other
exemption certificates, as applicable.
6. Out of Pocket Expenses. Contractor
shall be reimbursed only for expenses which
are expressly provided for in a Statement of
Work or which have been approved in advance
in wr iting by City, provided Contractor has
furnished such documentation for authorized
expenses as City may reasonably request.
7. Audits. Contractor shall provide such
employees and independent auditors and
inspectors as City may designate with
reasonable access to all sites from which
Services are performed for the purposes of
performing audits or inspections of
Contractor's operat ions and compliance with
this Agreement. Con tractor shall provide such
a uditors an d ins pe ct ors any rea sonable
assistance that they may require . Such audits
shall be conducted in such a way so that the
Services or services to any other customer of
Contractor are not impacted adversely.
8 . Term and Term ination . The term of
this Agreement shall commence on the
Effective Date and shall continue unless this
Agreement is terminated as provided in this
Section 8.
(a) Con venience. City may, without
cause and without penalty, terminate the
provision of Services under any or all
Statements of Work upon thirty (30) days prior
written notice . Upon such termination. City
2
shall, upon receipt of an invoice from
Contractor, pay Contractor for Services
actually rendered prior to the effective date of
such termination . Charges will be based on
time expended for all incomplete tasks as
listed in the applicable Statement of Work, and
all completed tasks will be charged as
indicated in the applicable Statement of Work.
{b) No Outstanding Statements of
Work. Either party may terminate this
Agreement by providing the other party with at
least thirty (30) days prior written notice of
termination if there are no outstanding
Statements of Work.
{c) Payment Default. If City
defaults in the payment of any amount due
under any Statement of Work and does not
cure the default within fifteen ( 15) days after
receiving written notice of such default, then
Contractor may terminate the affected
Statement of Work by providing fifteen (15)
days prior written notice of termination to City
{d) Material Breach. If either party
materially defaults in the performance of any
term of a Statement of Work or this Agreement
with respect to a specific Statement of Work
( other than by nonpayment) and does not
substantially cure such default within thirty (30)
days after receiving written notice of such
default, then the non -defaulting party may
terminate this Agreement or any or all
outstanding Statements of Work by provid ing
ten ( 10) days prior wr itten not ice of term inat ion
to th e defa ulti ng part y.
(e) Ba nk ruptcy or Insolven cy. Either
party may terminate this Agreement effective
upon written notice stating its intention to
terminate in the event the other party: (1)
makes a general assignment of all or
substantially all of its asse ts for t he benefit of
its creditors; (2) applies for, consents to, or
acquiesces in the appointment of a receiver,
trustee, custodian, or liquidator for its business
or all or substantially all of its assets; (3) files,
or consents to or acquiesces in, a petition
seeking relief or reorganization under any
bankruptcy or insolvency laws ; or ( 4) files a
petition seeking relief or reorganization under
any bankruptcy or insolvency laws is filed
against that other party and is not dismissed
within sixty (60) days after it was filed .
(f) TABOR. The parties understand
and acknowledge that each party is subject to
Article X, § 20 of the Colorado Constitution
("TABOR"). The part ies do not intend to
violate the terms and requirements of TABOR
by the execution of this Agreement. It is
understood and agreed that this Agreement
does not create a multi-fiscal year direct or
indirect debt or obligation within the meaning of
TABOR and, notwithstanding anything in this
Agreement to the contrary, all payment
obligations of City are expressly dependent
and conditioned upon the continuing
availability of funds beyond the term of City's
current fiscal period ending upon the next
succeeding December 31. Financial
obligations of City payable after the current
fiscal year are contingent upon funds for that
purpose being appropriated, budgeted, and
otherwise made available in accordance with
the rules, regulations, and resolutions of City
and appl icable law . Upon the failure to
appropriate such funds , this Agreement shall
be deemed terminated .
(g) Return of Property. Upon
termination of this Agreement, both parties
agree to return to the other all property
(including any Confidential Information , as
de fi ned in Section 11 ) of the other party that it
may have in its possession or control.
9. City Obligations . City will prov ide
timely access to Cit y p erso nnel, systems and
information required for Contractor to perform
its obligations hereunder. City shall provide to
Contractor's employees performing its
obligations hereunder at City's premises,
without charge, a reasonable work
environment in compliance with all applicable
laws and regulations, including office space,
furniture, telephone service, and reproduction,
computer, facsimile, secretarial and other
necessary equipment, supplies, and services .
With respect to all third party hardware or
software operated by or on behalf of Cit y, City
shall , at no expense to Contractor, obtain all
consents, licenses and sublicenses necessary
for Contractor to perform under the Statements
of Work and shall pay any fees or other costs
associated with obtaining such consents ,
licenses and sublicenses .
10. Staff. Contractor is an independent
contractor and neither Contractor nor
Contractor's staff is , or shall be deemed to be
employed by City. City is hereby contracting
with Contractor for the Services described in a
Statement of Work and Contractor reserves
the right to determine the method, manner and
means by which the Services will be
performed. The Services shall be performed by
Contractor or Contractor's staff, and City shall
not be required to hire, supervise or pay any
assistants to help Contractor perform the
Services under this Agreement. Except to the
extent that Contractor's work must be
performed on or with City's computers or City's
existing software, all materials used in
providing the Services shall be provided by '
Contractor.
11. Confidential Information.
(a) Obligations. Each party hereto
may receive from the other party information
which relates to the other party's business,
research, development, trade secrets or
business affairs ("Confidential Information ").
Subject to the provisions and exceptions set
forth in the Colorado Open Records Act, CRS
Section 24 -72-101 et. seq., each party shall
protect all Confidential Information of the other
party with the same degree of care as it uses
to avoid unauthorized use , disclosure ,
publication or dissemination of its own
confide nti al in formation of a si milar nature , but
in no event less than a reasonable degree of
care . Without limiting the generality of the
foregoing, each party hereto agrees not to
disclose or permit any other person or entity
access to the other party's Co nfidential
Information exce pt such disclosure or access
sha ll be permitted to an emplo yee, age nt,
representative or indepen dent contractor of
such party requiring access to the same in
order to perform his or her employment or
services . Each party shall insure that their
employees , agents, representatives, and
ind e pendent contractors are advised of the
con fid e nt ial nature of the Confidential
Informa tio n an d are preclu ded from tak ing any
action prohibi ted unde r t his Sec tio n 11 .
Further, each party agrees not to alter or
remove any identification, copyright or other
proprietary rights notice which indicates the
ownership of any part of such Confidential
Information by the other party. A party hereto
shall undertake to immediately notify the other
party in writing of all circumstances
surrounding any possession, use or knowledge
of Confidential Information at any location or by
any person or entity other than those
authorized by this Agreement.
Notwithstanding the foregoing, nothing in this
Agreement shall restrict either party with
respect to information or data identical or
similar to that contained in the Confidential
Information of the other party but which ( 1) that
party rightfully possessed before it received
such information from the other as evidenced
by written documentation; (2) subsequently
becomes publicly available through no fault of
that party; (3) is subsequently furnished
rightfully to that party by a third party without
restrictions on use or disclosure; or ( 4) is
required to be disclosed by law, provided that
the disclosing party will exercise reasonable
efforts to notify the other party prior to
disclosure .
(b) Know-How. For the avoidance of
doubt neither City nor Contractor shall be
prevented from making use of know-how and
principles learned or experience gained of a
non-proprietary and non-confidential nature .
(c) Remedies. Each of the parties
hereto agree that if any of them, their officers,
employees or anyone obtaining access to the
Con fi de ntia l Informa t io n of t he other party by ,
through or under them, breaches any provision
of this Section 11, the non-breaching party
shall be entitled to an accounting and
re paymen t of all profits, compensa t ion,
comm issi on s, re mune rat io ns a nd bene fit s
which th e brea ching party, its officers or
em ployees directly o r indi rect ly realize or ma y
realize as a resu lt of or growing out of, or in
connection wi th any such breach . In addition
to , and not in limitation of the foregoing , in the
event of any breach of this Section 11, the
parties agree that the non -breaching party will
suffer irreparable harm and that the total
amount of monetary damages for any such
inj ury to t he non -brea c hing pa rty arisi ng from a
4
violation of this Section 11 would be impossible
to calculate and would therefore be an
inadequate remedy at law . Accordingly, the
parties agree that the non-breaching party
shall be entitled to temporary and permanent
injunctive relief against the breaching party , its
officers or employees and such other rights
and remedies to which the non-breaching party
may be entitled to at law, in equity or under this
Agreement for any violation of this Section 11 .
The provisions of this Section 11 shall survive
the expiration or termination of this Agreement
for any reason.
12. Project Managers. Each party shall
designate one of its employees to be its
Project Manager under each Statement of
Work, who shall act for that party on all matters
under the Statement of Work . Each party shall
notify the other in writing of any replacement of
a Project Manager. The Project Managers for
each Statement of Work shall meet as often as
either one requests to review the status of the
Statement of Work.
13. Warranties .
(a) Authority . Contractor represents
and warrants that: (1) Contractor has the full
corporate right, power and authority to enter
into this Agreement and to perform the acts
required of it hereunder; (2) the execution of
this Agreement by Contractor, and the
performance by Contractor of its obligations
and dut ies hereunder, do not and will not
violate any agreement to which Contractor is a
party or by wh ich it is otherwise bound under
any applicable law, rule or regulation; (3) when
executed and delivered by Contractor, this
Agreement will constitute the legal, valid and
binding obligation of such party, enforceable
against such party in accordance with its
terms; and (4) Contractor acknowledges that
City makes no representations, warranties or
agreements related to the subject matter
hereof that are not expressly provided for in
this Agreement
(b) Service Warranty . Contractor
warrants that its employees and contractors
shall have sufficient skill, knowledge, and
training to perform Services and that the
Services shall be performed in a professional
and workmanlike manner.
(c) Personnel. Unless a specific
number of employees is set forth in the
Statement of Work, Contractor warrants it will
provide sufficient employees to complete the
Services ordered within the applicable time
frames established pursuant to this Agreement
or as set forth in the Statement of Work ..
During the course of performance of Services,
City may, for any or no reason, request
replacement of an employee or a proposed
employee. In such event, Contractor shall,
within five (5) working days of receipt of such
request from City, provide a substitute
employee of sufficient skill, knowledge, and
training to perform the applicable Services .
Contractor shall require employees providing
Services at a City location to comply with
applicable City security and safety regulations
and policies.
(d) Compensation and Benefits.
Contractor shall provide for and pay the
compensation of employees and shall pay all
taxes, contributions, and benefits (such as, but
not limited to, workers' compensation benefits)
which an employer is required to pay relating
to the employment of employees. City shall not
be liable to Contractor or to any employee for
Contractor's failure to perform its
compensation , benefit, or tax obligations .
Contractor shall indemnify, defend and hold
City harmless from and against all such taxes,
contributions and benefits and will comply with
all associated governmental regulations,
including the filing of all necessary reports and
returns .
14. Indemnification.
(a) Contractor Indemnification.
Contractor shall indemnify, defend and hold
harmless City, its directors, officers,
employees, and agents and the heirs,
executors, successors, and permitted assigns
of any of the foregoing (the "Cit y lndemnitees")
from and against all losses, claims, obligations,
demands, assessments, fines and penalties
(whether civil or criminal), liabilities, expenses
and costs (including reasonable fees and
disbursements of legal counsel and
5
accountants), bodily and other personal
injuries, damage to tangible property, and
other damages , of any kind or nature, suffered
or incurred by a City lndemnitee directly or
indirectly arising from or related to : ( 1) any
negligent or intentional act or omission by
Contractor or its representatives in the
performance of Contractor's obligations under
this Agreement , or (2) any material breach in a
representation, warranty, covenant or
obligation of Contractor contained in this
Agreement.
(b) Infringement. Contractor will
indemnify, defend, and hold City harmless from
all lndemnifiable Losses arising from any third
party claims that any Work Product or
methodology supplied by Contractor infringes
or misappropriates any Intellectual Property
rights of any third party; provided , however,
that the foregoing indemnification obligation
shall not apply to any alleged infringement or
misappropriation based on : (1) use of the
Work Product in combination with products or
services not provided by Contra ctor to the
extent that such infringement or
misappropriation would have been avoided if
such other products or services had not been
used; (2) any modification or enhancement to
the Work Product made by City or anyone
other than Contractor or its subcontractors; or
(3) use of the Work Product other than as
perm itted under this Agreement.
(c) Indemnification Procedures.
Notwith -sta nd i ng anything e lse con ta ined in
this A g ree me nt, no obl igation to indemnify
which is set forth in this Section 14 shall apply
unless the party claiming indemnification
notifies the other party as soon as practicable
to avoid any prejudice in the claim, suit or
proceeding of any matters in respect of which
the indemnity may apply and of which the
notifying party has knowledge and gives the
other party the opportunity to control the
response thereto and the defense thereof;
provided, however, that the party claiming
indemnification shall have the right to
participate in any legal proceedings to contest
and defend a claim for indemnification
involving a third party and to be represented by
its own attorneys , all at such party's cost and
expense ; provided further , however, that no
settlement or compromise of an asserted third-
party claim other than the paymenUmoney may
be made without the prior written consent of
the party claiming indemnification .
(d) Immunity. City, its officers, and its
employees , are relying on , and do not waive or
intend to waive by any provision of this
Agreement, the monetary limitations or any
other rights, immunities, and protections
provided by the Colorado Governmental
Immunity Act, C.R.S. 24-10-101 et seq., as
from time to time amended, or otherwise
available to City, its officers, or its employees.
15. Insurance.
(a) Requirements. Contractor agrees
to keep in full force and effect and maintain at
its sole cost and expense the following policies
of insurance during the term of this Agreement:
( 1) Statutory Worker's
Compensation, including occupational disease ,
in accordance w ith law.
(2) Commercial General Liabi lity
Insurance (includ ing contractual liability
insurance) providing coverage for bodily injury
and property damage with a combined single
limit of not less than three million dollars
($3 ,000 ,000) per occurrence.
(3) Professional Liability/Errors and
Omi ssions Insurance covering acts , errors and
om1ss1ons arising out of Contractor's
op eratio ns or Service s in an a mou nt not les s
than one million do ll ars ($1,000,000) per
occurrence.
(4) Employee Dishonesty and
Computer Fraud Insurance covering losses
arising out of or in connection with any
fraudulent or dishonest acts committed by
Contractor personnel, acting alone or with
others, in an amount not less than one million
dollars ($1,000,000) per occurrence .
(b) Approved Companies. All such
insurance shall be procured with such
insurance companies of good standing ,
permitted to do business in the country, state
6
(
or territory where the Services are being
performed .
(c) Certificates. Contractor shall
provide City with certificates of insurance
evidencing compliance with this Section 15
(including evidence of renewal of insurance)
signed by authorized representatives of the
respective carriers fo r each year that this
Agreement is in effect. Each certificate of
insurance shall provide that the issuing
company shall not cancel, reduce , or otherwise
materially change the insurance afforded under
the above policies unless thirty (30) days '
notice of such cancellation, reduction or
material change has been provided to City.
16. Rights in Work Product.
(a) Generally. Except as specifically
agreed to the contrary in any Statement of
Work , all Intellectual Property Rights in and to
the Work Product produced or provided by
Contractor under any Statement of Work shall
remain the property of Contractor. With respect
to the Work Product, Contractor
unconditionally and irrevocably grants to City
during the term of such Intellectual Property
Rights , a non-exclusive , irrevocable , perpetual ,
worldwide , fully paid and royalty-free license ,
to reproduce , create derivative works of,
di stribute , publicly perform and publicly display
by a ll mean s now known or later developed ,
such Inte ll ect ual prop e rty Rights .
(b) Know-How . Notw ith sta nd ing
anything to the contrary herein, each party and
its respective personnel and contractors shall
be free to use and employ its and their general
skills, know-how, and expertise, and to use,
disclose, and employ any generalized ideas,
concepts, know-how, methods, techniques, or
skills gained or learned during the course of
any assignment, so long as it or they acquire
and apply such information without disclosure
of any Confidential Information of the other
party .
17. Relationship of Parties. Contractor is
acting only as an independent contractor and
does not undertake, by this Agreement, any
Statement of Work or otherwise, to perform
any obligation of City, whether regulatory or
contractual, or to assume any responsibility for
City 's business or operations. Neither party
shall act or represent itself, directly or by
implication , as an agent of the other, except as
expressly authorized in a Statement of Work .
18 . Complete Agreement . This
Agreement contains the entire agreement
between the parties hereto with respect to the
matters covered herein .
19. Applicable Law. Contractor shall
comply with all applicable laws in performing
Services but shall be held harmless for
violation of any governmental procurement
regulation to which it may be subject but to
which reference is not made in the applicable
Statement of Work. This Agreement shall be
construed in accordance with the laws of the
State of Colorado. Any action or proceeding
brought to interpret or enforce the provisions of
this Agreement shall be brought before the
state or federal court situated in Arapahoe
County, Colorado and each party hereto
consents to jurisdict ion and venue before such
courts .
20. Scope of Agreement. If the scope of
any provisions of this Agreement is too broad
in any respect whatsoever to perm it
enforcement to its fullest extent, then such
provision shall be enforced to the maximum
extent permitted by law, and the parties hereto
consent to and agree that such scope may be
judic ially mod ifi ed accord ingly and that the
whole of such prov ision of th is Agreement shall
not there by fail, but that t he sc ope of such
provision shall be curtailed only to the extent
necessary to conform to law .
21. Add itiona l Wo r k. After receipt of a
Statement of Work, City, with Contractor's
consent, may request Contractor to undertake
additional work with respect to such Statement
of Work . In such event, City and Contractor
shall execute an addendum to the Statement
of Work specifying such additional work and
the compensation to be paid to Contractor for
such additional work.
22. Subcontractors. Contractor may not
subcontract any of the Services to be provided
hereunder without the prior written consent of
7
City . In the event of any permitted
subcontracting, the agreement with such third
party shall provide that, with respect to the
subcontracted work, such subcontractor shall
be subject to all of the obligations of Contractor
specified in this Agreement.
23. Notices. Any notice provided pursuant
to this Agreement shall be in writing to the
parties at the addresses set forth below and
shall be deemed given (1) if by hand delivery,
upon receipt thereof, (2) three (3) days after
deposit in the United States mails, postage
prepaid, certified mail, return receipt requested
or (3) one (1) day after deposit with a
nationally-recognized overnight courier,
specifying overnight priority delivery. Either
party may change its address for purposes of
this Agreement at any time by giving written
notice of such change to the other party
hereto .
24. Assignment. This Agreement may not
be assigned by Contractor without the prior
written consent of City . Except for the
prohibition of an assignment contained in the
preceding sentence , this Agreement shall be
binding upon and inure to the benefit of the
heirs, successors and assigns of the parties
hereto .
25. Third Party Beneficiaries. This
Agreement is entered into solely for the benefit
of the parties hereto and shall not confer any
rights upon any person or ent ity not a party to
this Agreement.
26. Headings . The section headings in
this Agreement are solely for convenience and
shall not be considered in its interpretation .
The recitals set forth on the first page of this
Agreement are incorporated into the body of
this Agreement. The exhibits referred to
throughout this Agreement and any Statement
of Work prepared in conformance with this
Agreement are incorporated into this
Agreement.
27. Wai ver. The failure of either party at
any time to require performance by the other
party of any provision of this Agreement shall
not effect in any way the full right to requ ire
such performance at any subsequent time ; nor
shall the waiver by either party of a breach of
any provision of this Agreement be taken or
held to be a waiver of the provision itself.
28. Force Majeure. If performance by
Contractor of any service or obligation under
this Agreement is prevented, restricted ,
delayed or interfered with by reason of labor
disputes, strikes, acts of God, floods, lightning,
severe weather, shortages of materials,
rationing, utility or communications failures,
earthquakes, war, revolution, civil commotion,
acts of public enemies, blockade, embargo or
any law, order, proclamation, regulation,
ordinance, demand or requirement having
legal effect of any governmental or judicial
authority or representative of any such
government, or any other act whether similar
or dissimilar to those referred to in this clause,
which are beyond the reasonable control of
Contractor, then Contractor shall be excused
from such performance to the extent of such
prevention, restriction, delay or interference. If
the period of such delay exceeds thirty (30)
days , City may , without liability , terminate the
affected Statement of Work(s) upon written
notice to Contractor.
29. Time of Performance. Time is
expressly made of the essence with respect to
each and every term and provision of this
Agreement.
30. Permits. Contractor shall at its own
expense secure any and all licenses , perm its
or cert ificates that may be required by any
federal , state or local st atute , ord inance or
regulation fo r the performance of th e Services
under the Agreement. Contractor shall also
comply with the provisions of all Applicable
Laws in performing the Services under the
Agreement. At its own expense and at no cost
to City, Contractor shall make an y change,
alteration or modification tha t ma y be
necessary to comply with any Applicab le Laws
that Contractor failed to comply with at the time
of performance of the Services .
31. Med ia Rel eases. Except for any
announcement intended solely for internal
distribution by Contractor or any disclosure
required by legal , accounting , or regulatory
requirements beyond the reasonable control of
Contractor, all media releases, public
announcements , or public disclosures
(including , but not limited to , promotional or
marketing material) by Contractor or its
employees or agents relating to this
Agreement or its subject matter, or including
the name, trade mark, or symbol of City , shall
be coordinated with and approved in writing by
City prior to the release thereof. Contractor
shall not represent directly or indirectly that any
Services provided by Contractor to City has
been approved or endorsed by City or include
the name, trade mark, or symbol of City on a
list of Contractor's customers without City 's
express written consent.
32. Nonexclusive Market and Purchase
Rights. It is expressly understood and agreed
that this Agreement does not grant to
Contractor an exclusive right to provide to City
any or all of the Services and shall not prevent
City from acquiring from other suppliers
services similar to the Services . Contractor
agrees that acquisitions by City pursuant to
this Agreement shall neither restrict the right of
City to cease acquiring nor require City to
continue any level of such acquisitions .
Estimates or forecasts furnished by City to
Contractor prior to or during the term of this
Agreement shall not constitute commitments .
33. Survival. The provisions of Sections 5,
8(g}, 10, 11, 13 , 14 , 16, 17, 19 , 23 , 25 and 31
shall survive any expiration or termination for
any reason of this Agreement.
34. VARIFICATION OF COMPLIANCE WITH
C.R.S. 8-17.5-101 ET.SEQ. REGARDING
ILLEGAL ALIENS
{a) Employe es , Contractors and
Subcontractors : Contractor shall not
knowingly employ or contract with an illegal
alien to perform work under this Contract.
Contractor shall not contract with a
subcontractor that (i) knowingly employs or
contracts with an illegal alien to perform work
under th is Contract or (ii) fails to certify to the
Contractor that the subcontractor will not
knowingly employ or contract with an illegal
alien to perform work under this Contract.
[CRS 8-17 .5-102(2)(a)(I) & (II).]
{b) Verification: Contractor has
verified or attempted to verify through
participation in the "basic pilot program "
(authorized by P .L.204 of 1041h Congress and
amended by P.L.156 of 1081h Congress) that
Contractor does not employ any illegal aliens.
And , if not accepted into the "basic pilot
program " prior to entering into this Contract ,
Contractor further verifies , Contractor will apply
to participate in the "basic pilot program" every
three months until Contractor is accepted or
this Contract is completed, whichever is earlier.
[CRS 8-17 .5-102(2)(b)(I).]
{c) Limitation Regarding the
"Basic Pilot Program": Contractor shall not
use basic pilot program procedures to
undertake pre-employment screening of job
applicants while performing this Contract. CRS
8-17 .5-102(2)(b )(II).]
{d) Duty to Terminate a
Subcontract: If Contractor obtains actual
knowledge that a subcontractor performing
work under this Contract knowingly employs or
contracts with an illegal alien , the Contractor
shall;
(1) notify the subcontractor and
the City within three days that the
Contractor has actual knowledge that
the subcontractor is employing or
contracting with an illegal alien ; and
(2) terminate the subcontract
with the subcontractor if, within three
days of receiving notice that the
Contractor has actual knowledge that
the subcontractor is employing or
contracting with an illegal alien, the
subcontractor does not stop employing
or contracting with the illegal alien .
CRS 8-17 .5-102(2)(b){lll)(A) & (B).]
(3) Exception : If the
subcontractor provides information to
establish that the subcontractor has not
knowingly employed or contracted with
an illegal alien and the subcontractor
stops employing or contracting with the
illegal alien .
9
{e) Duty to Comply with State
Investigation: Contractor shall comply with
any reasonable request of the Colorado
Department of Labor and Employment made in
the course of an investigation pursuant to
C.R.S. 8-17.5-102 (5). CRS 8-17.5-
102(2)(b )(IV).]
{f) Damages for Breach of Contract:
The City may terminate this contract for a
breach of contract, in whole or in part, due to
Contractor's breach of any section of this
paragraph. Contractor shall be liable for
actual and consequential damages to the City
in addition to any other legal or equitable
remedy the City may be entitled to for a breach
of this Contract.
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be executed by their
authorized officers as of the day and year first above written. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
CITY OF ENGLEWOOD, COLORADO
By:---------------
Community Development Manager
ATTEST:
City Clerk
TACITO DESIGN, INC.
5655 South Yosemite Street, Suite 201
Greenwo Village, ado 80111
I Schedule A
August 28. 2006
Bob Simpson
Director of Community Development
City of Englewood
1000 Englewood Parkway
Englewood, Colorado 80110
i
Re : City of Englewood, Colorado/Sign Code Update/Revised Proposal
"Schedule A Stateme nt of Work"
Reference : City of Englewood Professional Services Agreement . dated 08 .28 .06
Dear Bob .
TACITO DESIGN INC
5655 SOUTH YOSEMITE STREET
SUITE 101
GREENWOOD VILLAGE , COLORADO 80111
303 .850 .9315 FAX
303 .850 .9197 VOICE
Thank you for the opportunity to submit our propo sal to create a sign cr it eri a for this project.
Proje ct Coordinators shall be : Robert W. Gnaegy/T a Cito De si gn , Inc . & Tricia Langon/City of Englewood .
Our scope of services & fees are detailed below .
Scope of Services
Preliminary Design / Phase 1
Review current Eng lewood Sign Code for successes & challenges
Review & provid e good examples of signs codes from other mu nicipalities
Meet with Client Team to review the following topics :
Re view incentives available to City for offer to bu sinesses pursuing creative signs
Review applicable secti ons of Amer icans with Disabi lit ies Act relat ive to project
Consider incl usion of architectural embelli shment in sign code
Consider inclusion of public art in sign code
Consider inclusion of new electronic . dynamic si gnage technolog ies in sign code
Review applicability of sign code to various areas of Englewood to make code more location -
specific with regard to size . building type & vehicular speed
Meet with Client Team to review work to date & review goals of Update
Prepare outline of si gn code update, without illu strat ions
Des ign Development/ Phase 2
Prepare for & facilitiate one meeting with sign fabrication & installation industry representatives
glean ideas for cost -effective sign code requirements from their review
of the sign code outline prepared in Phase 1 above
Attend one meeting with Alliance for Commerce in Englewood to solicit input on sign code outl ine
Prepare summary reports on above meetings
Meet ings . telephone . email & coordination
Documentation/ Phase 3
Prepare outline of findings from above code analysis . meetings & research
include specific recommendations
Me etings . telephone . email & coordination
GRAPHIC OCSIG N
CNYIHON MCN TAL GO,HICS
WCI OCSIGN
SIGNAG I SYSTt MS
TaCito Des ign Inc
City of Englewood , Colorado/Sign Code Update/Rev ise d Proposal
Signage Design & Documentation Services Proposal
August 28. 2006
Page 2
Compensation
TACITO DESIGN INC
5655 SOUTH YOSEMITE STREET
SUITE 201
GREENWOOD VILLAGE , COLORADO 80111
303 .850 .9315 FAX
303 .850 .9197 VOICE
TaCito Design , Inc . will complete the entire scope of work defined in this proposal for fees as outlined in the
Cost Summary below . Should th is scope of work change significantly, we will revise this proposal accordingly .
This fee is based on our standard hourly rates & we have estimated the number of hours we project to
complete the work. This is a top -set fee & will not be exceeded without prior client approval.
Reimbursable Expenses
Reimbursable expenses . outlined in the Cost Summary below . will include items such as color , large format &/or
high -resolution computer output . blueline pr ints, photography , fabrication &/or installation, long distance
telephone calls , postage , express mailings & travel expenses . These expen ses will be billed at cost plus 20%.
Fabrication &/or installation shall be provided by a subcontractor. Prototype signs . if required, will be billed
in addition.
Terms
Due to the custom nature of our services, a signe d copy of this proposal, along with a deposit in the amount of
25%. outlined below , of our total de sign fee , are requested to begin work. We will commence work
immediately upon receipt of these items .
Design fee deposit (25% of total design feel $4.787 .50
Cost Summary
Design fee
Reimbursable design expenses
Total
Assumptions
In preparing this proposal. we have assumed that we will receive from the client. at no cost. all pertinent
documents in hard copy & .pdf digital file format.
Please note that the costs of reproduction of completed sign criteria are not inc luded in this proposal.
$19 ,150 .00
250 .00
$19.400 .00
All serv ices & expenses will be billed as completed or incurred & are due within 15 days of the date of invoice.
A charge of 2% per month will be added to all invoices not paid within 15 days .
Applicable Law
This agreement will be governed by the laws of the State of Colorado without giving effect to any conflict of
law principles .
GRAP HIC DESIGN
lNVIRONMENTAl GRA PHICS
WCI O SIGN
SI NAG£ SVSHMS
PAC AGING
TaCito Design Inc
TACITO DESIGN INC
5655 SOUTH YOSEMITE STREET
SUITE 201
GREENWOOO VILLAGE, COLOR AD O 80111
303.850 .9315 FAX
303 .850 .9197 VOICE
City of Englewood , Colorado/Sign Code Update/Revised Proposal
Signage Design & Documentat ion Services Proposal
August 28 . 2006
Page 3
Schedule & Performance Milestones
It is estimated that this work will be complete within six months of receipt of a signed contract & notice to
proceed from the City of Englewood.
Cancellation
Either party may terminate this agreement upon five days written notice to the other party , sent via registered
mail. In the event of termination , TaCito Design, Inc . shall be paid all fees & costs incurred as of the date of
termination, according to the terms outlined above .
Approval
If this proposal meets with your approval & acceptance, please sign in the space provided below & return one
copy to our office . We look forward to working with you on this project.
Sincerely,
Ta Cito Design , Inc .
Robert W. Gnaegy
Corporate Secretary
GRAPHIC DESIGN
ENVIRONMENTAL GRAPHICS
WEB DESIGN
SIGNAGE SYSTEMS
PACKAGING
Approved & accepted.
City of Englewood, Colorado
Authorized Signature
Printed name
Date
l
SCHEDULE A
Substantially all of the work will be conducted by Contractor at its regular office located in Green VI ,d
Village, Colorado .
City will provide the City office space and support as it agrees may be appropriate, at its CivicCenter
facility.
IN WITNESS WHEREOF, pursuant and in accordance with the Professional Services Agreement
between the parties hereto dated August 28, 2006, the parties have executed this Statement of Work
as of this 29 1h day of August, 2006 .
CITY OF ENGLEWOOD, COLORADO
By : ___________ _
Title : Community Development Manager
TACITO DESIGN~
By~
Title : Corporate Secretary
(
COUNCIL COMMUNICATION
Date: Agenda Item:
September 5, 2006 11 c ii
Initiated By:
Department of Parks and Recreation
Subject:
Cushing Park Pedestrian Bridge
Staff Source:
Jerrell Black, Director of Parks and Recreation
Mark Kottwitz, Parks Supervisor
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
There has been no previous Council action on this issue.
RECOMMENDED ACTION
The Parks and Recreation Department recommends that Council approve, by Motion, a bid for the
purchase and installation of a manufactured pedestrian bridge in Cushing Park. Staff recommends
awarding the contract to the lowest bidder, Milestone Construction, in the amount of $74,890.
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
In November of 2005, the Parks Department discovered a major crack in the south concrete
abutment supporting the pedestrian bridge over the pond in Cushing Park. After a detailed
engineering inspection, it was recommended that the bridge and abutments be replaced due to
safety concerns.
Surveying, soil testing and new designs for a bridge and abutments were completed earlier this year.
In order to complete construction of the bridge and abutments, the pond has to remain dry. By
ea rly spring Parks staff was forced to fill the pond in order to irrigate the park. The bridge proj ec t
was put o n hold until fall so th at the park could continu e to be irrigated .
The bridge replacement coincides with the Parks Master Plan.
FINANCIAL IMPACT
If approved, funds for the emergency replacement of th e bridge in Cushing Park will be expended
from th e Open Space Fund.
LIST OF ATTACHMENTS
Invitation to Bid
Addendum Number 1
Bid Proposal Tabulation
Bid Recommendation Memorandums
CITY 0 F
{'
ENGLEWOOD
REQUEST NO. ITB-06-125
DATE : May 24, 2006
INVITATION TO BID
Pedestrian Bridge & Installation
The City of Englewood will receive sealed bids for supplying "Pedestrian Bridge & Installation"
as per specifications no later than 10:00 A.M. prevailing time, June 29, 2006. Bids will be received
at the office of the Purchasing Division, 2800 South Platte River Drive, Englewood, Colorado
80110-1407.
Bidding firms are asked to mark envelope "Pedestrian Bridge & Installation" in lower left hand
comer with the Bid #ITB-06-125 shown on the front of the envelope in which the bid is
submitted . The City of Englewood assumes no responsibility for unmarked envelopes being
considered for award . If City offices are closed due to inclement weather, an amendment will be
issued with a new date, time and address of the bid opening.
The City of Englewood is exempt from all federal, state, and local taxes.
At time , date , and place above , bids will be publicly opened and read out loud . Late bids will not be
accepted under any circumstance , and any bid so received shall be returned to the bidding firm
unopened . In add ition , te legraph ic and/or bids se nt by electronic devices are not acceptable and will
be rejected upo n receipt. Bidd ing fi rm s will be expected to allow adequate time for delivery of their
bid either by air freigh t, postal se rv ice, or other mea ns . Biddi ng firms are inv ited to , but not required
to attend the bid opening.
The City of Englewood has contracted with BidNet and has begun utilizing a central bid notification
system created for the City of Englewood . This new system will allow vendors to register online and
receive notification of new bids, amendments and awards. If you do not have internet access,
please call the BidNet support group at (800) 677-1997 exte nsion #21 4 or th e City of Engl ewood
Procurement Division at (303) 762-2393. Vendors with internet access s hould revie w the
registration options at the following website :
http:l/www.govbids.com/scripts/co1/publ ic/i nfo/re goptio ns.as p .
MANDATORY PRE-BID CONFERENCE
The Owner will conduct a Mandatory Pre-Bid Conference at 10:00 A.M . on June 20, 2006 .
Any questions wh ich , in the opinion of the Owner, cannot be answered by direct reference to the
Bidding documents will be answered by formal written Amendment, which must be
acknowledged on the Proposal. The Mandatory Pre-Bid Conference will include a tour of the
site of the work conducted by representatives of the Owner. All interested parties are invited to
attend . Contractors who do not attend the Mandatory Pre-Bid Conference will not be allowed to
submit a Bid . Should a Contractor who did not attend the Mandatory Pre-Bid Conference,
submit a bid it will be returned unopened . The Mandatory Pre-Bid Conference will be conducted
at the City of Englewood 's Cushing Park, Englewood, CO 80110-1407 .
All material submitted in connection with this bid becomes the property of the City of Englewood.
Any and all bids received by the City shall become public record and shall be open to public
inspection after the award of a contract, except to the extent the bidding entity designates trade
secrets or other proprietary data to be confidential.
Any questions or clarifications concerning this bid shall be submitted in writing by mail or facsimile
(303) 783-6951 to the City of Englewood, Procurement Division, 2800 S. Platte River Drive,
Englewood, CO 80110-1407. The bid title and number should be referenced on all correspondence.
All questions must be received no later than seven (7) calendar days prior to the scheduled bid
opening date . All responses to questions/clarifications will be listed on the BidNet address as listed
above as an addendum. The City will not be bound nor responsible for any explanations or
interpretations other than those given in writing as set forth in this invitation for bid. No oral
interpretations shall be binding on the City .
The successful bidding entity agrees to comply with all applicable Federal , State, County and City
laws, ordinances, rules and regulations that in any manner affect the items covered herein and
agrees to secure all necessary licenses and permits in connection with this invitation and any goods
or services to be provided .
Where bidding entities are required to enter City of Englewood property to del iver mate ri als or
perform work or services as a result of an award, the entity will assume the obligation and expense
of obtaining all necessary licenses , permits and insurance. The bidding entity shall be required to
have property, liab ility, and workers compensation insurance with minimum limits of $1 ,000,000 .00
and to provide the City with copies of the certificate of insurance upon reque st.
The successful bidding entity will not discriminate against any employee or applicant for
employment because of race, color, religion, sex or national origin and will comply with the
Americans with Disabilities Act. The successful bidding entity shall adhere to acceptable affirmative
action guidelines in selecting employees and shall ensure that employees are treated during
employment, without regard to their race, color, religion, sex or national origin. Such action shall
incl ude, but not be limited to, the following : employment, upgrading, demotion, or transfer,
recr uitme nt or recr uitmen t advertisi ng; layoff or termination, rates of pay or other forms or
com pensation; and se lection for training, including appre nticeship.
BIDDERS MUST SUBMIT PROPOSALS ON THE ATTACHED BID PROPOSAL FORM AND
SUBMIT THRE E (3) COPI ES FOR EVALUAT ION PURPOSES .
/
THE BIDDING ENTITY IS REQUIRED TO PROVIDE A STATEMENT WITH THE BIO
INDICATING THAT THE ITEMS WILL BE DELIVERED IN ACCORDANCE WITH THE
INVITATION TO BIO.
The City of Englewood shall have the right to reject any or all bids, and to waive any informalities or
irregularities therein and request new bids when required. In addition, the City reserves the right to
accept the bid deemed most advantageous to the best interest of the City. Any award made in
response to this Invitation to Bid will be made to that responsible bidding entity whose offer will
technically be most advantageous to the City -price, delivery, estimated cost of transportation, and
other factors considered . The option of selecting a partial or complete bid shall be at the discretion
of the City of Englewood .
Bidding entities shall contact Don Clarke, Purchasing Administrator, Procurement Division,
telephone (303) 762-2392 on any questions relating to the Request for Bid and Minimum
Specifications.
Don Clarke
Purchasing Administrator
City of Englewood, CO
GENERAL INFORMATION
Pedestrian Bridge & Installation
The City of Englewood is requesting bids for the purchase and installation of a pedestrian
bridge including abutments . The work is to provide the pedestrian bridge , unload the bridge and
install abutments. The pedestrian bridge shall consist of a 32 ' 2" long, single -span fabricated
steel bridge with a pre -cast concrete deck spanning between cast-in -place concrete abutment
walls .
The pedestrian bridge will cross a small pond in Cushing Park. The Park is located at the corner
of Dartmouth and S. Inca, Englewood, CO. The pond is used for irrigation in the summer
months , and will be dra ined prior to the work.
The contractor must perform all actions necessary to purchase and install the bridge at the site
and will furnish all labor, materials, equipment and permits necessary to complete the job. All
work must be completed by December 15, 2006.
The Successful Contractor shall furnish all supervision, personnel , labor, machinery, tools,
equipment and services necessary to perform and complete all work required for the
construction of the Pedestrian Bridge referencing the documents included as part of the
solicitation .
The project will require the replacement of the entire abutments and wing-walls to meet the
specifications . Fabricate and install abutments and provide for correct elevations and distances
and restore the work site to existing conditions prior to leaving site after completing the work
The successful Contractor will coordinate delivery with manufacturer, off-load bridge at the site
and comply with manufacturer's requirements for unloading, lifting, and placement. Contractor
shall coordinate with the shipper, delivery and will provide a crane for off-loading .
All work performed under this solicitation and attached documents and drawings, will be
performed in a manner that will protect the public and workers during the construction and
comply with all applicable laws and regulations .
The bridge supplier shall be the designer and fabricator of the bridge and shall not assign ,
sublet, or subcontract any part of the bridge fabricat ion .
Warranty : The manufacturer shall provide a warranty against defects in material and
workmanship for a period of ten years .
Suggested Manufacturers :
1. Continental Bridges
2. Big "R " Manufacturing
3. Excel Bridges
4. Wheeler Consolidated , Inc.
5. Steadfast Bridges
1-800 -328 -204 7
1-800-234-0734
1-800-548-0054
1-800-328-3986
1-800 -749 -7515
The following Adobe files are Included as part of this bid package:
IFB-06-123 Soils Test
IFB-06-123 Layout and grading plan
IFB-06-123 Drawings S-1, S-2, & S-3
IFB-06-123 Technical specifications
There is a 5% bid bond required for this project. Each Bid shall be accompanied by an
appropriate guarantee in the form of a Bid Bond , Certified Check or Cashier's Check made
payable to the City of Englewood in a amount of not less that 5% of the bid amount.
The successful bidder upon Notice of Award will execute the contract and provide insurance
certificates to the City of Englewood .
Access to area: Access to the area will be marked off by the Project Manager prior to the
beginning of work. The Project Manager for this project is Mark Kottwitz, Parks Supervisor,
Englewood Parks & Recreation Department. Mark can be reached at his office (303) 762-2541
or by cellular phone (303) 944-0524.
Closing of area: Since the project area is used for passage on foot, the Contractor shall be
responsible for scheduling his/her work in such a manner that safe passage for pedestrians is
provided and the work area be temporarily closed off. Approved signs and safety fencing shall
be furnished, placed and maintained by the Contractor at such points as designated by the
Project Manager.
The project w ill require a site-plan, permit application , and payment of Use Tax. Permit and
Plan review fees are waived by C ity Ordinance. The Contractor will be required to have a City
License and pay fees based on the license type . Contact the City of Englewood , Building &
Safety Department for details i::egarding perm its & licensing.
The Contractor shall be responsible for any sub-contractor brought in by the Contractor and
insure all sub-contractors comply with all insurance & licensing requirements .
CONSTRUCTION SHALL OCCUR NO SOONER THAN OCTOBER 9, 2006: All work shall be
made in accordance with good commercial practice and shall be adhered to by the successful
Contractor(s), ex cept in such cases where the delivery will be delayed due to acts of God ,
strikes , or othe r causes beyond the control of the Contractor. In these cases , the Contractor
shall notify th e City of t he delays in a dvance of the delivery date so th at a revised schedule can
be negotiated.
Proposal Requirements
1. Firm Qualifications
The proposing firm must provide a description of t he firm including the size, range of activ ities,
abilities and experience of the firms' professional personnel. Capabili t ies of the firm t o meet t he
time requirements of the City, past performance of the firm on similar projects, recent, c urrent
and projected workload of the firm, ability to meet the City's insurance requirements, financial
strength and stability of the firm, avai lability and access to the firms' top level management
personnel.
A lis ting s ho uld b e provided o f a ll s ub -co ntra c to rs and addi ti o nal q ual ifi ca ti o n informatio n should
be provide d as to the expe r ience of th e firm th at will co nstruc t the con cre te work and park
shelte r. Iden tify the co ntact person nd supervisory perso nn e l who will work on the proj ect.
Re s um es o f eac h person s h o uld be p rovi de d with e mphasis on th ei r expe ri e nce with similar
work.
Prov id e a list a nd desc rip t io n of sim ila r projects sa t is facto rily p rfo rmed w ith the past two (2)
yea rs . For eac h project lis te d, i nc lu e th e name a nd te lep ho n e numbe r o f a repres e nta t ive fo r
wh o m th e proj ec t w as un dertake n th at ca n veri fy sa t is factory pe rfo rm a nce .
2 . Pri ce Pr oposa l
BIDDERS MUST SUBMIT PROPOSALS ON THE ATIACHED BID PROPOSAL FORM AND
SUBMIT THREE (3) COPIES FOR EVALUATION PURPOSES .
Submit you r signed, firm fix e d pri c e proposal fo r providing a ll se rvi ce s, labo r , ma teri als.
eq uipment and o th e r se rvi ces and supp li es necessary and incidenta l fo r constru cti o n with y o ur
proposal. Please provide two lump sum pri ci ng s tru c tures:
1 . Pri ce o f the bridge
2 . Price fo r th e constru ction /instal lation of the bridge .
ITEM
NO . DESCRIPTION
1. Manufactured bridge
BID PROPOSAL #ITB-06-125
Pedestrian Bridge & Installation
2. Construction/installation of the bridge
Lump sum
Lump sum
TOTAL BID
BID
PRICE
$. ____ _
$. ____ _
$. ____ _
Each Proposing Firm shall determine prior to submitting a Bid that they have received all
Addenda issued, and will acknowledge the receipt on this bid proposal form . Receipt of copies
of the following amendment(s) is (are) hereby acknowledged:
Addendum (s) No. Date Acknowledged
There is a 5% bid bond required for this project. Bid bond attached Yes_ No_
Does your company accept payment in the form of a credit card? Yes_ No_
Estimated date of delivery _________________ _
ALL MATERIAL F.O.B. CITY OF ENGLEWOOD
Cushing Park
Englewood , CO 80110
Invoice Terms:--------Price quote firm for 120 days.
EXCEPTIONS:----------------------
By : _________________________ _
Name (Pl eas e p r int) Date
Signature
Title
Co mp a ny
Address
Te lephone# Fax#
'' CITY 0 F ENGLEWOOD
PURCHASING DIVISION
ADDENDUM NO. 1
Invitation to Bid #ITB-06-125
Pedestrian Bridge & Installation
June 27, 2006
This amendment revises the Invitation for Bid to answer questions received and to change the
date of the bid opening . This Solicitation is changed and clarified as follows:
THE DATE AND TIME FOR RECEIPT OF BIDS HAS BEEN CHANGED TO 10:00 A.M .
PREVAILING TIME, July 61 2006.
Change paragraph 1, page 1 to read :
The City of Englewood will receive sealed bids for supplying "Pedestrian Bridge & Installation"
as per specifications no later than 10 :00 A.M . prevailing time, ,hi1F1s •Q , •QQi July 6, 2006. Bids will
be received at the office of the Purchasing Division, 2800 South Platte River Drive, Englewood ,
Colorado 80110-1407.
Questions received prior to the deadline date of June 22, 2006
Question : How are fees determ ined for t he Use Tax that the successful contractor will have to
pa y? Is th is is a pe rcent of the entire job c ost? [Reference pg . 4 of the General Information].
Answer: Fees are li sted on the City's web si te at: englewoodgov.org Under "Inside City
Hall/Safety Se rvi ces/Bui ldi ng and Safe ty D iv isio n/Pe rmit Fe es (3.5% on one-half the total
valuation). Contact the Building and Safety Division for additional details.
Question : Can the wing wall hand rails be of the same self weathering material that the bridge
ma nufa cturer uses for the bridge handrails ? [Reference General Notes , Sht. S2, note 6 C].
A nswer: The wingwall railings are specified to be painted in order to prevent st aining of t he
w ingwall concrete surfaces . These requirements are not changed . At the cont ractor's o ption, it
is acceptable to use the same self-weathering stee l materials for the wingwall railings as on the
bridge guardrail, except the wingwall railings will still need to be surface-prepared , s hop primed
a nd pai nted per the requirements of the General Notes on Sht. S2 .
2800 So . Platte River Drive, Englewood , Colorado 80110-1407 Ph (303) 762-2393 Fax (303) 783-6951
www .englewoodgov.org
Question: At the wing wall tie-in to the existing rock wall, due to the 5' depth of excavation
below the bottom of the existing wall, (7' below top of wall), will the successful contractor be able
to pour a 2' high concrete wall to replace the rock wall? This excavation cannot be safely
accomplished and allow room to form and pour the foundation floor of the abutment. [Reference
Detail D/S-3)
Answer: It will still be required to protect and maintain the existing grouted stone walls. It is the
intent to match up with the front face of these existing walls, and to not disturb any additional
wall lengths beyond the sawcut tie-in points shown on the drawings. However, in order to help
accomplish this, Sheets S 1 and S2 of the Drawings have been revised with the ends of the
walls and keyways tapered in order to allow sloped excavations at the ends of the existing stone
walls. If these tapered areas are still not enough assistance, then the contractor will be required
to design and construct temporary shoring as necessary to protect and maintain the existing
stone walls. The revised Sheets S1 and S2 are enclosed with the revisions bubbled and
denoted with Addendum No. 1. The approximate location of the waterline at the northwest
comer of the bridge and a clarification on the required temporary shoring have also been added
to Sheet S1.
Please see additional drawings labeled ITB-06-125 Mod Drawing S1 S2
All other terms, conditions and specifications remain unchanged for Invitation to Bid #ITB-
06-125.
Don Clarke
Purchasing Administrator
2800 So . Pl tte River Drive, Englewood , Color do 80110-1407 Ph (303) 762-2393 Fax (303) 783-6951
www.englewoodgov .org
Jlewood B i d Tabulation Sheet
Bid Opening: July 6, 2006 10:00 a.m.
ITEM BIO: IFB-06-125 Cushing Park Bridge
Addendum Pcards
Vendor Y/N Y/N Bri dge
M il estone Construction
Paul 303-936-3838 y N $ 20 ,412 .00
3237 W Hampden
Englewood, CO 80111
Strakholm Construction
Whitey 303-762-9522 y N $ 23 ,632 .00
3300 S Zuni St
Englewood, CO 80110
MLL, Inc
Jerry 303-425-5889 y N $ 21,000 .00
665 Moss St
Golden, CO 80125
Asian Construction $ -
Travis 970-593-9669
640 E Eisenhower STE 2
Loveland, CO 80537
RG Construction $ -
Crala 303-901-2368
133117th St STE 710
Denver, CO 80202
Concrete Express $ -
Mike 303-562-2000
2027 W Colfax Ave
Denver, CO 80204
Breiner Constuction $ -
Jim 303-322-9943
1400 Oneida St
Denver, CO 80220
New Design Construction $ -
Christine 303-286-8500
2350 E 70th Ave
Denver, CO 80229
r :J
Bridge
Installation Total Bid Exceptions:
$ 54 ,478 .00 $ 74,890.00 See Bid Documents
$ 112,318 .00 $ 135,950.00 See Bid Documents
$ 82 ,155.00 $ 103 ,155.00 Addition error, submitted a total of $107 ,775.00
See Bid Documents
$ -$ -
NOBID
$ -$ -
NOBID
$ -$ -
NOBID
$ -$ -
NOBID
$ -$ -
NOBID
ITB-06 -125Cu shi ng Bri dge TAB .xis
TO:
FROM:
Dave Lee, Open Space Manager
Mark Kottwitz, Parks Supervisor
SUBJECT: Cushing Park Bridge Bid Recommendation
Date: August 9, 2006
In November 2005, the Parks Department discovered a major crack in the south concrete
abutment supporting the old bridge. We had Larry Nimmo inspect the situation and he
recommended calling Gene Schaefer with SDG Engineering who has performed services
for the City of Englewood in the past and served us admirably. Based on Gene
Schaefer's inspection and recommendations, a new bridge was determined to be in the
best interest of the Parks Department. The conceptual budget estimate was
approximately $60,000 for a new bridge to be installed only. During, the process of
determining the bridge design, soil tests, surveying, and construction of the bridge
abutments and wing wall plans, it was determined that we would postpone the project
until fall since the pond under the bridge is used for irrigation purposes. During the bid
process in June, one contractor was concerned about the configuration of the wing wall.
The valid question required SDG to modify their drawings substantially and an
addendum to the bid was made. Three bids were received in the amounts of$135,950,
$107,775, and $74,890. I checked references for the low bidder, Milestone Construction,
and all contacts had excellent results from them.
Summary of Project Costs:
Parks Department Bridge Demolition
Bridge Construction and Installation:
SDG Engineering Services :
EMK Surveying
Grounds Engineering Soils/Concrete T esting
Street Department Walking Path Asphalt
Total
$ 500
$ 75,000
$ 39,000
$ 4,000
$ 5,000
$ 500
$124,000
( TO : DON CLARKE, PURCHASING ADMINISTRATOR
FROM: MARK KOTTWITZ, PARKS SUPERVISOR
SUBJECT: CUSHING PARK BRIDGE BID RECOMMENDATION
DATE: AUGUST 23 , 2006
The following 3 bids were received to replace this pedestrian bridge :
Strakholm Construction:
MLL, Inc :
Milestone Construction :
$135 ,950
$103 ,155
$ 74,890
I checked references from both City of Golden and City of Thornton who had Milestone
Construction perfonn similar work recently . They both highly recommended Milestone
Construction to perfonn similar work. Therefore, I recommend Milestone Construction
be awarded this bid. Funds are available for this project. A council approval is needed
and Dave Lee , Open Space Manager, is preparing the Council Communication for the
September 5th Council Meeting.
1. Call to order
4. Roll call
Members:
Tomasso~
Moore _ _,,.--
Barrentine . ~
Oakley v
Cou.n<:JY Meeting
9'!~
and
L resent
Mccaslin ,,,.-~
Woodward V
MayorWolosyn ~
5 . cc
____ absent
~ Jt:, minutes
~moved
COUNCIL • M ling working not
(
AGENDA FOR THE
REGULAR MEETING OF
THE ENGLEWOOD CITY COUNCIL
Tuesday, September 5, 2006
7:30 p.m.
Englewood Civic Center -Council Chambers
1000 Englewood Park way
Englewood, CO 80110
1. Call to order. ? 3 s~
2. Invocation . ~
3. Pledge of Allegiance.
4. Roll Call.
5. Consideration of Minutes of Previous Session . °tr1 V :_(}~-;; ~Rm;;;;::t n,eeting of August 2 1, 2006. ~
6 . Recognition of Scheduled Public Com~t (Please limit your presentation to ten minute .)
I J_, ..,,.,,
3
ti· Englewood Safety Services Director Chris Olson will acknowledge Fire Training Servi
1{11 9 Chief Kraig Stovall for his completion of the National Fire Academy's Executi ve Fir
U Officer Program. •
8.
Recognition of Unscheduled Publi c Comment. (P lease limit you r presentation to fi e minut
Time for unscheduled public comment may be limited to 45 minutes and if limited shall b
cin~i~<};~GWJ/if:.~1?~ ~ II~ I lift rt,,tr ~KJLAL
Communications, Proclamations , and Appointments .
Proclamation designating the week of September 1 7 t~ugh September 23 , 200 a
Consti tuti on Week.~ ~
. %J. ecommendation from the Englewood Municipal Court to adopt a Resolution
1 J,.,J reappointing Marcia O 'Brien as an Associate Jud~for the Cty of En. glewood. STAFF
~ SOURCE: Tamara Wolfe, Court Administrator.
0
I 11 gl<'w d City Council Agenda
\(•pt mb r 5, 2006
I, g(' 2
9. Consent Agenda Items.
a . Appro~ances on First Reading.
~ ;ppro;:
1
u::~:~:n~:::~:p
5
p:::~ndg :::::~nded and Rest
_ f/ ff. ;--u -Transmission Agreement with County Line Landfill.
c. Resolutions and Motions.
~
10. Public Hear' Public Hearing Scheduled.)
11 . Or
!5?f ~ ~ Approval of Ordinances on First Reading.
t/ i. Council Bill No. 35 -Recommendation from the City Attorney's Office to adopt an 7f',71-::?l tmergency Bill for an Ordinance approving regulations prohibiting sexual -v predators and certain sex offenders from establishing residency near are~as where
children congregate . STAFF SOURCE: Dan Brogwan, City Attorney.
b. Approval of Ordinances on Second Reading. r;e--
c. Resolutions and Motions.
Recommendation from the Community Development Department to approve, by
Motion, a professional services agreement with Tacito Design, Inc. for analysis and
recc5iiTh,endations for pote~l _si_[n ~ode amendments. STAFF SOURCE: Tricia
Langon, Senior Planner. / /J//!} ).(._...--
~
Re comme ndation from the Parks and Re creation Department to approve, by
cMotion~ bid for the purchase and installation of a manufactured pedestrian
bridge in Cushing Park. Staff re co mm end s awarding th e co ntra c t t o th e lowes t
bidder, Milestone Construction, in th e amount of $74,890. STAFF SOURCE:
terrell Black, Director of Parks and Recreation anej ~~, l<ottwitz, Park~
Supervisor. ~
--/(fh
1 2. General Dis c ussion .
a. Mayor's Choice.
b. Counci l Members' Choice.
' -
Englewood City Council Ag enda
September 5, 2006
Page 3
13 . City Manager's Report.
14. City Attorney's Report.
The following minutes were transmitted to City Council in August 2006.
• Board of Adjustment and Appeals minutes of June 14, 2006.
• Cultural Arts Commission minutes of July 5, 2006
• Firefighters' Pension Board minutes of February 9, 2006.
• Englewood Housing Authority minutes of April 5, June 7, and July 5, 2006.
• Liquor Licensing Authority Telephone Poll of August 2, 2006.
• Parks and Recreation Commission minutes of July 13 , 2006
• Police Officers' Pension Board minutes of February 9, 2006.
• Public Library Board minutes of June 13, and July 11, 2006 .
Pl a no t : If you have a disability and need uxiliary aids or service , please notify the City of Eng lewood
(303 ·762 -2407) t le st 48 hour In d ance of when services are n ded . Thank you .
\
1. Call to Order
ENGLEWOOD CITY COUNCIL
ENGLEWOOD, ARAPAHOE COUNTY, COLORADO
Regular Se11ion
September 5, 2006
:? J yt._,
I
The regular meeting of the Englewood City Council was called to order by Mayor Wolosyn at 7 :30 p.m .
2 . Invocation
The invocation was given by Council Member Barrentine .
3. Pledge of Allegiance
The Pledge of Allegiance was led by Mayor Wolosyn ./
\~\ 4 .
Roll Call
Present: Council Members Tomasso , Moore, Barrentine, Oakley, Mccaslin,
Woodward, Wolosyn
\ '
Absent:
A quorum was present.
Also present:
None
City Manager Sears /
City Attorney Brotzman /
Deputy City Manager Flaherty
City Clerk Ellis -
Deputy City Clerk Bush /
Director Olson , Safety Services /
Court Administrator Wolfe ./
Senior Planner Langon , Community Development
Director Black , Parks and Recreation ./
Parks Supervisor Kottwitz , Parks and Recreation
Polle~ z rn .t 1 , Safety Services
Fire G · :t , t zz , , Safety Services
5 . Consideration of Minutes of Previous Se11ion
-~.;·.
(a) COUNCIL MEMBER _\_1
_ MOVED, AND IT WAS SECONDED, TO APPROVE THE MINUTES
OF THE REGULAR CITY COUNCIL MEETING OF AUGUST 21, 2006. (o . (! a,_ p
Mayor Wolosyn asked if there was any discussion . There was none . I (t, .)1ZLL n -rn
Vote results :
Ayes :
Nays :
Absta in :
Mo ti on c m ed .
Council Members Barrentine , Mccasl in , Wolosyn , Woodward ,
Tomasso , Oakley
None
Counc il Member Moore
6 Recognition of Scheduled Public Comment
Ellglewood City Council
September 5, 2006
Page 2
J 0 ~ ~t~ )11)WtLL
\\.Q (a) Englewood Safety Services Director Chris Olson will acknowledge Fire Training Services Chief
Kraig Stovall for his completion of the National Fire Academy's Executive Fire Officer Program .
331'1. Recognition of Unschedule~ Public Comment
\::x:J U-et C..C. t-t'N
There were no EiMel ,edoleel Vlslte,s .
Communications, Proclamations and Appointments
(a) A proclamation designating the week of September 17 through September 23 , 2006 as
Constitution Week was considered . L ; . ,J N ·"A 1,vlV & Nl l' CiL u 1,c__ ZAP
COUNCIL MEMBER~ W MOVED, AND IT WAS SECONDE
0
D, TO APPROVE AGENDA ITEM 8 (a) -A
PROCLAMATION DESIGNATING THE WEEK OF SEPTEMBER 17 THROUGH SEPTEMBER 23, 2006 AS
CONSTITUTION WEEK.
Ayes :
Nays :
Council Members Barrentine, Mccaslin, Moore, Wolosyn, Woodward, J ~~;:sso, Oakley r)--O CLf t.1/ 1 (J f
Motion carried.
6 5f (b) A recommendation from the Englewood Municipal Court to adopt a resolution reappointing
Marcia O'Brien as an Associate Judge for the City of Englewood was considered . J
v-Jrol 1/\rtL v rL--ro yrt[C ·n ZIJ}
COUNCIL MEMBER ~'111'0VE'D, AND IT WAS SECONDED,TO APPROVE' AGENDA ITEM 8 (b) -
RESOLUTION NO. 1 ,, I) , 1 -'7 --l )cLf>f Vo
RESOLUTION NO . _, SERIES OF 2006
A RESOLUTION FOR REAPPOINTMENT OF MARCIA G . O'BRIEN, AS ASSOCIATE MUNICIPAL JUDGE
FOR THE CITY OF ENGLEWOOD, COLORADO .
Vote results:
Motion carried.
Ayes : Council Members Barrentine , Mccaslin , Moore , Wolosyn , Woodward,
Tomasso , Oakley
Nays : None
01 I 9 . Consent Agenda
(a) Approval of Ordinances on First Reading
There were no additional items submitted for approval on first reading . (See Agenda Item 11 (cf).)
I 1 , '\,'/1 I ~ -r-~ \Ll:') ) 't~W
COUNCIL MEMBER t MO Eb, AND IT WAS SECONDED, to APPROVE CONSENT AGENDA ITEM 9
(b) (i).
(b) Approval of Ordinances on Second Reading
(i) ORDINANCE Noj.3. SERIES OF 2006 (COUNCIL BILL NO . 32 , INTRODUCED BY
COUNCIL MEMBER WOODWARD)
AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT ENTITLED "AMENDED AND
RESTATED WASTEWATER TRANSMISSION AGREEMENT" BETWEEN SOUTH ARAPAHOE SANITATION
DISTRICT , THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF ARAPAHOE , SOUTHGATE
SANITATION DISTRICT, SOUTH ENGLEWOOD SANITATION DISTRICT NO . 1, WASTE MANAGEMENT OF
CO LORADO , INC . AND THE CITY OF ENGLEWOOD , COLORADO .
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Er.tglewood City Council
September 5, 2006
Pagel
Vote results:
Motion carried .
Ayes : Council Members Barrentine , Mccaslin , Moore, Wolosyn, Woodward ,
Tomasso , Oakley
Nays : None
(c) Resolutions and Motions
There were no additional resolutions or motions submitted for approval. (See Agenda Item 11 (c).)
10 . Public Hearing Items
No public hearing was scheduled before Council.
-5\~ 11 . Ordinances, Resolution and Motions
(a) Approval of Ordinances on First Read ing
lp \ 3 (i) City Attorney Brotzman presented a recommendation from the City Attorney's Office to
adopt an emergency bill for an ordinance approving regulations prohibiting sexual predators and certain sex
offenders from estab ~i~~~;g,,r;;i~~ near areas whe()CLk.l~;co ?~e~Jle .
COUNCIL MEMBER\JV_l,l.(faMt)_VEi Eb, AND IT WAS s'tCONDE~ TO"}J;PROVE AGENDA ITEM 11 (a) (i) -
COUNCIL BILL NO. 35 . , j
COUNCIL BILL NO . 35 , INTRODUCED BY COUNCIL MEMBER lilu.Li (,'l () 7-£ Uf y;rvt-,
A BILL FOR AN ORDINANCE AMENDING TITLE 7, OF THE ENGLEWOOD MUNICIPAL CODE 2000, BY THE
ADDITION OF A NEW CHAPTER 3, PROHIBITING SEXUAL PREDATORS AND CERTAIN SEX OFFENDERS
FROM ESTABLISHING RESIDENCY NEAR AREAS WHERE CHILDREN CONGREGATE AND DECLARING
AN EMERGENCY .
Vote results :
Ayes : Counc il Members Barrent ine , Mccaslin , Moore , Wolosyn , Woodward ,
Tomasso , Oakley
Nays : None
Mot ion carri ed .
(b) Approval of Ordinances on Second Reading
There were no additional items submitted for approval on second reading . (See Agenda Item 9 -Consent
Agenda .)
{ l ( (c) Resolu t ions and Mot ions
l 00L (i) Seni or Planner Langon presented a recommendation from the Community
Development Department to approve, by motion , a profess1.·onal serv ·ies a~reement witt, Tacito Design, Inc . for
analysis and recommendations for potential sign code ~~endments . j r7 1 O J , 0 1 U CI) 1 '
j '\/\. , C 6U-i-t. ,,~ l
COUNCIL M EMB E .,_ f \.lJ U_ OVED, AND IT WA SE NDED , TO APf:'ROVE AGENDA IT EM 11 (c) (i) -A
PROFESSIONAL SERVICES AGREEMENT WITH TACITO DESIGN , I NC . FOR ANALYSIS AND
R EC OMMENDAT IONS FOR POTE NTIAL SIGN COD E AM ENDMENTS. 1_ ) /J
-I • '/'} I V
Mayor Wolosyn asked if there was any discuss ion . There was none .
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E,iglewood City Council
September 5, 2006
Page4
Vote results :
Ayes : Council Members Barrentine, Mccaslin , Moore, Wolosyn , Woodward,
Tomasso, Oakley
Nays : None .
MQtion carried . q O [YYl{vlL--Yi) ~.\w· 1:\ 1--,
\ \ ~ (ii) \ \ Director Black -presented a recommendation from the Parks
and Recreation Department to approve , by motion , a contract with Milestone Construct ion for the purchase and
installation of a manufactured pedestrian b~e in Cushing Park , in the amount of $74 ,890 .00 . LCJ..-Vt' >f bidder·
11 \rv l 11 '1l11I /()~ {Av)
COUNCIL MEMBER~OVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (c) (ii) -A
CONTRACT WITH MILESTONE CONSTRUCTION FOR THE PURCHASE AND INSTALLATION OF A
MANUFACTURED PEDESTRIAN BRIDGE IN CUSHING PARK, IN THE AMOUNT 0 ~ $74,890.00. , -t
'1 -o 0.:P.,Y> ( c '~ · f o..,,pprz, V'f..L I W ll.. -
Mayor Wolosyn asked if there was any discussion . There wa s none . ~l-1'vh I ()(:_ t fo ~ fl.....-'
Vote results:
Ayes : Counc il Members Barrentine, Mccaslin, Moore, Wolosyn, Woodward ,
Tomasso, Oakley ·
Nays : None
Mot ion carried .
12 General Discussion ~ c" .1-<. A " tA.. c L; :..1'--!)(.,.//'I v I _ • · -L.{/i t, tl ~ U<-,.<...• '"' ,,,___, _,,-• ltL.-rYI ,c_ L_O..trN<-f1 u ,1.., '.'\
<j I • -1;..,(.:;) (, l U Yl'-t. ,j-~ v ~ ,; (h .. ):)'(..1. (\_£ r .. ,-C,
\ \ o (a ) Mayors Cho ic e f . { , , L l -1 ,,,_ 1 'tA..t j..-1 _, -·~. I\.A-\<,I.. l"'.) 1, r . J.. V • IJ1...;. 1'1 · I
-<t, '":..'"',! G <...<r-c l I t-<-1> Mayor Wolosyn did not have any matters to or'i ny oeTOre Counci l.
(b) Council Members ' Choice -1'3' (i) Counc il Member
' (ii) Co unc il Membe r f (,
\ 'J.. L (iii) Co unci l Membe r
< (iv) Council Memb er ·1">-i
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1, l' ' (vi) Council Member L L L{ (., Ll,l 1 t I
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13 . City Manager's Report -1 f tt:1c
{ d fl: t \_ -\ / ' ' li1 C /ti: I ) l I I ) (: t
City Manager Sears did net l:la"e aotmtli\ters to bring before Coimci ,
15 . Adjournment
'y'I //
MAYOR WOLOSYN MOVED TO ADJOURN . The meeting adjourned at Q..J_f,.m.
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. EJlglewood City Council
~ September 5, 2006
Pages
City Clerk