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Home My WebLink About2004-04-19 (Regular) Meeting Agenda Packet- ) • ·• • • .. .. ;i. • . ... • ..... . '· . ' ·· .. ·. . ' . ~· t~ ' . • .' 41<· .r . ' .• i • ..... •'' ~· ~. ·.·· . . ·,. • !• ~ :::_ .......... · ...... 0 c~-. (J •.· '• ·. ., ..... ~. . ... ~.: . ~~:!~ .. : .. \. -.~{_~ ·~~ : .. j -::~.- • !."':I" .. .. •.·.· . ):: /: · .. .. ·.,._ .. · ... .. •·' . I . ·' . • . .. ... . . • . Regular City Council Meeting April 19, 2004 .. ,////.,,. 26, 27, 28, 29 Ordinance Res o lution I 50, 51, 52, 53, 54, 55, 56, 57 ' " • . . ... . ' .. . . ,: ... ,.· . ·. .. .. .. .. : : . · .... ··:' • . . f • • •• .. \, . • ' . .. .. • • ENGLEWOOD CITY COUNCIL ENGLEWOOD, ARAPAHOE COUNTY, COLORADO Replar Session April 19, 2004 I. Call to Order The regular meeting of the Englewood City Council was called to order by Mayor Garrett at 7:34 p.m . 2. Invocation The invocation was given by Council Member Barrentine. 3. Pledge of AUepiace The Pledge of Allegiance was led by Mayor Garrett . 4 . RoUCall Present : Absent: A quorum was present. Also present : 5. Minutes Council Members Tomasso, Moore, Barrentine, Garrett, Bradshaw, Wolosyn, Yurchick None City Manager Sears City Attorney Broczman Assistant City Manager Aahcrty City Clerk Ellis Director Olson, Safety Services Fire Battalion Chief Schoenbcin Director Gryglewicz, Finance and Administrative Services Director Fonda, Utilities Dirccror Kahm. Capital Projects Director Ross, Public Works Engineer II Nimmo (a) COUNCIL MEMBER WOLOSYN MOVED, AND IT WAS SECONDED, TO APPROVE THE MINUTES OF THE REGULAR CIT\' COUNCIL MEETING OF APRIL 5, 2004. Mayor Garrell asked if there were any comments or corrections. There were no ne . Vote results: Ayes : Nays: Motion carried. 6 . Sd1edukd Vlslton There 11,crc no scheduled v1 ,tors. Council Members Barrentine, Moore , Bradshaw , Garrett, Wolosyn, Yurchick, Tomasso None t • • Englewood City Coundl April 19, 2004 Pqe 2 (a) Phil Gilliam, 3821 South Huron, said I was at the last South Broadway planning meeting. Most of you weren 't there and there were some conversations that I thought, perhaps, wc could have. At the stan of the Plan it says "goals.". Goals imply a paradigm, or a context or a reason to have the goals. Why do wc want a set of goals? We have goals as outlined by the Plan . The conversation that I think we might need ... what do the goals help us do or where do they help Englewood go, that wc want it to go? What is the background of those goals? Now, the idea might be that maybe we want to have the best schools in the State. That might draw people to live in our houses, which would push downtown development. It is an idea. It is an idea that Mr. Simpson said if we did it, it would make his job a slam dunk. As it is right now, the South Broadway Plan looks like revenue generation. You look at the goals, you look at where it goes and all it is, is a way to make more money. At the meeting, Mr. Tomasso said ''I'm even taking a look at a way we can tax landlords." If we want to be about revenue gehcration, put it right out front. Say, this is our goal and this is the reason . This is our goal, because wc want to generate revenue . There needs to be language at the start of it and it needs to be language that is developed, and made public and primed in the Herald, before the goals come up . I looked at both plans and I saw something missing. And what was missing was the why . But the unspoken ... was, boy, we need more bucks. So. I would just ask you guys to engage in a conversation with the community about why wc need to go on the hustle for South Broadway. What is there about it that we really need to do it? Now granted, wc all want to have as nice a looking business district as wc can ... as vital and productive as it can be, but I think we should be real square about why it is that we are pushing that way and is that sufficient reason to give it all the emphasis that we've got? I feel like I am one citizen, but that I've got two different governmental bodies .. .I've got a school district and I've got a city. Everybody I talk to says, well we've got a comminee and we meet with them once in awhile. I went on the web and got the first 15 of 104,000 sites that talk about good schools being good for the town. So there is some information out there, somewhere. But I would think that right now there is an unmet demand in education in the metro area . You've got schools that have waiting lists. They've got lotteries so they can choose who can go there. If the schools in Englewood met some of that unmet demand people would be moving into Englewood and popping tops, and scraping off and increuing the housing stock and their presence would drive the demand on Broad-y. You wouldri't have IO force it. There hu got to be a way to work with the school system. Right now. Englewood Schools are losing studenls. You see more and more "for sale" signs. rental signs, and empty houses in Englewood proper. There has got to be 10111C way to make this work and I don't know as putting all our effort in flll'Cing South Broad-y to revitalir.e ia goina to answer the question. That is why I say let 's look at the goal and look at the context of the goal. Can anybody tell me what the context of the goal is? Thanks, he said . 8. Cowakaliom, Proda..aiom ud Appalllt (a) A letter from Jeffery Baker indic:ating hi resignation from the Englewood Board of Adjustment and Appeals was considered. COUNCIL MEMBER BRADSHAW MOVED, AND IT WAS SECONDED, TO ACCEPI' THE RESIGNATION OF JEFFERY BAKER FROM 111£ ENGLEWOOD BOARD OF ADJUSTMENT AND APPEALS. Ayes: Nays : Mo ti o n carr ied . Council Members Barrentine. Moore. Bradshaw, Garren, Wolosyn, Yurchick, Tomasso None (bl A lcncr from Gerald Stankorb indicatin11 his resignation from the Keep Englewood Beautiful Commi ss ion was considered. COUNCIL MEMBER TOMASSO MOVED, AND IT WAS SECONDED, TO ACCEPT fflE RESIGNATION OF GERALD STANKORB FROM THE KEEP ENGLEWOOD BEAUTIFUL COMMl~ION. Aye : Council Members Barrenaine. Moore . Bradshaw, Garren. Wolosyn. Yun:hic k. TomlSIO Na): None fouon amcd ' • • Englewood City CouncU April 19, 2004 Pace3 0 . (c) considered. A proclamation recognizing the Museum of Outdoor Arts' Design & Build program was COUNCIL MEMBER WOLOSYN MOVED, AND IT WAS SECONDED, TO APPROVE A PROCLAMATION RECOGNIZING THE MUSEUM OF OUTDOOR ARTS' DESIGN & BUILD PROGRAM. Ayes : Nays : Motion carried . Council Members Barrentine, Moore, Bradshaw, Garrett, Wolosyn , Yurchick, Tomasso None Mayor Garrett asked is there anyone here to accept the proclamation. There was no one. 9 . Public: Heariq No public hearing was scheduled before Council. (a) Approval of Ordinances on First Reading There were no additional items submitted for approval on first reading . (See Agenda Item 11 -Regular Agenda .) (b) Approval of Ordinances on Second Reading MAYOR GARRETf REMOVED ITEM 10 (b) (I)-COUNCIL BILL NO. 6, FROM THE CONSENT AGENDA. Mayor Garrett said there was an error in its publication, which requires us to pull the item and we will have it at the next Council meeting . COUNCIL MEMBER BRADSHAW MOVED, AND IT WAS SECONDED, TO APPROVE CONSENT AGENDA ITEMS 10 (b) (U) and (W) ON SECOND READING. (ii) ORDINANCE NO . 21 . SERIES OF 2004 (COUNCil. BILL NO . 15, INTRODUCED BY COUNCIL MEMBER WOLOSYN) AN ORDINANCE AUTHORIZING AN "AGREEMENT FOR REALIGNMENT OF BROWN DITCH IN COLUM BINE VALLEY EST ATES" BETWEEN THE OWNERS OF CERTAIN PROPERTIES ALONG THE RJGHT-OF-WAY AND THE CITY OF ENGLEWOOD, COLORADO. (iii) ORDINANCE NO. 22, SERIES OF 2004 (COUNCil. BILL NO . 19, lNTRODUCED BY COUNCIL MEMBER BRADSHAW) AN ORDINANCE APPROVING AND AUTHORIZING THE EXECUTION OF FOUR INTERGOVERNMENTAL SUBGRANTEE AGREEMENTS (CDBG) FOR THE YEAR 2004 BETWEEN THE ARAPAHOE BOARD OF COUNTY COMMISSIONERS AND THE CITY OF ENGLEWOOD, COLORADO . Vote results: Ayes : Nays : MOlion carried . Council Members Bam:ntine , Moore, Bradshaw , Garrett. Wolosyn, Yurchick , Tomasso None (c) Re so lutio n and MOlions ' .. .. • • Englewood City Council April 19, 2004 Page4 0. 0 There were no additi o nal resoluti ons or mo ti ons submitted for approval. (Sec Agenda Item 11 • Regular Agenda.) 11. Regular Agenda (a) Approval of Ordinances on First Reading (i) Assi stant City Manager Flaherty presented a recommendation from the City Manager's Office to adopt a bill for an ordinance approving an Intergovernmental Agreement with the Regional Transportation District for landscaping requirements at RTD Elati Maintenance Facility . He said the purpose of the agreement, primarily, was to address the deficiency in landscaping. RTD has agreed that they have, based on our zoning ordinance requirements for landscaping of industrial properties, a deficiency of approximately 32 thousand square feet. Our ordinance also calls out the calculation of that deficiency in the form of a fee in lieu, which RTD has also acknowledged . However, RTD has worked with the City and has agreed that they would delay the payment of the fee in lieu, in order to allow the City to enter into an agreement with RTD to explore the option of RTD providing that landscape area in conjunction with the construction of a future Bates Station. We have agreed on those issues . The agreement also covers that the parties will negotiate, in good faith, for a Bates Station agreement as well as an agreement at Lucent Boulevard Station ... the end of the line station, under FasTracks for RTD, which is located on our McLcllan Reservoir property. And , he said, therein lies the point of contention. Last week we presented to RTD, language that Council provided to staff during the meeting of April 10"'. RTD has indicated that they could not accept that language. What you have before you in this agreement is the language that RTD presented to the City on April 9'" prior to the April lo"' meeting, at which time Council requested a change . So, Council Member Bradshaw said , our procedure is to move it , get it on the table and then amend it ? Mayor Garrett asked if there were questions for Mr. Flaherty before we start that process. There were none. COUNCIL MEMBER MOORE MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (a) (I) -COUNCIL BILL NO. 18. COUNCIL BILL NO. 18, INTRODUCED BY COUNCIL MEMBER MOORE A BILL FOR AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT "SUBSTANTIVE TERMS OF THE ELATI LANDSCAPE AGREEMENT' BETWEEN THE REGIONAL T RANSPORTATION DISTRICT (RTD) AND THE CITY OF ENGLEWOOD, COLORADO. Mayo r Garrett as ked if there wa s an y di scussion. Counc il Mem ber Moore sa id I would like to propose an amendment to paragraph number 6 in the agreement. I thin k past di scussions make it clear that Council desires that we wa nt RTD to understand where our thoughts are going wit h respect to the develo pme nt of the McLcll an Reservoi r. As such, I would like to put forth the language we tal ked about previous ly. The ame nd ment would be to modi fy the last sente nce in paragraph num ber 6 to now read "to the exte nt consiste nt wi th suc h minimization, the amo unt o f developable land shall be maxi mized, based upon mutua ll y acce pt able design parameters for a station s it e not to exceed ten acres. Structured parking will be req u ired. if financia ll y feasi bl e ." I wo uld like to suggest tha t we make that amendment so that our inte nt ions are we ll understood ... o ur vi sio n fo r that land is we ll understood by RTD. Council Me mber Yurc h ick sai d I have a question on the fi na ncial feas ibility langua ge . Did we want to be more spec1tic than that'/ Mayor Garrett said wo uld we wa nt to insert "taki ng the Lucent BNlevard Station Project as a whole ." Mr. Moore said I would agree wi th that revision. Co uncil Member Yurchi ck said what i the point of even doi na the VOie ? What do we pin by amendina tlu and passing it . versus u not even voting on II at all ? I guess tha t i more for Ci ty Attorney Brottman than anybody . I mean. if we pass it the way wt want 11 . they don 't 11,n II and they pay l&S $37.000.00 ... if -.-c don't VOie OIi it at all the y pa y us $37,000.00. ' .. ,, • • Eqlewood City Council April 19, 2004 Pages Council Member Wolosyn said I think we make a public statement of our concept of this project ... to the extent that we hold ii in trust for a future Council. I think ii is important. Council Member Bradshaw said I agree . Council Member Barrentine said ii will potentially affect the conversation happening if we do nothing and make no statement al all al this point. Can we continue to have any talks with them or would this effectively stop that and we just say this is what we've got on the table and that is it? Council Member Wolosyn said I hope not, because I think what we are saying is positive. We are adding very little . I think that we probably have the same idea in mind for the future, except that we want to hammer the language down a little more, because we are in a position of trust with our community. But, Council Member Yurchick said, they have already said they are not going 10 accept this language. Ms. Wolosyn said I think that when we pass an amended one, we make a public statement that we agree to the entire dialogue so far, except for this . Council Member Bradshaw said that's right and the other thing is, again I have to talk about the historical value of that land out there. Director Fonda, when did we get the land out at Lucent? How many years ago? Mr. Fonda said I think we got ii in the early sixties. And, Ms. Bradshaw said, it has always been considered like a savings account for the City and I just think that if that does develop, we need to develop ii to the best ... highest and best use. I think we have to limit how much the station would take as far as land . Council Member Yurchick said that wasn't my question. I don '1 disagree with that. Mayor Garrett said I will put in my two cents worth. I think by passing this we are showing that this is an agreement that is acceptable 10 us. We're trying for a little more structure, but clearly it is subject to good faith negotiations. It is as if our City Manager's office came forward with an agreement, which they say they don't necessarily agree with, but their board has passed it. II is up to their board 10 make those kinds of decisions, it is not a staff decision. And I think we, at least, need 10 put ii on the table so ii goes to the board level and it may help them understand what our positions are. They may decide that staff is not correct in this case. That is why I think it would be worth passing as amended. Mayor Garrett asked if there was any funher discussion on the amendment. There was none . COUNCIL MEMBER MOORE MOVED, AND IT WAS SECONDED, TO MODIFY THE LAST SENTENCE OF PARAGRAPH 6 OF THE IGA TO READ: "TO THE EXTENT CONSISTENT WITH SUCH MINIMIZATION, THE AMOUNT OF DEVELOPABLE LAND SHALL BE MAXIMIZED, BASED UPON MUTUALLY ACCEPT ABLE DESIGN PARAMETERS FOR A STATION SITE NOT TO EXCEED TEN ACRES. STRUCTURED PARKING WILL BE REQUIRED, IF FINANCIALLY FEASIBLE,. TAKING THE LUCENT BOULEVARD STATION PROJECT ASA WHOLE." Vote results on the amendment: Ayes: Nays: Motion carried. Council Members Barrentine, Moore, Bradshaw, Garrett, Wolosyn, Ywchick, Tomasso None Mayo r Garrett said we now have a motion on the table to approve Council Bill No. 18 , as amended . We will now have that vote, unless there is further discussion on the agreement itself. There was none . Vote results on the approval or Council BW No. II• ameaded: Motion carried. Ayes : Council Members Barre111ine . Moore. Bradshaw, Garrett, Wolosyn, Yurchick, Tomasso Nays : None • ... .. • • Englewood City Council Apr!l 19, 2004 Page6 (ii) Fire Battalion Chief Schocnbein presented a recommendation from the Safety Services Department to adopt a bill for an ordinance approving an Intergovernmental Agreement with the State of Colorado fo.-Colorado Emergency Management. He said in fiscal year 2003 and again this year we submitted and were approved for approximately $6,000.00 worth of grants to fund the Community Emergency Response Team Training Program that we have had in the City for approximately ten years. This ordinance, for approval of the IGA, would streamline the process that we get for reimbursement of the funds from that grant. Currently, the funds have to pass through the Local Emergency Planning Committee ... that is the Sheriffs office of Arapahoe County. This process would streamline that and allow the State to directly pay funds to us, and reimburse us, for our costs without having to go through the LAPC. This is, basically. just taking a step out of the process and streamlining the program. I would like for you to consider this proposal and I welcome any questions you may have regarding this. Mayor Garrett asked if there were any questions on this particular measure . There were none. COUNCIL MEMBER BRADSHAW MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (a) (U) -COUNCIL BILL NO. 22. COUNCIL BILL NO. 22, INTRODUCED BY COUNCIL MEMBER BRADSHAW A BILL FOR AN ORDINANCE APPROVING AND AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT FOR THE COLORADO EMERGENCY MANAGEMENT BETWEEN THE ST ATE OF COLORADO AND THE CITY OF ENGLEWOOD, COLORADO. Mayo r Garrett asked if there was any discussion. There was none. Vote results: Ayes : Nays: Motion carried. Council Members Barrentine, Moore, Bradshaw, Garrett, Wolosyn, Yurchick, Tomasso None (b) Approval of Ordinances on Second Reading (i) Director Gryglcwicz presented an emergency ordinance, authorizing two (2) Intergovernmental Agreements with the Colorado Water Resources and Power Development Authority, for the issuance of Water Revenue and Water Pollution Control Revolving Fund bonds for the Phase 2 Expansion Project . He said this ordinance is an emergency, basically to get the process going on these two loans from the Colo;ado Water Resources and Power Development Authority . You will see that the actual loan agreements arc attached and I should note that. as it says in the ordinance, these arc the form of the agreements and there could be some minor c hanges still to come, but for the most part, it is 99% done. Mayo r Garrett asked if there were questions for Director Gryglcwicz. There were none . COUNCIL MEMBER BRADSHAW MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (b) (I) -ORDINANCE NO. 23, SERIES OF 2004. ORDlNANCE NO. 23. SERIES OF 2004 (COUNCIL BILL NO. 20, INTRODUCED BY COUNCIL MEMBER BRADSHAW) AN ORDINANCE OF THE CITY OF ENGLEWOOD. COLORADO, APPROVING LOANS TO BE MADE TO THE CITY BY THE COLORADO WATER RESOURCES AND POWER DEVELOPMENT AUTHORITY FOR THE PURPOSE OF FINANCING ADVANCED TREATMENT UPGRADES TO, AND THE CONSTRUCTION OF IMPROVEMENTS INCREASING THE TREATMENT CAPACITY OF. THE CITY'S JOINT WASTEWATER TREATMENT PLANT; AUTHORIZlNO THE FORM AND EXECUTION OF LOAN AGREEMENTS AND BONDS TO DOCUMENT THE LOANS; PROVIDING FOR PAYMENT OF THE BONDS FROM REVENUES OF THE CITY'S SANITARY SEWER SYSTEM; PRESCRIBING DETAILS IN CONNECTION THEREWITH; AND DECLARING AN EMERGENCY. r· ' . ... .. •· • • Englewood City Council April 19, 2004 Page7 Vote results: Ayes : Nays: Motion carried. •• • • Council Members Barrentine, Moore, Bradshaw, Garrett, Wolosyn, Yurchick, Tomasso None (ii) Director Gryglewicz presented an emergency ordinance reaffirming the establishment of the Sewer Utility Enterprise. As I said on first reading, this is in relation lo when Tabor was passed and we just arc formally reaffirming that the Sewer Utility is an Enterprise and it is done in conjunction with the ordinance that just passed. COUNCIL MEMBER WOLOSYN MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (b) (11) -ORDINANCE NO. 24, SERIES OF 2004. Mayor Garrett asked if there was any discussion. There was none . ORDINANCE NO. 24. SERIES OF 2004 (COUNCIL BILL NO. 21, INTRODUCED BY COUNClL MEMBER WOLOSYN) AN ORDINANCE OF THE CITY OF ENGLEWOOD, COLORADO. REAFFIRMING THE ESTABLISHMENT OF ITS SEWER UTILITY ENTERPRISE; PRESCRIBING DETAILS IN CONNECTION THEREWITH; AND DECLARING AN EMERGENCY. Vote results: Ayes: Nays : Motion c arried . Council Members Barrentine, Moore, Bradshaw, Garrett, Wolosyn. Yurchick. Tomasso None (c) Resolutions and Motions (i) Director Fonda presented a recommendation from the Littleton/Englewood Wastewater Treatment Plant Supervisory Committee to approve, by motion. an amendment to the Purchase Agreement of dcnitrification system equipment and installation services from Severn Trent Services in the amount of $98,58 I . He said there were two vendors who could have possibly provided dcnitrification facilities . We chose this one, as I indicated previously, because it was the one that allowed the most easy conversion for phosphorus removal. Then we negotiated the fee for the equipment. As we got further into the design, after the negotiations , we found that about $98,58 1.00 of the package should be increased in this bid. II docs not increase the total amount of the 110 milli o n. lljusl shifts from where ii is paid. We would be paying the general contractor for thi s, if we weren't paying Severn Trent. but it makes more sense 10 go with Severn Trent. so we have to modify the contract. Mayor Garrell asked if there were any questions for Mr. Fonda. There were none. COUNCIL MEMBER WOLOSYN MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (c) (I) • AN AMENDMENT TO THE PURCHASE AGREEMENT OF DENITRIFICA TION SYSTEM EQUIPMENT AND INSTALLATION SERVICES FROM SEVERN TRENT SERVICES IN THE AMOUNT OF $98,581.00. Ma yor Garrett asked if there was any discussion . There was none . Vote results : Ayes: Nay : Motion carried . Council Members Barrentine, M0<>1e, Bradshaw, Garrett. Wolosyn. Yurchick. Tomasso None ' ... • • 0 Englewood City Council April 19, 2004 Page8 ·• • • (ii) A recommendation from the Public Works Depamnent 10 approve, by motion, the extension of the 2003 construction contract for Concrete Utility 2004, Concrete Program 2004, and Sidewalk Missing Links 2004 lo Thoult Brothers Concrete Contractors Inc ., in the amount of $428,535.00 was considered . Mayor Garrell said I would like 10 make note before Rick begins, that we had in our packets a really nice background summary of the Concrete Utility District that was created in May of 1997 and it gave the ability for propeny owners Lo elect into that and pay a cenain amount each time to cover the replacement of your sidewalks in the event that needed to occur. Director Kahm said if I could, I would like to just briefly do a little overview of that panicular document that was included in your packet . I promised for months and months that I would bring everybody up to speed on the Utility. As the Mayor staled, in the City of Englewood property owners are responsible, by Municipal Code, for the maintenance of the concrete curb and guner adjacent to their properties. In 1997 we did establish a Concrete Utility which is very unique nationally, it is the only one that I am aware of, to try to lessen the burden on those property owners to do that maintenance . Prior to that time, if the concrete went bad the Public Works Department would have to put together a list, we would come to Council, we put a demand, because the ordinance allowed us to do that, and require the owners to repair it. The owners, of course, were never prepared for that financially . It created a lot of hardships. So then we would form Concrete Replacement Districts, which were a time consuming and very costly project for the City. But we would do that work and then we would sell bonds and we would spread assessments out over ten years in a very complicated and costly process. The Utility allowed us to go out and inventory all the concrete in the City. We created a cost of about 8 cents a square foot. We assessed the property owners, based on the square footage basis of what was adjacent to their property. We did the same for the concrete that historically was the City's ... that would be concrete at intcrsections ... allcy pans, cross pans, and that type of thing. So that is why every year in the Public Improvement Fund you will see an appropriation from the City of almost 180 thousand dollars for our share of that program . Altogether that program generates about 600 thousand dollars a year. We believe , by the way, that this has been a very successful program. Property owners had the opponunity to opt out of the program, when it was initiated in 1997 . To date, approximately 7% of the property owners did opt out, but it means 93% stayed in. Of the ones that opted out, many of those were institutional entities. The hospitals for instance opted out, because historically. the hospitals h:,vc maintained the concrete around their facilities at a higher level than even we maintain the rest of the City. It has never taken more than a phone call to get Swedish Hospital or Craig to do necessary work around their properties. So, we do have some of those types of folks and some of the larger businesses prefer to .take care of their own concrete as well. We do, in fact, have, as I mentioned, 7% that haven't participated. That totals 707 properties in the City. I also mentioned at our goal setting meeting with Council that the infrastructure is worth taking care of, because the removal replacement value of the concrete in the City is about 38 million dollars . Just for the construction. In the packet there were some charts that may be beneficial to you all . We have one on funding on page 2. The important thing to note is that we have generated 3.7 milli o n dollars over the last six years and we have spent 3.1 million dollars doing the programs on an annual basis . We have done six programs altogether. In terms of how we have impacted the community ... during that timeframe , we 've done work at 18S9 properties. which is a substantial number. That amounts to 270,000 square feel of concrete that ha s been removed and replaced . Another note on that panicular chan, which is on page 3, is that we have done 639 drivewa ys. That is important because as the City was constructed, we had raised curbs and people prefer to have the driveway where the curb has been depressed . So we have had that impact by being able to do those driveways. In order to be eligible, the driveway has to be in bad condition. We don't just do them, they have 10 be eligible for removal and replacement. Included in the packet were two pages. one on physical damage evaluation criteria and a second on hazard evaluation criteria . What you will note is that we had four levels. We have ne ver been able 10 have the funding to do anything but concrete that falls in the Level 4, the unsatisfactory category . He said there is a c hart in here that shows you that we have actually only rated 11 % of the concrete in the City. Right now. as we are standing here . of that 11 % we know that I % is in category 4 ... that needs work right now. That is about 61.000 square feet and that is the work that would be proposed in this coming year's program. Opted out propenies are a concern for us . Since the project began in 1997 , our emphasis has been on getting the proJecl up and running and we ju t have n't followed up on the 7% of the folks that opted out of the program. To date , there are 2 10 propenies o ut there that are 1101 pan of the program that have unsatisfactory concrete. Included in the pad.el arc some pi ctures of examples of those ... concrete that may be off grade an inch and a half or two inches . badly deteriorating and that type of thing. We would like to come 10 Council. .. and thi s is kind of, just a preparatio n for us ... but , we would like 10 approach those 200 property owners thi s year . The ordinance actually ' . ... .·• • • Englewood City Council April 19, 2004 Page9 ·• • • 0 says that the City Manager and/or his dcsignee can just send letters and give people 30 days to do the work and if they don't do it in 30 days, we do it. and if they don't pay us in 30 days, we file a lien. What we would really like to do in this first round, because we haven't followed up on this since the program began, is we would like to come to Council in late summer or early fall with this list of approximately 210 properties. We know right now that they will vary in terms of the amount of work that needs to be done from $100.00 to as much as $4,000.00. The average will be about $500.00 plus the costs of permits. Under the new permit system we've got for concrete, there is a $200.00 permit fee to cover the costs of administering those permits. In that case, we could sec owner costs running from $300.00 to $4,200.00, in that range . What we would like to do is put this together by fall, as opposed to 30 days. As I mentioned at our goal setting meeting. we are not overstaffed for this program, so what I would like to do is give these folks from fall until spring to get this work done . It allows us to spread our workload out a little bit and also it would, probably, case some of the hardship on property owners by giving them several months in order to contract and get this work done. If this work wasn't completed, we haven't set the exact schedule, but by May, for instance, then we would include those propcnics in next year's program. So we would still get the economy of scale as far as getting the work done, as economically as possible, and then we would lien those folks at that point in time, send a bill if they don't pay it then we would file liens . But, it would help the propeny owners and would also help us, staff wise. We aren't equipped to deal with 200 people pulling permits at one time. If Council is agreeable to something like that, that is the direction we would like to go. Council Member Yurchick said if they didn't join originally arc they allowed to join now? Mr. Kahm said absolutely . We have actually had 8 folks that have opted back in, that originally opted out. To opt back in, what they have to do. is they have to bring all of their concrete on the propcny up to the existing City standard. So, they have to go out and hire somebody and get it all done Council Member Yurchick said so they would have to bring up ... so for one of these 210 property owners whose concrete is stage 4, he has to fix it before he can even join the program. Mr. Kahm said absolutely. In fact, I would say that when we went and looked at it, if you look at the definition of stage 3, we would probably ask him to do J's aJl(I 4's, because J's are just waiting to become 4's and it is usually 3 to 5 years and we are dealing with those. Larry Nimmo does most of the administration on these projects and one of the issues we are getting into, is that we arc reaching a point when we are out doing work if we've got some 4's and adjacent J's even though the program is really addressing the 4's, we will do the J's at the same time to bring everything up to speed, because otherwise we would be back in 3 or 4 years anyway. They can bring it up to standard and then what they have to do is they have to make up all of the past fees that they haven't paid into the program. And with that, they can be reinstated. Council Member Yurchick said is the $600,000.00, the difference between 3.7 million and the 3.1 million, is that in a special account that is earmarked the Concrete Funds? Mr. Kahm said yes, there is a fund and then on an annual basis we appropriate from that Fund for the annual program. What I have tried to do in the past is keep about one year in the account. try to have one year ·accrual of funds . Council Member Yurc hick said one last question . What happens if we do away with the Concrete Utility and I paid int o it si nce 1997? l s there any future guarantee on walks, or is it, oh sorry you just paid . Mr. Kahm said we would have to talk to the City Attorney about that, but I am guessing it is, sorry you paid and the program is gone. We don't have funding . We spend it as fast as it comes in . We have managed to keep pace with what I call unsatisfactory concrete. but the fact is when we put the program together in 1997, we assumed by year 2006 or 2007 that there might be a balance of one and a half million or two million dollars. We thought we would be accruing money, because the whole thing was based on a 75 year life expectancy. As it has turned out, concrete has been going bad at a faster rate than we anticipated. We are okay for now but at some point in the not too distant future. we will be coming to talk to you all about an increase in order to keep up. Included in your packet is a chan that Ken Ross put together. !t is a Concrete/Paving District History. and it tells you when the majority of the conc rete went into the City. You will sec that we had a tremendous amount that went in, in the 1960's and 1970's. as much a two-thirds of the City. So at some point in time. we are going to ha ve a whole lot of it probably go bad at about the sa me period of time. Mayor Garrett asked 1f there were any other qucsLio ns . ' .. • • Englewood City CouncU April 19, 2004 Page 10 0 Council Member Wolosyn said I don't have any at this time, but in the future I would like to have a Study Session on it because there are questions. Mr. Kahm said we had originally hoped to bring this to a Study Session but then we kind of ran out of time . Ken and I haven't talked about this, but we have kind of neglected those opted outs, because we just haven't taken the time to follow up on them. What I would recommend is that this year we send some letters and follow up by spring. I would like to start doing that on an annual basis and try to keep up with those, because some of that concrete is in really bad condition and creates a hazard out there. We really shouldn't let it set around for years unaddressed. That is the other thing that I would like to start doing on an aMual basis, probably, getting people up to speed. There has been no penalty for dropping out of the program, because we have not done anything to those folks who opted out. I think once we start dealing with those properties, maybe some of those people will start coming back in . I know we have seen it as properties have changed hands and people have purchased, we've had folks that required the previous owner to get back in the district in order to get them to close the deals. I think the program will be more popular in the future than it is right now. Mayor Garren said would you like to discuss Item 11 (c) (ii)'/ Director Kahm said yes I would. He said this award for our construction contract is just a little different, because this is something we have never done before. We are always looking for a better way and a more efficient way to get things accomplished. A couple of years ago, in 2002, when we bid our Concrete Program, we put a provision in the program that allowed the contract to be extended with Council's approval for up to two additional years, because we spend a tremendous amount of time putting these things together for bid. In 2002, we just weren't that satisfied with the contractor that had that project and in 2003, we went back out to bid again and started over. What we are here with this evening, is we are looking for a motion for an extension of the 2003 contract with Thoutt Brothers. They did an excellent job last year. Their prices are very competitive. We shopped it out and we have compared it • with what other cities have gotten. as far as bids go. this year. A couple of minor exceptions ... last year Thoutt was taking trees out for $18S.OO. We took out a lot of them. because that item should have been about $1,400.00 and this year it has been raised to between $500.00 to $1,100.00 ... to be fair with them. Also, with asphalt patching, we had to raise that unit price a little bit. That is what we are a:.king to do is to award this contract to Tboutt Brothen for $428.S3S.00. One thing that we do, as the communication states, is we include the Concrete Program, which has money that is put in the PIF to provide handicap ramps . It is our efforts to comply with ADA requirements for the City. We include those and if we have money for Missing Unks sidewalks, we include that work as well, in one contract, so that we get the economy of scale. That is what this package amounts to. The Concrete Utility portion is actually. construction wise. $376,000.00, and we have another SS2.SOO .OO that we would use for ramps. The Sidewalk Missing links portion has yet to be determined, because we have been using the Sidewalk Missing Links money as our match on the TEA-21 projects on University and Belleview. Those projects aren't complete and we know we arc still going to have a balance in those accounts. but we don't know what it is yet. so we will see bow that works o ut . I know there is some sidewalk on Zuni that we have been trying to get in , for three years or so. We have been waiting o n Xcel to mo ve some poles, so I think we will be able to do that work this year as well . Mayor Garrett said as there any questions regarding the extension. There were none . COUNCIL MEMBER BRADSHAW MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (c) (Ii)· THE EXTENSION OF THE 2803 CONSTRUCTION CONTRACT FOR CONCRETE UTILITY 200&, CONCRETE PROGRAM 21CM, AND SIDEWALK Mts.gNG LINKS 2804 TO THOUTI' BROTHERS CONCRETE CONTRACTORS INC., IN THE AMOUNT OF SOl,535.00. Ma yor Garrett kcd ir there was any discussion. There was none . Vottrauhs: Ayes : N Motion carried. Council Members Barrentine. Moore, Bradshaw, Garrett. Wolo&yn. Yun:hick , Tomasso None ' ... ·' • • 0 •• • • 0 Englewood City Council April 19, 2004 Page 11 Director Kahm said did I get a nod to go forward on the opt-outs? Council gave him the go ahead. Mr. Kahm said thank you very much . · 12 . General Discussion (a) Mayor's Choice (i) Mayor Garrett said last Thursday I had somewhat of a dual role. The Sports Authority was elected, or nominated, and won the Colorado Business of the Y car by the Colorado Economic Developers Council. Thal was very nice. City Manager Scars and City Attorney Brotzman were there. (ii) Mayor Garrell said May 8111 is tour of our Waler Park. The letters did go out. They have probably been received by quite a few people. In fact, this morning someone was thanking me for getting their letter, so they are excited. II is fun to go by and watch that thing grow and ii really looks neat. (iii) Mayor Garrett said next week we are doing our road show. Between 6:00 p .m. and 7 :00 p .m. we will have a general discussion with citizens who come to the meeting. Al 7:00 p .m . we will have our formal Study Session. We will look forward lo seeing you next week. (b) Council Members' Choice (i) Council Member Barrentine said I want to thank Sue Osborne for following up with some citizen questions regarding Code Enforcement. I want 10 thank Larry Medina, Code Enforcement Officer, for taking me on a tour of District I and giving me a little bit more insight into their job. And I also want to thank Ken Ross for providing handicapped parking information 10 Linda and James Fall al 4100 South Grant and contacting residents on Oxford concerning truck traffic. (ii) Council Member Tomasso said on Thunday night the Historical Society is doing a presentation, Bungalow Heaven, dealing with the bungalow-style ans and crafts houses in Englewood. The person giving the presentation is from the Colorado Ans and Craft.s Socie1y. II should be a very intcreslina program. They will have some discussion on how 10 add 10 your arts and crafts houses. You know, in an appropriale style, so ii is conducive 10 the archi1ec1ure and some other things you can do for your houses. So thal will be in the Community Room al 7 :00 p.m. on Thursday. · (iii) Council Member Yurchick said we may have resolved this in thal budge! meeting on Saturday and I just don't remember. Bui I was wondering abou1 the three Safely Services posilions 1hat we funded through the middle of May. Mayor Garrell said May 3"' is when that discussion will take place . Cily Manager Sears said it is coming back with a presenlation wilh Chris Olson on those three in particular. (iv) Council Member Wolosyn : 1. She said I did 0nend the South Broadway Plan presentation lasl Wednesday and I thought i1 was very pos itive in that yes, objections were voiced al the beginning, but then I think over the course of the evening, the conversation developed in10 a pretty insightful and different sort of discussion about what we would like South Broadway lo be and why we have this Plan. I think that I see the facl thal we do walll lO improve the qualily of life of the entire City by trying 10 raise the face of ourCi1y ... tha1 is so evidcnl to me that I see ii when I read ii, but I think there is probably something 10 be said for adding language like that. I believe Community Devcloprncnl heard that loud and clear and made notes on 1ha1. But I thought ii was a good plan and I thought staff, and everybody in o ur community. handled ourselves quite well . II was fun, ac1ually. 2 . She said the next morning I stood in for the Mayor al the Wastewaler Plant, with Gary Sean. Dan Brotzman , the Mayor of Littleton and the enlire staff of 1he WastewalCr Trutrncnl Plan1 , where we received a delegation from Rwandan. The President couldn't come. I think some of the staff met him 11 anodler buildina, after the di scus ion at the Wastewater Plant . II was very interesting and it was sort of humbling 10 see what ocher people arc dealing with . I drove home thinki ng, I gel all of 1hi for S 100.00 or S200.00 a yar? I lhink thal wu whal they ' ·., • • En&)ewood City Couacll April 19, 2004 Pqe 12 said, I can't remember. It was a wonderful opportunity to meet people from another country, see their problems and put what we do in perspective. I wanted to commend all of you . I thought you did a wonderful job. 3. She said I had requested a waiver of the Swedish b3nncr fee. However, subsequent conversations with the City Attorney made me realize that it is actually not necessary. The Cultural Arts Commission voted to sponsor one of the Dala Horses that Swedish is having painted and placed throughout the community, as pan of an awareness plan . Every sponsor of $3,000.00 or more receives one of these blank Data Horses. which is the little horse you sec at Christmas time painted red ... that is part of Swedish tradition. So, to make a long story short. since the City is sponsoring the Swedish Shots for Tots program through 1% for the Arts money, we can hang that without all the red tape of a resolution . I just wanted to keep everybody up to date on thaL 4. She said thank you for passing the proclamation. s. She said on Saturday, Englewood Arts is having a matinee chamber concert. Beethoven Septet. 13 . City Mlllllllff'I Report (a) City Manager Sears said we were at the India exhibit. through the Museum of Outdoor Arts. on Thursday night and I thought it was a well done . (b) City Manager Sears said I also want to add that Mr . Fonda did do an outstanding job with the Rwandan delegation . They were very intrigued with our facility . I know he would like to do an exhibit at some point in time down the road , maybe for Council or for citizens. (c) City Manager Sears said I am going to be out of town for a couple days at the end of this week My wife 1w an opportunity to ttavel and I am going to travel with her. So Mike will be here and dealing with the Tri-Cities meeting Friday morning. 14. City AUoraey's Report City Attorney Brotzman did not ,)lave any matters to bring before Council . •• • t .. • • 1. 2. 3 . 4. 5 . ·• • AGENDA FOR THE REGULAR MEETING OF THE ENGLEWOOD CITY COUNCIL MONDAY, APRIL 19, 2004 7:30 P.M. Englewood Civic Center -Council Chambers 1000 Englewood Parkway Englewood, CO 80110 Call to order. '7: .3f ,._ Invocation . ~ Pledge of Allegiance. ~ Roll Call. au 'l ~ Minutes. 0 r?~-(_:J ~ 7{)· Minutes from the Regular City Council meeting of April 5, 2004.~ 6 . Sched ul ed Visi tors. (Pl ease limit your presentation to ten minutes.) fr . 7. Unscheduled Visi tors. (Please lim=presentatio!1ito five minutes.) 4.. PHlf... ~/UJ~M -$«Jnl 11~'1 Mtv 8 . Communications, Proclamations, and Appointments. ~oa. A letter from Jeffery Baker · icating is resigna tion from the Englewood Board of Adjustmen t and Appeals.m~Uii~WJ/ ~b. aprt}-7-o A letter from GJl1~d S~anko!b indicating his resignation from the Keep Englewood Beautiful Commission.~~ · proclamation recognizing the Museum of Outdoor Arts' Design & Build program. ~ Plea e note: If ou ha\e a di blhty ;ind nttd -111.vy Mds °' Sl!fVices, please notify the City ol Enatewood (303· 762 2405) at lea 1 48 hours 1n adl.ance ol when 5t't', es a, nttded. Thank you. ' ... .. • • -- Engl ewood City Council Ag enda Ap FH-19, 2004 Pag e 2 9 . Public Hearing. (No Public Hearing Scheduled) ,£)-GA-l.R.t.tr R.PAI.DV~IJ .Z'~ 101>--i ,-~,/1-yFJJDA- , 0 . Consent Agenda . a . ApP.roval of Ordinances on First Reading . ;,e-- d 'l-o b;;Jr;v 1lk°vtonrbW~~e~ 1$.11~ J()tri i<f-iii tJfP' ./Ju 1 1 i:: fl ~ Council Bill No, 6, approving an Intergovernmental Agreement with the City of r~ Westminster for equipment sharing . C. ~'l-0 b. ii. Council Bill No. 15, approving an agreement for realignment of Brown Ditch in Columbine Valley Estates along Watson Lane . iii. Council Bill No. 19, approving four Intergovernmental Subgrantee Agreements with Arapahoe County for 2004 C9mmunity Development Block Grant funding. Resolutions and Motions. ~ App'd 7-0 Moore moved IO modify Ille last-nee of paraglljlh 6 of Ille IGA lo read: "To lhealllent consislllntwith such mininlzation, Ille amount of <tewlopable land shall be maxinizad , based 14)()11 rootualy acoaptabla dllign paramel8!S for a station site OOl 19 •ee,t • aqps. Structured parWng d 131 rpe,gt , if financidy feasl*, JIM¥! b LWIDI Ag-gt 9UWIY MI lbAtn. ouncil Bill No. 18 -Recommendation from the City Manager's Office to adopt a 1 or an or inance approving an Intergovernmental Agreement with the Regional Transportation District for landscaping requirements at RTD Elati Maint~a~c~ Facility. STAFF SOURCE: Michael Raherty, Assistant City Manager., l,/,l'U...,,- ii. Council Bill No. 22 -Recommendation from the Safety Services Department to adopt a 6111 for an ordinance approving an Intergovernmental Agreement with the State of Colorado for Colorado Emerii'.cy .Mani\gement. STAFF SOURCE: Don Schoenhein, Fire Battalion Chief. f1 ~ Jji;r-.. Ap p rova l of O rdinances on Se cond Reading. i. Council Bill No. 20, an emergency ordinance authorizing two (2) Intergovernmental Agreements with the Colorado Water Resources and Power D eve lopment Authority for the issuance of Water Revenue and Wjjtr ~oJlutiJn. _ Control Rev ol ving Fund bonds for th e Phase 2 Expansion Project./1~ Council Bill No. 2 1, an emergency ordinance reaffirming the establishment of the Sewe r Utility Enterpri se.~ Please no te: If you have a disabmty and need auxili ary aids or services, please notify th e City of Englewood (303 -7 62-2405 ) at least 46 hours in advance of when services are needed. Thank you . ' .:.., .. ' t • • En"gl ewood City Council Agend a April 19, 2 004 Page 3 c. Resolutions and Motions. !Jf)pd'1-0 i. Recommendation from the Littleton/Englewood Wastewater Treatment Plant Supervisory Committee to approve, by motion, an amendment to the Purchase Agreement of denitrification system eciufpment and installation services from Severn Trent Services in th?.J~:/~$9~S81. STAFF SOURCE: Stewart H. Fonda, Utilities Director. ,,.._p 1 ,- Oft''l-0 ii . Recommendation from the Public Works Department to approve, by motion, the extension of the 2003 construction contract for Concrete Utility 200.(. Concrete Program 2004, and Sidewalk Missing Links 2004 to Thoutt Brothers Concrete Contractors Inc., in the amcw_rt.of 1 $4~8,535.~ STAFF SOURCE: Rick Kahm, Capital Projects Director.~~ 1 2. General Discussion. a. Mayor's Choice. b. Council Members' Choice. 13 . City Manager's Report. 14. City Attorney's Report. Adjournment. '('". j/) ~ The following minutes were transmitted to City Council between April 2 and 15, 2004: • Off-Leash Task Force meeting of February 24, 2004 • Englewood Cu ltural Arts Commission meeting of March 3, 2004 • Englewood Transportation Advisory Committee meeting of March 11, 2004 • Englewood Planning and Zoning Commission meeting pf March 16, 2004 • Englewood Liquor Licensing Authority meeting of March 17, 2004 Pl eas e note : If you have a dis.ibUity and need au>Ciliary aids or Sffllices, please nolify the City of Englewood (303 -762 -2405 ) at least 48 hours in advance of when services are needed. Thank ou. ,. . • I 1 • • .. ENGLEWOOD CITY COUNCIL ENGLEWOOD, ARAPAHOE COUNTY, COWRADO Regular Se.ion April 5, 2004 I. Call to Order The regular meeting of the Englewood City Council was called to order by Mayor Garren at 7 :54 p.m. Mayor Garren said I apologiz.e ... we are running a little bit late because our Study Session ran longer. 2 . Invocation The invocation was given by Council Member Barrentine. 3. Pledge of Allegiance The Pledge of Allegiance was led by Mayor Garrett. 4. Roll Call Present: Absent: A quorum was present. Also present: 5. Minutes Council Members Tomasso, Moore, Barrentine, Garren. Bradshaw, Wolosyn, Yurchick None City Managec Sears City Altorney Brotzman Assistant City Manager Aaheny City Clerk Ellis I>i!'cctor Olson, Safety Services Housing Finance Specialill Grimmett, Community Development Director Gryglewicz, Finance and Administralive Services Director Fonda, Utilities Director Ross, Public Works Open Space Manager Lee, Parks and Recreation Ja (a) COUNCIL MEMBER WOWSYN MOVED, AND IT WAS SECONDED, TO APPROVE THE MINUTES OF THE REGULAR CITY COUNCIL MEETING OF MARCH 15, 2004. Mayor Garrett asked is there was any discussion or corrections. There wu none . Vote results: ' Ayes: Council Members Barrentine , Moore, Bradshaw , Garren, Wolosyn, Yurchick, Tomasso Nays : None Motion carried. 6 . Scheduled Visitors The re ~re no sc heduled visirors . t • • Englewood City Council April 5, 2004 Page 2 7. Unscheduled Visitors There were no unscheduled visito rs . 8. Communications, Proclan.atlons and Appointments ·• • • ·O (a) A proclamation declaring the week of April 18, 2004 through April 25, 2004 as Days of Remembrance for Victims of the Holocaust was considered. COUNCIL MEMBER WOLOSYN MOVED, AND IT WAS SECONDED, TO APPROVE A PROCLAMATION DECLARING THE WEEK OF APRIL 18, 2004 THROUGH APRIL 25, 2004 AS DAYS OF REMEMBRANCE FOR VICTIMS OF THE HOLOCAUST. Ayes: Council Members Barrentine, Moore, Bradshaw, Garren, Wolosyn, Yurchick. Tomasso Nays: None Motion carried. (b) A proclamation recognizing April 16, 2004 as Arbor Day was considered. COUNCIL MEMBER WOLOSYN MOVED, AND IT WAS SECONDED, TO APPROVE A PROCLAMATION RECOGNIZING APRIL 16, 2004 AS ARBOR DAY. Ayes: Council Members Barrentine, Moore. Bradshaw, Garrett, Wolosyn, Yurchick, Tomasso Nays : None Motion carried. 9. Public Hearing No public hearing was scheduled before Council. 10. Consent Agenda COUNCIL MEMBER BRADSHAW MOVED, AND IT WAS SECONDED, TO APPROVE CONSENT AGENDA ITEMS 10 (a) (I) AND 10 (b) (I), (il) and (W). (a) Approval of Ordinances on First Reading (i) COUNCIL BILL NO. 6. INTRODUCED BY COUNCIL MEMBER BRADSHAW A BILL FOR AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF WESTMINSTER, COLORADO AND THE CITY OF ENGLEWOOD. COLORADO FOR AN EXCHANGE OF THE CITY OF ENGLEWOOD'S ROTOMILLING SERVICES TO THE CITY OF WESTMINSTER IN RETURN FOR THE SERVICES OF THE CITY OF WESTMINSTER STREET STRIPING MACHINE. (b) Approval of Ordinances on Second Reading (i) ORDINANCE NO . 18, SERIES OF 2004 (COUNCIL BILL NO. 14, INTRODUCED BY COUNC IL MEMBER BRADSHAW) AN ORDINANCE AUTHORIZING AN ENCROACHMENT INTO THE CITY OF ENGLEWOOD·s RIGITT-OF- WA Y FOR STABILIZATION AND REHABILITATION OF THE THOMAS SKERRITT HOUSE 3560 SOUTH BANNOCK STREET. ENGLEWOOD. COLORADO. • t .. • • ---- .. Englewood City Council April 5, 2004 Page3 0 (ii) ORDINANCE NO. 19, SERIES OF 2004 (COUNCD... BILL NO. 16, INTRODUCED BY COUNCIL MEMBER BRADSHAW) AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT PERTAINING TO INFORMATION TECHNOLOGY PROCUREMENT AND SUPPORT SERVICES BETWEEN CHERRY Hll..LS VILLAGE AND THE CITY OF ENGLEWOOD. (iii) ORDINANCE NO. 20, SERIES OF 2004 (COUNCD... BILL NO. 17 , INTRODUCED BY COUNCIL MEMBER WOWSYN) AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT (URBAN AREA SECURITY INITIATIVE) BETWEEN THE CITY OF DENVER, COLORADO AND THE CITY OF ENGLEWOOD, COLORADO . Mayor Garrett asked if there was any discussion. There was none. Vote results: Motion carried . Ayes : Council Members Barrentine, Moore, Bradshaw, Garrett, Wolosyn, Yurchick, Tomasao Nays : None (c) Resolutions and Motions There were no additional resolutions or motions submitted for approval. (See Agenda Item 11 -Regular Agenda.) 11 . Replar Apada (a) Approval of Ordinances on First Reading (i) Housing Finance Specialist Grimmett presented a recommendation from the Community Development Depanment to adopt a bill for an ordinance approving four lnter1ovemmenlal Subgrantee Apeements with Arapahoe County for 2004 Community Development Block Grant funding. She said lalt December Council approved our application and all of our projects were funded. We are now requesting approval so we can set underway with, hopefully, funds being released June 1•. All four projects were funded for a total of$!50.000.00 in Block Grant Funds. Mayor Garrett aslced if there were questions for Ms . Grimmett. There were none. COUNCIL MEMBER BRADSHAW MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (a) (I) -COUNCIL BILL NO. 19. COUNCIL BILL NO. 19. INTRODUCED BY COUNCIL MEMBER BRADSHAW A BILL FOR AN ORDINANCE APPROVING AND AUTHORIZING THE EXECUTION OF FOUR INTERGOVERNMENTAL SUBGRANTEE AGREEMENTS (COBO) FOR THE YEAR 2004 BETWEEN THE ARAPAHOE BOARD OF COUNTY COMMISSIONERS AND THE CITY OF ENGLEWOOD, COLORADO . Mayor Garrett asked if there was any discussion. 11lcre was none . Vote nsults: Ayes : Counci l Members Barrentine, Moore. Bradshaw, Garrett. Woloayn. Yurchick, Tomuso Nays : None Motion carried . t .· .. .• • • -· Englewood City Council April 5, 2004 Page4 • • nJ, l, (ii ) Director Gryglewicz presented a recommendation from the Department of Finance and Administrative Services to ado pt a bill for an emergency ordinance reaffirmi ng the establishment of the Sewer Utility Enterprise . He said this is really a formality that came about with the passage of Tabor, to reaffirm the Enterprise status of the Sewer Utility Enterprise. This is being done as an emergency to coincide with the next bill for an ordinance authorizing intergovernmental agreements . "'ayor Garrett asked if there were any questions. There were none. COUNCIL MEMBER WOWSYN MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (a) (II) -COUNCIL BILL NO. 21. COUNCIL BILL NO. 21, INTRODUCED BY COUNCIL MEMBER WOLOSYN A Bll..L FOR AN ORDINANCE OF THE CITY OF ENGLEWOOD, COLORADO, REAFFIRMlNG THE ESTABLISHMENT OF ITS SEWER UTILITY ENTERPRISE; PRESCRIBING DETAILS IN CONNECTION THEREWITH; AND DECLARING AN EMERGENCY . Mayor Garrett asked if there was any discussion . There was none. Vote results: Motion carried. Ayes: Nays: Council Members Barrentine, Moore, Bradshaw. Garrett, Wolosyn, Yurchick, Tomasso None (iii) Director Gryglewicz presented a recommendation from the Littleton/Englewood Wastewater Treatment Plant Supervisory Committee to adopt a bill for an emergency ordinance authorizing two Intergovernmental Agreements with the Colorado Water Resources and Power Development Authority for the issuance of Water Revenue and Water Pollution Control Revolving Fund bonds for the Phase 2 Expansion Project. He said these two intergovernmental agreements are for a loan from the Revolving Fund from the Authority and it states in here that that is for $33,000,000.00. That is a little bit higher than we actually anticipate taking. We are looking at $30.000,000.00 and $21,000,000.00 from the Bonds. This is going to fund the $110,000,000.00 total project cost. Those are being split 50/50 by Littleton and Englewood. This is being done as an emer,ency to take advantage of interest rates and to have funding for the actual bids as they come in. Ma yor Garrett asked if there were any questions for Mr . Gryglewicz. There were none. COUNCIL MEMBER BRADSHAW MOVED, AND IT WAS SECO NDED, TO APPROVE AGENDA ITEM 11 (a ) (Ill) -COUNCIL BILL NO. 20. COUNCIL BILL NO. 20, INTRODUCED BY COUNCIL MEMBER BRADSHAW A BILL FOR AN ORDINANCE OF THE CITY OF ENGLEWOOD, COLORADO, APPROVING LOANS TO BE MADE TO THE C ITY BY THE COLORADO WATER RESOURCES AND POWER DEVELOPMENT AUTHORITY FOR THE PURPOSE OF FINANCING ADVANCED TREATMENT UPGRADES TO. AND THE CONSTRUCTION OF IMPROVE ME NTS INCREASING THE TREATMENT CAPACITY OF, THE CITY'S JOINT WA ST EWATER TREATMENT PLANT ; AUTHORIZING THE FORM AND EXECUTION OF LOAN AGREEMENTS AND BONDS TO DOCUMENT THE LOANS; PROVIDING FOR PAYMENT OF THE BONDS FROM REVE NUES O F T HE C ITY 'S SANITARY SEWER SYSTEM; PRESCRIBING DETAILS IN CONNECTION THEREWIT H ; AND DECLARING AN EMERGENCY. Mayor Garrett asked if there was any discussion. There was none. Vott ttSUlts : ,. ' . ... f • j • • Ena)ewood City Council April S, 2004 Pages 0 Ayes: Council Members Barrentine, Moore, Bradshaw, Garrett, Wolosyn, Yurchick, Tomasso Nays: None Motion carried. (iv) Director Fonda presented a recommendation from the Utilities Department to adopt a bill for an ordinance approving an agreement for realignment of Brown Ditch in Columbine Valley Estates along Watson Lane. He said the property owner at Watson Lane wants to make a very slight adjustment in the ditch alignment. It is not a ditch that we use, but one where we are retaining the right-of-way in case we should ever need to use it. There is a fairly high probability that we won't, but we arc retaining the right-of-way and we have determined that this slight movement will not affect our potential future uses of the ditch and therefore we recommend passage . Mayor Garrett asked if there were questions for Mr. Fonda. There were none. COUNCIL MEMBER WOLOSYN MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (a) (Iv) -COUNCIL BILL NO. 15. COUNCll.. Bll..L NO. IS, INTRODUCED BY COUNCIL MEMBER WOLOSYN A BILL FOR AN ORDINANCE AUTHORIZING AN "AGREEMENT FOR REALIGNMENT OF BROWN DITCH IN COLUMBINE VALLEY EST ATES" BETWEEN THE OWNERS OF CERT AlN PROPERTIES ALONG THE RIGHT-OF-WAY AND THE CITY OF ENGLEWOOD, COLORADO. Mayor Garrett asked if there was any discussion. There was none . Vote remits: Motion carried. Ayes: Council Members Barrentine, Moore, Bradshaw, Garreu, Wol01yn, Y urchick, T omuso Nays: None (b) Approval of Ordinances on Second Reading There were no additional items submitted for approval on second reading. (See Agenda Item 10 -Consent Agenda.) ( c) Resolutions and Motions (i) Director Gryglewicz presented a recommendation from the Department of Finance and Admini trat1 ve Services to adopt a resolution declaring the intent of the City of Eqlewoocl to reimbune illdf with proceeds of a future borrowing for capital outlays related to the Phase U ellpllllion of the UnlelonlEnglewood Wastewater Treatment Plant . He said this resolution is being done more as a formality, jllll lO enaure that if the City docs reimburse itself from its own funds expended for the Phase II Project. that we arc in compliance with regulations. We are not actually intending to do this, but I am doing it just to cover ounelva in cue it does come up . Mayor Garrett asked if there were any questions . There were none . COUNCIL MEMBER WOLOSYN MOVED, A.ND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (c) (I) -RF.SOLUTION NO. 41, SERla OF lGOC. RESOLUTION NO. 48. SERlES OF 2004 A RESOLUTION OF THE CITY COUNCIL OF 111E CITY OF ENOLEWOOD. COLORADO, DECLA.ltlNG ITS OFFICIAL INTENT TO REIMBURS·1i ITSELF WTTH THE PROCEEDS OF A FUTURE BORROWINO t .· .. .. • • Englewood City CouncU AprUS,2004 Page6 . ·• • • FOR CAPITAL OUTLAYS RELATED TO THE PHASE II EXPANSION OF THE LITTLETON/ENGLEWOOD WASTEWATER TREATMENT PLANT. Mayor Garrett asked if there was any discussion . There was none . Vote results: Motion carried. Ayes: Nays : Council Members Barrentine, Moore, Bradshaw, Garrett, Wolosyn, Yurchick, Tomasso None (ii) Director Ross presented a recommendation from the Department of Public Works to adopt a resolution supponing Six Y car Reauthorization of the Transponation Equity Act for the 2 I• Century (TEA- 21) regarding TEA-21 Funding. He said I am here tonight to ulc you to consider passing a resolution that would indicate your support for the Senate version of the TEA-2 I Funding. This measure has been discussed and debated for about a year in the Congress. The President has come out and said that he would support a tramponation bill of 256 billion dollars. The United States Senate voted 78 to 20 against that, saying that no, it needs to be closer to 318 billion dollars. The Department of Transportation completed a study of the conditions and in assessing the performance of our highways and transit they, actually, have come out in favor of 375 billion dollars. The House, just Friday, passed their version of the same bill and they came in at 293 billion dollars. So, the Senate version goes the farthest toward addressing the needs . That is why the Colorado Municipal League and the National League of Cities have asked their member cities to show their support, so when the House and the Senate get together to discuss this in commillee and try to come up with a compromise bill, hopefully, they will take resolutions from agencies such as Englewood into consideration. Mr . Ross said if you have any questions, I will be happy to try to address them . Mayor Garrett asked if there were questions for Mr. Ross. Council Member Wolosyn said only to compliment you on the packet item . It was informative and I liked it. Mayor Garrell said what's the purpose and where will this resolution go and how will it be used? Mr. Ross said it will be forwarded to our Congressional deleption. We will also send a copy to the Colorado Municipal Lea1ue so they will know that our Congressional people have received it. It will carry whatever weisht our ConlJrcSIK)llal people will give it. Mayor Garrell said what docs it mean to Englewood? Mr . Ross said every two years we apply for transportation impro vement money . In the last couple of years we have received almost $2,000,000.00 wor1h of projects through thi s process. Thi s year wc arc in the process of gelling money for a traffic signal at Kenyon and Broadway out of th e Safety Fund and we arc also in the process of gelling money for the Broadway Streetscape, where wc improve the medians along South Broadway . Obvious ly, if this gets held.up and there is no money there, then these projects will have to be held back until those monies become available . So, wc miss this window of opportunity, 1iven the current construction climate-and the favorable bids that wc are rcceivin1 and who knows what else . COUNCIL MEMBER BRADSHAW MOVED, AND IT WAS SECONDED, TO APPROVE AGENDA ITEM 11 (c) (U) -R~LUTION NO. 49, SERIF.s OF 2004. RESOLUTION NO . 49, SERIES OF 2004 A RESOLUTION SUPPORTING THE REAUTHORIZATION OF FEDERAL TRANSPORTATION PROGRAMS AND POLICIES NECESSARY TO IMPROVE OUR NATION'S MOBILITY AND URGING CONGRESS TO PASS A SIX-YEAR SURFACE TRANSPORTATION REAUTHORIZATION BILI. IN THE AMOUNT OF NO LESS THAN $318 BU.LION DOLLARS . Mayor Garrett asked if thi:rc was any discussion . There was none . ' . .. . • • • --•• • • 0 c--. (J Englewood City Council Aprll 5,2004 Page7 Vote results: Ayes : Nays : Council Members Barrentine, Moore, Bradshaw, Garrett, Wolosyn, Yurchick, Tomasso None Motion carried. 12 . General Discussion (a) Mayor's Choice (i) Mayor Garrett said on May 8111 we will have our tour of Pirate's Cove. I think some of the pools will be full , so for those of you who would like to jump in, feel free. (ii) Mayor Garrett said I will not be meeting with Gary Sears this Wednesday, as next Monday night we will be meeting over at the Wastewater Treatment facility with the City of Littleton. It is a joint meeting so that will be the agenda for next week . (iii) Mayor Garrett said also it appears I could be testifying tomorrow on House Bill 1396. That is the bill on disproportionate fee . I will deal specifically with the issue, if Englewood was the precipitous to it, we didn't have a reason to be the precipitous to it. If it turns out we are not, I probably won't be testifying, but we haven't gotten clarity on that. We have tried to do that through several phone calls, but haven't gotten that clarity. So that will be tomorrow . (b) Council Members ' Choice (i) Council Member Tomasso said I am curious. I read the paper on Sunday about the drought. the continued drought. and wondered if it wct11 on for another three years what the water situation would be, worse case scenario, in three years, in relation to Englewood and our water rights. And I wondered if Stu Fonda has a plan. a worse case scenario worked out. Director Fonda said I noticed that the article indicated if Lake Powell continues to fall for seva-al years, then the State engineer at that time would then try to get a State wide plan. And at that point. I don't. quite frankly, know what the impact on us would be. If it was strictly the trans-mountain diversions, we have many senior ripts on the east slope . It might affect our ability to provide as much hi&h priced water to HiaJdands Ranch that we lcuc. I do not know , he said, barring that there is also a drouaht simultaneOUSly on the cast side. that we would be in a mandatory restriction capacity at that point. HoweVCI', I will tell you that I am conccmed about it. I am not in a panicky mode, but it is something that I think we will certainly look into. If Lake Powell keeps dropping, I think there will be plenty of time to do that type of analysis , because the State will start a procedure and there will be all kinds of public meetings and so· forth which we attend and sec what sort of things they come up with . Quite frankly, I don't know, given the doctnne of prior appropriations, how they would cut people back. ocher than in their · seniority and we are fairly senior on most of our rights . So right now. I would say it would be unpredictable at this point. but we would probably be in as good a position as anybody on the front ranae. (ii) Council Member Yurchick said I just wanted to thank Torn Vandcrmec and Chris Olson for talking to the liquor store owner up there on Evans and Tcjon and cxplainina why. even thoup he had a license number . that there were no arrests in hi robbery . He cauaht me the ocher day and he is extremely happy with the re ponsc . (111) Counci l Member Wolosyn : I. he 1d I am scrvina on the Swedish Cen&cnnial Committee . The main proJ«t of that Cornmiaec is a proj t called hots for Tots to promocc childhood immuruzation. They are aoina 10 have t-cli111CS •.. one aa the lnter-Fauh office and another at a da can lcamina ceneer 1n L1ttlecoa. As pan of the ~ they .... 10 place a banner for a couple of Wtt _They are not sure whether it will be 111 JIiiy or Scpecmber . They ae tryi111 to decide, but Littleton has alfttd to lei t.hrm ban& th1 banner free or harae and I was hop,111 thtll our City COIIIICII t .· ... .. , · • • Englewood City Council April 5, 2004 Page8 ·• • • (---). ) \,~ wo uld agree to the same. As I understand it. it is a policy decision . I have a letter here respectfully requesting that. Mr. Garrett asked about the dates. City Manager Sears said we actually received the application today, hut I don't remember what the date was. M s . Wolosyn said I think it will be in the summer. Ms. Wolos yn said they understand that if there is someone else in line, they may have to shift. Mr. Garrett said they arc willing to shift? Ms. Wolosyn said right, the issue here is can we waive the fee . Mr. Yurchick said how much is the fee? Ms. Wolosyn said $150.00. 2. She said we had our big Back to Bach Concert and it was a success. I want to thank staff for all of the support . It always feels good to bring people in from all over the metro area and wc received a lot of compliments for the City during that night. I appreciate Council 's suppon through Aid to Other Agencies for this event and also to staff in general . Amy Doe does a woridcrful job, she said. Also, the previous night, the Young Sinfonia met here. They also performed and we had another good concert and received a lot of compliments. I heard people saying they ate at the Patriot and Loyalist Pub and then came up for the concert. 3. She said the Art Show that the Englewood Arts puts on with MOA just ended and we sold $7,600.00 worth of art so wc will be putting some money back into the General Fund. Several members of Council congratulated her . (iv) Council Member Bradshaw: I . She said I think we have a new day labor business in Ray's district on South Broadway . I !bought they couldn't go in . Mr. Tomasso said I looked at that and tried to decide if it was a rehab center, becaUIC the people I saw standing outside did not look like security guards. Ms. Bradshaw said it is on the west side of Broadway and it is north of Eastman. Mr. Tomasso said it is that building complex where New Balance is on the north end and it is on the south end. They arc looking for security folks for $8 to SI I an hour. It is hard to tell if it is a labor hall or just what is going on. I crossed the street and there were a bunch of people standing out in front smoking cigareltcS, I walked by it once and the group was a little funhcr south and it looked like a methadone clinic . Ms. Bradshaw said there is a methadone clinic there too. I would like to make this a Council Requcst and have staff look into it . 2 . She said I would also make a Council Request for information on the number of car businesses going in on Broadway no w. City Manager Sears said as of the end of the moratorium? She said yes. as of the end of the morat orium . 13. City Manqer's Report {a) City Manager Sears said j ust a reminder about this Saturday. ThcR will be coffee and rolls from 8 :00 a .m. to 8 :25 a .m. in the Community Room. We arc working through the presentation with each of the staff and we will have the info rmation to the Counci l Thursday. Based on goals, strategy and focus, wc will look a t what the staff. in particular, fe lt they perhaps had to let go during t h is last year and set priorities going into t h is next year. We will try to tee up some issues for the Counci l to maximize the time that wc have and try to get feedback from the Council for the staff. Frank will have a report and is actuall y prepared to give last month ·s financial report. We will probabl y tart the meeti ng off with the March report to give you t he ~..st idea where we are, from a budget viewpoi nt. We need d irection fro m the Council. Council has asked that wc don't do the Pirate's Cove walk-through on Sa tu rday afternoon. T hat we wai t until May s•. So we will probably end after lunch with a wrap-up session by City Council , a nd , agai n, we arc lookin g fo r d irection from Council on your priorities, as you hear where staff is on the I s ues that we will be looking at. We will also spend some time on ow Capital Projccu Fund. whic h has been somew hat drained and we need some d irection. We arc hoping the money starts coming back into that fund . Ms. Brad haw aid I have a request . could we have an um from M ile High Coffee, p lease ? Mr. Scars said absolut e ly. Mr Y urc hic k s aid I have another request . I would li ke to ha,'C a working lunch and do our rap up th ro ugh lunch. (b ) ny Manager Sear said next Monda y evening wc meet at 5:30 p.m .. Wlth the C n y of Llnlcton. at the W te-.•atcr Treatment Plant. After brief 1ntroductt0ns, the focus will , primarily. be on all the WU1Cwucr ' .. f ' I • • Eaalewood City Council April 5, 2004 .... , Treatment Plant achievements, State water issues and where we are with some litigation issues, but primarily it ia to let the Council know the status of whae we are going with this major expansion of the sewer plant. City Manager Sears said it is going to be kind of a busy couple of weeks . On the 19*, we have planned for a tour of the Elati Maintenance Facility with RTD . Pauletta will be meeting us there, along with, hopefully, the staff. City Manager Sears said we are sending out notices of the District meeting being held on the 26• at Cherrelyn School. 14 . City Attorney'• Report (a) City AUomey Brotzman said I am goin& to be taking a radier IDICxpected vacatioo lWling this Wednesday afternoon to BOilOD to watch the Frozen Four. Thank you Council, for your indulgence in allowing me to go watch my college hockey team play. JS . Adjollnumat RRE1T MOVm TO ADJOURN . The meeting adjourned at 8:20 p.m. -~ PLEASE PRINT NAME PUBLIC COMMENT ROSTER AGENDA ITEM 7 VNICHEDULID Vllfl'allt DATE: APRIL 19, 2004 •• ... • < ~ .. ~ .. ,,__ ADDRESS f 1') ~ ib110 ~~~, .. . t • •' .. . ' • • March 31 , 2004 City of Englewood Englewood, CO 80110 Attention: Board of Adjustment and Appeals Dear Mayer of Englewood and fellow board members. As of the first of April I must regretfully submit my letter of resignation and leave my position with the Board of Adjustments and Appeals serving the City of Englewood. This decision was difficult to make, but due to health reasons, I feel it is the best thing to do for my self and the Board. I would like to thank every one on the Board and City Council for appointing me two years ago, I have enjoyed taking part in the appeals process and serving with each of you. I wish each and every one serving the fine City of Englewood the very best in the future and bid to all a fair well . Sincerely COMMUNITY DEVELOPMENT DEPARTMENT B .J effery Baker ENGLEWOOO .COlOj:\;\;ju • • March 31 , 2004 City of Englewood Englewood, CO 80110 Attention: Board of Adjustment and Appeals Dear Mayer of Englewood and fellow board members. As of the first of April I must regretfully submit my letter of resignation and leave my position with the Board of Adjustments and Appeals serving the City of Englewood. This decision was difficult to make, but due to health reasons, I feel it is the best thing to do for my self and the Board. I would like to thank every one on the Board and City Council for appointing me two years ago, I have enjoyed taking part in the appeals process and serving with each of you. I wish each and every one serving the fine City of Englewood the very best in the future and bid to all a fair well. Sincerely COMMUNITY DEVELOPMENT DEIWITMENT B Jeffery Baker ENGLEWOOD . CO\.O~JQ •, • t .. • • April 13, 2004 Mayor and City Council City of Englewood 1000 Englewood Parkway Englewood, CO 80110 Dear Mayor and Council Members: RECEIVED B C11Y MANAOER'I OfflCI ac:w-WOCD, co It is with a great deal of regret that I tender my resignation trom the Keep Englewood Beautiful Commission. I thoroughly enjoyed the years I was able to serve on the Commission but I am retiring and will be moving out of Colorado. Sincerely Gerald Stankorb cc: KEB ·• • • PROCLAMATION WHEREAS, for the last thirteen years, the Museum of Outdoor Arts has sponsored the Design and Build™ competition offering advanced art students and Colorado teachers of visual arts an opportunity to develop creative ideas through three dimensional means; and WHEREAS, the Museum of Outdoor Arts has expanded their competition to include not only the CityCenter Englewood but also sites at Denver International Airport, and along the RTP light rail route from Denver south to Littleton as venues for the exhibition of public sculpture; and WHEREAS, the instructors Tim Flynn, Tracie Dean, Kim McGrath , Corky Dean, Margaret Mansour, Deb Rosenbaum, Pamela Hawkins, Torrey Carlton, Larry Alexander, Sheila Olson, Jon O'Lonergan, Kathy Watzel, Janet Woclfe, Kin Colegrove and Michele Johnson arc crucial to perpetuating a strong artistic climate here in Denver; and WHEREAS, the winning designs exhibit many important elements of real life work- related experiences such as deadlines, creative problem solving, and the development of ideas for art in public space which encourages the building of confidence and the development of skills for work experiences in the future ; and WHEREAS, the Museum of Outdoor Arts has furthered the mission of the Englewood Cultural Arts Commission in their campaign for the enhancement and perpetuation of a strong artistic climate in Englewood; and WHEREAS , the City expresses its gratitude for the work done by the following schools and instructors for the Design and BuildTM program : Chatfield High School, Pomona High School, Kent Denver School, Denver School of the Ans, Bear Creek High School, Douglas County High School, Englewood High School, Air Academy High School, Sheridan High School , Horizon High School and Saint Mary's Academy . NOW THEREFORE, I, Douglas Garrett, Mayor of the City of Englewood, Colorado, hereby recognize the Museum of Outdoor Arts' Design and BuiJdTM Program for its co mmitment to this project, which offers the opportunity for the development of creative ideas and enhances and perpetuates a strong artistic climate in the City of Englewood, Colorado. GIVEN under my hand and seal this 19th day of April, 2004 . Doualas Garrett, Mayor ' ,, • • ORDIN~NO. SERIES OF 2004 -- BY AUTHORITY COUNCIL BILL NO. 6 INTRODUCED BY COUNCIL MEMBER BRADSHAW AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF WESTMINSTER, COLORADO AND THE CITY OF ENGLEWOOD, COLORADO FOR AN EXCHANGE OF THE CITY OF ENGLEWOOD'S ROTOMILLING SERVICES TO THE CITY OF WESTMINSTER IN RETURN FOR THE SERVICES OF THE CITY OF WESTMINSTER STREET STRIPING MACHINE WHEREAS, the City of Englewood owns, operates and maintains a rotomilling machine utilized to remove the asphalt or concrete surface from roadways for the purpose of overlaying new asphalt or concrete; and WHEREAS, the City of Westminster owns, operates and maintains a street striping machine; and WHEREAS, the City of Englewood has been providing rotomilling services to the City of Westminster in exchange for paint striping services by the City of Westminster for the past 15 ycan without a formal agreement; and WHEREAS, both cities recognized that by sharing their equipment, they could accomplish their needs without purchasing another piece of equipment; and WHEREAS, this agreement provides the City of Westminster with rotomilling services by the City of Englewood in exchange for the City of Westminster's striping services for Englewood's streets; and WHEREAS, the citizens of both the City of Englewood and the City of Westminster benefit from such an agreement; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section I . The Intergovernmental Agreement, attached hereto 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 Agreement for and on behalf of the City of Englewood, Colorado. Introduced, read in full, and passed on first reading on the 5th day of April, 2004. -1- ' ... .. • • Published as a Bill for an Ordinance on the 9th day of April, 2004 . Read by title and passed on final reading on the 19th day of April, 2004 . Published by title as Ordinance No . ~ Series of 2004, on the 23n1 day of April, 2004 . Douglas Garrett, 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 the Ordinance passed on final reading and published by title as Ordinance No . ~ Series of 2004. Loucrishia A. Ellis -2- ,. t ..• .. • • IN WITNESS WHEREOF, the Cities here have executed this Agreement to be effective as of the date first above written . CITY OF WESTMINSTER ATIEST: APPROVED AS TO FORM: Sharon Widener, Assistant City Attorney CITY OF ENGLEWOOD Douglas Garratt. Mayor .... ATIEST: Loucrisha A. Ellis. City Clerk 2 • • 0 INTERGOVERNMENTAL AGREEMENT THIS INTERGOVERNMENTAL AGREEMENT. dated this 15th day of March • 2004_ . is made and entered into by and between the CITY OF ENGLEWOOD, a municipal corporation (·Englewood·). and the CITY OF WESTMINSTER, a municipal corporation ('Westminster"). WHEREAS, pursuant to C.R.S. § 29-1-203, C.R.S .• as amended, governmental entities may cooperate or contract with one another to provide any function, service or facility lawfully authorized to each, and WHEREAS. the each City owns machinery and employs operators for the purpose of maintaining its streets, and WHEREAS. Englewood wishes to loan its milling machine to Westminster and Westminster wishes to loan its striping machine to Englewood. NOW THEREFORE, the Cities agree to exchange the use of the machines according to the terms of this Agreement 1. Each City shall loan its machinery to the other City upon request of its Street Operations Manager or other official designated by the City, for a period not to exceed five (5) days per calendar year. 2. The machinery loaned by each City shall be operated by employees of the lending City at all times . 3. The employees shall remain under the supervision and control of the lending C ity even when working in the other City, and the lending City shall remain solely responsible for the employees · pay , oenefits, and discipline. 4 . The lending City shall be responsible for any insurance of its machinery - and its transportation .• and shall be responsible for repair and maintenance of its machinery. 5 . Transportation to and from one City to the other will be arranged between the Street Operation Managers of the two Cities, with the lending City to have final control if there is any conflict. 6 . This Agreement shall commence with the calendar year of 2004 and shall remain in effect until either City notifies the other of its desire to terminate the Agreement upon thirty (30 ) days notice . • X H I • + A ' • ' .. .•' • • -... BY AUTHORITY (J COUNCIL BILL NO. IS INTRODUCED BY COUNCIL MEMBER WOLOSYN AN ORDINANCE AUTHORIZING AN "AGREEMENT FOR REALIGNMENT OF BROWN DITCH IN COLUMBINE VALLEY ESTATES" BETWEEN THE OWNERS OF CERTAIN PROPERTIES ALONG THE RIGHT-OF-WAY AND THE CITY OF ENGLEWOOD, COLORADO. WHEREAS, Brown's Ditch is an irrigation ditch and right-of-way which is owned by the City of Englewood, Colorado, and runs through the Columbine Valley Estates development; and WHEREAS, the Englewood City Council authorized an exchange of real estate on the Brown Ditch with Jack R . Lilienthal with the passage of Ordinance No. 17, Series of 2002; and WHEREAS, Jack R . Lilienthal desires to develop another portion of Columbine Valley Estates and requests another transfer of properties to again realign Brown Ditch; and WHEREAS, this realignment will benefit the City by straightening a curve in the Right-Of-Way which should facilitate future piping of the Brown Ditch within the Right-Of-Way; and WHEREAS, the passage of this Ordinance authorizes the "Agreement For Realignment Of Brown Ditch In Columbine Valley Estates" for the exchange of a portion of Brown Ditch by Quit Claim Deed between the City and Jack Lilienthal and the City and the current owners of Lot 3; and WHEREAS, the Englewood Water and Sewer Board recommended approval of the real estate exchange at the February 10, 2003 meeting; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Sec tion 1. The City Council of the C ity of Englewood, Colorado hereby accepts and a pproves the "Agreeme nt For Realignment Of Brown Ditch In Columbine Valley Estates" for the exchange of a portion of Brown Ditch by Quit Claim Deed, attached hereto as "Attachment I ". Section 2. The Mayor and City Clerk arc hereby authorized to sign and attest, respectively, the Agreement for and on behalf of the City Council and the City of Englewood, Colorado . Introduced, read in full , and passed on fitst reading on the Stb day of April, 2004. -1- ' .,.,. .. • • Published as a Bill for an Ordinance on the 9th day of April, 2004. Read by title and passed on fmal reading on the 19th day of April, 2004. Published by title as Ordinance No. _, Series of 2004, on the 23111 day of April, 2004. Douglas Garrett, 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 the Ordinance passed on fmal reading and published by title as Ordinance No. _, Series of 2004. Loucrishia A. Ellis -2- ... Published as a Bill for an Ordinance on the 9th day of April, 2004. Read by title and passed on final reading on the 19th day of April, 2004 . Published by title as Ordinance No. ~ Series of 2004, on the 23n1 day of April, 2004. Douglas Garrett, 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 the Ordinance passed on final reading and published by title as Ordinance No. ~ Series of 2004. Loucrishia A . Ellis -2- -· 0 • AGREEMENT FOR REALIGNMENT OF BROWN DITCH IN COLUMBINE VALLEY EST A TES This Agreement is entered into on the __ day of 2004, between Jack R. Lilienthal, owner of Columbine Valley Estates, whose address is 701 Wacson Lane, Littleton. CO 80123, Vincent and Antoniette Salzano, owners of Lot 3 of Columbine Valley Estates and the City of Englewood, a municipal corporation of the State of Colorado. at 1000 Englewood Parkway, Englewood, CO 80110, for the exchange of real properties in Columbine Valley Estates and Brown Ditch. WITNESSETH WHEREAS, there bas been a previous exchange of properties between the City of Englewood, Jack R. Lilienthal. owner of Columbine Valley Estates where certain real property was exchanged for a portion of Brown Ditch Right-Of-Way by Quit Claim Deeds dated May 6, 2002 and recorded in the records of the Arapahoe County Clerk :md Recorder on June 30 . 2002; and WHEREAS, Jack R. Lilienthal now desires to develop another portion of Columbine Valley EstateS and requesis another tr.111Sfer of properties to again realign Brown Ditch; :ind WHEREAS, and Vincent and Antoniene Salzano, are the currently the owners of Lot). Columbine Valley Estates which are :i part of that property which was exchanged for :i portion of Brown Ditch Right-Of-Way; and WHE'REAS, this realignment will benefit the City by straightening :i curve in the Right-Of- Way which should facili1:1te future piping of the Brown Ditch within the Rigbt-Ot:way; and WHEREAS, the Englewood Water and Sewer Board :ipprovcd this e.'tchange of properties at its February 10, 2004 meeting . .• ,.. ·::-.1ow , THEREFORE. it is agreed by :ind between the parties to exchange real estate as follows : 1. The legal description of that portion of Brown Ditch. owned by the City of Englewood. to be exchanged by quit claim deed to Lilienthal :ind Vincent :ind Antoniettc Salzano is shown on Attached Exhibit .\ . A t t a C h 1:1 e n t l t ·.':lo ... • .. .. • • 2. The legal description of the real property owned by Jack R. Lilienthal and Vincent and Antoniette Salzano and to be exchanged by quilClaim deed for tbe above portion ofBrown Ditch is shown on aaached Exhibit B. ·-~~mm-~&?: Jack R. Lilienthal / Owner ofColumbineValley Estates · STATE OF COLORAOO ) ) ss. COUNTYOF Au.r•i,,1,of. ) The foregoing insttwnent was ;iclcnowledged before me this 'f-rw day of MA~ , 2004, by j""'-' (..,uu..,,-w,..._ as the property owner ofColwnbine Valley EstllCS. My Commission expires: ,. (--;i ... ---, -------vin?e'n,s~ Owner of Lot 3-ColwnbineValley Estates STATE OF COLOR.uxr"' ) ) ~s . COUNTY OF ) The foregoing insttument was acknowledged before me this .!!__ day of ."'I. v ~.._ , 2004, by v1" <t,• C.,<t:! ~"-"-• as the propc:rty owner of Lot 3- Columbine Valley Estates . Notary Public ~ My Commission expires : iQ-() 1 :9 'Z •• t LU~,:? Autoniette SalzaDo Owner of Lot 3-ColumbincValley Eswes STATE OF COLORADO ) ) ss. COUNTY OF ) 1be foreacing instrument wu acknowledged before me this _i_ day of '"'-M&"-• 2004, by Q "*n«:#! W :z, « u die property owner of Lot 3- Columbine Valley Estates. My Commission eitpires : i' u-o 1-v(z Notary Public CITY OF ENGLEWOOD, COLOR.ADO Attest: DouaJas Garrett, Mayor Loucrisbia A. Ellis , City Cleric EXHIBIT . ' PAOPERTf OESCl=IIPTION -"BROWN DITCH" RIGHT.OF-WAY VACATION A VACATION OF A POATTCN OF THE "SAOWN DITCH· RIGHT-OF-WAY oven ANO ACROSS A ?CATTON OF LOTS 3 ANO 4, COLUMBINE VAL.LEY ESTATES. AS RECORDED UNDE.=! RECE.=TTCN NO. 82180669 IN THE RECORDS OF THE ,. ARAPAHOE COUNTY CLERK AND RECORDER; LOCA1cO IN THE NORTHWEST .·~ QUAATE.=! OF SECTION 20. TOWNSHIP 5 SOUTH, RANGE 68 WEST OF ~E s™ . PRINCIPAL·ME.C!ICIAN; TOWN OF COLUMBINE VAL.LEY, COUNTY OF ARAPAHOE. STATE OF COLORADO: BEING MORE PARTICUL.>,RLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EASTERLY LINE OF LOT 4, COLUMBINE VAL!.EY c:STATES, A~ECOADEO UNDEFI RECE?TTON NO . 82180669 iN THE i=lE·:CRCS OF THE .~RAP.~HOE COUNTY CLE:=iK ANC ::;ECCRDER, 6E.~FilNG scc·1s·33•: ?::=! THE ?LAT OF SAIC COLUMBINE VALLEY :ST A,ES. BE•31NNING AT ,HE 5CUT.-iWES7c:.:;L Y C:FiNE:= CF .:AID LOT 4; n,ENCE . .>,L":NG THE 'NESTE:=il'f .l.ND 5CUT.-ic::=LY 1:CUNCAFiY OF SAIC LOT 4 THE FOLLOWING TWC (21 COURSES : 1. ALONG THE ARC OF A C:.JRV: TO iHE L=.=i WHOSE CENTER SE..>.RS SiS'02'~ 9..,N , HAVING A r!.il.CIUS OF J.5.00 ~::. A CENTRAL ANGLE OF 39•55·.J.:", ANO AN .~RC L:NGTri OF 3US ~:7: 2. ALCNG THE .l.FC CF A :=il:·/:.:;se CURI/E -:-o T:-:E RIGHT HAVING A F.ACIUS OF i :.00 i='::7. A ·::::,17:=iAL ANG:..: CF :,•1 s·.:s. !~NC AN .l.RC L:NG,n CF 13.o9 ?'::i': THE:'lCE THE ?'CLLOWING ~iVE 1:i CCURSES: 1 . Ni .J.0 30'03": A :1S, ANCE CF 30 .78 i=ES: ,..· ..... 2. ALSNG "':"HE ARC CF -~ ~ICN-7 ;.NGENT C:JF.VE TO Ti-iE RIGHT WHOSE CENT::=! :E.~FS s.10 ?sa·:;s~N . HAVI NG A ~ACIL;S OF iS.00 .=::T. A CE:'l'ii=iAL ANGL.: CF 1:'1s·as·. AND AN ),;;c L::'IGTri OF 19 .96 F::T; 3. Nas ·~·2s·:. A :1S7 ANCE CF 96.70 ~E:.: 4. Sa.J.'23'i J.":, A DISTANCE OF i8.:S ~:=7: 5. N89°.J.6 '29·:. A \JIST ANCE CF c4 .79 .=::. 70 A ?OIN7 ON THE EASTERLY 8CUNCAF.Y OF SAIC LOT 4 ; THENCe soa·· 5'33 "E. ,l,L'.:MG S.llC :.~S7::=;L Y :OUNCARY OF LOT J ANO THE e..>.STE:=lL Y :CUNCARY OF S,l,IQ L'.)T 3 A 01ST ,1.NCE CF 50 .00 FE:T; x. :.:coo .. 1.ar.·011wwL...,.ISlfTVAC. .. ,.._..all . .,,, ! I • I T A t ..... .. • • THENCE THE FOLLOWING iWO (2) COURSES: 1. S89°46'29"W, A DISTANCE OF 30.00 F""cEi; 2. N00°1 S'33"W, A DISTANCE OF 20.00 FEET TO A POINT ON THE SOUTHERLY BOUNDARY OF SAIC LOT 4, COLUMBINE VALI.Ef ESTATES; THENCE ALONG THE SAIC SOUTHE.=!LY BCUNCAAY OF LOT 4,THE FOLLOWING THREE (3) COURSES: 1. S89~"W. A DISTANCE OF 36.34 Fe:i; 2. N84°23'14•'N, A DISTANCE OF 78.S! FE:i; 3. S89°46'29"'N, A OIS7ANCE OF 114.15 TO THE ?OINT OF BEGINNING. CONT~INING a,061 SCUAFiE ?=E:7 CA 0.208 Ac;.:;es. MCAE CA LE3S . PAOP~:rrY CESCJ:IIPTICN STATEME.VT I, JE~~;:;y A. GUSTAFSON. A ?!iCF:SSIONAL l..lND SURVEYOR IN THE 57 A TE OF COLORADO. CO HEF;E3Y STATE rriAT THE A8CVE ?RCPERT'f OESC:=ilPTICN ANO ATT ACHE) EXHIBIT WE:1E ?RE?AREJ UNCE:, 'MY RESFCNSiBLE CHARGE, ANO ON THE aASIS OF MY KNOWLSGE, INFOAMATION ANO BE!.IEF. ARE CORREO:T. JE:=F:=lY A. GUSTAFSCN. ?ROF:SSICNAL L~NC SUAVcfCA COLORACC NO . 29039 FOR AND ON SE:-iALE= CF JR :NGINE::,ING, LLC ll 141CDC0-.1,·01·~AC..t1 ,.l'Jll - EXHIBIT NW 1/4, SECTION 20, TOWNSHIP 5 SOU'TI-i, RANGE 68 WEST, 6TH P.M., TOWN OF COLUMBINE VALLEY, ARAPAHOE COUNTY :c ~ LINE TABLE LINE I BEARING I LENG~ C:JR'IE c, C2 c~ L1 I N74~a·n,--:I 30.78 r,, CURVE TABLE I I OE!.TA I RADIUS l l.£NG7'ri i I 11:a~;·J.1·1 45.001 3U61 I "'"16'4"1·t 1~.001 1~.591 I 15~~·0~·1 7~.:01 19.i6i CDL !J.'Yi.i/J\1£ Y,..:;~~.:.-."· .:.-.;-:_..:: :-.:.-5 ;?£~ /\IC. E·2~E:_-f3: -.1 Nas·J.S·2s·:: ss. 10· • I :::, ;1 ~, ; ~.· ,./"" -- sag·.£.6'29 .. N 30.00' ~::,:. \IC. :·:·:::~; .:~:..:,.,!1E,'/.r::.-Y:~~~..:-;/ .:.-5:~-.-.:.-~-: .:.?;;-:-_ 1\!C. 527EC~;-:;: 25 0~ ' "3AC 'MII Jl7C."4" ~ICHi-CF'-WAY °"l,l,C.lo-CN C:N-.lolN$ 9 .'.l61 sc:.i.i.AE i'::~ CA 0.20! ~c.-~ES IICRE :R :.!~S SC 100 ·aRC""'4 01,cH· RIGri-CF-WA'\' VACATlCN LOiS 3 ANO 4, COLUMBINE VAW...r:'f ESiATES SCAL£: , • .. so· JCS NC. 4871.01 DE~e~ 30. 2003 Sr.ET 3 OF 3 NOTE: :,..15 ~HIBJT OCES 'IQ T ~E_:qE~i A ',tQNUMENitD S'.JA~f ,l,NQ IS IN'itNOEJ ONLY ro 0£."tCT n..E .i.r:'AQ;E!) ?RCP~~T'( OESC,qlPTICN . t • • EXHIBIT PROPERTY OESCRIPTJON -.. BROWN OITCH" RIGHT-OF-WAY A RIGHT-OF-WAY ove.q AND ACRCSS A PORTION OF LOTS 2, 3 ANO 4, COLUMBINE VALLc:y ESTATES. AS RECORDED UNCE.=! RECEPTION NO. 82180669 IN THE RECORDS OF THE ARAPAHOE COUNTY Ct.E.=!K AND RECORDER: LOCATED IN THE NORTHWEST OUARTEFI OF SECTION 20, TOWNSHIP 5 SOUTH, RANGE 68 'NEST OF THE s™ PRINCIPAL ME.=!IDIAN; TOWN OF COLUMBINE VAL.LEY, COUNTY OF ARAPAHOE, STATE OF COLORADO; BEJNG MORE PARTlCULARL Y DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EASTE:=iLY LINE OF LOT 4 , CCLUMEINE VAL.l.E'f ESTATES •. ~S RE'=ORDEQ UNDEF! RECE?TICN NO. 82~80669 IN iHE RE·::ORDS OF rl"'IE ARAP .~HCE COUNTY CL:FiK AND ;:;e,::OFiCE:i, BE.~F.ING sco•75·33•e ?EE=! 71-iE ?!.AT OF SAIC COLUMEINE VAL!...:Y ESTAT:S. BEGINNING AT THE SCl.17:-:W:S,::iL'! CORNE:i OF .SAID LCT J.: n,ENCE ALCNG :riE 'NESi:;l'( 2CUNDP.F.Y CF SAID LCT J. THE FGL!.CWING iWO (2) COI.JF.SES: 1. ALONG rriE ARC OF A CURVE TO THE LE.=r WHOSE CENTE.=! ae.~RS S75''.l,'19''W , HAVING A .~ADIUS OF is.co F:ET. A CENTRAL ANGL: CF 39•:5·.:.~·. ANO AN AF.C L:NG'TH OF 37 .36 F::7; 2. ALGNG TriE AR.C CF -~ ~E'·IE:=se C:.JFi'/E TO :'r-iE ;:;1GHT HAI/ING A FiACIL'S CF ; 5.0 0 i='::." .. ~ ::E~lT~AL ANGi..: CF 52°76'is-.. ~NC AN .:\RC LENG,n OF i 3.89 .=::T ; Tr!ENCE TriE i='CL:..OWING i=':V E ,5 ) COURSES : 1 .. N7'1°30'03": .~ '.JIS7 ANCE OF 30 .,8 i='::.": 2. ALONG Tr:!: AFiC CF A :>JCN· TANG ENT ~t..'RV: TO THE L::=7 WHCSE CEN T=~ 3E.~RS 3.io•sa·::s~N . HAVING A AACIL:S OF 75 .00 .=::T . A CE NT i=AL .~NGL: CF 32°~0 '5,, .~NO AN .~RC L:NGTH OF -12.13 i='::T; 3. N89 °.!6'2S ":. A :)!Si ANCE CF ae.32 F::7; 4 . Sa.J.0 2::·1.i·:. A ulS7 ANCE OF i"S.35 .=::."; .•· s. N89'.!6 '2S"S , A JIS7ANCE CF o:.33 F::T TO A ?CINT ON iHE EASTE.:;LY BGUNCAA Y OF SAID LOT J.; TH ENCE soo:1 5·33·:. ~L:NG S~IO ;.~37;:;LY 3CUNCARY CF LCT J AND rl"'IE E.~STE:=L 'f eC L.'NCAFi Y -F SA IC OT 3 ~ DISTANCE OF J0.00 F::T; • X .. I • I T e . . ... , .. • t • -.......... . THENCE THE FOLLOWING THAE: (3) COURSES: 1. S89°46'2~N. A DISTANCE OF~-~ FEET; 2. N84°23'14"W, A DISTANCE OF 78.65 F"9i:E'i; 3. 589°46'29"W, A DISTANCE OF 112.48 Fe, TO A POINT ON THE WESTE.l~L Y BOUNOAAY OF SAIC LOT 2; THENCE ALONG THE WEST'EML Y BOUNDARY OF SAID LOTS 2, 3 ANO 4, ANO ALONG THE ARC OF A NON-TANGENT CURVE TO THE LEFT WHOSE CENTER BE.~RS N79°16'0S'W, HAVING A RADIUS OF 45.00 Fei', A CENTrlAL ANGLE OF 25'41'36", ANO AN ARC LENGTH OF20.18 Fei'TO THE POINT OF BEGINNING. CONTAINING 8,925 SQUARE FE:i OR 0.205 ACRES, MCRE OR LESS. PROPeRTY CESCJ:11PT10N STATE.'11ENT I, JE~Y A. GUSTAFSCN. A ?RCF:SSICNAL !.).NO SURVEYCA IN TriE STATE OF COLORACO , CO HE:=lE3Y STAi"E THAT iHE ASCVE P!=iCPE:=:ITY DESC::IIPTION ANO A TT ACHED E<Hl81i WE~E ?RE?MiE:J UNCEFI MY i1ES?CNSl8L: CHARGE , ANO ON iHE 3AS1S OF MY i<NCWL:JGE. INF•:RMAilCN .~ND 3E:..i EF , ARE COARE·:T. JEFF=i=iY A. GUS 7 AFSON . PROFESSICNAL L~NC SURVEYCR CCLOFiACO NC . 29039 FOR ANC CN ::E:iAL= OF JR 2NG INE:FIING . L!.C ......... x.•1...:icaa .,~10 1·~ .. • • EXHIBIT NW 1/4-, SECTION 20, TOWNSHIP 5 SOUTH, RANGE 68 WEST, 6TH P.M., TOWN OF COLUMBINE VALLEY, ARAPAHOE COUNTY UNE TA8~ UNE I BEARING I lE4GTH L1 I N74°.10•03•:-1 30.78 CURVE TA8L£ I C\JR'IE I DE":.i'A I RACIUS I :~cTH I C1 I :z~·J.1'36"! J.~.::01 20.1a1 C2 I _!g·~5· J.~ ·: £~.JO I 3U61 C3 I =~-a· .a.~·i 15.JO I 13.5 91 ai...r l~ ·aRC'NN or,::~· ~IGnT-CF'-'NAY c:N7AINS 3.i:~ 5CUARE =-:.::-:- CR J.:c! .~c.~e:s \ICRE CR ..::ss ... :0 25 0 50 100 sc~i.;:: 1 • .. so· .'iOT!: !}!fS t<HtBI-'JCES 'iCT ~E.:,qESL'IT A \ilCNUME.'liO SURVEY ANO ,S 'NltNCO ONLY TO 'J[.!IIC7 n.E ATTACHO ;,qcP~TY OESC~PTICN. •aRC\IIN 017CH• RIGHT-CF-WA~ LOTS 2. 3 ANO 4, CCLUMBINE V~i::y ESTA7ES JCB NC. 46i1 .01 OECE.'AB~ 30, 2003 SHET 3 OF J ~ JR ENGINEE1UNC ·--- t .... ..• .. • • 0 ORDINANCE NO . SERIES OF 2004 ·• • • BY AUTHORITY COUNCIL BILL NO. 19 INTRODUCED BY COUNCIL MEMBER BRADSHAW AN ORDINANCE APPROVING AND AUTIIORIZING TIIE EXECUTION OF FOUR INTERGOVERNMENTAL SUBGRANTEE AGREEMENTS (CDBG) FOR TIIE YEAR 2004 BE1WEEN TilE ARAPAHOE BOARD OF COUNTY COMMISSIONERS AND TIIE CITY OF ENGLEWOOD, COLORADO. WHEREAS, the City Council of the City of Englewood approved the execution of an Intergovernmental Agreement between the City of Englewood and Arapahoe County by passage of Ordinance No. 39, Series of 1994, covering the City's participation in the Arapahoe County CDBG Entitlement Program as extended by Amendment No. 3, for funding years 2004 through 2006; and WHEREAS, the Englewood City Council passed Resolution 86, Series of 2003, supporting Housing and Community Development that authorized submitting an application for 2004 CDBG funding; and WHEREAS, the project by the City of Englewood known as the "Housing Rehabilitation Project" bas been categorized as a rehabilitation activity; and WHEREAS, the project by the City of Englewood known as the "House of Hope Staffing" bas been categorized as a public service activity; and WHEREAS, the project by the City of Englewood known as the "Homeowner Fix-Up Project" bas been categorized as a housing rehabilitation project for low- income owner-occupied homes within designated neighborhoods in the City; and WHEREAS, the project by the City of Englewood known as the "Rental Fix- Up Project" bas been categorized as a housing rehabilitation project for low-income renter-occupied homes within designated neighborhoods within the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The Subgrantee Agreement for the 2004 Arapahoe County Community Development Block Grant-Housing · Rehabilitation Project, attached hereto as Exhibit A, is hereby accepted and approved by the Englewood City Council. Section 2. The Subgrantee Agreement for the 2004 Arapahoe County Community Development Block Grant -House of Hope Project, attached hereto as Exhibit 8, is hereby accepted and approved by the Englewood City Council. Section 3. The Subgrantee Agreement for the 2004 Arapahoe County Community Development Block Grant -Homeowner Fix-Up Project, attached hereby as Exhibit C, is hereby accepted and approved by the En&lewood City Council. -1- ' . .. ,, • • Section 4. The Subgrantee Agreement for the 2004 Arapahoe County Community Development Block Grant -Rental Fix-Up Project, as attached hereby as Exhibit D, is hereby accepted and approved by the Englewood City Council. Scctjon S. The Mayor and City Clerk are hereby authorized to sign and attest said Agreements for and on behalf of the City of Englewood, Colorado. Section 6. The City Manager shall be authorized to further extend and/or amend the subgrantec agreements for the 2004 Arapahoe County Community Development Block Grant Program as needed. Introduced, read in full, and passed on first reading on the 5th day of April, 2004. Published as a Bill for an Ordinance on the 9th day of April, 2004. Read by title and passed on final reading on the 19th day of April, 2004. Published by title as Ordinance No. __, Series of 2004, on the 23"' day of April, 2004. ATTEST: Douglu Garrett, Mayor Loucrishia A . Ellis, City Clerk I, Loucrisbia A . Ellis, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by title as Ordinance No. __, Series of 2004. Loucrishia A . Ellis -2- • • -· • ·• • SUBGRANTEEAGREEMENTFOR ARAPAHOE COUNTY COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS SUBGRANTEE: CITY OF ENGLEWOOD PROJECT NAME: HOUSING REHABILITATION PROJECT NUMBER: ENHS 415 This Agreement is made by and between the Board of County Commissioners of the County of Arapahoe, State of Colorado, for the Community Development Block Grant Program in the Community Services Department (hereinafter referred to as the County) and the City ofEnglcwood (hereinafter referred to as the SubGrantec) for the conduct of a Community Development Block Grant (CDBG) Project L PURPOSE The primary objective of Title I of the Housing and Community Development Act of 1974, as amended, and of the Community Development Block Grant (CDBG) Program under this Title is the development of viable urban communities, by providing decent housing, a suitable living environment and expanding economic opportunities, principally for low and moderate income persons. The project by the SubGrantec known as the Housing Rehabilitation Project (Project) has been categorized as a Single Family Housing Rehabilitation project and the SubGrantec will maintain documentation with the national objective of Low/Moderate Income Housing activities. The SubGrantee may proceed to incur costs for the Project upon receipt of an official "Notice to Proceed" from the County. 0. WORK TO BE COMPLETED BY THE SUBGRANTEE The following provisions outline the scope of the work to be completed: The SubGrantee will utilize CDBG funding to provide low interest loans and/or grants to income eligible homeowners for health and safety related home improvements . Typical improvements may include (but are not necessarily limited to) plumbing, elecoical systems, roofs, and HV AC work. A. Payment It is expressly agreed and understood that the total amount to be paid by the County under this contraet shall not exceed $25,000.00. Drawdowns for the payment of eli&ible expenses shall be made against the line item budgets specified in the Project Budget and in accordance with performance criteria established in Section Il-C. The parties expressly recognize that the SubGrantee is to be paid with CDBG funds received from the federal govenunent, and that the obligation of the County to make payment to SubGrantee is continaent upon receipt of such funds. 1 • X H I • I T A ' • • - In the event that said funds, or any part thereof, are, or become, unavailable, then the County may immediately terminate or amend this agreement To the extent C.R.S. § 29-1-110 is applicable, any financial obligation of the County to the SubGrantee beyond the current fiscal year is also contingent upon adequate funds being appropriated, budgeted and otherwise available. Any Project funds not expended and drawn from the County by the deadline identified in Section Il. C. 3. below shall revert to the County and be utilized for other purposes. B. Timeliae All Project activities will be completed by May 31, 2005 unless this Agreement is modified by mutual agreement of the County and SubGrantee. c. Performance Criteria In accordance with the funding application submitted by the SubGrantee for the Project, the criteria listed below are to be met during the execution of the Project. D. 1. Quantifiable Goals: The SubGrantee will provide ten home improvement loans or grants to income eligible Englewood homeowners. All improvements funded under this grant are to be performed in compliance with applicable local or industry codes and standards. 2. Community Impact: Affordable housing -stability and housing quality 3. Quarterly Performance Standards: June 30, 2004 : September 30, 2004 : December 31 , 2004 : March 31, 2005 : May 31. 2005 : No requirements established Market program Market program, interview potential clients Provide five rehabilitation loans/grants Provide five rehabilitation loans/grants Complete all renovations funded by project .... Submit final drawdown and completion repon to County Reportin1 Requirements 2 t .. r , .. • • 0 I. Project reports will be due within one month following the end of each calendar year quarter (March 31, June 30, September 30, December 31) until the Project is completed. 2. The official annual audit and/or Financial Statements for the SubGrantee in which both revenues and expenditures for the CDBG Projects described herein are detailed are due annually. E. Labor Standards (Davis-Bacon) It is determined that: Project activities do not require compliance with federal labor standards. F. Environmental Review Notwithstanding any provision of this Agreement, the parties hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or site approval, and that such commitment of funds or approval may occur only upon satisfactory completion of envirorunental review and receipt by Arapahoe Counry of a release of funds from the U.S. Department of Housing and Urban Development under 24 CFR Part 58. The parties funher agree that the provision of any funds to the project is conditioned on Arapahoe County's determination to proceed with, modify, or cancel the project based on the results ofa subsequent environmental review . G. Uniform Relocadon Act (URA) Project activities do not require compliance with the Uniform Relocation Act. H. Lead Based Paint TilC maximum CDBG investment per house renovated under this project may not exceed $24.999 . This amount includes any CDBG funding used for project based administrative expenses. TilC SubGrantee will comply with • 1 other County, state and federal policies, guidelines and requirements relac,d to minimizing hazards in residential properties, including 24 CFR Part 35 and '~Colorado Regulation NU!, ~.:r 19 . III. RESPONSIBILITlES OF THE SUBGIUNTEE A. Federal Compliance The SubGrantee shall comply with all applic:ible federal laws. regulations and requirements, and all provisions of the grant agreements received from !he U.S. Department of Housing and Urban Development (Ht:I)) by the County. These include but are not limited to compliance with the provisions of the Housing and Community Development Act of 197-l and all rules, regulations, guidelines and circulars promulgated by the various federal departments. qencics, administrations 3 t . ... .. • • and commissions relating to the CDBG Program. A listing of some of the applicable laws and regulations are as follows: 1. 24 CFR Part 570; 2. 24 CFR Parts 84 and 85; 3. Title VI of the Civil Rights Act of 1964; 4. Title VIII of the Civil Rights Act of 1968; 5. Sections 104(b) and 109 of the Housing and Community Development Act of 1974; 6. Fair housing regulations established in the Fair Housing Act, Public Law 90-284, and Executive Order 11063; 7. Section 504 of the Rehabilitation Act of 1973; 8. Asbestos guidelines established in CPD Notice 90-44; 9. The Energy Policy and Conservation Act (Public Law 94-163) and 24 CFR Part 39; 10. Equal employment opportunity and minority business enterprise regulations established in 24 CFR part 570.904; 11. Section 3 of the Housing and Urban Development Act of 1968; 12. Non-discrimination in employment, established by Executive Order 11246; 13. Lead Based paint regulations established in 24 CFR Parts 35 and 570 .608; 14. Audit requirements established in 0MB Circular A-133; and 15 . Cost principles established in 0MB Circulars A-87 and A-122. Additionally, in accordance with 24 CFR Part 570, no employee, official, agent or consultant of the SubGrantee shall exercise any function or responsibility in which a conflict of interest, real or apparent, would arise. The SubGrantee cannot engage in a federally funded contract with any entity registered in the Lists of Parties Excluded From Federal Procurement or Nonprocurement Programs. 8. Non-Appropriations Clause The SubGrantee agrees that it will include in every contract it enters, which relies upon CDBG monies for funding, a non-appropriation clause that will protect itself and the County from any liability or responsibility or any suit which might result from the discontinuance of CDBG fuj,:ling for any reason . Because this SubGrantee Agreement involves funds from a federal grin~ to the extent there is a conflict the funding provisions of this SubGrantee Agreement, the federal grant and the federal statutes control rather than the provisions of Section 24-91-103 .6, C .R.S . with regard to any public work projects. C. Expenditure Restrictions All CDBG funds that are approved by HUD for expenditure under the County's grant agreement, including those that are identified for the SubGrantee's Projects and activities, shall be allocated to the specific projects and activities described and listed in the grant agreements. The allocaled funds shall be used and expended only for the projects and activities for which the funds are identified. D. Agreement Changes 4 ... .. .· t • • -- 0 No projects or activities, nor the amount allocated therefor, may be changed without approval by the County and acceptance of the revised Final Statement and/or Consolidated Plan by HUD, if required. Changes must be requested in writing and may not begin until a modification to this Agreement is fully executed. E. Direct Project Supervision and Admhlistration The SubGrantee shall be responsible for the direct supervision and administration of its respective projects or activities. This task shall be accomplished through the use of the SubGrantee's staff, agency and employees. The SubGrantee shall be responsible for any injury to persons or damage to property resulting from the negligent acts or errors and omissions of its staff, agents and employees. Because the SubGrantee is responsible for the direct supervision and administration of its projects or activities, the County shall not be liable or responsible for cost overruns by the SubGrantee on any projects or activities. The County shall have no duty or obligation to provide any additional funding to the SubGrantee if its projects or activities cannot be completed with the funds allocated by the County to the SubGrantee. Any cost overruns shall be the sole responsibility of the SubGrantee. l. The SubGrantee agrees that all funds allocated to it for approved projects or activities shall be used solely for the purposes approved by the CoWlty. Said funds shall not be used for any non-approved purposes. 2. The SubGrantee agrees that the funds allocated for any approved projects or activities shall be sufficient to complete said projects or activities without any additional CDBG funding. F. lademnlty To the extent allowed by law, the SubGrantee shall indemnify and hold harmless the County and its elected and appointed officials, officers, employees and agents from and against any and all losses, damages, liabilities, claims, suits, actions or costs, including attorneys fees, made, assertg;l or incurred as a result of any damage or aUeged damage to person or property occ:1Sioned lfy the acts or omissions of SubGrantee, its officers, employees, agents. contractors or subcontr:ictors, arising out of or in any way coMected with the Project or the perfonnance of this contract G. Boadia& ud lasuruce If the SubGrantee's projects involve construction activities, any Contractor it uses for said activities shaU be required to provide and maintain, until final acceptance by the SubGrantee of all work by such Contractor. the kinds and minimum amounts of insurance as follows : 1. Comprehensive General Liability: In the amount ofnol less than Sl,000,000 combined single limit . Coverage to include : a. Premises Operarions s ' . .. ,• .. • • • • 2. b. Products/Completed Operations c. Broad Form Contractual Liability d. Independent Contractors e. Broad Form Property Damage f. Employees as Additional Insured g. Personal Injury h. Arapahoe County and the SubGrantee as Additional Named Insured i. Waiver of Subrogation Comprehensive Automobile Liability: In the amount of not less than $1,000,000 combined single limit for bodily injury and property damage. Coverage to include: a. Arapahoe County and the SubGrantee as additional Named Insured b. Waiver of Subrogation 3. Employers Liability and Workers Compensation: The Contractor shall secure and maintain employer's liability and Worker's Compensation Insurance that will protect it against any and all claims resulting from injuries to and death of workers engaged in work u11der any contract funded pursuant to this agreement. Coverage to include Waiver of Subrogation. 4. 5 . 6 . All referenced insurance policies and/or certificates of insurance shall be subject to the following stipulations: a. Underwriters shall have no rights of recovery subrogation against Arapahoe County or the SubGrantee; it being the intent of the parties that the insurance polici~ so effected shall protect the parties and be primary coverage for any and all losses covered by the described insurance. b. The clause entitled "Other Insurance Provisions" contained in any policy including Arapahoe County as an additional named insured shall not apply to Arapahoe County or the SubGrantec. c. The insurance companies issuing the policy or policies shall have no recourse against Arapahoe County or the SubGrantec for payment of any premiums due or for any assessments under any form of any policy. ,.. d. Any and all deductibles contained in any insurance policy shall~ assumed by and at the sole risk of the Contractor. Certificate of Insurance : The Contractor shall not commence work under any contract funded pursuant to this Agreement until he has submitted to the SubGrantec, received approval thereo f. certificates of insurance showing that he has complied with the foregoing insurance requirements. The SubGrantec shall also submit a copy of the Contractor's certificates of insurance to the County. Notwithstanding the provisions contained in this paragraph (H}' set forth hereinabo e, the County reserves the right to modify or waive said provisions for projects or activities for which these provisions would prove prohibitive. The 6 ' .· .. .. • • -· . • • SubGrantee understands, however, that the decision to waive or modify those provisions is fully within the discretion of the County. In accordance with 24 CFR parts 84 and 85, the following bonding requirements shall apply to all projects exceeding the simplified acquisition threshold: I. 2. 3. A bid guarantee from each bidder equivalent to 5% of the bid price; A performance bond on the part of the contractor for 100°/o of the contract price; and A payment bond on the part of the contractor for 100°/o of the contract price. H. Records The SubGrantee shall maintain a complete set of books and records documenting its use ofCDBG funds and its supervision and administration of the Project Records are to include documentation verifying Project eligibility and national objective compliance, as well as financial and other administrative aspects involved in performing the Project The SubGrantee shall provide full access to these books and records to the County, the Secretary of HUD or his designee, the Office of Inspector General, and the General Accounting Office so that compliance with Federal laws and regulations may be confirmed. The SubGrantee funher agrees to provide to the County upon request, a copy of any audit reports pertaining to the SubGrantee's financial operations during the term of this Agreement All records pertaining to the Project are to be maintained for a minimum of five years following close-out of the Project. I. Reportinc The SubGrantee shall file all reports and other information necessary to comply with applicable Federal laws and regulations as required by the County and HUD. This shall include providing to the County the information necessary to complete annual Performance Reports in a timely fashion . J. Timeliness The SubGrantee shall comply with the quarterly performance standards established in Section II-C of this Agreement. The SubGrantee understands that failure to comply with the establ;hed standards may lead to a cancellation of the Project and a loss of all unexpended funds . K. Reimbunement for Expenses The SubGr:mtec agrees that before the County can distribute any CDBG funds to it, the SubGrantee must subm it to the County's Housing and Community Development Services Division documentation in the form required by that Division which properly and fully identifies the amount which the SubGrantec is requesting at that time . The County shall have ten (10) wonting days to re view the request. Upon approval of the request, the County will distribute the requested funds to th e SubGr:mt ee as soon as possible . L. Program Income 7 l• t ... • • -•• • • ·O All program income directly derived from the Arapahoe County Community Development Block Grant Program received by the SubGrantee will be retained by the SubGrantee and will be dispersed for its approved CDBG Project activities before additional CDBG funds are requested from the County. Following completion of the SubGrantee's Arapahoe County CDBG Projects, all program income directly generated from the use of CDBG funds will be remitted to the County. M. Real Property Real property acquired in whole or in part with CDBG funds shall be utilized in accordance with the scope and goals identified in Sections I and II of this Agreement Should the property in question be sold or otherwise disposed of, or the approved property usage discontinued, the SubGrantee shall adhere to the requirements of24 CTR Parts 84 or 85 (as applicable) regarding the: use and disposition of real property. N. State and County Law Compliance All responsibilities of the SubGrantee enumerated herein shall be subject to applicable State statutes and County ordinances, resolutions, rules, and regulations. 0. Subcontracts If subcontracts are used on the Project, the SubGrantee agrees that the provisions of this Agreement shall apply to any subcontract. P. Suspension or Terminadon This Agreement may be suspended or terminated by the County if the SubGrantee materially fails to comply with any tenn of this Agreement. This Agreement may also be tcnninated for convenience by mutual agreement of the County and the SubGrantee. Q. In the event that the Unit of General Local Government should withdraw from the Cojllty'S "Urban County" designation, this Agreement shall terminate as of the termination dlue of the County's CDBG grant Agreement with HUD . R. The SubGrantee cenifies that to the best of its knowledge and belief: I. No Federal appropriated funds have been paid or will be-paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the en terin g into of any cooperative agreement, and the extension, continuation, re newal. amendment. or modification of any Federal contract, grant, loan, or cooperative agreement; and, 8 ' • • - s. • 0 0 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, it will complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. Dlsallowance If it is determined by HUD or other federal agency that the expenditure, in whole or in part, for the SubGrantee's Project or activity was improper, inappropriate or ineligible for reimbursement, then the SubGrantee shall reimburse the County to the full extent of the disallowance. IV. RESPONSIBILITIES OF THE COUNTY A. Adminlstradve Control The Parties recognize and understand that the County will be the governmental entity required to execute all grant agreements received from HUD pursuant to the County's requests for CDBG funds. Accordingly, the SubGrantee agrees that as to its projects or activities performed or conducted under any CDBG agreement, the County shall have the necessary administrative control required to meet HUD requirements. B. Performance and CompUance Monitoria1 The County's administrative obligations to the SubGrantee pursuant to paragraph A above shall be limited to the performance of the administrative tasks necessary to make CDBG funds available to the SubGrantce and to provide a Monitoring Specialist whose job it will be to monitor the various projects funded with CDBG monies to monitor compliance with applicable Federal laws and regulations. C. Reporting to HUD The County will be responsible for seeing that all necessary repons and information required of the County are filed with HUD and other applicable Federal agencies in a timely fashion. V. EXTENT OF THE AGREEMENT This agreement, including any documents attached as exhibits which are hereby incorporated herein by reference, represents the entire and integrated agreement be!ween the County and SubGrantee and supercedes all prior negotiations. representations or agreements, either written or oral. Any amendments to this agreement must be in writing and signed by both the County and SubGrantee. If any portion of this agreement is foW\d by a court of competent jurisdiction to be void and/or 9 ' • • unenforceable, it is the intent of the parties that the remaining portions of this agreement shall be of full force and effect In Witness Whereof: the Parties have caused this Agreement to be duly executed this -----day of 2004. SubGrantee: City of Englewood Signature -Douglas Garrett, :1ayor ATTEST: Loucrishia A. Ellis, City Clerk Board of County Commissioners Arapahoe County, Colorado Justin A. Hamel on behalf of the Board of County Commissioners Puniuant to Resolution #040121 10 .~· • t • PROJECT BUDGET COLUMN A COLUMNB COLUMNC COLUMND ...... ~ a:........T.calC..el C>IIG ..... O!Mr,._C .......... (....,,.., ...... MIMIJ Rdllb ldminilnllan SI0,000 52.000 sa.ooo 1..am11.,.m..,... $41,000 Sll.000 W.000 TOTAL: ssa.ooo W.000 Sll.000 • • - • SUBGRANTEEAGREEMENTFOR ARAPAHOE COUNTY D . 0 COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS SUBGRANTEE: CITY OF ENGLEWOOD PROJECT NAME: HOUSE OF HOPE STAFFING PROJECT NUMBER: ENPS 418 This Agreement is made by and between the Board of County Commissioners of the County of Arapahoe, State of Colorado, for the Community Development Block Grant Program in the Community Services Department (hereinafter referred to as the County) and the City of Englewood (hereinafter referred to as the SubGrantee) for the conduct of a Community Development Block Grant (CDBG) Project I. PURPOSE The primary objective of Title I of the Housing and Community C!velopment Act of 1974, as amended, and of the Community Development Block Grant (CDBG) Program under this Title is the development of viable urban communities, by providing decent housing, a suitable living environment and expanding economic opportunities, principally for low and moderate income persons. The project by the SubGrantee known as the House of Hope Staffing Project (Project) has been categorized as a Public Services project and the SubGr.mtee will maintain documentation with the national objective of Limited Clientele activities. The SubGrantee may proceed to incur costs for the Project upon receipt of an official "Notice to Proceed" from the County. Il. WORK TO BE COMPLETED BY THE SUBGRANTEE The following provisions outline the scope of the work to be completed: .~· The SubGrantee will utilize CDBG funding to provide staffing at the House of Hope , which provides long term shelter and supportive services for homeless families. A. Payment It is expressly agreed and understood that the total amount to be paid by the County under this contract shall not exceed 550,000.00 . Drawdowns for the payment of eligible expenses shall be made against the line item budgets specified in the Project Budget and in accordance with performance criteria established in Section II-C . The parties expressly recognize that the SubGrantee is to be paid with CDBG funds received from the federal government, and that the obligation of the County to make payment to SubGrantee is contingent upon receipt of such funds . In the event that said funds , or any part thereof, are, or become, unavailable, then the County may l • ~-• 4- B '·. . ··~ .. . ... ' • • • immediately tenninate or amend this agreement. To the extent C.R.S . § 29-1-110 is applicable. any financial obligation of the County to the SubGrantee beyond the cum:nt fiscal year is also contingent upon adequate funds being appropriated, budgeted and Olberwise available. Any Project funds not expended and drawn from the Co1mty by the deadline identified in Section II. C. 3. below shall revert to the Co1mty and be utilized for other purposes. B. Tlmelllle All Project activities will be completed by May 31, 2009 unless this Asreemem is modified by mutual agreement of the County and SubGnmtee. c. In accordance with the fundin& applicalion submiaed by the SubGrantee for the Project, the criteria tilled below are to be met durina the execution of the Project. 1. Quantifiable Goals : The SubGrantee wi ll uti lize CDBG funds fqr the continued employmen1 of one full time case rnanaaer and one family advocale • the House of Hope (3301 South Gran1 Street, Englewood). Both positions wi ll be employed by Family Tr., which provides Slaffing and services • the facility. By rnaintainina lbc IWO positions, the SubGnntee will provide services for a minimum of 10 homclea families per month for the dunlion of tbc 1J11111 period. A tml of 200 unique pcnom will be saved by the Project. The SubGl'Ultee may noc chagc fees or accept donaaionl for services provided under this grant 2. Community Impact Homelessness -crisis manqcment and abiliiy IO transition through the continumn of care 3. Quart erly Pcrfonnance Standards : June 30. _004 : Scprcmbff 30, 2004 : Oeccmbff I. - Provide services to 10 families 20 wuque pmom served Provide services IO 10 families each month 50 uniqw persons tcrVed PTovidt NMCes IO 10 families a:b month ,0 . pll10III taVed - • ' • • -- March 31, 2005: May 31, 2005 : 0 Provide services to IO families each month 50 unique persons served Provide services to 10 families each month 30 unique persons served Submit final drawdown and completion report to County D. Reporting Requirements I. Project reports will be due within one month following the end of each calendar year quarter (March 31, June 30, September 30, December 31) until the Project is completed. 2. The official annual audit and/or Financial Statements for the SubGrantee in which both revenues and expenditures for the CDBG Projects described herein arc detailed arc due annually. E. Labor Standards (Davis-Bacon) It is determined that: Project activities do not require compliance with federal labor standards. F. Environmental Review Notwithstanding any provision of this Agreement, the parties hereto agree and acknowledge that this Agreement does not constitute a commitment of funds or site approval, and that such commitment of funds or approval may occur only upon satisfactory completion of environmental review and receipt by Arapahoe County of a release of funds from the U.S . Department of Housing and Urban Development under 24 CFR Part 58 . The parties further agree that the provision of any funds to the project is conditioned on Arapahoe County's determination to proceed with, modify, or cancel the project based on the results ofa subsequent environmental .review. G. Uniform Relocation Act (URA) Proj ect act iviti es do not require compliance with the Uniform Relocation Act. 111. RESPONSIBILITIES OF THE SUBGRANTEE A. Federal Compliance Th e Sub Grante e shall comply with all applicable federal laws, regulations and requirements, and all provi sions of the grant agreements received from the U.S. Department of Housing and Urban De ve lopment (HUD ) by the County. These include but arc not limited to compliance with the pro vi sions of the Hou sing and Community Development Act of 1974 and all rul es, regulations, 3 ' .· .. • • 0 ·• • guidelines and circulars promulgated by the various federal departments, agencies, administrations and commissions relating to the CDBG Program. A listing of some of the applicable laws and regulations arc as follows: I. 24 CFR Part 570; 2. 24 CFR Parts 84 and 85; 3. Title V1 of the Civil Rights Act of 1964; 4. Title V1II of the Civil Rights Act of 1968; 5. Sections I 04(b) and I 09 of the Housing and Community Development Act of 197 4; 6. Fair housing regulations established in the Fair Housing Act, Public Law 90-284, and Executive Order 11063; 7. Section 504 of the Rehabilitation Act of 1973; 8. Asbestos guidelines established in CPD Notice 90-44; 9. The Energy Policy and Conservation Act (Public Law 94-163) and 24 CFR Part 39; 1 O. Equal employment opponunity and minority business enterprise regulations established in 24 CFR part 570.904; 11. Section 3 of the Housing and Urban Development Act of 1968; 12. Non-discrimination in employment, established by Executive Order 11246; 13. Lead Based paint regulations established in 24 CFR Pans 35 and 570.608; 14. Audit requirements established in 0MB Circular A-133; and 15 . Cost principles established in 0MB Circulars A-87 and A-122. Additionally, in accordance with 24 CFR Part 570, no employee, official, agent or consultant of the SubGrantee shall exercise any function or responsibility in which a conflict of interest, real or apparent, woulci arise. The SubGrantee cannot engage in a federally funded contract with any entity registered in the Lists of Parties Excluded From Federal Procurement or Nonprocurement Programs. 8. Non-Appropriadoas Clause The SubGrantee agrees that it will include in every contract it enters, which relies upon CDBG monies for funding. a non-appropriation clause that will protect itself and the County frot» any liability or responsibility or any suit which might result from the discontinuance of CDBG funding for any reason . Because this SubGrantee Agreement involves funds from a federal grant, to the extent there is a conflict the funding provisions of this SubGrantee Agreement, the federal grant and the federal statutes control rather than the provisions of Section 24-91-103 .6, C.RS. with regard to any public work projects. C. Expenditure Restricdon s All CDBG funds that are approved by HUD for expenditure under the County's grant agreement, including those that are identified for the SubGrantec's Projects and activities, shall be allocated to the specific projects and activities described and listed in the grant agreements. The allocated funds shall be used and ex pended only for the projects and activities for which the funds are identified. 4 t .. . •' . ,.i • • D. Acreemeat Claaa&es No projects or activities, nor the amount allocated therefor, may be changed without approval by the County and acceptance of the revised Final Statement and/or Consolidated Plan by HUD, if required. Changes must be requested in writing and may not begin until a modification to this Agreement is fully executed. E. Direct Project Supervision and Admlnistradon The SubGrantec shall be responsible for the direct supervision and administration of its rcspcctivc projects or activities. This task shall be accomplished through the use of the SubGrantec's staff, agency and employees. The SubGrantec shall be responsible for any injury to persons or damage to property resulting from the negligent acts or errors and omissions of its staff, agents and employees. Because the SubGrantec is responsible for the direct supervision and administration of its projects or activities, the County shall not be liable or responsible for cost overruns by the SubGrantec on any projects or activities. The County shall have no duty or obligation to provide any additional funding to the SubGrantec if its projects or activities cannot be completed with the funds allocated by the County to the SubGrantec. Any cost overruns shall be the sole responsibility of the SubGrantec. I. The SubGrantcc agrees that all funds allocated to it for approved projects or activities shall be used solely for the purposes approved by the County. Said funds shall not be used for any non-approved purposes. 2. The SubGrantec agrees that the funds allocated for any approved projects or activities shall be sufficient to complete said projects or activities without any additional CDBG funding. F. Indemnity To the extent allowed by law, the SubGrantec shall indemnify and hold harmless the County and its elected and appointed officials, officers, employees and agents from and against any and all lg.,ses, damages, liabilities, claims, suits, actions or costs, including attorneys fees, made, asserted or incurred as a result of any damage or alleged damage to person or property occasioned by the acts or omissions of SubGrantee, its officers, employees, agents , contractors or subcontractors, arising out of or in any way connected with the Project or the performance of this contract. G. Bonding and Insurance If the SubGrantee's projects involve construction activities, any Contractor it uses for said activities shall be required to provide and maintain, until final acceptance by the SubGr:mtec of all work by such Contractor, the kinds and minimum amounts of insurance as follows : 1. Comprehensive General Liability: In the amount ofnot less than Sl.000,000 combined single limit. Coverage to include : 5 ' t • • • 2. Premises Operations Products/Completed Operations Broad Form Contractual Liability Independent Contractors Broad Form Property Damage Employees as Additional Insured Personal Injury (J Arapahoe County and the SubGrantee as Additional Named Insured Waiver of Subrogation Comprehensive Automobile Liability: In the amount of not less than Sl,000,000 combined single limit for bodily injury and property damage. Coverage to include: a. Arapahoe County and the SubGrantee as additional Named Insured b. Waiver of Subrogation 3. Employers Liability and Workers Compensation: The Contractor shall secure and maintain employer's liability and Worker's Compensation Insurance that will protect it against any and all claims resulting from injuries to and death of workers engaged in work under any contract funded pursuant to this agreement. Coverage to include Waiver of Subrogation. 4. All referenced insurance policies and/or certificates of insurance shall be subject to the following stipulations: a. Underwriters shall have no rights of recovery subrogation against Arapahoe County or the SubGrantee; it being the intent of the parties that the insurance policies so effected shall protect the panics and be primary coverage for any and all losses covered by the described insurance. b. The clause entitled "Other Insurance Provisions" contained in any policy including Arapahoe County as an additional named insured shall not apply to Arapahoe County or the SubGrantee. c. The insurance companies issuing the policy or policies shall have no recourse against Arapahoe County or the SubGrantee for payment oJ any premiums due or for any assessments under any form of any policy. d. Any and all deductibles contained in any insurance policy shall be assumed by and at the sole risk of the Contractor. 5. Certificate of Insurance : The Contractor shall not commence work under any contract funded pursuant to this Agreement until he has submitted to the SubGrantee, received approval thereof, certificates of insurance showing that he has complied with the foregoing insurance requirements. The SubGrantee shall also submit a copy of the Contractor's certificates of insurance to the County . 6. Notwithstanding the provisions contained in this paragraph (H) set forth hereinabove. the County ~erves the right to modify or waive said provisions for projects or activities for which these provisions would prove prohibitive . The 6 t .... .. • • ·• • SubGrantee understands, however, that the decision to waive or modify those provisions is fully within the discretion of the County. In accordance with 24 CFR parts 84 and 85, the following bonding requirements shall apply to all projects exceeding the simplified acquisition threshold: I. 2. 3. A bid guarantee from each bidder equivalent to 5% of the bid price; A performance bond on the part of the contractor for 100% of the contract price; and A payment bond on the part of the contractor for 100"/o of the contract price. H. Records The SubGrantee shall maintain a complete set of books and records documenting its use ofCDBG funds and its supervision and administration of the Project. Records are to include documentation verifying Project eligibility and national objective compliance, as well as financial and other administrative aspects involved in performing the Project. The SubGrantee shall provide full access to these books and records to the County, the Secretary of HUD or his designee, the Office of Inspector General, and the General Accounting Office so that compliance with Federal laws and regulations may be confirmed. The SubGrantee further agrees to provide to the County upon request, a copy of any audit reports pertaining to the SubGrantec's financial operations during the term of this Agreement. All records pertaining to the Project are to be maintained for a minimwn of five years following close-out of the Project. I. Reporting The SubGrantee shall file all reports and other information necessary to comply with applicable Federal laws and regulations as required by the County and HUD . This shall include providing to the County the information necessary to complete annual Performance Reports in a timely fashion. J. Timeliness The SubGrantee shall comply with the qu.irterly performance standards established in Sectiolli,11.C of this Agreement. The SubGrantee understands that failure to comply with the ~tablished standards may lead to a cancellation of the !>'.'Oject and a loss of all unexpended funds . K. Reimbursement for Expenses The SubGrantee agrees that before the County can distribute any CDBG funds to it, the SubGrantee must submit to the County's Housing and Conununity Development Services Division docwnentation in the form required by that Division which properly and fully identifies the amount which the SubGrantee is requesting at that time . The County shall have ten (10) working days to re view the request. Upon approval of the request, the County will distribute the requested funds to the SubGrantee as soon as possible . L. Program Income 7 t t • • • 0 ·• • • All program income directly derived from the Arapahoe County Community Development Block Grant Program received by the SubGrantee will be retained by the SubGrantee and will be dispersed for its approved CDBG Project activities before additional CDBG funds are requested from the County. Following completion of the SubGrantee's Arapahoe County CDBG Projects, all program income directly generated from the use ofCDBG funds will be remitted to the County. M. Real Property Real property acquired in whole or in part with CDBG funds shall be utilized in accordance with the scope and goals identified in Sections I and II of this Agreement Should the property in question be sold or otherwise disposed of, or the approved property usage discontinued, the SubGrantee shall adhere to the requirements of24 CFR Pans 84 or 85 (as applicable) regarding the use and disposition of real property. N. State and County Law Compllaace All responsibilities of the SubGrantee enumerated herein shall be subject to applicable State statutes and County ordinances, resolutions, rules, and regulations. 0. Subcontracts If subcontracts are used on the Project, the SubGrantee agrees that the provisions of this Agreement shall apply to any subcontract P. Suspension or Termiaadon This Agreement may be Sl/5J>Cflded or terminated by the County if the SubGrantee materially fails to comply with any term of this Agreement. This Agreement may also be terminated for convenience by mutual agreement of the County and the SubGrantee. Q. In the event that the Unit of General Local Government sho d d withdraw from the Co.»Jlty'S "Urban County" designation, this Agreement shall terminate as of the termination dlte of the County's CDBG grant Agreement with HUD . R. The SubGrantee certifies that to the best of its knowledge and belief: I. No Federal appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in coMection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract. grant, loan, or cooperative agreement; and, 8 t .. • • s. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract. grant. loan, or coopcrarive agreement. it will complete and submit Standard Form-LU., "Disclosure Form to Report Lobbying," in accordance with its instructions. Disallowance If it is determined by HUD or other federal agency that the expenditure, in whole or in part, for the SubGrantee's Project or activity was improper, inappropriate or ineligible for reimbursement. then the SubGrantee shall reimburse the County to the full extent of the disallowance. IV. RESPONSIBILITIES OF THE COUNTY A. Administrative Control The Parties recognize and understand that the County will be the governmental entity required to execute all grant agreements received from HUD pursuant to the County's requests for CDBG funds. Accordingly, the SubGrantec agrees that as to its projects or activities performed or conducted under any CDBG agreement. the County shall have the necessary administrative control required to meet HUD requirements. 8. Performance and Compliance Monitoring The County's administrative obligations to the SubGrantee pursuant to paragraph A above shall be limited to the performance of the administrative tasks necessary to make CDBG funds available to the SubGrantee and to provide a Monitoring Specialist whose job it will be to monitor the various projects funded with CDBG monies to monitor compliance with applicable Federal laws and . regulations. C. Reporting to HUD The County wi ll be responsible for seeing that all necessary reports and information required of the Co un ty are fi led wi th HUD and other applicable Federal agencies in a timely fashion. V . EXTENT OF THE AGREEMENT This agreement , including any documents attached as exhibits which are hereby incorporated herein by reference, represents the entire and integrated agreement between the County and SubGrantee and supercedes all prior negotiations , representations or agreements, either written or oral. Any amendments to this agreement must be in writing and signed by both the County and SubGrantee. If an y port ion of th is agreement is found by a court of competent j urisdiction to be void and/or 9 ' .. • • unenforceable, it i., the intent of the parties that the remaining portions ofthi.1 agreement shall be of full force and effect ,.-· .• 10 • t • • In Witness Whereof, the Parties have caused this Agreement to be duly executed this _____ day of ____________ ~2004. SubGrantee: City of Englewood Signature -Douglas Garrett, :~ayor ATTEST: Loucrisnia A. Ellis, City Clerk Board of County Commissioners Arapahoe Collllty, Colorado Justin A. Hamel on behalf of the Board of CoWlty Commissioners Pursuant to Resolution #040121 11 .-·· .... • • PROJECT BUDGET COLUMN A COLUMNS COLUMNC COLUMND ...... Alllwlllll ~T .... C..11 CHG,_. Oll,ao ,..c;....-. ... ~ ........ Ad.tlJ s1a111as....-$274,535 $50,000 $224.535 TOTAL: $274,$35 S!G.000 1224.m .-· , SUBGRANTEEAGREEMENTFOR ARAPAHOE COUNTY (J COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS SUBGRANTEE: CITY OF ENGLEWOOD PROJECT NAME: HOMEOWNER FIX-UP PROJECT NUMBER: ENHS 416 This Agreement is made by and between the Board of County Commissioners of the County of Arapahoe, State of Colorado, for the Community Development Block Grant Program in the Community Services Departtnent (hereinafter referred to as the County) and the City of Englewood (hereinafter referred to as the SubGrantee) for the conduct of a Community Development Block Grant (CDBG) Project I. PURPOSE The primary objective of Title I of the Housing and Community Development Act of 1974, as amended, and of the Community Development Block Grant (CDBG) Program under this Title is the development of viable urban communities, by providing decent housing, a suitable living environment and expanding economic opportunities, principally for low and moderate income persons. The project by the SubGrantee known as the Homeowner Fix-up Project (Project) has been categorized as a Housing Rehabilitation project and the SubGrantee will maintain documentation with the national objective of Low/Moderate Income Housing activities. The SubGrantee may proceed to incur costs for the Project upon receipt of an official "Notice to Proceed" from the County. U. WORK TO BE COMPLETED BY THE SUBGRANTEE The following provisions outline the scope of the work to be completed: The SubGrantee will utilize CDBG funding to provide grants to income eligible homeowners for exterior home improvements. The intent of the project is both to improve the Englewood's existing housing stock, as well as improve the visual appearance of deteriorated neighborhoods. Typical improvements may include (but are not necessarily limited to) paint, si ding, windows, roofs, and xeriscaping. A. Payment It is expressly agreed and understood that the total amount to be paid by the County under this contract shall not exceed $45,000.00 . Drawdowns for the payment of eligible expenses shall be made against the line item budgets specified in the Project Budget and in accordance with perfonnance criteria established in Section 11-C . The panics expressly recognize that the SubGrantee is to be paid with CDBG funds received from the fNer:ii govcnuncnt, and that the l ! , . • I T C ' .:.,. ..• t • • obligation of the County to make payment to SubGrantcc is contingent upon receipt of such funds. In the event that said funds, or any part thereof: are, or become, unavailable, then the County may immediately terminate or amend this agreement. To the extent C.R.S. § 29-1-110 is applicable, any financial obligation of the County to the SubGrantcc beyond the cum:nt fiscal year is also contingent upon adequate funds being appropriated, budgeted and otherwise available. Any Project funds not expended and drawn from the County by the deadline identified in Section IL C. 3. below shall revert to the County and be utilized for other purposes. B. Tlmcllne All Project activities will be completed by May 31, 2005 unless this Agreement is modified by mutual agreement of the County and SubGrantcc. C. Performance Criteria In accordance with the funding application submitted by the SubGrantcc for the Project, the criteria listed below are to be met during the execution of the Project 1. Quantifiable Goals: The SubGrantec will provide grants to renovate the exterior of nine owner occupied homes. Grants are not to exceed $4,000 each, and will require a 200/o match from each homeowner. All improvements completed under this grant are to be performed in compliance with applicable local or industry codes and standards. 2. Community Impact: Affordable housing -stability and housing quality 3. Quarterly Performance Standards: June 30, 2004 : September 30, 2004 : December 31, 2004: March 31, 2005 : May 31, 2005: Hire intern to perform project Program marketing Provide one renovation grant Provide two renovation grants Provide three renovation grants Provide three renovation pus Complete all renovations f\mded by project 2 t • • -· 0 (J Submit final drawdown and completion report to County D. Reporting Requirements 1. Project reports will be due within one month following the end of each calendar year quarter (March 31, June 30, September 30, December 31) until the Project is completed. 2. The official annual audit and/or Financial Statements for the SubGrantcc in which both revenues and expenditures for the CDBG Projects described herein arc detailed are due annually. E. Labor Standards (Davis-Bacon) It is determined that: Project activities do not require compliance with federal labor standards. F. Environmental Review Notwithstanding any provision of this Agreement, the parties hereto agree and acknowledge that this Agreement docs not constitute a commitment of funds or site approval, and that such commitment of funds or approval may occur only upon satisfactory completion of environmental review and receipt by Arapahoe County of a release of funds from the U.S. Department of Housing and Urban Development under 24 CFR Part 58. The parties further agree that the provision of any funds to the project is conditioned on Arapahoe County's determination to proceed with, modify, or cancel the project based on the results of a subsequent environmental review. G. Uniform Relocation Act (URA) Project activities do not require compliance with the Uniform Relocation Act. H. Lead Based Paint The SubGrantee will comply with County policies and all state and federal regulations and guidelines related to minimizing lead hazards in residential properties, including 24 CFR Part 35 and Colorado Regulation :-.iumbcr 19 . HI. RESPONSIBILITIES OF THE SUBGRA!'IITEE A. Federal Compliance The SubGrantee shall comply with all applicable federal laws, regulations and requirements, and all provisions of the grant agreements received from the U.S. Department of Housing and Urban Development (HUD) by the County. These include but are not limited to compliance with the provisions of the Housing and Community Development Act of 197-4 and all rules, regulations, 3 ' . .. • ,o [J guidelines and circulars promulgated by the various federal departments, agencies, administrations and commissions relating to the CDBG Program. A listing of some of the applicable laws and regulations are as follows: I. 24 CFR Part 570; 2. 24 CFR Parts 84 and 85; 3. Title VI of the Civil Rights Act of 1964; 4. Title VIII of the Civil Rights Act of 1968; 5, Sections l 04(b) and l 09 of the Housing and Community Development Act of 197 4; 6. Fair housing regulations established in the Fair Housing Act, Public Law 90-284, and Executive Order 11063; 7. Section 504 of the Rehabilitation Act of 1973; 8. Asbestos guidelines established in CPD Notice 90-44; 9. The Energy Policy and Conservation Act (Public Law 94-163) and 24 CFR Part 39; 10. Equal employment opportunity and minority business enterprise regulations established in 24 CFR part 570.904; 11. Section 3 of the Housing and Urban Development Act of 1968; 12. Non-discrimination in employment, established by Executive Order 11246; 13. Lead Based paint regulations established in 24 CFR Parts 35 and 570.608; 14. Audit requirements established in 0MB Circular A-133; and 15 . Cost principles established in 0MB Circulars A-87 and A-122. Additionally, in accordance with 24 CFR Part 570, no employee, official, agent or consultant of the SubGrantee shall exercise any function or responsibility in which a conflict of interest, real or apparent, would arise. The SubGrantee cannot engage in a federally funded contract with any entity registered in the Lists of Parties Excluded From Federal Procurement or Nonprocurcment Programs. B. Non-Appropriations Clause The SubGrantee agrees that it will include in every contract it enters, which relies upon CDBG monies for funding, a non-appropriation clause that will protect itself and the County frolQ. any liability or responsibility or any suit which might result from the discontinuance of CDBG funding for any reason. Because this SubGrantee Agreement involves funds from a federal gr.int, to the extent there is a conflict the funding provisions of this SubGrantee Agreement, the federal gr.int and the federal statutes control rather than the provisions of Section 24-91-103.6, C .R.S. with regard to any public work projects . C. Expenditure Restrictions All CDBG funds that are approved by HUD for expenditure under the County's grant agreement, including those that .fre identified for the SubGrantee's Projects and :icrivities., shall be allocated to the specific projects and activities described and listed in the gr.int agreements . The allocated funds shall be used and expended only for the projects and activities for which the funds are identified. 4 ,. ' .... .. • • - C C D. Agreement Changes No projects or activities, nor the amount allocated therefor, may be changed without approval by the County and acceptance of the revised Final Statement and/or Consolidated Plan by HUD, if required. Changes must be requested in writing and may not begin until a modification to this Agreement is fully executed. E. Direct Project Supervision and Administration The SubGrantee shall be responsible for the direct supervision and administration of its respective projects or activities. This task shall be accomplished through the use of the SubGrantee's staff: agency and employees. The SubGrantee shall be responsible for any injury to persons or damage to property resulting from the negligent acts or errors and omissions of its staff: agents and employees . Because the SubGrantee is responsible for the direct supervision and administration of its projects or activities, the County shall not be liable or responsible for cost overruns by the SubGrantee on any projects or activities. The County shall have no duty or obligation to provide any additional funding to the SubGrantee if its projects or activities cannot be completed with the funds allocated by the County to the SubGrantee. Any cost overruns shall be the sole responsibility of the SubGrantee. 1. The SubGrantee agrees that all funds allocated to it for approved projects or activities shall be used solely for the purposes approved by the County. Said funds shall not be used for any non-approved purposes. 2. The SubGrantee agrees that the funds allocated for any approved projects or activities shall be sufficient to complete said projects or activities without any additional CDBG funding. F. Indemnity To the extent allowed by law, the SubGrantee shall indemnify and hold harmless the County and its elected and appointed officials, officers, employees and agents from and against any and all IQliSCS, damages, liabilities, claims, suits, actions or costs, including attorneys fees, made, assened or incurred as a result of any damage or alleged damage to person or property occasioned by the acts or omissions of SubGrantee, its officers, employees, agents , contractors or subcontractors, arising out of or in any way connected with the Project or the performance of this contract. G. Bonding and Insurance If the SubGrantee's projects inv olve construction activities, any Contractor it uses for said activities shall be required to provide and maintain, until final acceptance by the SubGrantcc of all work by such Contractor, the kinds and minimum amounts of insurance as follows : 1. Comprehensive General Liability : In the amount ofnot less than Sl,000,000 combined single limit . Coverage to include: 5 -~ .. t • • -- a. b. C. d. e. f. g. h. i. Premises Operations Products/Completed Operations Broad Form Contractual Liability Independent Contractors Broad Form Property Damage Employees as Additional fnsured Personal Injury fill , ·~ ~ D Arapahoe County and the SubGrantee as Additional Named fnsured Waiver of Subrogation 2. Comprehensive Automobile Liability: In the amount of not less than $1,000,000 combined single limit for bodily injury and property damage. Coverage to include: a. Arapahoe County and the SubGrantee as additional Named Insured b. Waiver of Subrogation 3. Employers Liability and Workers Compensation: The Contractor shall secure and maintain employer's liability and Worker's Compensation fnsurance that will protect it against any and all claims resulting from injuries to and death of workers engaged in work under any contract funded pursuant to this agreement. Coverage to include Waiver of Subrogation . 4. All referenced insurance policies and/or certificates of insurance shall be subject to the following stipulations: a. Underwriters shall have no rights of recovery subrogation against Arapahoe County or the SubGrantee; it being the intent of the panics that the insurance policies so effected shall protect the panics and be primary coverage for any and all losses covered by the described insurance. b. The clause entitled "Other fnsurance Provisions" contained in any policy including Arapahoe County as an additional named insured shall not apply to Arapahoe County or the SubGrantee. c. The insurance companies issuing the policy or policies shall have no recourse against Arapahoe County or the SubGrantec for payment oj any premiums due or for any assessments under any form of any policy. d. Any and all deductibles contained in any insurance policy shall be asswned by and at the sole risk of the Contractor. 5. Certificate of Insurance : The Contractor shall not commence work under any contract funded pursu.mt to this Agreement until he has submitted to the SubGrantee, received :ipproval thereof. certificates of insurance showing that he has complied with the foregoing insurance requirements. The SubGrantee shall also submit a copy of the Contractor's certificates of insurance to the County. 6. Notwiths tanding the provisions contained in this paragraph (H) set forth here inabove , the County reserves the right to modify or waive said provisions for projects or act ivi ties for which these provisions would prove prohibitive . The 6 t .. t • • SubGrantee understands, however, that the decision to waive or modify those provisions is fully within the discretion of the County. In accordance with 24 CFR parts 84 and 85, the following bonding requirements shall apply to all projects exceeding the simplified acquisition threshold: 1. 2. 3. A bid guarantee from each bidder equivalent to 5% of the bid price; A performance bond on the part of the contractor for 100°/o of the contract price; and A payment bond on the part of the contractor for 100°/o of the contract price. H. Records The SubGrantee shall maintain a complete set of books and records documenting its use ofCDBG funds and its supervision and administration of the Project. Records are to include documentation verifying Project eligibility and national objective compliance, as well as financial and other administrative aspects involved in performing the Project. The SubGrantee shall provide full access to these books and records to the County, the Secretary of HUD or his designee, the Office of Inspector General, and the General Accounting Office so that compliance with Federal laws and regulations may be confirmed. The SubGrantee further agrees to provide to the County upon request, a copy of any audit reports pertaining to the SubGrantee's financial operations during the term of this Agreement. All records pertaining to the Project are to be maintained for a minimum of five years following close-out of the Project. I. Reporting The SubGrantee shall file all reports and other information necessary to comply with applicable Fed.era! laws and regulations as required by the County and HUD. This shall include providing to the County the information necessary to complete annual Performance Reports in a timely fashion. J. Timeliness The SubGrantee shall comply with the quarterly performance standards established in Sectio~II-C of this Agreement. The SubGrantee understands that failure to comply with the established standards may lead to a cancellation of the Project and a loss of all unexpended funds. K. Reimbursement for Expenses The SubGrantee agrees that before the County can distribute any CDBG funds to it, the SubGrantee must submit to the County's Housing and Community Development Services Division documentation in the form required by that Division which properly and fully identifies the amount which the SubGrantee is requesting at that time. The County shall have ten (10) working days to re vi ew the request. Upon approval of the request, the County will distribute the requested funds to the SubGrantee as soon as possible . L. Program Income 7 ' -~ .. • • .. ·O 0 All program income directly derived from the Arapahoe County Community Development Block Grant Program received by the SubGrantcc will be retained by the SubGrantcc and will be dispersed for its approved CDBG Project activities before additional CDBG funds arc requested from the County. Following completion of the SubGrantcc's Arapahoe County CDBG Projects, all program income directly generated from the use ofCDBG funds will be remitted to the County. M. Real Property Real property acquired in whole or in part with CDBG funds shall be utilized in accordance with the scope and goals identified in Sections I and II of this Agreement. Should the property in question be sold or otherwise disposed o( or the approved property usage discontinued. the SubGrantcc shall adhere to the requirements of24 CFR Parts 84 or 85 (as applicable) regarding the use and disposition of real property. N. State and County Law Compliance All responsibilities of the SubGrantce enwncrated herein shall be subject to applicable State statutes and County ordinances, resolutions, rules, and regulations. 0. Subcontracts If subcontracts are used on the Project, the SubGrantec agrees that the provisions of this Agreement shall apply to any subcontract. P. Suspension or Terminadon This Agreement may be suspended or terminated by the County if the SubGrantcc materially fails to comply with any tenn of this Agreement. This Agreement may also be tenninated for convenience by mutual agreement of the County and the SubGrantcc. Q. In the event that the Unit of General Local Government should withdraw from the Coljlty'S "Urban County" designation, this Agreement shall terminate as of the termination date of the County's CDBG grant Agreement with HUD . R. The SubGrantec certifies that to the best of its knowledge and belief: I. No Federal appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in coMection with the awarding of any Federal contract, the making of any Fede,ll grant, the malcing of any Federal loan. the entering into of any cooperative agreement, and the extension, continuation, renewal , amendment, or modification of any Federal contract, grant, loan. or cooperative agreement; and, 8 ' " .. • • -- s. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, it will complete and submit Standard Fonn-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. Dlsallowance If it is determined by HUD or other federal agency that the expenditure, in whole or in part, for the SubGrantcc's Project or activity was improper, inappropriate or ineligible for reimbursement, then the SubGrantee shall reimburse the County to the full extent of the disallowance. IV. RESPONSIBILITIES OF THE COUNTY A. Administrative Control The Parties recognize and understand that the County will be the governmental entity required to execute all grant agreements received from HUD pursuant to the County's requests for CDBG funds . Accordingly, the SubGrantee agrees that as to its projects or activities performed or conducted under any CDBG agreement, the County shall have the necessary administrative control required to meet HUD requirements. B. Performance and CompUance Monitoring The County's administrative obligations to the SubGrantee pursuant to paragraph A above shall be limited to the performance of the administrative tasks necessary to make CDBG funds available to the SubGrantee and to provide a Monitoring Specialist whose job it will be to monitor the various projects funded with CDBG monies to monitor compliance with applicable Federal laws and regulations. C. Reporting to HUD The County will be responsible for seeing that all necessary reports and information required of the County are filed with HUD and other applicable Federal agencies in a timely fashion . V. EXTENT OF THE AGREEMENT This agreement, including any documents attached as exhibits which an: hereby incorporated herein by reference , represents the entire and integrated agreement between the County and SubGrantee and supcrcc<!es all prior negotiations, representations or agreements. either written or oral. Any amendments to this agreement must be in writing and signed by both the County and SubGrantcc . If an y portion of th is agreement is fo und by a court of competent jurisdiction to be void and/or 9 ' .. .. • • unenforceable, it is the intent of the parties that the remaining portions of this agreement shall be of full force and effect .-· 10 • • In Witness Whereof; the Parties have caused this Agreement to be duly executed this __ _;_ __ day of ____________ _, 2004. SubGrantec: City of Englewood Signature -Doug1as <.arrett, ~ayor A'.i"l'ES'J.': Loucrisnia A. Ells, City Clerk Board of County Commissioners Arapahoe County, Colorado Justin A. Hamel on behalfofthe Board of County Commissioners Pursuant to Resolution #040121 ll PROJECT BUDGET COLUMN A COLUMNB COLUMNC COLUMND ....... ~ ...._.T .... C..ef co-. ... Oll,ao ,-c;......,. (.-,Y.., ... ...., AaMly ........ ....,, __ $6,000 $6,llOO so Pl'aject ldninilll'IIM apenom $6,000 SJ.000 SJ.000 Gnnt--$43 ,000 536,000 $7,000 TOTAL: $55,000 $45,000 SI0.000 • • SUBGRANTEEAGREEMENTFOR ARAPAHOE COUNTY 0 COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS SUBGRANTEE: CITY OF ENGLEWOOD PROJECT NAME: RENTAL FIX-UP PROJECT NUMBER: ENHS417 This Agreement is made by and between the Board of County Commissioners of the County of Arapahoe, State of Colorado, for the Community Development Block Grant Program in the Community Services Department (hereinafter referred to as the County) and the City of Englewood (hereinafter referred to as the SubGrantee) for the conduct of a Community Development Block Grant (CDBG) Project I. PURPOSE The primary objective of Title I of the Housing and Community Development Act of 1974, as amended, and of the Community Development Block Grant (CDBG) Program under this Title is the development of viable urban communities, by providing decent housing, a suitable living environment and expanding economic opportunities, principally for low and moderate income persons. The project by the SubGrantee known as the Rental Fix-up Project (Project) has been categorized as a Housing Rehabilitation project and the SubGrantee will maintain documentation with the national objective of Low/Moderate Income Housing activities. The SubGrantee may proceed to incur costs for the Project upon receipt of an official "Notice to Proceed" from the County. ll. WORK TO BE COMPLETED BY THE SUBGRANTEE The following provisions outline the scope of the work to be completed: The SubGrantee will utilize CDBG funding to provide grants for exterior improvements to renter occupied housing within the City of Englewood . The intent of the project is both to improve the Englewood's existing housing stock, as well as improve the visual appearance of deteriorated neighborhoods . Typical improvements may include (but are not necessarily limited to) paint, siding, windows, roofs, and xeriscaping . A. Payment It is expressly agreed and understood that the total amount to be paid by the County under this contrac t shall not exceed SJ0,000.00. Drawdowns for the payment of eligible expenses shall be made against the line item budgets specified in the Project Budget and in accordance with perfonnance criteria established in Section 11-C. The panics expressly recognize that the l t f • • 0 SubGrantee is to be paid with CDBG funds received from the federal government, and that the obligation of the County to make payment to SubGrantee is contingent upon receipt of such funds. Jn the event that said funds, or any part thereat: are, or become, unavailable, then the County may immediately terminate or amend this agreement To the extent C.R.S . § 29-1-110 is applicable, any financial obligation of the County to the SubGrantee beyond the current fiscal year is also contingent upon adequate funds being appropriated, budgeted and otherwise available. Any Project funds not expended and drawn from the County by the deadline identified in Section II . C. 3. below shall revert to the County and be utilized for other purposes. B. ThneUae All Project activities will be completed by May 31, 2005 unless this Agreement is modified by mutual agreement of the County and SubGrantee. C. Performance Criteria Jn accordance with the funding application submitted by the SubGrantee for the Project, the criteria listed below are to be met during the execution of the Project. l. Quantifiable Goals: The SubGrantee will provide grants to renovate the exterior of six renter occupied homes . Grants are not to exceed $4,000 each, and will require a 200/o match from each property owner. All units renovated under this Project are to be occupied by income eligible renters at the time of application to the Fix-up program, as well as at throughout the duration of the renovations. Additionally, in accordance with 24 CFR Pan 570 .208(a)(3), rents charged at units assisted by this Project are to remain affordable from the time of application to the Fix-up program throughout the duration of the renovations. In order to be considered affordable, rents shall not exceed the gl'Cllter of the following: .... • Local Fair Market Rent (FMR) adjusted for tenant paid utilities according to the current utility allowance schedule utilized for publicly assisted housing projects within the City of Englewood, or • 30% of the income eligible renter household's gross monthly income adjusted for tenant paid utilities according to the current utility allowance schedule utilized for publicly assisted housing projects within the City of Englewood. All improvements completed under this grant are to be performed in compliance with applicable local or industry codes and standards . 2. Community Impact: Afford able housing -stability and housing quality 2 ' -·~ .. • • 3. Quarterly Performance Standards: June 30, 2004: September 30, 2004: December 31, 2004: March 31, 2005: May31,2005: Hire intern to perform project Program marlceting Provide one renovation grant Provide one renovation grant Provide two renovation grants Provide two renovation grants Complete all renovations funded by project Submit final drawdown and completion report to County D. Reporting Requirements I. Project reports will be due within one month following the end of each calendar year quarter (March 31, June 30, September 30, December 31) until the Project is completed. 2. The official annual audit and/or Financial Statements for the SubGrantee in which both revenues and expenditures for the CDBG Projects described herein are detailed are due annually. E. Labor Standards (Davis-Bacon) It is determined that: Project activities do not require compliance with federal labor standards. F. Environmental Review Notwithstanding any provision of this Agreement, the parties hereto agree and acknowledge ihat this Agreement does not constitute a comminnent of funds or site approval. and that such comminnent of funds or approval may occur only upon satisfactory completion of environmental review and receipt by Arapahoe County ofa release of funds from the U.S. Department of Housing and Urban Development under 24 CFR Part 58 . The parties further agree that the provision of any funds to the project is conditioned on Arapahoe County's determination to proceed with, modify, or cancel the project based on the results ofa subsequent environmental review . G. Uniform Relocadon Act (URA) Project activities do not require compliance with the Uniform Relocation Act. 3 t .· .. .. • • -- H. Lead Based Paint The SubGrantee will comply with County policies and all state and federal regulations and guidelines related to minimizing lead hazards in residential properties, including 24 CFR Part 35 and Colorado Regulation Number 19. III. RESPONSIBILITIES OF THE SUBGRANTEE A. Fedenl Compliance The SubGrantee shall comply with all applicable federal laws, regulations and requirements, and all provisions of the grant agreements received from the U.S. Department of Housing and Urban Development (HUD) by the County. These include but are not limited to compliance with the provisions of the Housing and Community Development Act of 1974 and all rules, regulations. guidelines and circulars promulgated by the various federal departments, agencies, administrations and commissions relating to the CDBG Program. A listing of some of the applicable laws and regulations are as follows: 1. 24 CFR Part 570; 2. 24 CFR Parts 84 and 85; 3. Title VI of the Civil Rights Act of 1964; 4. Title vm of the Civil Rights Act of 1968; 5. Sections 104(b) and 109 of the Housing and Community Development Act of 1974; 6. Fair housing regulations established in the Fair Housing Act, Public Law 90-284, and Executive Order 11063; 7. Section 504 of the Rehabilitation Act of 1973; 8. Asbestos guidelines established in CPD Notice 90-44; 9. The Energy Policy and Conservation Act (Public Law 94-163) and 24 CFR Part 39; 10. Equal employment opportunity and minority business enterprise regulations established in 24 CFR part 570.904; 11. Section 3 of the Housing and Urban Development Act of 1968; 12. Non-discrimination in employment, established by Executive Order 11246; 13 . Lead Based paint regulations established in 24 CFR Parts 35 and 570.608; 14. Audit requirements established in 0MB Circular A-133; and 15. Cost principles established in 0MB Circulars A-87 and A-122. Additionally, in accordance with 24 CFR Pan 570, no employee. official. agent or consultant of the SubGrantce shall exercise any function or responsibility in which a conflict of interest, real or apparent, would arise . The SubGrantce cannot engage in a federally funded contr.lCt with any entity registered in the Lists of Parties Excluded From Federal Procurement or Nonprocurcment Programs . B. Non-Appropriations Clause 4 ·• .. • • 0 0 . The SubGrantee agrees that it will include in every contract it enters, which relies upon CDBG monies for funding, a non-appropriation clause that will protect itself and the County from any liability or responsibility or any suit which might result from the discontinuance of CDBG funding for any reason. Because this SubGrantee Agreement involves funds from a federal grant, to the extent there is a conflict the funding provisions of this SubGrantee Agreement, the federal grant and the federal statutes control rather than the provisions of Section 24-91-103.6, C .R.S . with regard to any public work projects. C. Expenditure Restrictions All CDBG funds that are approved by HUD for expenditure under the County's grant agreement, including those that are identified for the SubGrantee's Projects and activities, shall be allocated to the specific projects and activities described and listed in the grant agreements. The allocated funds shall be used and expended only for the projects and activities for which the funds are identified. D. Agreement Changes No projects or activities, nor the amount allocated therefor, may be changed without approval by the County and acceptance of the revised Final Statement and/or Consolidated Plan by HUD, if required. Changes must be requested in writing and may not begin until a modification to this Agreement is fully executed. E. Direct Project Supervision and Administration The SubGrantee shall be responsible for the direct supervision and administration of its respective projects or activities. This task shall be accomplished through the use of the SubGrantee's staff: agency and employees. The SubGrantee shall be responsible for any injury to persons or damage to property resulting from the negligent acts or errors and omissions of its staff, agents and employees. Because the SubGrantee is responsible for the direct supervision and administration of its projects or actjvities, the County shall not be liable or responsible for cost overruns by the SubGrantee on any projects or activities . The County shall have no duty or obligation to provide any additional funding to the SubGrantee if its projects or activities cannot be completed with the funds all~ated by the County to the SubGrantee . Any cost overruns shall be the sole responsibility of the SubGrantee. . 1. The SubGrantec agrees that all funds allocated to it for approved projects or activities shall be used solely for the purposes approved by the County. Said funds shall not be used for any non-approved purposes . 2. The SubGrantee agrees that the funds allocated for any approved projects or activities shall be sufficient to complete said projects or activities without any additional CDBG funding . F. Indemnity 5 ' • • -- • To the extent allowed by law, the SubGrantee shall indemnify and hold hannless the County and its elected and appointed officials, officers, employees and agents from and against any and all losses, damages, liabilities, claims, suits, actions or costs, including attorneys fees, made, asserted or inCUITed as a result of any damage or alleged damage to person or property occasioned by the acts or omissions of SubGrantee, its officers, employees, agents, contractors or subcontractors, arising out of or in any way connected with the Project or the perfonnance of this contract. G. Bonding and Insurance If the SubGrantee's projects involve construction activities, any Contractor it uses for said activities shall be required to provide and maintain, until final acceptance by the SubGrantee of all work by such Contractor, the kinds and minimwn amounts of insurance as follows: I. Comprehensive General Liability: In the amount of not less than Sl,000,000 combined single limit. Coverage to include: a. Premises Operations b. Products/Completed Operations c. Broad Fonn Contractual Liability d. Independent Contractors e. Broad Fonn Property Damage f. Employees as Additional Insured g. Personal Injury h. Arapahoe County and the SubGrantee as Additional Named Insured i. Waiver of Subrogation 2. Comprehensive Automobile Liability: 1n the amount of not less than Sl,000,000 combined single limit for bodily injury and property damage. Coverage to include: 3. 4 . a. Arapahoe County and the SubGrantee as additional Named Insured b. Waiver of Subrogation Employers Liability and Workers Compensation: The Conttactor shall secure and maintain employer's liability and Worker's Compensation Insurance that will pwtect it against any and all claims resulting from injuries to and death of workcr'S' engaged in work under any contract funded pursuant to this agreement. Coverage to include Waiver of Subrogation . All referenced insurance policies and/or certificates of insurance shall be subject to the following stipulations : a. Underwriters shall have no rights of recovery subrogation against Arapahoe County or the SubGrantce ; it being the intent of the parties that the insurance policies so effected shall protect the parties and be primary coverage for any and all losses covered by the described insurance . b. The clause entitled "Other Insurance Provisions" contained in any policy including Arapahoe County as an additional named insured shall not apply to Arapahoe County or the SubGrantee. 6 t J • • 0 5. 6. ·• c. The insurance companies issuing the policy or policies shall have no recourse against Arapahoe County or the SubGrantee for payment of any premiums due or for any assessments under any form of any policy. d. Any and all deductibles contained in any insurance policy shall be assumed by and at the sole risk of the Contractor. Certificate of Insurance: The Contractor shall not commence work under any contract funded pursuant to this Agreement until he has submitted to the SubGrantee, received approval thereof, certificates of insurance showing that he has complied with the foregoing insurance requirements. The SubGrantee shall also submit a copy of the Contractor's certificates of insurance to the County. Notwithstanding the provisions contained in this paragraph (H) set forth hereinabove, the County reserves the right to modify or waive said provisions for projects or activities for which these provisions would prove prohibitive. The SubGrantee understands, however, that the decision to waive or modify those provisions is fully within the discretion of the County. In accordance with 24 CFR parts 84 and 85, the following bonding requirements shall apply to all projects exceeding the simplified acquisition threshold: 1. A bid guarantee from each bidder equivalent to 5% of the bid price; 2. A performance bond on the part of the contractor for 100% of the contract price; and 3. A payment bond on the part of the contractor for 100% of the contract price. e. Records The SubGrantee shall maintain a complete set of books and records documenting its use ofCDBG funds and its supervision and administration of the Project. Records are to include documentation verifying Project eligibility and national objective compliance, as well as financial and other administrative aspects involved in performing the Project. The SubGrantee shall provide full access to these books and records to the County, the Secretary of HUD or his designec, the Office of Inspector General, and the General Accounting Office so that compliance with Federal-la~ and regulations may be confirmed . The SubGrantec further agrees to provide to the County upon request, a copy of any audit reports pertaining to the SubGrantec's financial operations during the term of this Agreement. All records pertaining to the Project arc to be maintained for a minimum of five years following close-out of the Project. I. Reporting The SubGrantee shall file all reports and other information necessary to comply with applicable Federal laws and regulations as required by the County and HUD . This shall include providing to the County the information necessary to complete annual Performance Reports in a timely fashion . J. Timeliness 7 ' ,:..i -· • • Cr The SubGrantee shall comply with the quarterly perfonnance standards established in Section ll-C of this Agreement. The SubGrantee understands that failure to comply with the established standards may lead to a cancellation of the Project and a loss of all unexpended funds. K. Reimbunement for Expenses The SubGrantee agrees that before the County can distribute any CDBG funds to it, the SubGrantee must submit to the County's Housing and Community Development Services Division documentation in the fonn required by that Division which properly and fully identifies the amount which the SubGrantee is requesting at that time. The County shall have ten (10) working days to review the request. Upon approval of the request, the County will distribute the requested funds to the SubGrantee as soon as possible. L. Program Income All program income directly derived from the Arapahoe County Community Development Block Grant Program received by the SubGrantee will be retained by the SubGrantee and will be dispersed for its approved CDBG Project activities before additional CDBG funds are requested from the County. Following completion of the SubGrantee's Arapahoe County CDBG Projects, all program income directly generated from the use of CDBG funds will be remitted to the County. M. Real Property Real property acquired in whole or in part with CDBG funds shall be utilized in accordance with the scope and goals identified in Sections I and ll of this Agreement Should the property in question be sold or otherwise disposed of, or the approved property usage discontinued, the SubGrantec shall adhere to the requirements of24 CFR Parts 84 or 85 (as applicable) regarding the use and disposition of real property. N. State and County Law Compliance .... All responsibilities of the SubGrantee enumerated herein shall be subject to applicable State statutes and County ordinances, resolutions , rules, and regulations. O. Subcontracts If subcontracts are used on the Project, the SubGrantee agrees that the provisions of this Agreement shall apply to an y subcontract. P. Suspension or Termination This Agreement may be suspended or terminated by the County if the SubGrantee materially fails to comply with any term of this Agreement. This Agreement may also be terminated for conve ni enc e by mucual agreement of the County and the SubGrantee . 8 ,. ' . ... .. • • 0 (] Q. In the event that the Unit of General Local Government should withdraw from the County's "Urban County'' designation, this Agreement shall terminate as of the tcnnination date of the County's CDBG grant Agreement with HUD. R. The SubGrantee certifies that to the best of its knowledge and belief: I. No Federal appropriated funds have been paid or will be paid. by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement; and. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member o f Congress in connection with this Federal contract, grant, loan, or cooperative agreement, it will complete and submit Standard Form-LU., "Disclosure Form to Report Lobbying," in accordance with its instructions. S. Disallowance If it is determined by HUD or other federal agency that the expenditure, in whole or in part, for the SubGrantec's Project or activity was improper, inappropriate or ineligible for reimbursement, then the SubGrantec shall reimburse the County to the full extent of the disallowance. IV. RESPONSIBILITIES OF THE COUNTY A. Administndve Control .... The Parties recognize an d un derstand that the County will be the governmental entity required to execute all grant agreements received fro m HUD pursuant to the Coun ty's requests for CDBG funds. Accordingly, the SubGrantec agrees that as to its projects or activities performed or conducted under any CD BG agreement, the County shal l have the necessary :idministrative contro l requi red to meet HUD requirements. 8 . Performance and Compliance Monltortnc The County's administrative obligations to the SubGrantec pursuant to paragraph A above shall be limited to the performance of th e administrative tasks necessary to make CDBG funds available to the SubGrantec and to provide a Monitoring Specialist whose j ob it wi ll be to monitor the various 9 t • • projects funded with CDBG monies to monitor compliance with applicable Fcdcral laws and regulations. C. Reportfn1 to RUD The County will be responsible for seeing that all necessary reports and information required of the County arc filed with HUD and other applicable Fcdcral agencies in a timely fashion. V. EXTENT OF THE AGREEMENT This agreement, including any documents attached as cxlubits which arc hereby incorporated herein by rcfcrcncc, represents the entire and integrated asrecmcnt between the County and SubGrantec and supcrccdcs all prior negotiations, rcprcscntalions or agreements, either written or oral. Any amendments to this agreement must be in writing and signed by both the County and SubGrantcc. If any portion of this agreement is found by a court of competent jurisdiction to be void and/or unenforceable, it is the intent of the parties that the remaining portions of"this agreement shall be of full force and effect .--··"" 10 In Witness Whereof, the Parties have caused this Agreement to be duly executed this -----day of ____________ __, 2004. SubGrantee: City of Englewood Signature -Douglas Garrett, Mayor ATTEST: Loucrishia A. Ellis, City Clerk Board of County Commissioners Arapahoe County, Colorado Justin A. Hamel on beha.lf of the Board of County Commissioners Pursuant to Resolution #040121 11 ... PROJECT BUDGET COLUMN A COLUMNB COLUMNC COLUMND ...... Md¥11111 in, i......T .... C..tl CHG,._ o..,...c........,. (.-HY..,,_.._, MM, 1n ... 1111ry --S4.ll00 54.llOO so Pra,ect adrnnilnliw--S4.ll00 $2.000 Sl.000 ar.....-SJO.ll00 S24.ll00 S6,000 TOl'AL: SJl.llOO SJCl.000 SI.ODO .~ • • COUNCIL COMMUNICATION Date Attenda Item Subiect April 19, 2004 11 a i Approval of Intergovernmental Agreement with RTD for landscaping requirements at RTD Elati Maintenance Facility INITIATED BY STAFF SOURCE City Manager's Office Michael Flaherty, Assistant City Manager COUNCIL GOAL AND PREVIOUS COUNCIL ACTION RTD seeks to reach an agreement with the City and secure a certificate of occupancy for the maintenance facility by approximately May 1, 2004, in spite of the fact that they have not fully complied with the landscaping requirements of City's zoning ordinance. The terms of this agreement provide for either a payment of a fee in lieu, as provided by the zoning ordinance, or by providing landscaping to satisfy the current deficiency of 32,000 sq. feet when the Bates Avenue Light Rail station is constructed. If an agreement on the Bates Station is not reached by December 31, 2004, or if the Fas Track vote fails and no alternate plan for the Bates Station is in place by that date, RTD will pay the City's fee in lieu in the amount of $37,000. The agreement also documents that RTD and the City will cooperate to reach formal agreements for location of light rail stations at Bates Avenue in Englewood and at Lucent Boulevard on property of the City's Mclellan reservoir. While no previous formal Council action related to this issue has occurred, RTD has included the Bates Station in its Fas Tracks plan as result of Council's interactions with RTD. This version of the intergovernmental agreement is the version that RTD has agreed to support and sign . The language that Council requested during their April 10, 2004 meeting was not accepted by RTD. RECOMMENDED ACTION Staff re commends council consider a Bill for an Ordinance to approve a IGA with RTD . BACKGROUND The City had been involved with RTD regarding the redevelopment of the General Ironworks site since 1999 when RTD began planning for their Elati Light Rail Maintenance Center. The GIW site was selected by RTD from 20 sites along the southeast and southwest light rail corridors. Initially, RTD planned to use the entire GIW site for its maintenance facility. The City, however, believed th at th e redevelopment of th e GIW site should include residential and limited commercial/office uses, rather th an a soley industrial use. The parties agreed on a compromise solution, which would allow RTD to acquire additional property in Denver, north of the GIW si te, and only use approximately 'h of th e GIW site for th eir maintenance facility. The City entered into discussions with RTD fo r redevelopment of the GIW site and development of the Bates Station that would also t .,.. .. .. . .•i • • satisfy the City's landscaping requirement for the Elati maintenance center within the southern portion of th e GIW property. The Englewood Urban Renewal Authority selected a developer, through a competive process, to negotiate an agreement for the redevelopment However, in late 2003, RTD reached a condemnation settlement with the owner of the GIW site that allowed the owner to retain the southern portion of the site . This effectively ended the City's ability to negotiate redevelopment of the remaining ground with its selected developer and reduced RTD's ability to comply with th e landscaping requirement for their Elati maintenance project causing the deficiency. After much discussion and negotiations with RTD, we have agreed on language for an intergovernmental agreement that will address the landscaping deficiency and create a framework for future agreements for both the Bates and Lucent stations. FINANCIAL IMPACT The City will be compensated $37,000, based on $1.15/sq . ft ., by December 31, 2004, as a fee-in- lieu of landscaping requirements, per City zoning regulations. Alternatively, RID may provide all or part of the 32 ,000 sq. ft. landscaping deficieny within the area of the future Bates Avenue Light Rail Station . The value of land received as a result would be in the range of S 140,000-$200,000. Any portion of the current deficiency not met in the Bates Station landscaping plan would be subject to the City's fee-in-lieu. LIST OF ATTACHMENTS Bill for an Ordinance Proposed Intergovernmental Agreement • • ·• • • BY AUTHORITY ORDINANCE NO. COUNCIL BILL NO. l!U SERIES OF 2004 INTRODUCED BY COUNCIL MEMBER~~~~~~ ABILLFOR f AN ORDINANCE AU'IHORIZINO AN INT.illOOVERNMENTM. NJRBPMJN1' "SUBSTANTIVE TERMS OF THE ELATI LANDSCAPE AGREEMENT" BETWEBN THI! R:l!OIONAL TRANSPORTATION DIS'r1t1CT~Alffl THE CITY OF ENGLEWOOD COLORADO. WHEREAS, RTD is constructing a Light Rail maintenance facility on the northern portion of the fonner General Iron Works (GIW) site; and WHEREAS, the City and RTD have been working to provide for future redevelopment of the southern portion of the fonner GIW site; and WHEREAS, as part of on-going cooperative efforts, the City and RTD had tentatively agreed that the landscaping requirement of the City of Englewood's Zoning Ordinance for development of their Elati maintenance facility c~uld be met within the southern portion of the GIW site; and WHEREAS, due to a condemnation agreement reached between RTD and property owners, the southern portion of the site will remain under private ownership; and WHEREAS, neither RTD nor the City will have the ability to satisfy the landscaping requirement of this portion of the property resulting in a deficiency of approximately 32,000 square feet; and WHEREAS, this Ordinance provides for payment of a fee in lieu of landscaping, as provided by the Englewood Zoning Ordinance; and WHEREAS, this agreement also documents that RID and the City will cooperate to reach fonnal agreements for light rail stations at Bates Avenue in Englewood and at Lucent Boulevard on property near Englewood's McLellan Reservoir; and WHEREAS , if the landscaping deficiency cannot be accommodated at the RTD Bates Station a Bates Station .Agreement will be drafted for RID to pay a fee in lieu of landscaping to the City by December 31 , 2.004; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE €ITV OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The Intergovernmental Agreement "Substantive Terms Of The Elati Landscape Agreement" attached hereto as Exhibit A, is hereby accepted and approved by the Englewood City Council. ..sec.ti.oit 2. The Mayor and City Clerk are authorized to execute and anest said Agreement for and on behalf of the City of Englewood. -1- ' .. • • Introduced, read in full , and passed on first reading on the 19th day of April, 2004 . Published as a Bill for an Ordinance on the 23rd day of April, 2004. Douglas Garrett, 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 a Bill for an Ordinance, introduced, read in full , and passed on first reading on the 19th day of April, 2004. Loucrishia A. Ellis -2- 't .. • • INTERGOVERNMENTAL AGREEMENT AS TO LANDSCAPING AND CERTIFICATE OF OCCUPANCY FOR REGIONAL TRANSPORTATION DISTRICrs ELATI MAINTENANCE CENTER THIS INTERGOVERNMENTAL AGREEMENT Is made and entered In to this day of March , 2004 by and between the City of Englewood, a iClty") and the Regional Transportation District, a political subdivision of the State of Colorado iRTD"). WHEREAS , RTD has designed and constructed its Elati Maintenance Center "Maintenance Center" for light rail vehicles In accordance with a site plan approved by the City, and WHEREAS, the City and RTD originally expected that the RTD-owned parcel on which the Maintenance Center would be built would be approximately twice as large as the current RTD parcel iRTD Parcel"), however, RTD sought and the City consented to the boundary change that reduced the size of the RTD Parcel , and WHEREAS, due to the reduction In parcel size, the City has calculated that the RTD parcel , as developed, does not provide the required minimum amount of landscaping under E.M.C. 16-~ 26 0 ., and has dedined to Issue a Certificate of Occupancy iCO") for the Elati Maintenance Center, and WHEREAS, since RTD built the Maintenance Center according to a City approved site plan, and is willing to pay a Fee-In Ueu pursuant to E.M.C. 16-~26 E. 2. ("Fee-ln-Ueuj, RTD believes that it is entitled to a CO, and WHEREAS, the parties wish to compromise and resolve their differences concerning the CO and landscaping for the RTD Parcel by entering into this Intergovernmental Agl'Mlllent as to Landscaping and Certificate of Occupancy for Regional Transportation Dlatrlc:t'a Elall Maintenance Center iAgreement")., NOW ' THEREFORE , the parties agree as follows: 1. The City will Issue the Elati Maintenance Center Certificate of Occupancy upon the latter ot execution of this Agreement and completion by RTO of all City Building Code ~ concerning the Elati Maintenance Center without taking into account the requinld amount of landscaping. 2. For purposes of this Agreement only, the parties shall 1111111me a land-i,e dellclenc:y for the RTD Parcel in the amount of 32,000 square feet, and a Fee-In-Lieu for IUCh aaaumed landscape deficiency of $37,000 . 3. The parties agree to conduct negotiations for a Bates Station Agre.nent betwNn RTO, the City. the potentiel transit oriented development developer of property ~ lo the llallon lite an<! other parties, If necessary ; such agreement anticipated to bll ellllCUj'ad by Sepllmber 30 , 2004 , which will be recommended by RTD and City staff, but la IUbjed lo RTD Board of Directors and Englewood City Council approval , each in their sole dlscrelion , and that would provide , among other things : I : I I ~ /J ' • • - a. That an acceptable, adjacent transit oriented development is a prerequisite for the development of a Bates Station . b. Satisfaction of the landscape deficiency alleged hy the City may be met by provision of landscaped areas In connection with the Bates Station . c. The Bates Station will be included in the Fas Tracks schedule, with consll\Jction currently planned for approximately 2009 . d. That, if Fas Tracks passes , the construction costs of a Bates Station will be shared equally between the City, RTO and the transit oriented development developer. e. A Bates Station may be built with private funding whether or not Fas Tracks passes upon the condition that the RTO Board of Directors, In Its sole discretion , approves the necessary Bates Station operation and maintenance costs In the Southwest Corridor service plan . (I) If the Bates Station Is privately funded and FasTracks passes , the private developer shall be eligible for reimbursement by RTO of a 1/3 share, subject to budgeting and appropriation. Reimbursement shall be based upon actual cost, without Interest. Current estimate of cost is 4 .9 mlUlon dollars. (ii) If the Bates Station Is privately funded and Fas Tracks does not pass , the developer will not be entitled to reimbursement. 4 . If no agreement is in place to provide for construction of a Bates Station In a manner that satisfies the landscape deficiency assumed in this Agl'Nl1l8nt by December 30, 2004, RTO shall make a Fee-ln-Ueu payment of $37,000.00 to the City no later than December 31, 2004 , and all obligations of RTO to the City concerning the City's building and/or landscaping requirements for the Elati Maintenance Center shall be deemed satisfied. 5. If an agreement Is in place to provide for construction of a Bates Station In a manner that satisfies the landscape deficiency assumed In this Agreement by December 30 , 2004, satisfaction of the landscape dellciency shaH be deferred until the Bates Station Is constructed and in operation pursuant to the agreement, at which time all obllgatlons of RTO to the City concerning the City's building and/or landscaping requlrementa for the Elatl Maintenance Center shall be deemed satisfied . CJ requ ired for RTO's planned "Lucent Boulevard Station" at a price and other terms mutually , the watershed of the reservoir . To the elCtent consistent with such minimization, the MIOUl1I of r,}PfJ_ . ;l/lJ.> ..J..U,~ acceptable to RTO and the Foundation, Including efforts to minimize environmental Impact to 6 . The City agrees to cooperate with RTO In good faith negotiations between RTO and the 1,.. Englewood/Mclellan R8S81VOlr Foundation rFoundatlon") for 1eaN by RTO of a pan:el~land ,,., developable land shall be maximized , based upon mufuaily accep1atile design parameters ~~ I Jin appro xi mately ten-acre station A~~··ly~. . ..... ·{-~ 7. No officer, melnber, or em yee of RTO and no membef of Its governing body end no other lf~A • public officia l or employee of governing body of the locality or locallie9 lncklCled wlthk'I RTO , ~i\...-'(!!!)- during his or her tenure or one year thereafter, shall have any inlerest, direct or indirect, in thla Agreement or the thereof. 2 • • "· • .. .· t • • •• 8. It is expressly understood and agreed that RTO and the City do not Intend to act for or in place of the other and do not Intend to be and shall not in any respect be dem1ed agents of each olher, but shall each be an Independent contractor. 9. Nothing henlin shall be construed as giving rise to any rights or benefits to any third party. RTO and the City e,cpressty dlsclam any intent to Cl98te any third-party benellclary stalus or rlghls in any person or entity not a party to this agreement. 10. All notices, coordination, and other communication required or pennltted by this Agreement shall be made to the following persons : RTO CITY Senior Manager of Property Management City Manager Regional Transportation District City of Englewood 1600 Blake Street 1000 Englewood Piwtcway Derwer, co 80202 Englewood, CO 11 . In connection with the performance of this ~ the par1lea shall not cl8crimNle against any employee or appllc:ant for employment became of race, color, ~. national origin, sex, age or dlaabllity. Each party lhall take alllrmalN9 adlon lo ensure that appllc;ns 1119 employed and that emploYNS are 1l9al8d cblng emplo)ffl8111 wllhoul l9g8l'd lo race, color ~. national origin, -or age. Such adlon lhall Include, but Is not lmlad lo, the following : employment, upgnlling, demotion, or transfer; rec:nftnent or recn.ilment adva111ng; layoff or tennlnation ; rates of pay or other fonne of c:ompenaallon; and Nlecllon for trainklg, lncblng appn,nllceshlp. In 8CClOrdance with w:tlon 102 of the Americana wlh DilabMas /Id, as amended, 42 U.S.C. 1 12112, Cly and RTD wtl comply with the ~ of U.S. Equal Employment Oppol1unlty Comrnisalon, regulatlona to Implement the Equal Employment Provi11ons of the Americans with Disabllillas Ad 29 C.F.R part 1830, pertaining lo ••iPOJfTNlllt of peraons with dlsabilltles. 12. This Agrwnent may not be anBlded except In WIiiing by muul ·-· al h pMles, nor may rights be W8Mld except by an inllrumenl In Wllllng ligned by the party c:twged wlh auch waiver. 13. My debt or financial obligation al eilher the Cly or RTD henlunder due payable beyond City's or RTD's current ftacal year ii subject lo and ~ upon the budgellng and iffllvocable pledging of funds sufflcient thenifol9 by the City and RTD (• lll)llllcable) governng bodlel. FOR THE REGIONAL TRANSPORTATION DISTRICT By ___________ _ ClarenceW. Marsella General Manager Date Signed:. _______ _ 3 . t ~ .• ... • • APPROVED 1'S TO LEGAL FORM FOR THE REGIONAL TRANSPORTATION DISTRICT By'--:------:--:-=:--:-:----,---Associate General Counsel Date Signed ________ _ CITY OF ENGLEWOOD By __________ _ Dougfas Gafflllt, Mayor Date Signed. _________ _ Attest Loucrishia A. EUia, City Clerk APPROVED 1'S TO LEGAL FORM FOR THE CITY OF ENGLEWOOD By ___________ _ Date Signed. _________ _ • t 4 • • -... • Q 0 COUNCIL COMMUNICATION Date: April 19, 2004 I Agenda Item: 11 a ii Initiated By: Safety Services COUNCIL GOAL AND PREVIOUS ACTION Intergove rnmental cooperation. RECOMMENDED ACTION I Subject: Intergovernmental Agreement for Colorado Emergency Management I Staff Source: Fire Division Battalion Chief Don Schoenbein Approval of the Intergovernmental Agreement (IGA) between the State of Colorado Office of Emergency Management (COEM) and the City of Englewood for receipt of funds awarded to the City for emergency management activities. BACKGROUND, ANALYSIS AND ALTERNATIVES IDENTIFIED In 1994 the Department of Safety Services Fire Division implemented a newly developed Federal Emergency Management Agency (FEMA) national program to educate, train and support citizens in response and recovery from major emergencies and disasters . The program, Community Emergency Response Team (CERT) continues to be part of the public education and support efforts of the Fire Division . In 1995 the program was offered to the Medical Preparation Program of the Arapahoe/ Douglas County Area Vocational School (ADAVS) located at the Lowell Annex/ Englewood High School. It has been part of the curriculum ever since . Since 1994 Fire Division personnel ha ve trained over 200 citizens and 350 ADAVS students on disaster preparedness, basic fi re suppression, emergency medical practices, basic search and rescue techniques, teamwork, disaster psychology and terrorism. In addition to the educational component, the citizens and students have the opportunity to practice the skills learned in mock drills and tabletop exercises. Th e City of Englewood was one of the first jurisdictions in the country (and the first in Colorado) to o ff er th e CERT program to its citizens and the first nationwide to offer it at the high school level. This grant provid es the City with the ability to c ontinue providing this essential program to prepare cit izens to mitigate and respond to incidents that effect their lives, health and safety. In the wake of Se ptember 11 , '.!001 the Federal Government made citizen preparedness a priority, using the CERT pro gram as the vehicle to reach those citizens. In fisca l y ear 2003, the Fire Division applied for and received approval of a grant from the Fede ral Em ergen cy Mal} gement Agency (FEMA) to upgrade team training and equipment. The grant was off red and approved without need of matching funds and was granted through the State of Colorado, D epartm ent of Local Affairs, Division of Local Government, Office of Emergency Managem ent. Dispersal o f funds was then routed through the Arapahoe County Sheriff's Office as the Loc al Em erge ncy Planning Committee (LEPC ). t .· .. .. • • - FINANCIAL IMPACT This Intergovernmental Agreement will allow the State to disperse funds directly to the City thereby reducing the number of agencies required to handle the funds, thus reducing reimbursement time. LIST OF ATTACHMENTS Proposed Bill for an Ordinance. t • • ORDINANCE NO. SER1ES OF 2004 ENGLEWOOD, COLORADO. BY AUTHORITY LORADO EMERGENCY ! WHEREAS, the State annually and/or periodically receives funding from various federal agencies, for the purpose of supporting emergency management activities including administration, emergency planning, training, exercising, hazard mitigation, disaster response and recovery, and procurement of facilities and equipment; and WHEREAS, the State periodically, as disasters are declared and funds authorized, receives funding from the State Disaster Emergency Fund; and FEMA under Public Assistance and Hazard Mitigation Grant Programs, Robert T. Stafford Disaster Relief and Emergency Assistance Act, for the purpose of disaster response, recovery and mitigation; and WHEREAS, local units of government, as well as other local organizations have been determined to be authorized sub-grantees under these programs, as well as under any future emergency management related legislation; and WHEREAS, the City of Englewood, Safety Services Fire Division bas been awarded a grant to move forward in its goals to enhance community and firefighter safety; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section I. The Contract # 4EM98 between the State of Colorado for the use and benefit of the Department of Local Affairs, Division of Local Government, Office of Emergency Management and the City of Englewood, Colorado, attached hereto as Exhibit A , is hereby accepted and approved the Englewood City Council. Section 2. The City Manager and City Clerk are authorized to execute and attest said Agreement for and on behalf of the City of Englewood. Introduced, read in full, and passed on first reading on the 19th day of April, 2004. -1- ' .. .• • • Published as a Bill for an Ordinance on the 23rd day of April, 2004 . ATTEST : Douglas Garrett, Mayor Loucrishia A. Ellis, City Clerk I, Loucrishia A. E11is, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of a Bill for an Ordinance, introduced , read in full, and passed on first reading on the 19th day of April, 2004 . Loucrishia A . Ellis -2- .... .,. • : t • •• .4 • • 0 Department or Agency Number: NAA CLIN: FEIN: 84-6000583 CFDA#: To be indicated in each award letter as aDDllcable CONTRACT# 4EM98 This contract , made by and between the State of Colorado for the use and benefit of the Department of Local Affairs , Division of Local Government, Office of Emergency Management (COEM), 15075 S . Golden Rd ., Golden, CO 80401 , hereinafter referred to as the State, and the City of Englewood hereinafter referred to as the Contractor, WHEREAS , authority exists in the law and funds have been budgeted , appropriated , and otherwise made available, and a sufficient unencumbered balance thereof remains available for payment in Fund Number 100 or 260 , Contract Encumbrance Number: As detailed in grant award letter(s); and WHEREAS , required approval , clearance , and coordination has been accomplished from ar:,d with appropriate agencies ; and WHEREAS , the State annually and/or periodically receives funding from the following federal agencies: the Federal Emergency Management Agency (FEMA) • under the Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 2000, Public Law 106-7 4 ; Robert T . Stafford Disaster Relief and Emergency Assistance Act , as amended, Public Law 93-288 , as amended : 42 U .S.C . 5121 et seq.; 42 U.S .C . 5195 et seq.; Omnibus Consolidated Appropriations Act of 1997, Public Law 104-208; Superfund Amendment and Reauthorization Act of 1991 , Title Ill Public Law 99-499 as amended ; and Department of Defense Authorization Act of 1986 , Public Law 99-145 as amended ; Environmental Protection Agency (EPA) • Emergency Planning Community Right to Know Act . 42 U .S.C . 11001 et seq., and/or the Clean Air Act , 42 U.S.C . 7412 ; U.S. Department of Transportation (DOT)· under the Hazardous Materials Uniform Transportation Safety Act 1990, Public Law 101-615, 49 U.S.C . 5101 et seq ., and the U .S . Department of Justice (DoJ) • U .S . Department of Commerce, Justice , and State , the Judiciary and Related Agencies Appropriations Act of 1999, Public Law 105-119, for the purpose of supporting emergency management activities to include administration . emergency planning , training, exercising , hazard mitigation , disaster response and recovery , and procurement of faciliti9!.and equipment; and WHEREAS , the State periodically . as disasters are declared and funds authorized . receives funding from the State Disaster Emergency Fund under C .R.S . 24-32-2106 (Colorado Disaster Emergency Act of 1992); and FEMA under Public Assistance and Hazard Mitigation Grant Programs . Robert T . Stafford Disaster Relief and Emergency Assistance Act. Public Law 93-288. as amended , for the purpose of disaster response , recovery and mitigation ; and WHEREAS , local units of government (counties . cities and towns). Councils of Government (COG), Local Emergency Planning Committees (LEPC), as well as certain public and private nonprofit organizations have been determined to t,e authorized eligible sub-grantees under the above identified Public Laws and statutes . as well as under any present or future emergency management rel ated legislation that identifies all or some of the entity types specified above as eligible Subgrantees . and CFR 40 Part 33 , CFR 44 Parts 13 and 302 . CFR 49 Part 110, and CFR 28 Part 66 . and WHEREAS the Contractor has been determined to be an eligible entity as defined by the State in ,ts adm1rnstr1t1ve plan to co ntract with the State to undertake the services desired : and Page ...1.. of _i_ Pages J. ' .. .• • • ·• • • WHEREAS , the State annually or periodically distributes funds rec~ived to existing contractors , determined to be eligible by the State using state and/or federal eligibility criteria and which are in good standing , using State developed application process , and allocation procedure; and WHEREAS , State fiscal rules require a State agency to enter into a contractual agreement in order to pass funds to either a local governmental entity, a quasi-governmental entity such as an LEPC or COG, or a private vendor, and WHEREAS , this contract is in keeping with applicable State law CRS 24-50-50-4(2)(a)(c)(e ), and CRS 24-32-2105(6)(b), and the rules and regulations of the State , and WHEREAS , the Contractor has been included as a potential funding recipient by the State for emergency management related funding, to enter into this agreement and to undertake the services desired by the State and federal government, and WHEREAS, the Contractor is capable and desires to perform the services. NOW THEREFORE it is agreed that: 1. Scope of Work -The Contractor agrees to carry out the scope of work described in each of its application packages for emergency management related activities, as approved by the State in its grant award letter, and to do so in conformance with this contract and applicable federal and state laws , rules, and regulations pertaining to each specific grant. Upon acceptance of an award by the Contractor, such award letters and grant applications will become a part of this contract until such time as the grant is closed out. 2 . Time of Performance -This Contract shall become effective upon the date of proper execution of this Contract by the State Controller or designee and shall continue for a period of five years as long as the State continues to designate the Contractor as an eligible recipient of funds and continues to make an allocation of funds to the Contractor. Grant award letters and any amendments to the award letters for each specific grant will identify the performance period for that grant. 3 . Authority to Enter into Contract -The Contractor assures and warrants that it possesses the legal authority to enter into this Contract. The person signing and executing this Contract on behalf of the Contractor does hereby warrant and guarantee that he/she has full authorization to execute this Contract. 4 . Compensation and Method of Payment Compensation -Grant award letters issued by the State under this Contract will authorize the Contractor to expend funds and initiate requests for reimbursement based on the amount of the grant award 1n accordance with program policies. The State may allocate more or less funds available on this contract using Grant Award Letters substantially equivalent to Exhibit 1 and bearing the approval of the State Controller or his designee. The Grant Award Letter shall not be deemed valid until 1t shall have been approved by the State Controller or his designee. Method of Payment -Based upon receipt of requests from the Contractor for reimbursement of funds expended under a grant award authorized under this contract. and provision by the Contractor of the reports , and summary of documentation required under the grant, the State will reimburse the Contractor for those eligible program costs incurred . Original documentation will be kept on file wrth the Contractor. Payment and interest is subject to State Fiscal Rule 2-5 and section 24-30-202(24) C R .S . (1999). The State warrant or Electronic Funds Transfer (EFT), will be issued for reimbursement of eligible expenses . In those cases where a Contractor may have a cash flow problem venfied by the State , the State may reimburse the Contractor based upon unpaid vendor 1nvo1ces or Purchase Orders Page _i of _j_ Pages I l . ... ,• 1 •· ' • • - 5 . ·• • • c·--. (j (PO). In these cases , which are an exception to normal practice , the Contractor shall be responsible for payment to the vendor and providing paid vendor invoices to the State for its records . If a program authorizes advance payments of grant funds , such advances will be made in accordance with the then current program policies and in compliance with standard grant cash management practices as defined in 44 CFR Ch.1 , Part 13.20, which require that expenses be incurred as close to the draw down date of the funds as is practicable. In the case of the Public Assistan ce program , the policies of that program shall have precedence over the standard cash management practices . Reversion of Excess Funds to the State a) Any State or federal funds paid to the Contractor and not expended in connection with an award letter shall be remitted to the State upon completion of the award or a determination by the State that the scope of the grant will not be completed . Any State or federal funds not required for completion of the award will be deobligated by the State . b) It is expressly understood that if the Contractor receives state funds from this Contract in excess of its fiscal year spending limit, all such excess funds from this Contract shall revert to the State. Under no circumstances shall excess funds from this Contract be refunded to other parties . 6 . Financial Management· At all times, from the effective date of this contract until doseout of each award issued hereunder and through the records retention period , the Contractor shall maintain properly segregated books of State funds , matching funds , and other funds associated with each award . Contractor shall be responsible for accounting for and reporting on any required match funding as indicated in the grant award letter. R,acords shall be maintained in accordance with applicable local and State procedures, and appropriate 0MB circulars . 7 . Reporting · The Contractor shall meet all reporting requirements in accordance with the then current program policies, and any subsequent forms and related program policies as required by the federal government or the State Office of Emergency Management (OEM). 8 . Amendments-The State may request changes in the scope of services or any other provision in an award letter. Such changes in the scope of services or other provision shall be in writing via the issuance of an amended award letter, and shall be incorporated without written amendment to this contract. Any revisions to the scope of services or any other award provision initiated by the Contractor must be approved by the State and formalized through an amendment to the award letter. The Grant Award Letter amendment shall not be deemed valid until it shall have been approved by the State Controller or his designee. 9 . Audit a) Discretionary Audit • The State, through the Executive Director of the Department. the State Auditor, or any of their duly authorized representatives and the federal government or any of its duly authorized representatives shall have the right to inspect. examine and audit the Contractor's and any subcontractor's records . books. accounts and other relevant documents. For the purposes of discretionary audit. the State specifically reserves the right to hire an independent Certified Public Accountant of the State's choosing . A discretionary aud it may be requested at any time and for any reason from the effective date of this Contract until five (5) years after the date of each grant's official doseout. provided that the audit is performed dunng normal business hours . b) Mandatory Audit . Whether or not the State or the federal government calls for a d1scret1onary audit as provided above. the Contractor shall indude the Proiect in its annual audit report as required by 0MB C ircular A-133 . and/ or the Colorado Local Government Audit Law. 29-1-601 . et seq , CR S and State implementing rules and regulations . Such Page ..1.. of ...i.. Pages ' . ... .. • • ·• • • .tn ~ audit reports shall be simultaneously submitted to the Department and the State Auditor or federal agency as applicable. Thereafter, the Contractor shall supply the Department with copies of all correspondence from the State Auditor or applicable federal agency related to the relevant audit report. If the audit reveals evidence of non-compliance with applicable requirements, the Department reserves the right to institute compliance or other appropriate proceedings notwithstanding any other judicial or administrative actions filed pursuant to 29- 1-607 or 29-1-608, C .R .S . 10. Conflict of Interest 11 . a) No employee of the Contractor shall perform or provide part-time services for compensation, monetary or otherwise, to a consultant or consultant firm that has been retained by the Contractor under the authority of this Contract. b) The Contractor agrees that no person at any time exercising any function of responsibility in connection with this project on behalf of the Contractor shall have or acquire any personal financial or economic interest, direct or indirect, which will be materially affected by this contract, except to the extent that he may receive compensation for his performance pursuant to this contract. c) A personal financial or economic interest includes. but is not limited to : i) any business entity in which the person has a direct or indirect monetary interest; ii) any real property in which the person has a direct or indirect monetary interest; iii) any source of income, loans, or gifts received by or promised to the person within twelve ( 12) months prior to the execution date of this contract: iv) any business entity in which the person is a director, officer. general or limited partner, trustee. employee, or holds any position of management. For purposes of this subsection, indirect investment or interest means any investment or interest owned by the spouse, parent brother, sister, son, daughter, father-in-law, mother-in- law, brother-in-law, sister-in-law, son-in-law, or daughter-in-law of the person by an agent or his/her behalf, by a general , limited or silent partner of the person , by any business entity controlled by said person , or by a trust in which he/she has substantial interest. A business entity is controlled by a person if that person , his/her agent, or a relative as defined above possesses more than fifty percent (50%) of the ownership interest. Said person has a substantial economic interest in a trust when the person or an above-defined relative tias a present or future interest worth more than one thousand dollars ($1 ,000 .00). d ) In the event a conflict of interest, as described in this Paragraph 10, cannot be avoided without frustrating the purposes of this contract, the person involved in such a conflict of interest shall submit to the Contractor and the State a full disclosure statement setting forth the details of such conflict of interest. In cases of extreme and unacceptable conflicts of interest. as determined by the State, the State reserves the right to terminate the contract for c3use, as provided in Paragraph 12. Failure to file a disclosure statement required by this Paragraph 10 shall constitute grounds for termination of this contract for cause by the State . Contract Suspension -If the Contractor fails to comply with any contractual provision , the State may , after notice to the Contractor suspend the contract and withhold further payment or prohib it the Contractor from incurring additional obligation of contractual funds , pending corrective action by the Contractor or a decision by the State to terminate in accordance with Paragraph 12 . Contract Termination The State may determine to allow such neceswy and proper costs wh1c ' the Contractor could not reasonably avoid dunng the penod of suspension . t .. .• • • ·• • • r--, . 'l....__.). 12. Contract Termination. This Contract may be terminated as follows: 13. 14. 15 . a) Termination Due to Loss of Funding-The parties hereto expressly recognize that the Contractor is to be paid , reimbursed , or otherwise compensated with funds provided by the federal government to the State for the purpose of contracting for the services provided for herein , and therefore , the Contractor expressly understands and agrees that all its rights, demands and claims to compensation arising under this Contract are contingent upon receipt of such funds by the State . In the event that such funds or any part thereof are not received by the State, the State may immediately terminate or amend this Contract. To the extent that the Contractor must expend funds other than those provided by the State under this Agreement or must provide in-kind services in performing the work agreed upon hereunder, the State agrees that said expenditures and in-kind services are subject to the availability and annual appropriation of funds by the Contractor for said purpose. b) Termination for Cause -If, through any cause, the Contractor shall fail to fulfill in a timely and proper manner its obligations under this Contract, or if the Contractor shall violate any of the covenants, agreements, or stipulations of this Contract, the State shall thereupon have the right to terminate this Contract for cause by giving written notice to the Contractor of such termination and specifying the effective date thereof, at least twenty (20) days before the effective date of such termination . In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports or other material prepared by the Contractor under this Contract shall , at the option of the State, become its property, and the Contractor shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials. Notwithstanding the above, the Contractor shall not be relieved of liability to the State for any damages sustained by the State by virtue of any breach of the Contract by the Contractor, and the State may withhold any payments to the Contractor for the purpose of offset until such time as the exact amount of damages due the State from the Contractor is determined. c) Termination for Convenience -The State may terminate the contract at any time the State desires. The State shall effect such termination by giving written notice of the termination to the Contractor and specifying the effective date thereof, at least twenty (20) days before the effective date of such termination . In that event all materials and documents as described above shall, at the option of the State, become its property and the Contractor shall be entitled to receive just and equitable compensation for any satisfactory work completed on such materials and documents. Integration -This contract as written with attachments and references, is intended as the complete integration of all understanding between the parties at this time and no prior or contemporaneous additions, deletion , or amendment hereto shall have any force or effect whatsoever, unless embodied in a written award letter, award amendment or a contract amendment incorporating such changes, executed and approved pursuant to applicable law. Severabilitv -To the extent that this contract may be executed and performance of the obligations of the parties may be accomplished within the intent of the contract, the terms of the contract are severable , and should any term or provision hereof be declared invalid or become inoperative for any reason , such invalidity or failure sl'iall not affect the validity of any other term or provision hereof. The waiver of any breach of a term hereof shall not be construed as waiver of any other term nor as waiver of a subsequent breach of the same term . Recapture Provisions -In the event that the Contractor fails to expend funds under this contract in accordance with state laws and/or the provisions of this contract, the Department reserves the nght to recap:ure state fun ds in an amount equivalent to the extent of the noncompliance. Such nghts of recapture shall exist for a period not to exceed three years Page -2, of ..i_ Pages I· ' .. 1 ' • • 0 ·• • • 0 following contract termination . Repayment by the Cohtractor of funds under this recapture provision shall occur within 30 days of demand , if the Contractor's failure is undisputed , or within 30 days of final judicial or alternative dispute resolution determination , as appropriate . 16 . Assignment-Neither party, nor any subcontractor hereto , may assign its rights or duties under this contract without the prior written consent of the other party . 17. Survival of Certain Contract Terms -Notwithstanding anything herein to the contrary, the parties understand and agree that all terms and conditions of this Contract and the exhibits and attachments hereto which may require continued performance or compliance beyond the termination date of the Contract shall survive such termination date and shall be enforceable by the State as provided herein in the event of such failure to perform or comply by the Contractor or its subcontractors . 18 . Nondiscrimination a) The Contractor shall comply with all applicable state and federal laws , rules , regulations and Executive Orders of the Governor of Colorado , involving non-discrimination on the basis of race , color , religion , national origin , age , handicap , or sex. Contractor may utilize the expertise of the State Minority Business Office within the Office of the Governor, for assistance in complying with the nondiscrimination and affirmative action requirements of this contract and applicable statutes . b) The Americans with Disabilities Act of 1990, Public Law 101-336, also referred to as the "ADA 28 CFR Part 35 . The Contractor must comply with ADA, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications . 19 . Records Retention -The Contractor shall retain for at least five (5) years after the State's closeout of each grant all records required for the grant including documentation and records of all expenditures incurred under the grant being closed . Retention for longer than the five years may be deemed necessary to resolve any matter which may be pending. This retention is for the purpose of review and audit by the State , federal government or their authorized representative . 20 . Compliance with Federal Agreement/Contract Terms and Conditions. Federal and State Law and Program Rules and Regulations -At all times during the performance of this Contract, the Contractor shall strictly adhere to all applicable Federal and State laws that have been or may hereafter be established . The Contractor shall also comply with all terms and conditions that the State has entered into with the federal government as a part of the grant application process and as spelled out in grant contracts/agreements . and all applicable federal and state laws. rules , and regulations related to grant awards under this contract. These include, but are not limited to , compliance with the following : • Americans with Disabilities Act including T itle 11. Subtitle A/24 . U.S. C . Sec . 12101 et seq and implementing regulations . 0MB Circulars A21 , A87 , A110 , A124 . and A133 as applicable 31 U.S.C. · 1352 -Proh1b1tion Against use of Federal Funds for Lobbying Privacy Act of 1974. 5 USC S 5529 and Regulations adopted thereunder Certification required by 49 CFR Part 29 . "Government Debarment and Suspension " Drug Free Workplace Title VI of the C1v1I Rights Act 42 U S C Sec 2000 d-1 et seq and its implementing regulation 44 CFR part of et seq Others as may be included 1n the grant award letter or a specific grant ' .. t ' • • --- 21 . 22 . Unless otherwise agreed by the parties , the Contractor assumes and will discharge the obligations of the State as grantee and recipient under the Federal Terms and Conditions, including the specific and general assurances as may be covered in Appendices thereto, concerning compliance of specific federal statutes such as those addressing the Civil Rights Act of 1964. Special Conditions and Award Acceptance -Beyond those conditions contained in this contract special conditions may be incorporated into a grant award letter in the Scope and/or Grant Considerations paragraph(s) of the individual award or in an attachment to the award letter. These conditions , upon Contractor's acceptance of the grant or any amendments become a part of this contract, and legally binding under it. Contractor failure to object in writing to special conditions or other award provisions or terms within ten (10) days of the date the grant award letter or amendment is received by the Contractor shall constitute acceptance of same for the purposes of this paragraph . Extent of Agreement-This Agreement is intended solely to fund the Project(s) proposed by Contractor and to define the rights and responsibilities between the parties with respect to such funding . This Agreement is not intended to create any third party rights, nor are third parties entitled to rely upon any provisions. 23 . Attachments -The following items are considered to be attachments to and part of this contract. • Specific grant application packages from the jurisdiction • State Grant Award Letters and all attachments to each award or amended award letter for each specific grant funded. (Exhibit 1) • General terms and conditions for each specific grant. (Stated in each award letter, award amendment or their attachments) Page ..L of _j_ Pages . ... .. ,, • ,. • •• • • SPECIAL PROVISIONS (For Use Onlv with Inter-Governmental Contracts) I. CONTROLLER'S APPROVAL. CRS 24-30-202 (I) Thi s conrract shall nol be deemed valid until it has been approved by the Controller of the Slate of Colorado or such assistant as he ma y designate . 2. FUND AVAILABILITY. CRS 24-30-202 (5.5) Financial obligations of the State of Colorado payable after the current tiscal year are contingent upon funds for that purpose being approprialed. budgeted. and otherwise made available. 3. INDEMNIFICATION. To lhe extent authorized by law, lhe Contractor shall indemnify, save. and hold harmless the State against any and all claims, damages. liability and coun awards including coSlS. expenses. and attorney fees incurred as a result of any act or omission by the Contractor, or its employees. agents , subcontractors. or assignees pursuant to the terms of this contract. No term or condition of this contract shall be construed or interpreted as a waiver. express or implied. of an y of the immunities. rights. benefits, proteclion. or other provisions for the panics. of the Colorado Governmental Immunity Acl. CRS 24-10-10 I et seq. or the Federal Ton Claims Act. 28 U.S .C. 267 1 et seq. as applicable. as now or hereafter amended. -'· INDEPENDENT CONTRACTOR.-' CCR 801-2 THE CO NTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS N EMPLOYEE . NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR,SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE . CONTRACTOR SHALL PAY WHEN DUE ALL REQ UIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT TO THISCONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLE D TO UN EMPLOYMENT INSURANCE BENEFITS UNLESS THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE . CONTRACTOR SHALL HAVE NO AUTHORIZATION. EXl'RESS OR IMPLIED. TO BIND THE STATE TO ANY AGREEMENTS, LIABILITY. OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN . CONTRACTOR SHALL PROVIDE AND KEEP IN FORCE WORKERS-COMPENSATION (AND PROVIDE PROOF OF SUCH INSU RANCE WHEN REQUESTED BY THE STATE) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQU IRED BY LAW . AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR. ITS EMPLOYEES AND AGENTS . 5. NON-DISCRIMINATION. The contracto r agrees to compl y with the le11 er and the s pirit of all applicable state and federal laws re spect ing discrimination and unfair employment practices. 6. C HOICE OF LAW. .- The laws of1 he State of Co lorad o and rules and regulations issued pursuant thereto shall be applied in the inte rpretation . e)(ecution. and enforcement of this contract. Any pro visio n of this contract. whether or not incorporated herein by rererence . which provides for arbitration by any ex tra-judicial body or person or which is otherwise in contlict with said laws. rule s. and regulations shall be considered null and vo id .. 01hing co ntained in an} provision incorporaled herein by reference which purpons 10 negate lhi s or any 01he r speci al provision in who le or in pan shall be va lid or enfo rceable or available in any action at law whether by way of complaint. defense. or olhem ise. ny pro, ision rendered null and void by the operation of this provision will not invalid.ue the remainder of this con tract to 1he extent lhal lhe contract is capable of execution . At all rimes duri ng the performance of this contract. the Contractor sha ll str ict I~ adhere to all applicable federal and state laws. rule s. and regulations that have been or may hereafter be established. 7, OFT\ .\RE PIRA C Y PROHIBITIO N. Governor 's Exec:utin Order D 002 00 'o '>ta l< or 01hcr public fu nd s pa)Jbk und<r thi s Co nirJct ,hall b< uS<!d r'o r lh< ocq ui si 1ion . .iper:uion or mainionancc of cu mput<r sorh,ar• in , 10IJ11 on oi' I nll<d '\1a1< · copi righ1 la ", or applica bl< lic<nsing r<$1Tlction s. Th< Cunir:ictor h~-n:hi ccnilies th aL for th< l<rm of th is contl'lll.'t and an ) e\tcn ,,nn,. lh< C.intrac1or ha:. in place appropriaio >)St<ms and co nirols 10 pre,<nt such improp,:r us.: of public funds . lfth< S1:11c determines thlll thi: ( "'"trJ..:mr i~ 1n , iol ation of thi par:igraph. the S1a1i.: ma~ c,crc1S( nn~ rem~~ a, ailablc :u la,, or c~uity or under thi s contr.k:t .. includin g. without limuauo n. ,mm cdi.uc h!rmmaw.m of th~ ..:on1r.1c1 and m ~ remcd~ ~onshh:nt \,ith L:nucd Statt:S cop~ri¥ht h1,,s or :ipplic:ihli.: licl!nsmi rcstnction $. 8. EMPLOY EE Fl ~IC IAL I TEREST. C RS !-l-18-!0t & CRS !4-50-507 r hc ,igna1ones J•er that to their ~no"ledge . no em pl o~ee ofihe Siate of Co lorad o has an~ personal or bencticial inrcre st whatsoe,er m 1ho ,er.ice or prope~ described herei n. Page 8 of9 Pages ' .. • • • .I.__ ____ SP_E_C_IAL __ PR_O __ V_I_S_IO_N_S ___ _ THE PARTIES HERETO HA VE EXECUTED THIS CONTRACT CONTRACTOR: Citv of Englewood Legal Name of Contracting Entity 84-6000583 Social Security Nwnber or FEIN Signature of Authorized Officer Gary Sears, City ~anager Print ~ame & Title of Authorized Officer CORPORATIONS: STATE OF COLORADO: Bill Owens , GOVERNOR By ___________________ _ Michael L. Beasley, Executive Director Department of Local Affairs PRE-APPROVED FORM CONTRACT REVIEWER (A corporate seal or attestation is required.) Attest (Sal) By----------------- (Corporate Secretary or EquivalenL or Town/City/County Clerk) Loucrishia rl. Ellis, City Clerk ALL CONTRACTS ~UST BE APPROVED BY THE STATE CONTROLLER CRS !"-JO-!«r. rcquira 1b111 Ille S1a1e Coatroller approve all SUie COllll'KtS. Tllis coatnct is not valid uatll die State Conrroller. or such ;issistanl :is be may deleple. bu si&•ed it. TIie coatnctor is not Htllormd to be&i• perfonaaace ••til die con1r:ic1 is signed and dated below. If performance be&lu prior 10 lbe date below. die State of Colorado may n8'J)e obllpted 10 pay for rbe goods and/or services provided. ~- STATE CONTROLLER: i'tlb1c L llrnll•a 8~·---------------- Rose Marie Auten. Controller. DoLA Oat~--------------- P3¥e 9 Which IS ~ l..lst or Paacs ' .•' • • Exhibit 1 Sample COEM Grant Award Letter Sample Amendment to Award Letter and Attachment A -·• • • 0 STATE OF COLORADO OFFICE OF EMERGENCY MANAGEMENT Tommy F. Grier, Jr. -Director Division of Local Government · DIPARTMINT OP LOCAL AfPAIRS - Sample COEM Grant Award Letter •• T ·: _EM __ «Jurisdiction_lD» INITIALAWAIIO_XlC_ INCMAR __ DECMASI! __ CHANGe_ Pait 1. Accounting lnfonnatlon 1. Contract Logging Inquiry Number (CUN): «CUN• 2. Award and Encumbrance Number: -EM ___ •Juriacllctlon_lD• Bill Owens Governor MlchHI L Beasley Executive Otrector 3. Accounting Une: [Prag. Name] CFDA #: __ . ___ COFRS: [Crg]/[Appr)l(GBL]/[RCA T]/•ObjCode• • [Amount] 4 . Vendor Number: «FEIN• I Part 2. Grant lnfonnatlon 5. Mftttr Contract Number: «Umbrella_ Contract» 6. Award Made to Subgrantee: «Juriacllctlon• Remit Addreu if Different: Award for; «Agency• «Addreu• «Addreu2» «City•, «State• «zip• Rnponsible Administrator: •Mrtla• «FlrstName» •LaetName», «Title» 7. Thi• Award Amount: [Amount) Total Awarded To Pttli «Tot_to_Dai.» Amount Reayggd; «Am~ted• Nole :GrantAwanlamountmaybeincrwd«declWedbJ,-,411drealacllllelnoffuncla. TOllllrelm.........,...,..nalUCNCl_'llo of total eligible ........ (wlllcll may Included in-ltlnd "'*" -... plWae to ... I_......_ appllcalllaj. If ln-ldncl _,. --.. included tlle following -• will alao be Included -(Call railn--_. nal uCNCI actual doc._... call npendllurNj. 8. Performance Period : _. 20_, through ____ _, 20 __ . 9.~- 1 o. ~ -(most grams will re,ence the granl application or annual program paper and indude the applicable document as Attachment 1 .) 11 . Grant CoMideratioM : A copy of the fiscal terms and conditions entered into by the Slate and the aforementioned i unsdiction 1s attached (Attachmenl A). All attachments hereto are incorporated by reference . (Specific reporting documentation and other requirements will be listed he,el All requests for reimbursement 1nduding documentatt0n for aH expenses are due to the COEM no later than ___ days after lhe end of the performance penod. CRS 24-30-202 rwqulree that the Stai. Controller approve all atate contrac:ta. Thia contract is not valid until the State Controller, or such aalstant n he may delegete, haa algned it. 12. Reviewfd By : ____________ Oai.: ____ 13. lffUld By: Colof'aclo Office of Em8f119"CY Management 14. Approved: State Controller, Ar1hur L Barnhart --------------~Data: ___ _ Tommy F. Grier, Jr .. Dnctor By : Date: ---- Rose Marie Aull'" Controllet, Ool.A NQIE Accep1anc e '", the grant implies agreement wtth the terms and condtt1ons as stated 1n lhe master contract and the anac:hmenla to lhtS 3Wiioletter Page 1 ol1 Page 15075 South Golden Road. Golden. Colondo ICM01.Jt7t (303) 273.1122 l'AX (303) 273-17H TDD (303) 273•17" ' .. • • .~ ·• -· • • 0 STATE OF COLORADO OFFICE OF EMERGENCY MANAGEMENT Tommy F. Gri er, Jr. -Directer Division of Local Government · DEPARTMENT OF LOCAL AFFAIRS - . . Sample Amendment_ to • • , • • COEM Grant Award Letter _EM __ «Jurisdiction ID» INITIAL AWAAO__ INCREASE_,ocx_ Dl!CIIUH__ CHANOE_ll'wa. II_ Part 1. Accounting lnfonnatlon 1 . Contract Logging Inquiry Number (CLIN): «CLIN• 2. Award and Encumbrance Number. _EM ___ «Jurisdlcllon_lD• Bill Owens Governor Michael L BHSley Executive Director 3. Accounting Line: [Prog. Name] CFDA #: __ . ___ COFRS: [Org]/{Appr]/(GBL]/[RCA T]/«ObjCode• • [Amount] 4. Vendor Number: «FEIN• I Part 2. Grant lnfonnatlon 5. Master Contract Number: «Umt?rella_Contract» 6 . Award Made to Subgrantee: «Jurisdiction» Remit Address If Dlfhrent: Award for; «Aw,ncy» «Add ..... cAdd .... 2• «City», «Stata» cZlp» Rnponslble Administrator: •Mrtla• «Fll9tName» .~ •• •Title• 7. This Award Amount [Amount Added] Total Awardfd To Data: «Tot_to_Data» Amount Rr,ffl1r1; tiAmtRequNtada Note:GrantA_rd.,.ountmaybllnc-.dorclec-t,y,-,4fldNaloclllloftoffllnda. Tolal~shallnol__. % of total eligible ex...-. (which may includad In-kind m-h -1hls ~ to be 1,-*1 wlMft appllcalllal. I IIMlilld :'9,.C la included,,,. following-. win a1ao bl included-(Cnh Nim~ wll not allCNd-. docu ... lllMI call l- a. Perfonnanc:1 Period: _, 20__, through ____ __, 20 __ . (Performance P9tlod Extanekln) 9.~- A" 10. ~ -(moatgrantswillreferencethe grant application or annual program paper and include the applicable document aa Attachment 1 .) 11 . Grant Consideration,: A copy of the fiscal terms and conditions entered into by the State and the aforementioned 1unsd1ct1on ,s_attached (Attachment A). All attachments hereto are inco,porated by reference . (Spegfic repo,ting documentation and other requiremen ts w,11 be lis ted here) All requests for reimbursemen t including documentation tor au expenses are due to the COEM no later than ___ days after the end of the performance penod . CRS 24-30-202 requires that the Stata Controller approve all etata contrac:tll. Thi9 contract is not valid until the State Controller, or such auistant n he may delegatil, hN signed It. 12. Raviewed By : _____________ Date: ____ 13. lffytd ly: Colorado Office ol Emelgency lllanagement 14. Approved: Stat• Controller, Arthur L. !Mmhart _______________ Data : ___ _ Tommy F. Grier, Jr., DINclDr By : _________________ Date: ----- RoH Maria Autan , Controller, OoLA 'lOTE Acceptance of the grant 1mphes agreement wnh 1he terms and conditions as slal9d ,n tne master contract and the attachments to ttus ~etter Page1ol1Page 15075 South Golden Road . Golden. Colorado 80401-3171 (30l) 213-1122 FAX (lOl) 273-17" TOO (lOl) 273-17" ' .. .. • • ·• • • ATTACHMENT A 1. Compensation and Method of Pavment A . General : The State agrees to pay the Sub-Grantee, in consideration for the work and services to be performed, an amount not to exceed the amount awarded to date. Payment will be made to the Sub-Grantee upon receipt oflegitimate invoices or claims from the Sub-Grantee for vendor services or other eligible grant expenses. Such invoices will be summarized with the original supporting documents to be kept on file by the Sub-Grantee. In specific cases where a Sub-Grantee may have a cash-flow problem, verified by the State, the State may reimburse the Sub-Grantee based upon unpaid vendor invoices or Purchase Orders (PO). In these cases, which are exceptions to nonnal practice, the Sub-Grantee shall be responsible for payment to the vendor upon receiving funds from the State, and for providing proof of such payment to the State. B . Advance of Funds : Some federal grants such as those for Disaster Assistance and for the Chemical Stockpile Emergency Preparedness Program provide for an advance of funds . In such cases where the federal grant program allows for advances, it will the State's (COEM) decision as to whether specific Sub-Grantee's situation warrants the use of an advance. In cases where an advance of funds is authorized by the State, the Sub-Grantee will be responsible for maintaining expenditure records, and reconciling such expenditures with the advance of funds, based on a reponing schedule determined by the State. Funds so advanced will be maintained in a non-interest bearing account by the Sub-Grantee until the time of expenditure. C . Year-end deobligation-reallocation of funds: A potential exists that the total amount of the grant award may be increased or decreased as a result of a year-end deobligation or reallocation of funds made by the State. Such action may occw-after the end of the performance period for the grant. Such an action would either deobligate funds not expended by this or another Sub-Grantee and/or reallocate funds to reimburse eligible program expenses incurred by this or another Sub-Grantee dw-ing the performance period, for which reimbursement has not been previously made. Such reallocation of funds shall not exceed the - percentage of reimbursement, identified in the Grant Award Letter, of total eligible expenses incurred by the Sub-Grantee. Such actions will be made by Grant Award Letter Amendment, indicating the amount of the year-end deobligation or reallocation of funds made for the fiscal year, for each eligible jurisdiction. This Amendment will be signed by both the Director of the Colorado Office of Emergency Management, and the Department of Local Affairs' designee authorized to sign for th~ State Controller. The Grant Award Letter Amendment will be a valid contract amendment, effective retroactive to the contract performance period. ::!. Current Award Period -This award shall be effective from the fir.;t date shown in the performance period on he Grant Award Lener until ninety (90) days after the final date shown in such performance period. For grants of m annual recurring narure the performance period routinely runs from October I of one ye:ir through September 30 of the next year. The federal appropriation process and in cases of disas ter declarations, the disaster declaration process is such that the actual funds for these progr:irns normally do no t become available to the state until after the starting date of the performance penod . This results in grant award letter.; being issued by the state for a performance period which Page I of .l ' .. • • -·• • • may have started several months previously. The Sub-Grantee may have incurred eligible program expenses during this period and is, therefore, entitled to reimbursement for same under the terms and conditions of the grant program. 3 . Amendments -All additional award letters issued under the Initial Award will be considered amendments only to the amounts or provisions in the Initial Award. All additional amounts awarded subsequently under this Award will be subject to all of the terms and conditions attached to this Award unless specifically amended therein. The State may request changes in the scope of service.s or any other provision in the award letter. Such changes in the scope of services or other provision shall be in writing via the issuance of an amended award letter, and shall be incorporated herein as part of this award. Any revisions to the scope of services or any other award provision initiated by the Contractor must be approved by the State and formalized through an amendment to the award letter. The Grant Award Letter amendment shall not be deemed valid until it shall have been approved by the State Controller or his designee . 4 . Financial Management -At all times from the effective date of this grant until completion of this project, the Sub-Grantee shall maintain properly segregated books of state funds, matching funds, and other funds associated with this project. Sub-Grantee shall be responsible for accounting for and reporting on the required non-federal match for this grant, if one is required, either in hard or in-kind match as provided for in applicable regulations . Records shall be maintained in accordance with applicable local and state procedures and in accordance with applicable 0MB Circulars (A-87-110). 5. Reponing -The Sub-Grantee shall meet all reporting requirements in accordance with the then current program policies and any subsequent forms and related program policies as required by the Federal Funding Agency or the State Office of Emergency Management (COEM). All changes of policies or forms for the COEM shall be transmitted to Sub-Grantee in writing. 6 . Audit. a) Discretionary Audit. The State, through the Executive Director of the Department, the State Auditor , or any of their duly authorized representatives and the federal government or any of its du ly authorized representatives shall have the right to inspect, examine and audit the Contractor's and any subcontractor's records, books: accounts and other relevant documents. For the purposes of discretionary audit, the State specifically reserves the right to hire an independent Certified Public Accountant of the State's choosing. A discretionary audit may be requested at any time and for any reaso n ·rom the effective date of this Contract until five (5) years after the date of each graRt's o1ticial closeout, provided that the audit is performed during normal business hours . b ) Mandatory Audit. Whether or not the State or the federal government calls for a discreti onary audit as provided above, the Contractor shall include the Project in its annual audit repo rt as requ ired by 0MB Circular A-133 . and/or the Colorado Local Government Audit Law, 29-1- 601, et seq , C .R.S ., and State implementing rules and regulations. Such audit reports shall be simulta neou s ly subm itted to the Department and the State Auditor or federal agency as applicable . Thereafter. the Contractor sha ll supply the Department with copies of all correspondence from the Sta te Aud itor or appli cable federal agency related to the relevant audit report. If the audit reveals evidence of non-compliance with applicable requirements, the Department reserves the right to in stitute co mpliance or other appropriate proceedings notwithstanding any other judicial or admin istra tiv e acti ons fil ed pursuant to 29-1 -607 or 29-1-608 , C.R.S . [XDEPE>.TIEYr CO TRACTOR . 4 CC R 80 1-2 -THE CONTRACTOR SHALL PERFORM IT S DL"T IES HEREUNDE R AS AN INDEPENDE NT CONTRACTOR A."ID ~OT AS AN E'.\lP LO YE E . '.\"EITHE R THE CO 'TRACTOR . O R ,\NY AGENT OR E:VlPLOYEE OF THE ' I I • • • ·• • • 0 CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STA TE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON A.J.'N MONIES PAID BY THE STATE PURSUANT TO TIIlSCONTRACT . CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. CONTRACTOR SHALL HA VE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND THE STATE TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESS!. Y SET FORTH HEREIN . CONTRACTOR SHALL PROVIDE AND KEEP IN FORCE WORKERS'COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BY THE STATE) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BYLAW, AND SHALL BE SOI.ELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR, ITS EMPLOYEES AND AGENTS . 8. Contract Tennination. This Contract may be terminated as follows : a) Termination Due to Loss of Funding. The parties hereto expressly recognize that the Contractor is to be paid, reimbursed, or otherwise compensated with funds provided to the State for the purpose of contracting for the services provided for herein, and therefore, the Contractor expressly undentands and agrees that all its rights, demands and claims to compensation arising under this Contract are contingent upon receipt of such funds by the State. In the event that such funds or any part thereof are not received by the State, the State may immediately terminate or amend this Contract. To the extent that the Contractor must expend funds other than those provided by the State under this Agreement or must provide in-kind services in performing the work agreed upon hereunder, the State agrees that said expenditures and in-kind services are subject to the availability and annual appropriation of funds by the Contractor for said purpose. b) Termination for Cause. If, through any cause, the Contractor shall fail to fulfill in a timely and proper manner its obligations under this Contract, or if the Contractor shall violate any of the covenants, agreements, or stipulations of this Contract, the State shall thereupon have the right to terminate this Contract for cause by giving wrinen notice to the Contractor of such tennination and specifying the effective date thereof, at least twenty (20) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports or other material prepared by the Contractor under .ms - Contract shall , at the option of the State, become its property, and the Conttactor shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials . otwitbstanding the above, the Contractor shall not be relieved ofliability to the State for any damages sus tained by the State b y virtue of any breach of the Contract by the Contractor, and the State may withhold any payments to the Contractor for the purpose of offset until such time as the exact amount of damages due the State from the Contractor is determined. c ) Termination for Convenience -The State may terminate the contract at any time the State desires. The tate shall effect such termination by giving wrinen notice of the termination to the Contractor nd pecu'}ing the effective date thereof, at least twenty (::?O days before the effective date '1f such termmauon . In th t e\'ent all matenals and documents as described 3bo,·e shall, at the option of the tare. ec ome its propert} .md the Contrac tor shall be enutled to recei"e Just 311d equitable c mpen non for .:m y ti factory w rk ompleted on u h matenals and documents. Page 3 of~ ' .. .. • • -- ~ ~ 9. Severabilitv -To the extent that this activity may be executed and performance of the obligations of the parties may be accomplished within the intent of the terms and conditions, the terms of the agreement are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof. The waiver of any breach of a term hereof shall not be construed as a waiver of any other term nor as waiver of a subsequent breach of the same term. 10 . Assimment -Neither party, nor any subcontractor hereto, may assign its rights or duties pertaining tothis grant without the prior written consent of the other party. 11. Non-discrimination -The Sub-Grantee shall comply with all applicable state and federal laws, rules, regulations, and executive ordm of the Governor of Colorado involving non-discrimination on the basis of race, color, religion, national origin, age, handicap, or sex. Contractor may utilize the expertise of the State Minority Business Office within the Office of the Governor, for assistance in complying with the non-discrimination and affirmative action requirements of this grant and applicable statutes. 12. Compliance with Federal Agreement Tenns and Conditions -Federal Law -Rules and Regulations The Sub-Grantee shall comply with all tenns and conditions the State has entered into with the federal government as a part of the grant application process and as spelled out in the grant agreement between the State of Colorado and the Federal Granting Agency, and all applicable federal laws, rules, and regulations related to this program. These include, but are not limited to, compliance with the following: • Americans with Disabilities Act including Title II, Subtitle A/24, U.S.C. Sec. 12101 et seq and implementing regulations. 0MB Circular A87, Al 10, Al 22, and Al33 as applicable 31 U .S.C . S 1352 -Prohibition Against use ofFederal Funds for Lobbying: • Privacy Act of 1974, 5 U.S.C. S 5529 and Regulations adopted thereunder. Certification required by 49CFR Part 29, "Government Debarment and Suspension." Drug Free Workplace • Title VI of the Civil Rights Act 42 U.S.C. Sec. 2000 d-1 et seq and its implementing regulation 44 C .F.R . part of .i:t seq. G "GrplAdminlcon axu1M1vml21AnacM-Z002 Page 4 of 4 t • • -- 0 'NO. SERIES OF 2004 BY AUTHORITY COUNCIL BILL NO. 20 INTRODUCED BY COUNCIL MEMBER BRADSHAW AN ORDINANCE OF THE CITY OF ENGLEWOOD, COLORADO, APPROVING LOANS TO BE MADE TO THE CITY BY THE COLORADO WATER RESOURCES AND POWER DEVELOPMENT AUTHORITY FOR THE PURPOSE OF FINANCING ADVANCED TREATMENT UPGRADES TO, AND THE CONSTRUCTION OF IMPROVEMENTS INCREASING THE TREATMENT CAPACITY OF, THE CITY'S JOINT WASTEWATER TREATMENT PLANT; AUTHORIZING THE FORM AND EXECUTION OF LOAN AGREEMENTS AND BONDS TO DOCUMENT THE LOANS; PROVIDING FOR PAYMENT OF THE BONDS FROM REVENUES OF THE CITY'S SANITARY SEWER SYSTEM; PRESCRIBING DETAILS IN CONNECTION THEREWITH; AND DECLARING AN EMERGENCY. WHEREAS, the City of Englewood, Colorado is a municipal corporation duly organized and operating as a home rule city under Article XX of the Constitution of the State of Colorado and the Charter of the City (unless otherwise indicated, capitalized terms used in this preamble shall have the meanings set forth in Section 1 of this Ordinance); and WHEREAS, the City is the owner and operator of a public sanitary sewer system for the collection and treatment of wastewater, which system which has historically been operated on a self-supporting basis by the City, is considered to be a government-owned business and is generally known as the "Sewer Utility Enterprise" of the City; and WHEREAS, the City is acting hereunder by and through its "Sewer Utility Enterprise" under the Charter and the provisions of Title 37, Article 4S.l, C.R.S .; and WHEREAS, pursuant to outstanding agreements with the City of Littleton, the City has established rights to primary, secondary and advanced treatment capacity at a joint-use treatment facility jointly owned by the Cities and commonly known as the "Littleton/Englewood Wastewater Treatment Plant"; and WHEREAS, due to growth in the area served by the Littleton/Englewood Wastewater Treatment Plant and the regulatory requirement to remove nitrate from the effluent of the facility, the City has, in an effort which began on or about 1999, found it necessary to undertake the Project and to finance the City's share of the cost, as sociated with the Project; and WHEREAS, pursuant to Section 1 OS of the Charter the City may issue revenue bonds as provided for municipalities by State statute and revenue bonds for sewer enterprises arc permitted under Title 31, Article 3S, Part 4, C .R .S . and Title 37, Article 4S . I , C.R.S.; and -1- ' .· .. • • [J WHEREAS, to finance a portion of the City's share of the estimated costs of the Project, the City Council has determined to enter into Loan Agreements with the Colorado Water Resources and Power Development Authority, a body corporate and political subdivision of the State, pursuant to which the Authority is to loan the City amounts not to exceed $23,000,000 under its Water Revenue Bond Program and not to exceed $33,000,000 under its Water Pollution Control Revolving Fund Program; and WHEREAS, the City's repayment obligations under the Loan Agreements will be evidenced by governmental agency bonds to be issued by the City to the Authority, which bonds shall constitute special revenue obligations of the City which are generally payable from the income for the services furnished by or the use of the System less reasonable and necessary current expenses of the City of operating, maintaining and repairing the System and, after consideration, the City Council has determined that the execution of the Loan Agreements and the issuance of the Bonds to the Authority is to the best advantage of the City; and WHEREAS, voter approval in advance is not required under Article X, Section 20 for the execution of the Loan Agreements or the issuance of the Bonds; and WHEREAS, the City has an outstanding loan from the Authority, dated November IS, 1990, payable in an original amount of$12,7SO,OOO, which loan has a first lien on System net revenues which will be senior to the lien securing the pledge of Net Revenues (as defined in the Loan Agreements) to repay the Loan Agreements and the Bonds authorized pursuant to this Ordinance; and WHEREAS, the forms of the Loan Agreements and the Bonds have been presented to the City made available to the City Council; and WHEREAS, as provided in the Acts, which include but are not limited to Title 11, Article S7, Part 2, C .R.S., by this Ordinance the City authorizes the execution of the Loan Agreements and the Bonds, and deleptes to the Mayor, for a period not to exceed sixty days, the authority to approve, among other thinp, the Loan amounts, the principal amount of the Bonds maturing in any particular year, and the rate of interest on the Bonds; therefore; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section ! . Dej111itio,u. The following terms shall have the following meaninp as used in this Ordinance: "Acts" means the City Charter, Title 31, Article 37, Part 4S .t , C .R .S. and Title 11, Article 57, Part 2, C .R.S ., and all other laws of the Slate establishing the power of the City to complete the financing contemplated by this Ordinance. "Authority " means the Colorado Water Resources and Power Development Authority . • Bonds" means the gc vemmcntal aaency bonds to be issued by the City to the Authority purs uant to the Loan Agreements, the fonn of which is set forth in Ex hibit D 10 th e Loan Agreements, respectively. -2- .1-• • ,. • ' • •• • • "City" means the City of Englewood, Colorado, acting by and through its Sewer Utility Enterprise . "City Councif' means the City Council of the City. "Charter" means the home rule Charter of the City. "C.R .S." means the Colorado Revised Statutes, as amended and supplemented as of the date hereof. "Financing Documents" means the Loan Agreements and the Bonds. "Loan Agreements" means (i) that certain Loan Agreement between the City and the Authority pursuant to which the Authority is to loan a portion of the proceeds of its clean water revenue bonds to the City and which concerns the Water PoUution Control Revolving Fund established by the Authority and (ii) that certain Loan Agreement between the City and the Authority pursuant to which the Authority is to loan a portion of the proceeds of its water resources revenue bonds to the City and which concerns the Water Revenue Bond Program established by the Authority. "Project" means advanced treatment upgrades to, and the construction of improvements to increase the wastewater treatment capacity of, the Littleton/Englewood Wastewater Treatment Plant, and such additional capital improvements as may be permitted by the terms of the Loan Agreement. "Project Costs" means the City's costs properly attributable to the Project, or any parts thereof, and permitted by the provisions of the Acts. "Sewer Utility Enterprise" means the government owned business of the City for sanitary sewer services which is authorized to issue its own revenue bonds and which receives under I O"/o of annual revenue in grants from all Colorado state and local governments combined. "State" means the State of Colorado. "System" means all of the sanitary sewer facilities and properties of the City, now owned or hereafter acquired, whether situated within or without the geo graphical boundaries of the City, including all present or future improvements, extensions, enlargements, betterments, replacements or additions thereof or thereto . Section 2. Appro""I of Loon Agree•ents ""' AutJioritlllion of Bolllls. Pursuant to and in accordance with the State Constitution and the Acts, the Bonds shall be issued by the City acting by and through its Sewer Utility Enterprise. The form of the Loan Agreements, res pectively, setting forth the terms, conditions and details of the Bonds and the procedures relating thereto, are incorporated herein by reference and are hereby approved ; all City officials and employees are hereby directed to take such actions as arc necessary and appropriate to fulfill the obligations of the City under the Financing Documents. The City shall enter into the Loan Agreements and deliver the Bonds in substantially the forms presented on final readina of this Ordinance with only such changes as are not inconsistent herewith; provided that s uch documents may be completed, corrected, or revised as deemed necessary by the parties thereto in order to carry out th e purposes of thi s Ordinance . The -3- ' • • •• • • D CJ accomplishment of the Project and the pi.yment of Project Costs are hereby authorized, approved, and ordered. It is hereby determined that the date of final maturity of the Bonds does not exceed the estimated life of the Project. Section 3. Bond Delllils. The Bonds representing the borrowing under the Water Revenue Bond Program of the Authority shall be in an aggregate principal amount not to exceed $23,000,000 and Bonds representing the borrowing under the Water Pollution Control Revolving Fund Program of the A.-hority shall be in an aggregate principal amount not to exceed $33,000,000. The maximwn net effective interest rate authorized for the Bonds is 6.00% per annwn ( or in the event that a late charge is imposed pursuant to Section 3 .03 of the Loan Agreement, a maximwn net effective interest rate equal to the greater of 12% per annwn or the prime rate plus 0 .5%, not to exceed the maximum rate permitted by law), and the actual net effective interest rate of the Bonds shat) not exceed such rate . For a period not to exceed sixty days from the effective date of this Ordinance, the Council hereby delegates to the Mayor the right to determine the amount of principal of the Bonds maturing in any particular year and the rate of interest on the Bonds, which information shall be set forth in the loan repayment schewle in Exhibit C to the Loan Agreements. Section 4 . Pledge for Payment o/lM Bonds. The principal of and interest on the Bonds shall be payable solely from the Pledsed Property ('Mlich term is defined in the Loan Agreement). The City irrevocably pledges the Pledsed Property for the payment of the Bonds and the amounts due under the Loan Agreements. The Authority may not look to any general or other fund of the City for the payment of the principal of or interest on the Bonds, except the f1mds and accounts pledged thereto pursuant to authority of this Ordinance, and the Bonds shall not constitiie a debt or an indebtedness .of the City within the meaning of any constitutional or stat.-ory provision or limitation; nor shat) they be considered or held to be a general obligation of the City. Section 5. Maintenance of Enterprise Status. The City Council hereby determines that the Sewer Utility Enterprise is an enterprise within the meaning of Article X, Section 20 of the Colorado Constitution. The City has and will continue to maintain the System as an "enterprise" within the meaning Article X, Section 20 of the Colorado Constitution, and the meaning of Title 37, Article 45 .1, C.R.S.; provided, however, after the current calendar year the City may disqualify the System as an "enterprise" in any year in which said disqualification does not materially, adversely affect the enforceability of the covenants made i!l the Financing Documents . In the event that the System is disqualified as an enterprise and the enforceability of the covenants made by the City in the Financing Documents are materially, adversely affected, the City covenants to (i) immediately take all actions necessary to qualify System as an enterprise within the meaning of Article X, Section 20 of the Colorado Constitution and (ii) permit the enforcement of the covenants made in the Financing Documents . Section 6. Approl'III of MisceU1111eo11s Doc11ae11ts. The Mayor, the City Clerk and all other officers, officials and employees of the City are hereby authorized and directed to execute the Loan Agreements and all documents and certificates necessary or desirable to effectuate the issuance of the Bonds and the financings contemplated by this Ordinance. -4- ' .. .. • • 0 0 ~ 7. Amendment of Ordinance. This Ordinance may be amended only with the prior written consent of the Authority. Section 8. Limitation of Actions. The City Council elects to apply all of the provisions of Title II, Article 57, Part 2, C.R.S. to the execution of the Loan Agreements and to the issuance of the Bonds. In accordance with Section 11-57-212, C.R.S., no legal or equitable action can be brought with respect to any legislative acts or proceedings in connection with the authorization or issuance of the Bonds, respectively, more than 30 days after the issuance or authorization of such securities, whichever occurs later. Section 9. Ratification of Prior Actions. All actions heretofore taken (not inconsistent with the provisions of this Ordinance) by the Council or by the officers and employees of the City directed toward the issuance of the Bonds for the purposes herein set forth are hereby ratified, approved and confirmed. Section 10. Headings. The headings to the various sections and paragraphs to this Ordinance have been inserted solely for the convenience of the reader, arc not a part of this Ordinance, and shall not be used in any manner to interpret this Ordinance. Section I l. Ordinance l"epealable. After any Bonds have been issued, this Ordinance shall constitute a contract between the Authority and the City, and shall be and remain irrepcalablc until the Bonds and the interest accruing thereon shall have been fully paid, satisfied, and discharged, as herein provided. Section I 2. Sew:rability. It is hereby expressly declared that all provisions hereof and their application arc intended to be and arc severable. In order to implement such intent, if any provision hereof or the application thereof is dctcnnincd by a court or administrative body to be invalid or unenforceable, in whole or in part, such determination shall not affect, impair or invalidate any other provision hereof or the application of the provision in question to any other situation; and if any provision hereof or the application thereof is determined by a court or administrative body to be valid or enforceable only if its application is limited, its application shall be limited as required to most fully implement its purpose. Section 13 . Repealer. All orders, bylaws, ordinances, and resolutions of the City, or parts thereof, inconsistent or in conflict with this Ordinance, arc hereby repealed to the extent only of such inconsistency or conflict. Section 14. Declaration of Emergency. The execution of the Loan Agreements and the issuance of the Bonds do not require prior voter approval under Article X, Section 20 of the State Constitution and City Council has been advised that the schedule for the public bidding of certain Project Costs and the need to have funding secured to award such bids require that this Ordinance be effective immediately; therefore, the Council hereby finds and determines that this Ordinance is necessary for the immediate preservation of public property, health, peace and safety and shall be in full force and effect immediately upon final passage by the Council. Introduced, read in full, and passed as an cmeracncy ordinance on first reading. on the 5•h day of April , 2004 . -5- t .. • • Published as a Bill for an Emergency Ordinance on the 9•b day of April, 2004. Read by title as an Emergency Ordinance and passed on final reading on the 19th day of April, 2004. Published by title as Emergency Ordinance No. __, Series of 2004, on the 23111 day of April, 2004. ATTEST : Douglas Garrett, Mayor 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 the Emergency Ordinance passed on final reading and published by title as EmerJency Ordinance No. __, Series of 2004. Loucrisbia A. Ellis -6- • t • • WATER REVENUE BOND PROGRAM LOAN AGREEMENT BETWEEN COLORADO WATER RFSOUR~ AND POWER DEVELOPMENT AUTHORITY AND CITY OF ENGLEWOOD, COLORADO ACl1NG BY AND TIUlOUGH ITS SEWER Ul1LITY ENTERPRISE DA TED AS OF MAY I, 21M DRAFl'OF APRIL9,2894 ,• ..... ... • t • THIS LOAN AGREEMENT, made and entered into as of this 1st day of May, 2004, by and between COLORADO WATER ~URCES AND POWER DEVELOPMENT AUTHORITY (the "Authority"}, a body corponte and political subdivision of the State of Colorado, and the CITY OF ENGLEWOOD, ACTING BY AND THROUGH ITS SEWER ENTERPRISE (the ''Governmental Agency''), a home rule municipal corporation and political subdivision of the State of Colorado; WITNESSETH TBA T: WHEREAS, the Authority is authorized by Title 37, Article 9S, Part I, Colorado Revised Statutes, as amended (the "Act"), to issue its negotiable bonds or notes in furtherance of its purposes to preserve, protect, upgrade, conserve, develop, utilize, and manage the waler resoun:es of the State, and to make loans to any governmental agency for the planning. designing. acquiring. constructing. reconstructing. improving. equipping and furnishing of projects related to its purposes, which loans may be secured by loan and secmity agreements; and WHEREAS, the Governmental Agency 1w the powa-under and pursuant to Title 37, Article 45, Part I, Colorado Revised SWUes, as amended to borrow money and to acquire, construct, operate, control and use any and all works, facilities and means for the purpose of providing for the treatment of wastewatcr within the gicognphical area of the Governmental Agency ; and WHEREAS, in furtherance of its purposes, the Governmental Agency 1w determined to finance the cost of acquisition and construction of various improvements to its wastewater system ; WHEREAS, the Authority 1w authorized the issuance of its revenue bonds, pursuant to the Act in order to loan the proceeds to the Governmental Agerw;y to finance such improvements on the terms and conditions herein set forth; WHEREAS, the Governmental Agency will issue its bond lo the Alllhority to evidence said loan from the Alllhority; NOW, 111EREFORE. for and in comideralion of the award of the loan by the Authority and of the mutual covenants herein. the Alllhority and the Go~ Agerw;y each agree to perform their respective obliplions under lhia Loan Aar-t in acconlance with the conditions, covenants and procedures set forth hat.i n and attached hereto u a part hereof, u follows : ARTICLEL DEF1NITIONS SECTION 1.01 Ddlnltiolll. The following terms u used in this Loan Agreement sha ll , unl ess the context clearly requiJCs otherwi se, have the followin1 meanings : '5424144.1 .. ' • • "Act" means the "Colorado Water Resources and Powa-Devel!>pment Authority Act," being Section 37-9S-101 Cl...H!IL of ihe Colorado Revised Statutes, IS the wne may from time to time be amended and supplemented. "Annual lnformadoa" means the information specified in Sec:tioo 2.03 in this Loan Agreement. "Aatbortty" means the Colorado Water Resources and Powel' Development Authority, a body corporate and political subdivision of the State of Colorado wilb corporate succession duly created and validly existing under and by virtue of the Act. "Autbortty Bandl" means bonds autbori7.ed by the Bond Resolution, togelhec with any refunding bonds authenticated and deiivered pursuant to the Bond ResolulioD, in each case in order to provide the soun:c of fuodio& of the Loan ID the Govenunental AFflCY punuanl to this Loan Ageement are taken. "Autbortaed Offlcier" means, in the case of the Govenunental Ap,!1:y, the person whose name is set fur1b in Exhibit B hereto or such Olber pa.-or pelWJIII IUlbori1.ed pursuant to a reaolution or ordlnaoce of the govemioa body of the Govermnadal A..,,:y ID act as an Aulhoriad Officer of the Gowmmental Aga!l:y ID perform any act or execaee aay document relalin& to the Loan. the Govemmeotal Aga!l:y Bond or Ibis Loan Apeemmt whole name is furnished in writio& to the Authority. "Bead ........._ .. means the Water Raoun:a Revenue Bond Raollllion (City of Englewood, Colorado Project), as adopted by the Authority on April 23, 2004, autborizin& lbe issuance of the Authority Bonds, and all fW'ther amendmenls and supplemenb lberdo adclf*d in accordance wilh the provisions thereof. ''Code" means the "iJllel1la1 Revenue Code of 1986." a !he mne may from time to time be amended and lllplJlemenlDd, inchadina ay iepllliom plOllllllplld ....... ad any administralive or judicial i-.peWilJlli dwnof. "Call" -dlDle CIIIII 11111 --lll,le, my ad aUocallle ID 1111 Project and are permitted by .-,.Dy aa:eplOCI l!'ffllm!inl prillciples ID be CIIIII of die Project. Cost shall also include Costs of Issuance (• defined in die Bond Raollllion). "Efflll of Dlfaall" mew uy oa:w,lh.* or event specified ill Sec:dcia 5.01 hereof. "Pllcal Year" means the fiscal yar of the Governmenlal ~- "GAAJP' means generally acceplled accountin& principlel a in d'fllCI from time ID time in the United States . ''GonrDDmltlll ApDCJ" means the public enlity 1h11 is a pa1y ID and ii descri bed in the first paragraph of thi s Loan Apeement. and its mcceuon MMI auips. 2 "Governmental Aaeaey Bond" means the bond executed and delivered by the Governmental Agency to the Authority to evidence the Loan, the form of which is attached hereto as Exhibit D and made a pan hereof. "Holder" means any holder of Authority Bonds as defined under the Bond Resolution and, for the purposes of Section 2.03 of this Loan Agreement, shall also mean any beneficial owner of Authority Bonds within the meaning of Ruic 13-d u!ldcr the Securities Exchange Act of 1934. "Loan" means the loan made by the Authority to the Govcmmcntal Agency to finance or refinance a portion of the Cost of the Project pursuant to this Loan Agrccmcnl For all purposes of this Loan Agreement, the principal amount of the Loan at any time shall be equal to the principal amount of the Authority Bonds, less any portion of such principal amount as has been repaid by the Governmental Agency under this Loan Agreemenl "Loan Asr-t" means this Loan Agrccmcnl, including the Exhibits attached hereto, as it may be supplemented, modified or arncndcd from time to time in aa:ordancc with the terms hereof and of the Bond Resolution. "Loan Closln&" means the dale upon which the Authority shall issue and deliver the initial Authority Bonds. "Loan Repayments" means the payments payable by the Governmental Agency pursuant to Section 3.03 of this Loan Agreement, including payments payable under the Governmental Agency Bond. "Loan Term" means the defined tmn of this Loan Agrecmcnt set forth in paragraph (3) of Exhibit B attached hereto and made a part hereof. "MSRB" means the Municipal Securities Rulemaking Board Cllablisbed in accordance with the provisions of Section 15B(b)(l) of the Securities Exchange Act of 1934. "Pledpd Praperty" means the defined term of this Loan Apement set forth in parapaph (4) of Exhibit A attached hcrcto and made a part hereof. "Prlim Rate" means the prevailing commcrcial iniaest rate announced by the Trustee from time to time as its prime lending rife. "Project" means the wastcwlllllr project of the Govcnuncntal AfPICY delcribed in paragraph ( 1) of Exhibit A attached hcrcto and made a part hereof, all or a portion of the Cost of which is financed or refinanced by the Authority through the making of the Loan under this Loan Agrccmcnl "Project Fund" means the Project Fund created under the Bond Resolution. "Repoaltory" means any nationally recognized municipal securities information repository within the meaning of Ruic 15c2-12. 3 t .. • • (J "Rule 1Sc2-12" means Ruic 15c2-12 under the Securities Exchange Act of 1934, as amended through the date of adoption of the Bond Resolution. together with all interpretive guidances or other official interpretations and explanations thereof that arc promulgated by the SEC . ''State Information Depository" means any public or private repository designated by the State of Colorado, and recognized as such by the SEC for the purposes of Ruic 15c2-12. ''SEC'' means the United States Securities and Exchange Commission. ''System" means the wastewater treatment system of the Governmental Agency, including the Project, described in paragraph (2) of Exhibit A attached hereto and made a part hereof for which the Governmental Agency is making the borrowing under this Loan Agreement, as such System may be modified or expanded from time to time. "Trustee" means the Trustee appointed by the Authority punuant to the Bond Resolution and its successor or successors and any other corporation which may at any time be substituted in its place as Trustee pursuant ro the Bond Resolution. Terms not otherwise defined herein shall have the meanings ascribed IO them in the Bond Resolution. Except where the context otherwise requires, words importing the singular number shall include the plural number and vice versa, and words importing persons shall include firms, associations, corporations, agencies and districts. Words importing one gender shall include the other gender. ARTICLE IL REPRESENTATIONS AND COVENANTS OF GOVERNMENTAL AGENCY SECTION 2.01 ............ fll Go911'111mDtal Apncy. The Govcmmcntal Agency represents for the benefit of the Authority and the holden of the Authority Bonds as follows : (a) Organization and Authority . (i) The Governmental Agency is a ao~ apncy as defined in the A£t and as described in the first parqraph of this Loan Agreement. (ii) The Govcmmental Agency has full legal right and authority and all necessary licenses and permits required as of the date hereof IO own, operate and maintain the Syslem. to carry on its activities relating thereto, to execute and deliver this Loan Ap-eernent, to execute. issue and deliver the Governmental Agency Bond, to undertake and a,mplcte the Project ( other than licenses and permits rclatina to the COIISlnlCtioa and acqui sition of the Project which the Governmental Agency expects IO 4 ' .... .. ,• • • receive in the ordinary course of business), and to carry out and consummate all transactions contemplated by this Loan Agreement The Project is a project which the Governmental Agency may undertalr.e pursuant to Colorado law and for which the Governmental Agency is authorized by law to borrow money. (iii) The proceedings of the Governmental Agency's governing members and voters, if a referendum is necessary, approving this Loan Agreement and the Governmental Agency Bond and authorizing their execution, issuance and delivery on behalf of the Governmental Agency, and authorizing the Governmental Agency to undertake and complete the Project have been or will be duly and lawfully adopted in accordance with the laws of Colorado and such proceedings were or will be duly approved and published, if necessary, in accordance with applicable Colorado law, at a meeting or meetings which were duly C811ed pursuant to necessary public notice and held in accordance with applicable Colorado law, and at which quorams were present and acting throughout (iv) This Loan Agreement and the Governmental Agency Bond, when delivered at the Loan Closing. will have been, duly authorized, executed and delivered by an Authorized Officer of the Governmental Agency; and, assuming that the Authority has all the requisite power and authority to authorize, execute and deliver, and has duly autboril.Cd, executed and deliveml, this Loan Agreement, this Loan Agreement, and the Governmental Agency Bond when delivered to the Authority, will constitute, the legal, valid and binding obligations of the Governmental Agency in accordance with their respective terms, and the information contained under "Description of the Loan" on Exhibit B attached hereto and made I pan hereof is true and accurate in all respects. (b) Full Disclosure. There is no fact that the Govcnunental Aa,:ocy has not diJclosed to the Authority in writing on the Governmental Agency's applicalion fur the Loan or otherwise that materially adversely affects the properties, activities, prospecta or a>odition (fioancial or otherwise) of the Governmental Agency of the System, or the ability of the Govc:nunemal Aa,:ocy to make all Loan Repayments and otherwise observe and perform ill dutiea, co--a&, obligations 811d agreements under this Loan Agreement and the Governmental A,ency Bond. (C) Pending Litigation. There are no proceedings pending. or, to the tnowledF of the Governmental Agency threatened, against or affecting the Governmental Aaency, in any court or before any governmental authority or arbitration board or tribunal 1h11. if adversely delcnniocd, would materially adversely affect the properties, activities, prospec11 or condition (financial or otherwise) of the Governmental Agency or the System, or the ability of the Governmental Agency to make all Loan Repayments and otherwise observe and perform ill duties, covenants. t -., • • obligations and agreements under this Loan Agreement and the Governmental Agency Bond, that have not been disclosed in writing to the Authority in the Governmental Agency's application for the Loan or otherwise to the Authority . (d) Compliance with Existing Laws and Agreements. The authorization, execution and delivery of this Loan Agreement and the Governmental Agency Bond by the Governmental Agency, the observation and performance by the Governmental Agency of its duties, covenants, obligations and agreements thereunder and the consummation of the transactions provided for in this Loan Agreement and the Governmental Agency Bond, the compliance by the Governmental Agency with the provisions of this Loan Agreement and the Governmental Agency Bond and the undertaking and completion of the Project will not result in any breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Governmental Ai,ency pursuant to any existing ordinance or resolution, trust agreement, indenture, mortPF, deed of trust, IOIIII agreement or other instrument (other than the lien and charge of (i) this Loan Apeement and the Governmental Agency Bond and (ii) any ordinance, resolution or indenture which authorized outstanding debt obligations of the Governmental Agency which are at parity with, or superior to, the Governmental Agency Bond as to lien on, and source and security for, payment thereon from the Pledged Property) to which the Governmental Aaency is a party or by which the Governmental Agency, the System or any of its property or assets may be bound, nor will such action result in any violation of the provisions of the cbaJ1er or other document punuant ID which the Governmental Agency was established or any laws, ordinances, resolutions, governmental rules, regulations or court orders to which the Governmental Agency, the System or its properties or operations is subject. (e) No Defaults. No event has oc:cum,d and no condition exists that, upon authorization, execution and delivery of this Loan Agreement and the Govemmental Agency Bond or ra:eipt of the amount of the Loan, would constitute an Event of Default hereuncla. 11le Govcmmcalll Aacncy is not in violation of, and has not received notice of any claimed violalion of, any tam of any agreement or other instrument to which it is a party or by which it, the System or its property may be bound, which violation would materially advenely affect the properties, activitiea, prospects or condition (financial or otherwise) of the Governmental Agency or the System or the ability of the Governmental Agency to make all Loan Repayments or otherwiJe obscne and perform its duties, covenants, obligations and agreements under this Loan Apeement and the Governmental Agency Bond. ( f) Governmental ConsenL The Governmental Agency has obtained all permits and approvals required to date by any governmental body or officer (and reasonably expects to receive all permits required in the future by any governmental agency) for the making, observance and performance by the Go vernmental Agency of its duties, covenants, obligations and agreements mm this Loan Agreement and the Governmental Agency Bond or for the undertaking or completion of the 6 ,. ' ... .. • • Project and the financing or refinancing thereof; and the Governmental Agency has complied with all applicable provisions of law requiring any notification, declaration, filing or registration with any governmental body or officer in connection with the making, observance and performance by the Governmental Agency of its duties, covenants, obligations and agreements under this Loan Agreement and the Governmental Agency Bond or with the undertaking or completion of the Project and the financing or refinancing thereof. No consent, approval or authorization of, or filing, registration or qualification with, any govanmental body or officer that has not been obtained ( or that is not reasonably expected to be obtained) is required on the part of the Governmental Agency IS a condition to the authoriz.ation, execution and delivery .of this Loan Agreement and the Governmental Agency Bond, the undertaking or completion of the Project or the consummation of any transaction herein contemplated. (g) Compliance with Law. The Governmental Agency (i) is in compliance with all laws, ordiJIIIK:CI, governmental rules and regulations to which it is subject, the failure to comply with which would materially advenely affect the ability of the Governmental Agency to conduct its activities or undertake or complete the Project or the condition (financial or otherwise) of the Govenunental Agency or the System; and (ii) bas obtained all licenses, permits, franchises or other governmental authorizations presently necessary for the ownership of its property or for the conduct of its activities which, if not obtained, would materially advenely affect the ability of the Governmental Agency to conduct its activities or undertake or complete the Project or the condition (financial or otha'wise) of the Governmental Agency or the Sysmm (ocber than licenses. permits, franchises or other governmental authorizations relating to the construction and acquisition of the Project which the Governmental Agency expec:15 to recciw in the ordinary course of business). (h) Use of Proc:ccds The Governmental Agency will apply the proceeds of the Loan from the Authority (i) to finance or refinance a portion of the Cost of the Project; and (ii) where applicable, to reimburse the Governmental Agency for a portion of the Cost of the Project, which portion WIS paid or incurred in anticipation of reimbursement by the Authority. SECTION 2.02 (a) Source of Repayni,ent Pledge. The Governmental Agency irrevocably pledges the PledFd Property for the punctual payment of the principal of and the interest on the Loan, and all other amounlJ due under this Loan Agreement and the Governmental Agency Bond according to their respective terms. (b) Performance Under Loan Agreement The Governmental A,ency covenants and agrees (i) to maintain the System in good repair and operating condition: (ii) to coopera1C with the Authority in the observance and performance of the respective duties, covenants, obligations and agreemenlJ of s uch 4St24l4t I 7 ' -~ • • Governmental Agency and the Authority under this Loan Agreement; and (iii) to comply with the covenants described in the Exhibits to this Loan Agreement. (c) Completion of Project and Provision of Moneys Therefor. The Governmental Agency covenants and agrees (i) to exercise its best efforts in accordance with prudent wastewau:r treatment utility practice to complete the Project; and (ii) subject to appropriation, to provide from its own fiscal resources all moneys, in excess of the total amount of loan proceeds it receives under the Loan, required to complete the Project ( d) Disposition of the System. Except for the disposal of any portion of the System which the Governmental Agency determines are no longer necessary for the opcnlion of the System, the Govamnmital Agency shall not sell, lease, abandon or otherwise dispose of all or substantially Ill of the System, or any ott.er component of the System which provides revenues to provide for the payment of this Loan Agreement or the Governmental Agency Bond except on ninety (90) days' prior writtal notice to the Authority and, in any event, shall not so sell, lease, abandon or otherwise dispose of the same unless the followin1 conditions are met: (i) the Governmental Agency shall assign this Loan Agreement in accordance with Section 4.02 hereof and its ripts and interests hereunder to the purchaser or lessee of the System and such pun:buer or lessee shall assume all duties, covenants, obligations and qreements of lhe Governmental A1fi11iCY under this Loan Agreement; and (ii) the Authority shall by appropriate action determine, in its sole discretion, that such sale, lease, abandonment or other disposition will not adversely affect the Authority's ability to meet its duties, covenants, obliptions and qreements under lhe Bond Resolution, and will not adversely affect the value of this Loan Agreement as secmity for the payment of Authority Bonds and interest thereon, advenely affect the eligibility of interest on Authority Bonds then outstandin1 for exclusion from 1JOSS income for purposea of Federal income taxation . (e) Exclusion of Interest from Federal Gross Income and Compliance with Code. (i) The Governmental Agency covenants and qrees that it shall not we or permit any action or fail 11> we any action which action or omiuion would result in the loss of the exclusion of the inUnst on any Aulbority Bonds (assumin1 solely for Ibis purpme that the prOCNds of the Authority Bonds loaned to the Governmental Aa,:w;y repraent all of the proceeds of the Authority Bonds) from IJOSS income for federal income tax plllJX*S punuant to Section 103(a) of the Code. (ii) The Governmental Agency covenants and ap,es that it shall not we or permit any action or fail to take any action, which action or omission would cause the Authority Bonds (assuming solely for Ibis purpme that the proceeds of the Authority Bonds loaned to the Govemmental AlfilliCY represent all of the proceeds of the Authority Bonds) to be "privllC activity bonds" within the meaning of section 141(a) of the Code. Accordingly, unless the Governmental Agency receives the prior writtm • ' .. •. • • 012414' I approval of the Authority, and subject to the conditions of Section 2.02(d)(ii), the Governmental Agency shall neither (A) permit in excess of 10 percent of either (1) the proceeds (as such term is used in Section 141 of the Code) of the Authority Bonds loaned to the Governmental Agency or (2) the Project financed ( or refinanced) with the proceeds of the Authority Bonds loaned to the Governmental Agency, to be used directly or indirectly in any manner that would constitute "private business use" within the meaning of Section 14l(b)(6) of the Code, nor (8) use directly or indirectly any of the proceeds of the Authority Bonds loaned to the Governmental Agency to make or finance loans to persons other than governmental units (as such term is used in section 14l(c) of the Code); provided further, that more than one half of the private business use permitted by clause (A) shall be neither (1) disproportionate relaled business use, nor (2) private business use not related to the government use of such proceeds of the Authority Bonds, as those terms are used in Section 141 (b )(3) of the Code. (iii) The Governmental Agency covenants and agrees that it shall not direcdy or indirectly use or permit the use of any proceeds of the Authority Bonds (or amounts treated as replaced with such proceeds) or any other funds, or take or permit any action or fail to take any action, which use, action or omission would cause the Authority Bonds (assuming solely for this pwpose that the proceeds of the Authority Bonds in the hands of the Governmental Agency represent all of the proceeds of the Authority Bonds) to be "arbitrage bonds" within the meaning of Section 148(a) of the Code. (iv) The Govenunental Agency covenants and agrees 1h11 it shall not use or permit the use of any portion of the proceeds of the Authority Bonda to retire any other obliplions of the Govamnental Aprtt:y or any other entity, unless the Governmental Ar,:,x:y obcains the wriam coaseat of the Authority, which consent may be pven or wi1bheld in the Authority's sole discretion. (v) The Governmental Alf/DCY covenants and agrees to maintain records of ill investments, if any, of proceeds of the Authority Bonds loaned ID the Governmental Aga,,;:y and eaminp thereon, and will maintain records of expenditures of such amounts. The Governmental Aga,,;:y will pay ID the Authority any eaminp OD proceeds of the Authority Bonds loaned ID the Governmental Agency (includin1 eaminp on such earninp) which, in the opinion of the Authority, are required to be rebated ID the United Slatel Treasury Department The Governmental Agency will provide copies of all records of its investment of such moneys and of its expenditures to the Authority on a periodic basis upon request by the Authority and will furnish to the Authority, in writing, information reprdln1 any facilities financed or refinanced therewith . 9 .. (vi) Notwithstanding anything to the conb'lry, as long as is necessary to maintain the exclusion of interest on the Authority Bonds from gross income for Federal income tax purposes. the covenants contained in this subsection (e) shall survive the payment of the Authority Bonds and the interest thereon, including any payment pursuant to !edion 12.01 of the Bond Resolution or prepayment pursuant to Section 3.07 of this Loan Agreement, respectively. (vii) Neither the Governmental Agency nor any of its agencies shall, pursuant to any amngement formal or informal, purchase Authority Bonds in an amount related to the amount of the Loan . (viii) The Governmental Agency hereby certifies and represents that it has complied with the requirements of Treasury Regulllion Section 1.150-2 in its authorizing resolution or other official action with reprd to proceeds of the Authority Bonds, if any , to be used to reimburse the Governmental Agency for expenses incurred by the Governmental Agency prior to the issuance of the Authority Bonds. In the event that any of the proceeds of the Authority Bonds are to be used ID pay debt service on any prior issue of the Governmental Agency, and any of the proc:ceds of such prior issue (or any obliptions refinanced by such prior issue) were used to reimbune the Governmental Agency for expenditures incurred prior to the issuance of the prior issue (or refinanced obligations, as the case may be), the Governmental Agency hereby certifies and represenll that the llllOCllion of such proceeds to the reimbursed expenditure was a valid expenditure under the applicable law on reimbunement expenditures on the date of issue of the prior issue (or the refinanced obliptions), as required by Federal Income Tu Regulalion Section l,150-2(a)(2). In the case of refundina of a prior issue issued before July l, 1993, the proceeds of which were used to reimburse oripnal exr-fitures, the Gowmmental Agency (A) made III official intent prior ID July 1, 1993, which satisfied the applicable provisions of TJmsury Regulalion Seccion 1.103-8(1)(5) u in effect prior to July 1, 1993, or (B) made an official intent between January 27, 1992, and June 30, 1993, which satisfied the applicable provisions of Treasury Regulllion Section 1.103-18 • in effect during such period. (ix) By executina this Loan Apeement. the Governmental AgeM:Y hereby certifies, represents and aarces that: ( 1) The proceeds of the Authority Bonds to be loaned to the Governmental Agency pursuant to this Loan Aareement do not, takina into account available caminp thereon, exc= the amount necessary ID pay for the costs of the Project, includina costs of issuance of the Authority Bonds allocated to the Loan. 10 • • 4Sf24144.I (2) The Governmental Agency has entered into (or will enter into within six months from the dlllc hereof) a binding commitment for the acquisition, construction or accomplishment of the Project. and will, within six months from the date of delivery of the Authority Bonds by the Authority, expend at least five pcn:cnt of the ~ of the Authority Bonds loaned to the Govcmmcntal Agency . (3) The Govcmmcntal Agency rca.'l<lnably expects that all of the proceeds of the Loan will be expended within three years from the date of this Loan Agrccmcnt Wort oo the acquisition, construction or accomplishment of the Project will proceed with due diligence to completion. (4) The total proceeds of the sale of all obligations issued to date for the Project do not exceed the total costs of the Project, taking into account available earnings thereon. (5) The Govcmmcntal Agency docs not expect that the Project will be sold, leased or otherwise disposed of in whole or in part during the term of the Loan or of the Authority Bonds or for any portion of the tcrm of the Loan or of the Authority Bonds. The Governmental Agency shall not sell, lease or otherwise dispose of the Project in whole or in part during the term of the Loan or of the Authority Bonds or for any portion of the term of the Loan or of the Authority Bonds unless the conditions of Section 2.02(d)(ii) have been satisfied. (6) Any fund established, utilil.ed or held by or on behalf of the Governmental Agency to pay debt service on the Loan will be used to achieve a propa-IDIU:bina of revenues and debt .-vice and will be depicted at least annually except for a reasonable carryover IIDOUDt not to exceed earnings on the fund for the immr4i*1y preceding year or 1/12 of the annual debt service on the Loan for the immedialely preceding year. (7) No portion of the amounts rcc:civcd from the Loan will be used as a substitute for other funds which were otherwise to be used as a soun::c of financing for the Project and which have been or wiU be used to acquire, directly or indirectly, obligations producing a yield in excess of lhc yield on the Authority Bonds. The Governmental Apncy docs not expect ID rccci ve any amounts in the future that are intended to finance the portion of the Project being financed with proceeds of the Loan. No portion of the amounts received from the Loan will be used ID finance working capital expenditures . The Loan has a weighted avcra,e maturity that docs not exceed 120 percent of the average reasonably expected economic life of the capital projects fi nanced or refinanced by the Loan . (8) No portion of the proceeds of the Loan will be invested, directly or indirectly , in federally -insured deposits or accounts; or federally - 11 f' ' ... • • - guaranteed investments, other than amounts of unexpended Loan proceeds invested in the debt service fund, in any reasonably required reserve or rq,laccmcnt fund, or investments of unexpended Loan proceeds for any remaining initial temporary period (e.g., no later than dnc years after the date hereof) until the proceeds arc 1-ied for the Project. (9) No other obligations of the Oovcmmmal Agency ()) arc rcasollllbly expected to be paid out of aubllantially the IIIIIC source of funds (or will have substantially the IIIIIC claim to be paid out of substantially the same source of funds) u will be used to pay the Loan ; and (2) arc beina sold at substantially the 11111C time • the ~ (i.e., less than 15 days apart); and (3) were sold punuanl to the IIIIIC plan of financing with the Loan. (10) Tbc OoVCl1IIIICIUI A,mcy ha llllilhs received lllllice 1h11 ill certifications u ID eq,eclaliom -y DOI be relied upoe with respect ID its obliplions nor hu it been advised dial any adwne Klion by the Commissioner of the ...... ae-is c:onlallplllled () I) To the best al the bowledp am belid of Ille Ulldiniped officer of the GoYCnllllallll Apacy, lhe fKII 111d .._.. .. fordl ill Ibis sublectioll al the Loa A....-• whic:11 die Oc.wi .--ti Apacy's expectations u IO the applicadon al the proceeds of die Aadlarily Boada loaned to the Oo_..i A.-=-, are._., are,_,_.._ (12) None al the proceeds of die Aalhorily Boada le-' ID the Governmental A.-:y will be in--S ill .---baviaa a substantially .-.,....S yield al four yeas or -. (f) Operation and MailUllane& of the Systan. The Governmental Agency a,-ad qrw Iha& ii lhall. ia wwwdm..e with prudent wastewater treatment utility practice, (i) • all times opcme the pn!p111iea of Ille Sysaem and any business in connection therewith in an efficient-· (ii) maialaiD Ille Syaam in FOCI repair, working order and openlina condition, (iii) from lime ID time IIIIU all -, ad proper repairs, renewals, rq,lacements, addilions, beaermenls and improvamm with respect to the System so 11\at at all times the busineu carried on in COlllleClioa lhmewidl lball be pn,paty and advantageously conducted; provided, however, this co-.. lball DOI be a>mlnled u requiring the Govemmenlal Agency to expend any funds which are derived from IIOUR:CII oCher than the operation of the System or other receipts of the System wbicb are Pledpd Property nd provided further that nothing herein shall be construed as prcventin1 die Govtmmental A; from doing so. (g) Records; Accounts . The Governmental Aaency shall keep aa:unle reconll ad accounll for the Sys tem (the "System Records "), separate and dislinct from its oCher IIICOnll al accoun11 (the "General Reco rds "). Such System Records shall be imiuwl in aa:ordacc widl OAAP 111d 4j,t2Al44 t 12 ·"'I _.,. • t •' • shall be audited annually by an independent accountant, which audit may be part of the annual audit of the General Records of the Governmental Agency. Such System Records and General Records shall be made available for inspection by the Authority at any ~le time, and a copy of such annual audit(s) therefor, including all written comments and recommendations of such accountant, shall be furnished to the Authority within 180 days of the close of the fiscal year being so audited. Upon delivery of it. annual audited financial statements, the Governmental Agency shall furnish to the Authority a certificate of an Authoriz.ed Officer stating that, to the best of such individual's knowledge following reasonable inquiry, no Event of Default has occurred, or if an Event of Default has occurred, specifying the nature lh=of and, if the Governmental Agency has a right to cure pursuant to Section 5.01, stating in reasonable detail the steps, if any, being taken by the Governmental Agency to cure such Event of Defaull (h) Inspections; Information. The Governmental Agency shall permit the Authority, and any party designated by the Authority, to examine, visit and inspect. at any and all reasonable times, the property, if any, constituting the Project, and to in~pect and malce copies of any accounts, books and records, including (without limitation) its records regarding receipts, disbursements, contracts, investments and any other matters relating thereto and to its financial standing. and shall supply such reports and infonnation as the Authority may reasonably require in connection therewith. The Governmental Agency shall advise the Authority in writing of the issuance of any debt payable from Pledged Property at least 30 days prior to the issue of such debt. In addition, the Governmental Agency shall provide the Authority with copies of any official starements or other forms of offering prospectus relating to any other bonds, notes or other indebtedness of the Governmental Agency which are payable from the Pledged Property at least 30 days after the date of issuance of such debt. (i) Insurance. The Governmental Agency shall maintain or cause to be maintained, in force, insurance policies with responsible insurers or self insurance proarams providing against risk of direct physical loss, damage or destruction of the System, at 1eut to the ~ that simiw insurance is usually carried by utilities comuucting. operating and maintainina facilities of lhe nature of the System, including liability coverage, all to lhe extent available at reasonable COSl Nothing herein shall be deemed to preclude the Governmental Agency from exerting against any party, other than the Authority, a defense which may be available to the Governmental A.gfllltcy, including, without limitation, a defense of sovereign immunity. G) Cost of Projecl The Governmental Agency certifies that the Cost of the Project, as listed in paragraph (2) of Exhibit B hereto and made a part hereof, is a reasonable and accurate estimation and upon direction of the Authority will supply the same with a certificate from its engineer stating that such Cost is a reasonable and accurate estimation, taking into account investment income to be realized during the ooune of the Project and other money that would, absent the Loan , have been used to pay the Cost of the Projecl 4542414'.I 13 .. t ·• .. .. • • -·- • (k) Notice of Maril) Alhenc Chan,e. The Govammacal A,eecy shall promptly IIOlify the Authority of 111y malaial adverse cha,e in the activilics, p101f1eC1S or conditioa (financial or odierwise) of the Govemmenlal Aamcy relalina ID the Sysaem. or in the ability of the Oovenuncolal Ap:ncy to make all Lou RepaymetllS _, ocbcrwi,c observe and pafonn ill duties, covenants, obliplions and apeements under this Loa Ap,anenl and the Govemmenlal AamcY Bond from the Pledpd Property . The OovaWlllal Ap:ncy shall provide such financial informalion relllling to the Govemmenlal AacncY • the Alldlority may require in conncctioa with the iuuance of Authority Bonds punuan1 to die Bond Raolulion. (I) Continuin1 lleprescnlalion The ~ of die Oovernnmital Ap:ncy COllllined herein shall be lnle al the time o( the necution of this lollll Apee.-Dl 111d al all times durina the term of this Lou Apa:ment. (m) ~ Covenats -S Requiranenb. The GofflllJllaltal AacncY asrea to observe and comply witb each such additional covenant and falllimnent. if uy, includDd on Exhibit F on the dale of the Lou Closing. SECTION 2.13 ' (a) The Govemmenlal Ascncy shall undertake, for the benefit of Holders of the Alllhority Bondi, IO provide or came IO be provided dsoup the Authority: (i) to eacll Repository -S to the Stlle Information Depository, no 1*r tbm 180 days after die end of eacb Fiscal Yu., coimiencin1 witb the end of the fint Fucal Yu. followias die dale of this Loa A.-, the Annual Information relalins so such Fiscal Yu.; (ii) if DOI submiaed a pan of o, with the Annual lnformalion. to each Repository 111d ID the Stale Information Depoaitory, if ar;y, audited financial -..... of die Governmenlal Ap:ncy for such Fiscal Yu. when and if they ~ available; provided tbal if the Governmental Ap:ncy's audited financial S'*'8alls arc DOI available by the dale set forth in (i) above, the Annual Information shall contain unaudited financial llalcmellll in a format simils to the Govemmenlal Ap:ncy's audited financial l1alelllellll prepared for ill most rec:mt fiscal Year, -S the audited financial 11a1ema111 shall be filed in the same fflllllla' a., the Annual Information when and if they become available; and (iii) to each Repository or to the MSRB and to the State Information Depository, in a timely manner, notice of a failure to provide uy Annual Information required by subsections (d), (e) and (f) of this Section 2.03 . 14 t -- (J. (b) The obligations of the Governmental Agency pursuant to subsection (a) of this Section 2 .03 may be tcrminaled a to such Governmental Agency pursuant to subsection (k) of this Section 2.03. Upon any such termination, the Governmental Agency shall provide notice of such lamination to each Repository, the State Information Depository and the MSRB . (c) Nothing herein shall be deaned to prevent the Governmental Agency from disseminating or rcquirina the Gowmmental Aaency to disseminate any othcr information in addition to thll required hereby in the manner set forth herein or in any other manner. If the Governmental Agency disseminates any such additional information, the Governmental A,-:y shall have no obligation to update such information or include it in any future materials disseminated hereunder. (d) (e) The required Annual Information shall consist of the Governmental Agency's audiled financial ltalemellll for the most recent Fiscal Y car as provided in subsection (a)(i) of this Sec:lion 2.03, and the information contained in ;I:a!>!~ __ --111111111111 I 2,3,4.J..WL~.!'! _~~-I}-~_~-~~-~~~~ !'f _~ A'!.~1Y---->-11111111111 ___ , ------< relatin& to the Authority Bonds daled April 27, 2004. 0 ,-,-: 11111111111 7 All or any ponion of the Annual Information may be incorporated in the Annual '~D~ll:_,.:.:_,:_i:_:_:_:_:_:_:_:_:_:_:_~ Infonnalion by cross reference to any other documents which have been filed with (i) the Repositories, the State Information Depository and, if the document is an olflCial statement, the MSRB or (ii) the SOC. (f) Annual Information for any Fiscal Y car oontaining any modified operating data or financial information (as contemplated by subsection G)(v) of this Section 2.03) for such Fiscal Y car shall explain, in narrative form, the reasons for such modification and the effect of such modification on the Annual Information being provided for such Fiscal Y car. If a change in accounting principles is included in any such modification, such Annual Information shall pracnt a comparison between the financial statements or information prepared on the basis of the modified accountina principles and those prepared on the basis of the former accounting principles. (g) The Governmental Agency 's annual financial statements for each F'ISCal Year shall be prepared in accordance with GAAP as in effect from time to time. Such financial statements shall be audiled by an independent accounting finn. (h) If the Governmental Asency shall fail to comply with any provision of this Section 2.03, then the Authority or any Holder of the Authority's Bonds may enforce, for the equal benefit and protection of all Holden similarly situated, by mandamus or other suit or proceeding at law or in equity, this Section 2.03 against the Govemrncntal Agency and any of the officers, agents and employees of the Governmental Agency , and may compel the Governmental Agency or any such offi cers, agents or employees to perform and carry out their duties under this Section 2.03; provided that the sole and exclusive remedy for breach of this Section 2.03 shall be an action to compel specific performance of the obligations 4S4241 44 I 15 t • • .... (i) G> 4~24144.1 of the Governmental Agency hereunder and no person or entity shall be entitlod to recover monetary damages hereunder under any circumstances, and, provided further, that any challenge to the adequacy of any information provided pursuant to subsection (a) of this Section 2.03 shall be brought only by the Authority or the Holders of 25% in aggregate principal amount of the Authority's Bonds al the time outstanding which are affected thereby. The failure of the Governmental Agency to comply with the provisions of this Section 2.03 shall not be deemed an Event of Default hereunder and the only remedies available to the Holders or the Authority for such failure to comply are the remedies contained in this subsection (h). The provisions of this Section 2.03 are executed and delivered solely for the benefit of the Holders. No other person (other than the Authority) shall have any right to enforce the provisions of this Section 2.03 or any other rights under this Section 2.03. Without the consent of any Holders of Authority Bonds, the Authority and the Governmental Agency al any time and from time to time may enter into any amendments or changes to this Section 2.03 for any of the followin1 purpo1e1: (i) to comply with or conform to Rule 1Sc2-12 or any amendments tberelo ( whether required or optional); (ii) to add a dissemination aaent for the information required to be provided hereby and to make any necessary or desirable provisions with respect thereto; (iii) to evidence the succession of another person to the Governmental Agency and the assumption by any such successor of the covenants of the Governmental Agency under this Section 2.03; (iv) to add to the covenants of the Governmental Agency for the benefit of the Holden, or to sWTCnder any right or power conferred upon the Governmental Agency pursuant to this Section 2.03; (v) to modify the contents, presentation and format of the Annual Information from , time to time as a result of a change in cin:wnstancea dial llila from a change in legal requirements, change in law, or chanp in the identity, nawre or status of the Governmental Agency, or type of business conducled; provided that, (a) there is filed with the Trustee an opinion of coumel havin1 expcrtile with respect to securities laws of the United States of Anaic:a or expertise with respect to the issuance of indebtedness by states and political subdivisi«-thereof, tbal (i) this Section 2.03, as amended, would have complied with the requirements of Rule 15c2-l 2 at the time of the offerin1 of the Authority Bonds, after takina into account any amendments or authoritative interpmations of the Rule 15c2-12, u well as any change in circumstances; and (ii) the amendment or chanp does not materially impair the interests of Holders, or (b) such chanae or amendment ii approved by the vote or consent of Holders of a majority in outstandin1 principal 16 .. • • - amount of the Authority Bonds affected thereby al or prior to the time of such amendment or change. (k) This section 2.03 shall remain in full force and effect until the earlier of (i) the Authority provides notice to each Repository, the State Information Depository and the MSRB that the Governmental Agency is no longer an "obligated person" within the meaning of Rule 15c2-12 or (ii) all principal, redemption premiums, if any, and interest on the Authority Bonds shall have been paid in full or the Authority Bonds shall have otherwise been paid in full or legally defeased pursuant to Section 12.01 of the Bond Resolution. In the event of such payment or legal defeasance, the Authority shall promptly give written notice thereof to the Governmental Agency. ARTICLE UL LOAN TO GOVERNMENTAL AGENCY; AMOUNTS PAYABLE; GENERAL AGREEMENTS SECTION 3.01 The Leen. The Aulbority hereby qreea to Joan and disburse to the Governmental Agency in aa:ordance wi1h Section 3.02 hereof, and the Governmental Agency agrees to bonow and accept from Ille Authority, the Loan; provided, however, that (i) the Authority shall be under no obliplioa to make the Loan if Ille Governmental Agency does not deliver a Governmental AfP'ICY Bond to the Authority on Ille Loan Closing or an Event of Default has occurred and is continuing under the Bond Resolution or this Loa11 Agreement, and (ii) the proceeds of Authority Bonds shall be available for disbursement, as determined solely by the Authority, to finance the Cost of the Project. The Governmental Agency shall use the proceeds of the Loan strictly in accordance with Section 2.0J(h) hereof, to finance the Cost of the Project SECTION 3.02 Dllbunelmnt of Lollll PruceedL The Trustee, • Ille agent of the Authority, shall disburse the amounts on deposit in the Project Fund to the Governmental Agency upon receipt of a requisition executed by an Authomed Officer thereof and approved by the Authority, in the form set forth in the Bond Resolution. The Authority covenants to direct the Trusllle to provide all periodic writtm reports (as required by the provisions of the Bond Resolution) of all moneys oo depnlit under the Bond Resolution and to fimlish such reports to the Govemmental Alf!IIICY • soon • practicable after receipt by the Authority. The Authority herd,y aan,es that in the event that moneys on depnlit in the Project Fund are lost due to the negligence or misconduct of the Trustee, the Authority on behalf of the Governmental Agency, shall, upon the written request of the Govcmmental Alf!IIICY, pursue its remedies against the Trusllle, including. but not limited to, equitable actions or actions for money damages . If there are moneys on deposit in the Project Fund upon completion of the Project, the Governmental Agency shall advise the Authority in writing that no further requisitions are to 4S424144.I 17 ' .. . ... • • CJ be submincd to the Authority for disbursement of moneys from the Project Fund. Upon receipt of such written advice, the Authority shall file with the Trastee the Certificale required by Section 5.03 of the Bond Resolution and use such moneys ID redeem, purchase or provide for the payment of the Authority Bonds. The Authority shall credit ensuing Loan Repayments or portions thereof of the Governmental Agency chosen by the Authority as a result of the use of such to purchase, redeem or pay Authority Bonds. SECTION 3.03 Amounls Payable. (a) The Governmental Agency shall repay the principal of and interest on the Loan in accordance with the schedule set forth on Exhibit C attached hereto and made a pan herct'f, as the same may be amended or modified, pursuant to Section 6.04 hereof. The Govemmental Aaency shall ei1ecute the Govemmcntal Agency Bond to evidence the Loan and the obligations of the Governmental Aga,,;:y Wider the Gowmmental Agency Bond shall be deemed to be amounts payable Wider sublec:tiom (a) of this Section 3.03. Each portion of the Loan Repayment payable under this subsection (a), whcdler satisfied entirely through a direct payment by the Governmental A'lf:ll&Y to the Trustee or through a combination of a direct payment and the use of investment income as descnlled in aui-:tion (c) of this Section 3 .03 to pay interest on the Authority Bonds (and to the eiitent lllllllCYI are available therefor, principal of the Authority Bonds), shall be deemed to be a credit against the COrTCSponding obligation of the Governmental Agency under this subsection (a) and shaD fulfill the Governmental Agency's obligation to pay such amount hereunder and Wider the Governmental Agency Bond. Each payment made to the Trastee punuant to this subsection shall be applied tint to interest then due and payal)le on the Loan, then to the principal of the Loan. In the event the Authority issues refunding bonds punwmt to the Bond Resolution in order to refinance the Authority Bonds which refunding results in a decrease in total agarepte Loan Repayments, the Authority shall amend Ellhibit C to reflect such decreue in total aggregate Loan Repayments. (b) Reserved (c) The Governmental Agency shall receive as a credit against each of its semiannual interest payment obliptions set forth on Exhibit C aaacbed 'berelo and made a part hereof (and. as applicable under the Bond Resolution, its annual principal obliptions to the ei11ent moneys are available therefor), (i) the amount of capitalized interest available to be applied against such obligations, as footnotrd on such Emibit C, and (ii) the amount of investment income, if any, on the Debt Service flllnd; provided, however, 1h11 the investment income referred to in clause (ii) shall be credited by the Authority at such time and in such manner as the Authority deems equitable. (d) In addition to the payments required by subsection (a) of this Section 3.03, the Governmental Agency shall pay a late charge for any payment that is received by the Trustee later than the fifth (5th) day following its due date, in an amount equal to the greater of (i) twelve percent (12%) per annum or (ii) the Prime Rate plus one half of one 45"'2414'.I 18 t • • -- percent per annum, on such late payment from its due date until ii is actually paid; provided, however, that the interest rate payable on the Loan including such late charge shall not be in excess of the maximum rate permitted by law as of the date hereof. ( e) The Governmental Agency acknowledges that payment of the Authority Bonds by the Authority, including payment from moneys drawn by the Trustee from the Debt Service Reserve Fund, (including any surety bond deposited therein) other than from the investment income thereon, does not constitute payment of the amounts due under this Loan Agreement or the Governmental Agency Bond. If at any time the amounts on deposit in the Debt Service Reserve Fund shall be less than the requirement therefore as the result of any ttansfer of moneys (including any draws on a surety bond) from the Debt Service Reserve Fund to the Debt Service Fund as the result of failure by the Governmental Agency to make any Loan Repayments required hercundec, the Governmental Agerw:y agrees to (i) replenish such moneys or amounts drawn from • surety bond, (ii) replenish any deficiency arising from losses incurred in making such transfer as the result of the liquidation by the Authority of investment securities acquired as an investment of moneys in the Debt Service Reserve Fund by malting payments to the Authority in equal monthly installments for the lesser of six (6) months or the remaining ler1D of the Loan in amounts necessmy to make up any loss caused by such deficiency and (iii) pay any interest required to be paid by the Authority on amounts drawn on a surety bond, provided, however, that any amounts paid pursuant to this said clause (iii) shall be in lieu of, and not in addition to, the late payments required to paid pursuant to subsection (d) of this Section 3.03 . SECl'ION 3.04 UDCODdltiooal Obllptlons. The obliption of the 0 . Governmental Agency to make the Loan Repayments and all other payments required hereunder and the obligation to perform and observe the other duties, covenants, obligations and agreements on its part contained herein is payable solely from the Pledged Property and shall be absolute and unconditional and shall not be abated, rebated, set-0ff, reduced, abrogared. terminated, waived, diminished, postponed or odlerwise modified in any manner or to any extent whatsoever, while any payments under this Loan Agreement remain unpaid, regardless of any contingency, act of God, event or cause whatsoever, including (without limitation) any acts or circumstances that may constitute failure · of consideratioo, eviction or mnstructive eviction. the taking by eminent domain or destruction of or damage to the Project or the System, COIIIJDClcial frustration of the purpose, any change in the laws of the United Statc1 of America or of the Stalie of Colorado or any political subdivision of either or in the rules or regulations of any governmental authority, any failure of the Authority or the Trustee to perform and observe any agreement, whether express or implied, or any duty, liability or obligation lrisina out of or connected with the Project, this Loan Agreement or the Bond Resolution or any righb of set off, rccoupment, abatement or counten:laim that the Governmental Agency might otherwise have against the Authority , the Trustee or any other party or parties; provided, however, that payments hereunder shall not constitute I waiver of any such rights . SECTION 3.05 Lou Apeemmt lo Surme llolld Rl9111udaa aad Authority Bonds. The Governmental Agency acknowledges that its duties, covenants, obligations and agreements hereunder shall survive the discharge of the Bond Resolution and payment of the principal of, redemption premium, if any, and interest on the Authority Bonds. 4S4 2414'.I 19 ••• . .. .... • • The Authority acknowledges that all duties, a>\'Cllallts, obligations and agreements of the Governmental Agency shall (except as and to the extent preserved in subsection (e)(vi) of Section 2.02 hereof) terminate upon the date of payment of all amounts payable to the Authority hereunder. SECI'ION 3.06 Dllldalmer of WUftlltlll 1111d lnclemnlftadloa. The Governmental Agency acknowledges and agrc,es that (i) neither the Authority nor the Trustec makes any warranty or representation. either express or implied, as to the value, design, a>ndition, merchantability or fitness for particular purpose or fitness for any UBe of the System or the Project or any portions thereof or any other warranty or representation with respect thereto; (ii) except as provided hemn, in no event shall the Authority or the Trustee or their respective agents be liable or responsible for any din:ct, incidental, indirect, special or coosequential damages in oonnection with or arising out of this Loan Agreement or the Project or the existmc:e, furnishing. functioning or use of the System or the Project or any item or products or services provided for in this Loan Agreement; and (iii) ID the extent authorized by law, the Governmental Agency shall indemnify, save and hold harmless the Authority apinst any and all claims. damages, liability and court awards including c:osts, expenses and lttomey fees incurred as a result of any act or omission by the Governmental Afprcy, or its employees. qealS or subcontracton punuant ID the terms of this Loan Agreement, provided howev« that the provisions of this clause (iii) are DOC in1lended ID and shall DOC be construed • a waiYa" of any defense or limitation on damages provided for under and punuant ID the Co1ondo Govanmental Immunity Ad (Section 24-10-101, et seq., C.R.S .), or wm the laws of the United Stares or <>Cher laws of the Swe of Colondo. SECI'ION 3.07 Option to Prepay Lou ltepllJIIIIIIIL Subject in all instances to the prior wrillen approval of the Authority, which approval will DOC be mnasonably withheld, and satisfaction of the requirements, if any, of the Bond Raolution relaling ID Loan prepayments, the Governmental Agency may prepay the portion ix the Loan Repayments set forth in Exhibit C, in whole or in part (but if in pan, in the amount of $100,000 or 111y ingral multiple of S 100,000), upon prior wriUen notice not less lhlD ninety (90) days in addition to the number of days advance notice to the Trustee required for any oplional or special redeq,tioa of the Authority Bonds, to the Authority and the Trustee and upon payment by the Gownunental Agency to the Trustee of the principal amount of the Loan Repayments ID be prqllid. plus the interest ID accrue on such amount to the date of the next succeedina optiooal redeq,tioa of the Authority Bonds allocable ID such Loan Repayment ID be prq,lid. ID addition, if ll the time of such prepayment, the Authority Bonds may only be redeelnl:d II the opcion of the Authority upon payment of a redemption premium, the Governmental AFf/CI sb11J add to ill prepayment ID amount, as delamined by the Authority, equal to such redempcioa premium allocable to such Authority Bonds ID be redeemed • a result of the Governmental Agency's prepayment. Prepayments shall be applied fint to aa:rued interest on the pol1ioa of the Loan to be prepaid and then to principal payments (including ralemption premium, if 111y) on the Loan in inverse order of Loan Repayments . The Governmental Agency, in the sole disaetion of the Authority, and upon terms and conditions satisfactory to the Authority, may provide for the prepayment in full of the Loan Repayments by depositing with the Authority an amount which. when added to the investment income to be derived from such amount to be deposited with the Authority, shall 4S42414'.I 20 ..• .. _I • • provide for the full payment of all such Loan Repayments in the manner provided in this Section 3.07 . Any amounts so deposited with the Authority shall be invested solely in direct obligations of the United States of America. The provisions of this Section 3.07 shall not be applicable to any mandatory or extraordinary redemption or acceleration required by the Bond Resolution. SECTION 3.08 Soun:e of Payment of Gmenumatal AsmcY'• Obllptiom. The Authority and the Governmental Agency agRC that the amounts payable by the Governmental Agency under this Loan Agreement, including. without limitalion, the amounts payable by the Governmental Agency pursuant to Section 3.03, Section 3.06, Section 3 .07 and Section 5.04 of this Loan Agreement are payable solely from the Pledged Property and are not payable from any other source whatsoever. Nodling herein shall be deemed to prevent the Governmental Agency from paying the amounts payable under this Loan Apeement from any other legally available source. The obligations of the Governmental AFIIC)' under this Loan AgRCment do not constitute a debt or indebcedness of the Governmental Agency within the meaning of any constitutional, charier or statutory provision or limiwions, and shall not be considered or held to be a general obligation of the Governmental Agency. SECTION 3.09 DellYery of DocumenlL Concurrendy with the execution and delivery of this Loan Agreement, the Governmental Agency will cause to be delivered to the Authority each of the following items: (a) opinions of the Governmental Agency's counsel substantially in the form set forth in Exhibit E-1 and E-2 hereto (such opinion may be given by one or more counsel); provided, however, that the Authority may permit variances in such opinion from the form or substance of such Exhibit E if such variances are not to the material delriment of the interests of the holders of the Authority Bonds; (b) executed counterparts of this Loan Apeemcnt and an executed Governmental Agency Bond; ( c) copies of the resolutions or ordinances of the govemin1 body of the Governmental Agency authorizing the execution and delivery of Ibis Loan Agreemeaa and Governmental Agency Bond, certified by an Authoriz.ed Officer of the Governmental Agency;and ( d) such other certificates, documents, opinions and information as the Authority may require. ARTICLE JV. ASSIGNMENT SECTION 4.01 Aallplmat and Tnnarer by Autbartty. (a) The Governmental Agency expressly acknowledacs that, other than the ri&ht. tide and interest of the Authority under Sections 3.06, 5.04 and 5.07, all right, title and 21 t .... .• .. • • 0 inlCTCSt of the Authority in, to an under this Loan Ag,eement and the Governmental Agency Bond has been assigned to the Trustee as security for the Authority Bonds, as applicable, as provided in the Bond Resolution, and that if uiy Event of Default shall occur, the Trustee, punuant to the Bond Resolution, shall be entitled to act hereunder in the place and stead of the Authority. The Governmental Agency had!y acknowledges the requirements of the Bond Resolution applicable to the Authority Bonds and consents to such assignment and appointmcnL The Authority shall retain the right to compel or ocherwisc enforce observance and performance by the Governmental Agency of its duties, covenants, obliplions and agreements under Section 3.06 and Section 5.04. (b) The Governmental Agency hereby approves and consents to uiy assipunent or trln5fer of this Loan Agreement and the Governmental Agax;y Bond dlll the Authority deems to be necessary in connection with any refunding of the Authority Bonds or the issuance of additional bonds under the Bond Resolution or olherwile, in connection wilb the water treatment pooled IOUI program of the Authority. SECTION 4.02 .4Mlp-t by Govermwial AemcJ. Ncilhcr Ibis Loan Ag,eemcnt nor the Govcmrncntal AFfllCY Bond may be assigned by the Oovernmmtal Agra:y for uiy reason, unless the following conditions shall be salisfied: (i) the Aalhority and the Trustee shall have approved said assignment in writing; (ii) the assipee shall be a 9DVCl'llllaltal unit within the meaning of Section 141(c) of the Code and the assipee shall have npressly assumed in writing the full and faithful observance and pafoimancc of the Oo-tal Agency's duties, covcnuits. agreements and oblipliom under the Loan Agreement; (iii) immediately after such assignment. the assipee shall not be in default in the perfOfflllllCC or observancc of any duties, covenants, obliptiona or agreements of the Oo-aal Agra:y under the loan Agrccmcnt; (iv) the Authority shall have received an opinion of bond coumcl ID the Authority to the effect that Sllcll 11SSiann-t will not 81hcnely affect the acllllion of inlarelt on the Authority Bonds from gross income for purpoaes ol fedcnl income laUlioa under Soclioa I03(a) of the Code; and (v) the Authority lhall receiw • opmion of coamel 11D the Authority ID the effect that such assignment will not violate the provilions ol lhe Bond Reaollllioa. All COIII incurred by the Authority pursuant to Ibis Section 4.02 shall be paid by the Oo--1 Agency. No assignment shall relieve the Oovernmenlal A.-:y from pri.-y liability for uiy of its obliplions under this Loan Agreement and in lhe _.. ol such aw....-. Iha Governmental Agency shall continue ID remain prinmily liable for the pctbw ..t observance of its obliptions to be pcrfonncd and ot..-1 under this Loan ~ ARTICLEV. DEFAULTS AND llEMEDIES SECTION 5.01 Enat of Defale. If ani of the followina e vents ocan. it is hereby defi ned as and declared to be and to constitute• "Event of Dd"ault": 22 t ... ... • • (a) failure by the Governmental Agency ID pay, or cause to be paid, any Loan Repayment. required to be paid hereunder when due, which failure shall continue for a period of ten (I 0) days; (b) failure by the Governmental Agency to make, or cause to be made, any required payments of principal of, redemplion premium, if any, and interest on any bonds, noees or other obligations of the Governmental Agency for borrowed money (ocher than the Loan and the Governmental Agency Bond), after giving effect to the applicable grace period, the payments of which are secured by the Pledged Property; (c) failure by the Govemmcntal Agency to~ -~~~-·~:y ~~._!)!>~!,. _ .- obligation or agreement on its p111 to be observed or performed under this Loan Agreement. Olher than as referred to in paragraph (a) of Chis Section 5.01 and Olher than a failure to comply wilb the provisions of Section 2.03 hereof, which flilure shall continue for a period of thiJty (30) days after writtal nocic:e, specifying such failun: and requesting thal it be remedied, is giwa to the Gow:nuncntal Agency by the Trustee, unless die Trustee shall agree in writing to an extension of such time prior ID its expintion; provided, however, that if the failun: staled in such notice is corrcctable but cannot be correclllld within the applicable period the 1'nlstee may DOI umeaonably withhold its consent ID an extension of such time up ID sixty («iO) days from the delivery of the wriuen notioe refemd to above if airrectivc action is instituted by the Govemmc:nlal Ar,:a;y within the applicable period and diligently punued until the Event of Default is c:omctcd; (d) any ~ made by or on behalf of the Governmental Agency contained in this Loan Agreement, or in any illSll'lllllelll furnished in compliaDce with or with reference to this Loan Apeement or the Loan or in connection with the Authority Bonda, is false or misleading in any llllllaW respect; and (e) a petition is filed by or apinst the C.0-tal AFflCY unds my federal or sta bankruptcy or insolwacy law or Olher simils law in effect on die • of this Lmn Agrccmcnt or tbc:rafter enacted, unless in die cue of any such pelilioa filed apimt the Governmental Agency such petition shill be dismissed within thirty (30) days after sucb filing and such dismissal shall be final and DOI subject to appal; or the Oovamnm&al Agency shall become insolvent or bullaupl or make an assipment b the bendit of its crcdilorS; or a custodian (including. without limitation, a receiWI', liquidalor or llUilee of the Govanmental AFftC)' or any of its property) shall be appoinled by court Older ID tab possession of the Governmental Agency or its property or assets if such Older reaaim in effect or such possession continues b !DIR than thiJty (30) days. SECl10N S.02 NOlb of DlfMalL The Governmenlal Agency shall give the Trustee and the Authority prompe telephonic notice of the OllClllffllCC of any Event of Default refcmd to in Section 5.0l(c) hereof, and of the occurrence of any Olher event or condition tbal constitutes an Event of Default at such time as any senior administrative or financial officer of the Govcmmcntal Agency becomes awan: of the exisu:nce thcn,of. Any telepbonic notice purs uant to this Section 5.02 shall be confirmed in writinc by the end of the next Business Day (as defined in the 81.>nd Resolution). 23 ~.., ... caa:tobe:paid.tht Aallinilnli\111 Flc or my paniml --, .t..duearllO ,• • ' • 0. SECTION 5.03 Remedies on Default. Whenever an Event of Default rcfcm:d to in Section 5.01 ba'cof shall have occurred and be continuing. the Authority shall have the right to take or to direct the Trustee to take any action permitted or required pursuant to the Loan Agreement and to take whatever other action at law or in equity may appear necessary or desirable to collect the amounts then due and thereafter to become due hereundr.r or to enforce the performance and observance of any duty, covenant, obligation or agreement of the Governmental Agency hereunder, including. without limitation, to obtain ex pane the appointment of a receiver of the System. SECTION 5.04 Attorney's Fees and Other~ The Governmental Agency shall on demand pay to the Authority or the Trustee the reasonable fees and expenses of attorneys and other reasonable fees and expenses (including without limitation the reasonably allocated costs of in-house counsel and legal staff) incurral by either of them in the oollection of Loan Repayments or any other sum due hereunder or in the enforcement of performance or observation of any other duties, oovcnants, obligations or agreements of the Governmental Agency. SECTION 5.05 Appllcation of MOIICJL Any moneys oollected by the Authority or the Trustee pursuant to Section 5.03 hereof shall be applied (a) first, to pay any attorney's fees or other fees and expenses owed by the Governmeotal Agency punuant ID Section 5.04 hereof, (b) second, to pay interest due and payablc OD the Loan, (C) third, to pay principal due and payable on the Loan, (d) fourth, to pay any other amounts due and payable hereunder this Loan Agreement; and ( e) fifth, to pay interest and principal on the Loan and other amounts payable hereunder as such amounts become due and payable. SECTION 5.86 No Remedy EulmlYc; Wah'cr; Nodc:e. No remedy herein confCrTCd upon or reserved to the Authority or the Trustee is Intended ID be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Loan Agreement or now or hereafter existing al law or in equity. No delay or omission to exercise any right, remedy or powa-accnaing upon any Event of Default &ball impair any such right, remedy or power or shall be constnaed to be a waiver thereof, but any such right, remedy or power may be exercised from time to time and as often as may be dcClncd expediaL In order to entitle the Authority or the Trustee to exercise any remedy racned to it in this Article, it shall not be ncccssary to give any notice, ocher than such nolice as may be required in this Article V . ' SECTION 5.07 Refeldloa of Autbartty'1 mpts. Notwithstanding any assignment or transfer of this Loan Agrccmcnl pursuant to the provisions hereof or of the Bond Resolution. or anything else to the concnry contained herein, the Authority shall have the ript upon the occurrence of an Event of Default to take any action, includina (without limitation) bringing an action against the Governmental Agency at law or in equity, as the Authority may, in its discretion, deem necessary to enfon:c the obligations of the Governmental Agency to the Authority pursuant to Section 3.03, Section 3 .06 and Section 5.04 hereof. SECfION 5.08 Default by the Autbortty. In the event of any default by the Authority under any duty, covenant, agrccmcnt or obliprion of this Loan Apecment, the Governmental Agency's remedy for such default shall be limited to iqjunction, special action, 24 ' .... .. • • - action for specific performance or any other available equitable remedy designed to enforce the performance or observance of any duty, covenant, obliption or agreement of the Authority hereunder as may be necessary or appropriate. The Authority shall on demand pay to the Governmental Agency the reasonable fees and expenses of attorneys and other reasonable expenses in the enforcement of such performance or obsavation. AR11CLEVL MISCELLANEOUS SECTION 6.01 Nodal. All nocices, certificates or other communic:ationl hereunder shall be ,ufficiendy given and shall be deemed given when hand-dellvered or mailed by registered or certified mail, postase prepaid. to the Go¥Cl'lllllelltll AamcY at the address specified oo Exhibit B attached hemo and made a part baeof and to the Authority and the Trustee at the following addreues: (a) Authority: Colorado Water Resources and (b) Trustee: Powa-De11elopment Aulhority 1580 Lopn Street, Suite 620 Denva-, Colorado 80203 Attention: Executi11e Directer Wells F-,o Bank. N.A. 1740 Broadway MAC C7301-024 Denwr, Colondo 8027, Attention: Corponle Trust Servic:ea Any of the foreaoin1 par1ia may desipate 111y funlls or diffllr.-..._ ID which subsequent notices, ca1ific:ales or other commuiric:moal lball be -. by nolice ill writina gi Yell to the othen. SECTION 6.12 ...... mr.t. 11lil Loa A.,_...a lhlll mn ID die benefit of and shall be bindin1 upon the Audlority and the Go-cal Apacy 11111 their respective successors and assips. SECl10N 6.13 Seunilllly. la die ew111 111y pn,vilioa of dlil Loa Apcment shall be held illepl, invalid or IIMafcxl.iliilNe by ay CD8l1 ol '1lllllpelllal jmildictioa. such hoklin& shall not invalidate. render unnfo,Cliilllk or odlswile lffecl ay odler pn,vilioa hereof. SECTION 6.N A._., ... s "I I a ... urn d This Loan Apcmcnt may not be amended. supplc:nenled or modified widlout the prior wri.- conscnt of the Authority and the Govcmmenllll A.-,:y. SECTION 6.15 Euaadaa la C.al1 ~ This Loa A.,_...a -y be execuled in several COUDICl'pu1S. eac:11 of which shall be III oripnal ud all ol wbidl 111111 constitute but one and the same instrument. 25 • • SECl'JON 6.06 Appllcahle Law and V-. This Loao Apeement shall be governed by and ronstrucd in accordance with the laws of the Stale of Colorado, including the Act. Venue for any action seeking to interpret or enforce the provisions of this Loan Agreement shall be in lhe Denver Disttict Court. SECl'JON 6.07 C-11 and Appnl\'all. Whenever the wriuen consent or approval of the Authority shall be required under the provisions of dlis Loan Asreement, such consent or approval may only be given by the Authority unless olberwise provided by law or by rules, regulations or resolutions of the Authority or unless expressly delepled to the Trustee. SECl'JON 6.N CapCloaL The captions or headinp in this Loan Agreement are for convenience only and shall not in any way define, limit or describe the scope or intent of any provisions or sections of this Loan Ageement. SECl'JON 6.8' cemp11 ... wllll ._. I...... The Oovanmcntal Agency coffllllltS and agrees to take such action • the Aalbority shall raamably request so • to enable the Authority to obsaw and comply with, all dulics. covmutl, oblipliolll and agrc,ements comained in the Bond Resolution imof• u such dutiea, ooveouta, oblipliolll and agreements relate to the obliptions of the Governmental AlfflCY 1llldcr this Loan Apemeot. SECTION 6.11 hr1ller Aaa,-, The Govenunealal Apt/Cy shall, at the request of the Authority, llllbome. execute, ac:koowledF and deliver such further resolutions. conveyances, transfen, mm. fiomcio11ta1e1De1111111d odlS ilillUIWliiilb • may be necessary or desinble for better assuring. conveying. panting. Ulipins and coofirmin1 the rights and qrccments granted or intended to be lfUlted by tbil Loan Apeemenl and the Governmental AaencY Bond. SECl'JON 6.11 lledtal. This Loan ApeemeDI is mthorizm punuaot to and in accordance with the Charter, the Constitulion of die Swe of Colorado 111d all odlS laws of the Stale of Colorado themaolo cnablioJ, Specifically, but DOI by way of limilatioa, this Loan Apecmem is aulhorized by the Oovamnenlal AFfliC'I ....... to Tide II, Anlcll 57, 1'1112. C.R.S. Such recital shall CODClusively impat full complimce witb all proviaicn 111d limitaticm of such laws., and this Loan Apeement delivered by the Oovenmabl ""1KY ID die Aalbority containing such recital shall be incontalable for any cause whllloe-after ill delivwy for value . 26 .. . • • IN WITNESS WHEREOF, the Authority and lhe Governmental Agency have caused this Loan Agreement to be executed and deli~ as of lhe tint day of May, 2004. (SEAL) (SEAL) ATI'EST: City Clerk 4.SO.t4t I COLORADO WA 'l'Ell llUOUllCD AND POWER DEVELOPMENT AU11IORITY By: __________ _ Executive Director CITY OF ENGLEWOOD, COLORADO AC11NG BY .AND THROUGH ITS SEWER ENTERPRISE By: __________ _ Mayor S-1 • t .. EXIIDJTA SECURITY DFSCRIPTION 1. Description q( Project I The Project consists of advanced treatment upgrades 1!!,._and construction improvements to increase the wastewater treatment capacity of, the existing Littleton/Englewood joint wastewater treatment plant from 36.3 mgd to 50 mgd. 2. The System includes all of the Governmental Agency's sanitary sewer facilities and properties now owned or hereafter acquired, whether situated within or without the geographical boundaries of the Governmental Agency, including all preacnt or future improvements, extensions, enlargements, betterments, rq,lacements or additions thereof or thereto including. but not limited to, the Project and the Governmental Agency's ripts pursuant to an Agreement between the Cities of Littldon and Enpewood, Colorado, for Joint-Use W astcwater Trealment Facilities, dated Da:embcr 6, 1982, u amended including the Governmental Agency's rights to 50'I, of 32 million gallons per day (mad) of primary, secondary and advanced treatment capacity at the Joint-Use Plant 3. Lim lrrrnndP1iee I The pledac and liw?~~-~-~-f!>.11_11: P!~~ ~-~-~----1--~~~;i; _;=.:-~~n!:;~~;u;~:~~!~l_; __ .-1:=,::::·::::1::::,::::::::-::::::::::::::::::::::::::::::::::::::::= payable to the Authority in an original principal amount of $12,750,000 ("the 19901-"). The Pledged Property will be me and clear of any pledge, lien. charJe or encumbrmce ...._ or with respect thereto prior to the obliplion of the Govamnental Ap:,,,;:y ID pay this Loa Agreement and the Governmental Agency Bond except for the lien of the 1990 1-, 111d ID corporate or other action on the part of the Governmental Agency to lhlt end bas been and will be duly and validly taken. As of the dale of Ibis Loa ApeemeDl, there -the foUowlna outstanding bonds, notes or evidences of indebledneu or COlllraCtUal obliplima payallle from the Pledged Property with a lien on the Plcdpd Property which i1 OD a parity widl die lien of die Loan Agreemenl and Govcmmental Agency Bond on the Pledfld Property;._ die GoYCl'IUIIIMal _. --1.._D...;..s_·...:.· _____ .) Agency·s loan dated May I, 2004, payable to the Autbority iD u oriaiMI __, of s . Excq,e • permitted by Exhibit p baelo. the Go---Atp/1:'j lhall Dill issue any bonds or other evidences of indebteducss of a similar .-. payallle OIII of or _... by a pledac, lien or assipmen1 on the Plcdpd Property or aeae a lien or c:11arJ1 --. 4. Plednd Prope,ty "Pledged Propmy" means the Net Revenues (• defined in Ibis ~ 4 of Exhibit A of this Loan AaJccmcnt). "Net Reven,us" shall mean the Rc-ues less Operation~ A -1 ' .. ... • • "Revenues" means all income from rates, fees, !oils and clW'ges and tap fees, or any combination ~f. but not special assessments, for the servica fumished by, or the direct or indirect connection with, or the use of, or any commodity from the Systan, including wilhout limiting the generality of the foregoing. minimum charp,s. ct.ga for the availability of service. disconnection fees, reconnection fees and reasonable penalties for any del~. and all income or othet rcalir.ed gain, if any, from any in~ of Revenues and of the proceeds of securities payable from Net Revenues (except income or ocher pin from uy invatment of moneys held in an esaow fund or account for the defeasance of securities payable from the Net Revenues or any other similar fund) to the extent not required Ill be rebaled to the federal government Revenues shall also include amounts on deposit in a rate stabilization fund. Revenues exclude any refund of rates, tolls and clW'ges due 10 oebers. Notwilhltmlina anythina contained above, amounts deposited in a rate stabiliwion account shall not be deemed Revenuea in the calendar year deposited and amounts withdrawn Crom the rare llabillzalion account shall be deemed Revenues in the year withdrawn. "(Jpe""UII Expe,uu" 1111rm1 such reaonable and necessary CWTent expenses of the Governmental Apa,:y, paid or accrued. of openling. maintaining and repairing the System as may be delamined by the Ger.a naimtal Apa,:y, including. except as limited by contract or ocherwile limited by law, without timilina the generality of the forcgoina: (a) Engi~ng. auditing. lepl and Olher o-'-1 exi-es clirecdy relaled and reasonably allocable to the administntioa. opcnlion and mailllellallce of the Sys1an; (b) Insurance, surety bond and inleresl rate cap aa,eemat prcmi- appcnaining to the Sys1em: (c) The reasonable chqes of any payina .... rqillrs, u..fer .... depository or escrow bank appcnainina 10 any socuri1iel payable from the Net~; (d) Annual pa~ Ill pension, ~ bealdl and bolpitatiuCic4 fundl appc:nainin& IO die System; (e) Any tuea. assessmeats frw:llilc fea or odler da,-or~ iD lieu of die forqoina; (f) Ordiwy and currenl rentals or eqaipma« or odler popeny; (a) COlllnclUI scrvicel. proleuimal, wvicea, lllaries, ............. expenses and aJIII of labor appenaiaiaa ID die S~ 1M COil of maleriaJs wl supplies ...i for CUfflllll opendoe or 1111111a lNi er • or repair of the Systan; (h) The 'costs incuned in die billina and collection of all or •Y pat of die Revenues ; (i) Any costs of utility servica furnished 10 the SysSml by die Oownmmtal Aaency or ochenvise ; 41"1<1 .. I A-2 • t .. • • (j) Any other such expenses considered by the Govcmmcnlal Agency in determining the amount of water rates, fees, tolls and charges imposed for operation and maintenance; (k) Expenses in connection with the issuance of bonds or other securities evidencing any loan to the Govemmenlal Agency and payable from Revenues . "Operating Expenses" docs not include: (a) Any allowance for depreciation; (b) Any costs of improvement, extension or bcttcrmcnt that qualify as capilal ilemS in accordance with generally accepced accounting principles; (c) Any accumulation or reserves for capilal n:placcmcnts; (d) Any reserves for operation, maintenance or repair of the System; ( e) Any allowance for the redemption or any bonds or other securities payable from the Net Revenues or the payment of any inll:rcst lhereoo; (f) Any liabilities incunal in the aaiuisition of any facilities constituting part of the System; (g) Any other ground of legal liability not based on conlnlet. 5. RmCovegyt The Govcmmcnlal Agency shall establish and collect rates and charges for the use or the sale of the products and services of the System. which together with othcr DM>DCys available lhercfor, are expected ID produce Revenues (as defined in paragraph (4) of this Exhibit A IO this Loan Agreement) for each calendar year which will be a1 kast sufficient for such calendar year to pay · the sum of: (a) all amounts estimated to be required to pay Operalina Expenses (as defined in paragraph (4) of this Exhibit A or this Loan Agreement) during such calendar yar; (b) a sum equal to I ta.. of the debt service due on the ,Po~Aamct Bond ___ --j iw.. 1990 i.-a11 .. and: the 1990 Loan for such calendar year and debt service aimin1 due durina such calendar year on any indebtedness payable on a parity with the lieu or cbarp of this Loan Agreement on the Pledged Property, in each case computed as of the 1Jcainnin& of such calendar year; (c) the amount, if any, to be paid durin g such ca1cndar year into any debt service rcscrvc account; 41'.241 ... 1 A-3 ' ..• .. • • EXHIBITB DESCRIPTION OF THE WAN 1. A...._ of Col-,.._... Apacy: 2. City of Englewood, Colondo 1000 Englewood Parkway Englewood, CO 80ll0 $110,000,000 3. Mubmim Prtndpal .Awnt ol Loan CGuuultuwt: $21,000,000 ... 5. 6. a. 45424 14'.I Lou Tena: The final Loan Repayment dale set forth in Exhibit C. See Exhibit A, l. ~llm~~ld'~ ____________ ,,' Frank Gryglewjcz. Djredor of fjgpg; May20,2004 B-1 • t ,~ ....... .. A....._. EXHIBITC LOAN REPAYMENT SCHEDULE Principal Portion Interest Ponioa Loan Repayment of Loan of loan Total Loan Date Repayment Total Principal Repayment• Repayment t I ' Allocaled to Jnt<rest aa Authority Bcmdl 45424144.I C-1 • • EXIUBITD GOVERNMENTAL AGENCY BOND FOR VALUE RECEIVED, the undersigned. CITY OF ENGLEWOOD, COWRADO ACTING BY AND TIIROUGH ITS SEWER ENTERPlllSE (the "Governmental Agency") hereby promises to pay to the COWRADO WATER RESOURCES AND POWER DEVEWPMENT AUTHORITY (the "Authority"), or registend -ips, the principal amount of Twenty One Million Dollars ($21,000,000), at the times and in die IIIIOUDIS determined as provided in the Loan Agreement dated as of May 1, 2004, by and between die Authority and the Govcmmcntal Agency (the "Loan Agreement"), topther wilh intaest lhereoa in the amount cak:ulatcd as provided in the Loan Agreement, payable on the elates and in the amounts detamined as provided in the Loan AgreemcnL This Governmental Agency Bond is issued pursuant to the Lou Agreement and is issued in consideration of the loan made thereunder (the "Loan") and to evidalce the obliplions of die Governmental Agency set forth in Section 3.03(a) thereof. 1be Govanmeatal Agency Bond bu been assigpcd to Wells Fargo Bank, N.A., as ttustee (die "Truslee") under the Bond Resolution (as defined in the Loan Agreement) and payments baeundcr shall, -=q,t as Olherwise provided in the l..oan Agreement, be made directly to the Trustee) for the accouul of the Authority pursuant to such assignment Such assignment bu been made as security for the paynait of the Authority Bonds (as defined in the Bond Resollllion) issued to finance or refinance, and in ronnection with, the Loan and as otherwise described in the Loin Aa,eement. All of the la'llls, conditions and provisions of the Loan Agreement are, by Ibis reference lhemo, incorporalld herein as a part of this Governmental Agency Bond. Pursuant to the Loan Agreement, disbunements shall be made in accordance with wriam instructions of lhe Authority by the Trustee to the Govemmallal Ap:ocy, upon the receipt by die Authority and Trustee of requisitions from die Governmental Agency exocueed and deliYaed in accordance wilh the requirements set forth in Section 3.02 of die Lou AgreemeoL This Governmental Aaa,.:y Bond is entitled to die benefits and is subject to the conditions of the l..oan AareemeaL The obliplions of the Govmullallal Ap:y ID make die payments ""l'lired hereunder shall be absolute and uncoaditicmal wilbout my dmme or ript of setoff, counterclaim or recoupment by 1U1011 of any default by die Aadlority under lhe Loin Agn,emenl or under any ocher qreemm between the Go~ Ap,q and the Authority or out of any indebledne.u or liability M any time owin& ID the GoWl'IIDallal Ap,q by die Authority or for any ocher rama. This Governmental Agency Bond is subject to optional prepayment under lhe tenm 111d conditions. and in the amounts provided in Section 3.07 of the Lou A..-. The obligation of the Governmental Agency IO make payments under the Lou Agreement and this Governmental Agency Bond is payable solely from the repayment soun:e described in the Loan Agreement This Governmental Ap:y Bond is a special and limiled obligation of the Governmental Agency payable solely out of and secured by an irrevocable pledge of a lien (but not necessarily an exclusive lien) upon die Pledpd Propeny (as ddined in 1).1 t .. • • paragraph 4. of Exhibit A of the Loan Agreement). This Governmental Agency Bond does not constitute a debt or an indebtedness of the Governmental Agency within the meaning of any constitutional, chaner or statutory provision or limitation. This Governmental Agency Bond is not payable in whole or in part from the proceeds of general property taxes, and the full faith and credit of the Governmental Agency is not pledged for the payment of the principal of or interest on this Governmental Agency Bond. This Governmental Agency Bond is issued pursuant to and in accordance with the Constitution of the State of Colorado and all other laws of the State of Colorado thereunto enabling. Specifically, but not by way of limitation, this Governmental Agency Bond is issued pursuant to Title 11, Article 57, Part 2, C.R.S., and the City Charter. Such recital shall conclusively impan full compliance with all provisions and limitations of such laws, and this Governmental Agency Bond issued containing such recital shall be incontestable for any cause whatsoever after its delivery for value. IN WITNE8S WHEREOF, the Governmental Agency ha caused this Governmental Agency Bond to be duly executed, sealed and delivered, as of this 1st day of May, 2004. (SEAL) ATTEST: City C1ert 4S424144 I CITY OF ENGLEWOOD, COLORADO ACl1NG BY AND THROUGH ITS SEWER ENTERPRISE By: __________ _ Mayor 1)..2 EXHIBITE-1 OPINION OF GOVERNMENTAL AGENCY COUNSEL [LETIERHEAD OF COUNSEL TO GOVERNMENTAL AGENCY] (Date of Closing) Colorado Water Resources and Power Development Authority Wells Fargo Bank, N.A. as Trustee [Name of Underwriter] Ladies and Gentlemen: [insert '1 am an lllmley" or "We are attorneys"] admitted ID pndicc in the Stare of Colorado and ["I" or "We"] have acted u aiumel ID the aTY OF ENGLEWOOD. COLORADO AC'J1NG BY AND 'nlllOUGH ITS SEWEil ENTElll'RISE (the "Governmental AFDC)'"), which bu eDlered into a Loan Apeemeol (U hereilllftr:r defined) with the COLORADO WA TEil RESOURCES AND POWEil DEVELOl'MENT AUTHORITY (the "Authority"), and have acted u sucb in coonectioo with the aulborizalioo. execution and delivery by the Govcmmcotal A,-:y of the Loan Apemem and its Govemmeotal Agency Bond (u hereinafter defined). In so acting [insert "I" or "we"] have examined the Constitution and laws of the State of Colorado and by-laws of the Govemmelllal Agaw:y. [iosen "I" or "We"] have allo eumioed originals. or copies cenified or ocberwise identified ID [iosen "my" or "our") salisflctioo. of lhe following: I. The Authority's Walllr Raoura:s Revenue Boad Raolutioo (City of Eapwood. Colorado Project). adopted by ibe Audlority on April 23, 2004 (the "Bond Resolution"); 2. the Loan Aareement. daled u of May I. 2004 (the "Lum~ by and between die Authority and the Govemmeatal Atency; 3. 4 . 042414' I proceedinp of the 11>vaoiD1 members of the GoYel'lllllelllal AFf/lCY Idalina IO the approval of the Loan Apeemeot and the euc:ution, iuaace and delivery thereof OD behalf of the Govemmcntal Aw-:y, and die adlorizalion a( the undertakin& and completion of the Project (u defined in the Leal ~); the Governmental Aa-:y Bond, dalm May I, 2004 (the "Govero..-1 AFf/lCY Bond") issued by the Governmental Aw-:y to die Authority ID evidence die Loan ; E-1-1 ... ., .• .. t •. • ' ; • • 5. proceedings of the governing body of the Govcmmcntal Agency relating to the iss uance of the Governmental Agency Bond and the execution, issuance and delivery thereof to the Authority (the Loan Agreement and the Govcmmcntal Agency Bond arc referred to herein collectively as thc "Loan Documents"); and 6. all outstanding instruments relating to bonds, notes or other indcbtcdncss of or relating to the Governmental Agency ; and 7 . the Official Statement of the Authority related to the Bonds of the Authority dated April 27, 2004 (the "Official Statement"). [insert "I" or "We") have also examined and relied upon originals, or copies certified or otherwise authenticated to [insert "my" or "our") satisfaction, of such other records, documents, certificates and other instruments, and made such investigation of law as in [inscrt "my" or "our") judgment [inscrt "I" or "we") have deemed necessary or appropriate to enable [insert ''me" or "us"] to render the opinions expressed below. Based upon the foregoing. [insert "I am" or "We arc"] of the opinion that: 1. 2. 3 . 4 . The Governmental Agency is a "govcmmcntal agency" within the meaning of the Authority • s enabling legislation with the legal right to carry on the business of the System (as defined in the Loan Agreement) as currently being conducted and as proposed to be conducted. The Governmental Agency has full legal right and authority to exccutc the Loan Documents and to observe and perform its duties, covenants, obligations and agreements thereunder and to undertake and complete the Project; subject, however, to the effect of, restrictions and limitations imposed by or resulting from. banlcruptcy, insolvency, moratorium. reorganization, debt adjustment or other similar laws affecting crcditoo;' rights gencrally (Creditor's Rights Limitations) heretofore or hereafter enacted. The proceedings of the Govcmmcntal Agency's governing members approving the Loan Documents and authorizing their execution, issuance and delivery oa behalf of the Govcmmcntal Agency. and authorizing the Govcmmcntal Agency to undertake and complete the Project have been or will be duly and lawfully adopted and authoril.cd in accordance with applicable Colorado law, (hereinafter collectively called the "Authorizing Resolutions;, which Au1borizina Resolutions were or will be duly approved and published in accordance with applicable Colorado law. al a meeting or meetings which were or will be duly called pursuant to ncccssary public notice and held in accordance with applicable Colorado law, and al which quorums were present acting throughout. To the best of [insert ·•my" o r "our'1 knowledge, after such investigation as [insert 'T' or "we"] have dee med appropriate, the authorization, execution and delivery of the Loan Documents by the Govcmmcntal Agency, the observation and performance by the Governmental Agency of its duties, covenants, obligations and agreements thereunder and the consummation ot the transactions E-1-2 ' . ., .. • • -- 5. contemplaled therein and the undertaking and completion of the Project do not and will not contravene any existing law or any existing order, injunction, judgment, decree, rule or regulation of any court or governmental or administrative agency, authority or person having jurisdiction over the Governmental Agency or its property or assets or result in a breach or violation of any of the terms and provisions of, or constitute a default unda', any existing bond resolution, trust agreement, indenture, mortgage, deed or trust or other agR>Cment to which the Governmental Agency is a party or by which it, the System (u defined in the Loan Agreement) or its property or usets is bound. To the best of [insert "my" or "our'1 knowledge, after such invatigation as [insert "r' or "we"] have deemed appropriate, all approvals, consents or authorizations of, or registrations of or filings with, any governmental or public agency, authority or person rcquin,d to date on the part of the Governmental Agency in connection with the authom.ation, execution, delivery and performance of the Loan Documents and, other than autboriutions, licenses and permits relating to the siting, construction and acquisition of the Project which [insert 'T' or "we"] expect the Governmental Agency to receive in the ordinary course of business, the undertaking and completion of the Project have 1-n obtained or made. 6. To the best of [insert "my" or "our'1 knowledge, after such investigation as [insert 'T' or "we"] have deemed appropriate, there is no litigation or other proceeding pending or threatened in any court or other tribunal of competalt jurisdiction (either State of Federal) questioning the creation, orpnization or existence of the Governmental Agency or the validity, legality or enforceability of the Loan Documents or the undertaking or completion of the Project or which if adversely determined, could (a) materially adversely affect (i) the financial position of the Governmental Agency, (ii) the ability of the Governmental Agency to perform its obligations under the Loan Documents, (iii) the security for the Loan Documents, or (iv) the transactions contemplated by the Loan Doc:uments, or (b) impair the ability of the Governmental Agency to maintain and operate its l)'SfCIII. 7. There does not exist any bill, act, law, rule or regulalion pending or, to the best of [insert "my" or "our"] knowledge. threatened which, if enacted, could (a) materially adversely affect (i) the ability of the Governmental Agency to perform its obligations under the Loan Documents, (ii) the security for the Loan Documents, or (iii) the transactions contemplated by the Loan Documents, or (b) impair the ability of the Governmental Agency to maintain and operate the System. 8 . While [insert "I" or "we'1 am not passing upon, and do not assume responsibility for, the accuracy, completeness or fairness of the statements contained in Appendix B to the Official Statement, no facts have to come to [insert "my" or "our''] attention in the course of activities described above which lead [insert "me" or "our") to believe lhat Appendix B to the Official Statement (other than the financial and statistical data contained therein, as to which [insert "r' or "we"] express no opinion or belief) as of its date contained, or as of the date hereof E-1 -3 ... t .. • • contains, any untrue statement of a material fact or as of its dale omitted, or as of the date hereof omits, to state any material fact necessary in order to make the statements therein, in light of the circumstanceS under which theY were llllde, not misleading. This opinion is rendered on the basis of Federal law and the laws of the State of Colorado as enacted and construed on the date hereof. [insat "I" or ''We"] eitpress no opinion as to any matter not set forth in the numbered paragraphs herein. [insert "I" or "We"] btm>y authorize Fulbright & Jaworski L.L.P., Bond Counsel, and Carlson, Hammond & Paddock L.LC., General Coumel to the Authority, to ~ly on this opinion as if [insert 'T' or "we"] bad addressed this opinion to them in addition to you. Very truly yours, 4S42Al44.1 E-1-4 t .. • • EXIUBITE-2 OPINION OF GOVERNMENTAL AGENCY BOND COUNSEL [LEITERHEAD OF BOND COUNSEL TO GOVERNMENTAL AGENCY] (Date of Closing) Colorado Water Resources and Power Development Authority Wells Fargo Bank, N.A. as Trustee [Name of Underwriter) Ladies and Gentlemen: [insert "I" or "We"] have acted as bond counsel to the OTY OP ENGLEWOOD, COLORADO ACTING BY AND THROUGH ITS SEWER ENTERPlllSE (the "Government.al Agency"), which has entered into a Loan Apeemeat (as hereinafta-defined) with the COLORADO WATER RESOURCES AND POWER DEVELOPMENT AUTHORITY (the "Authority"), and have acted as such in connection with lhe authorization, execution and delivery by the Government.al Agency of the Loan Agreemeot and its Governmental Agency Bond (as hereinafter defined). In so acting [insert "I" or "we'1 have examined the Constitution and laws of the Stale of Colorado . [insert 'T' or "We"] have also examined oripnals. or copies artified or ocberwile identified to [insert "my" or "our''] satisfaction, of the followins: I. 2. 3. 4 . 4542414' I The Authority's WJler Resources Revenue Bond Resolution (City of Englewood. Colorado Project), adopled by the Authority oo April 23, 2004 (the "Bond Resolution"); the Loan Agreement, dared as of May I, 2004 (the "Loin~ by and between the Authority and the Government.al Apncy; proceedings of the governing memben of the Go-t.al Apncy ieJa1ina to the approval of the Loan Agreement and the execution, issuance and deli->" thereof on behalf of the Governmental Agency; the Go vernmental Agency Bond, dated May I, 2004 (the "Govcmment.al Apncy Bond ") iss ued by the Governmental Agency to the Authority to evidence the Loan (as defined in the Loan Agreement); and E-2-1 ' ..• .. • • S. proceedings of lhe governing body of the Governmental Agency relating to the issuance of the Governmental Agency Bond and the execution, issuance and delivery thereof to the Authority (the Loan Agreement and the Governmental Agency Bond are referred to herein collectively as the "Loan Documents"); and [insert "I" or "We"] have also examined and relied upon originals, or copies certified or otherwise authenticated to [insert "my" or "our''] satisfaction, of such oth er records, documents, certificates and other instruments, and made such investigation of law as in [insert ''my" or "our''] judgment [insert "r' or "we"] have deemed necessary or apprornatc to enable [insert "me" or "us"] to render the opinions expressed below . Based upon the foregoing. [insert '1 am" or "We are"] of the opinion that: I. The Governmental Agency is a "govcmmcntal agency" within the meaning of the Authority's enabling legislation. 2. 3. 4 . s. The Governmental Agency 1w full legal right and authority to execute the Loan Documents and to observe and perform its duties, covenants, obligations and agreements thereunder and to undertake and complete the Project; subject. however, to the effect of, restrictions and limitations imposed by or resulting from, bankruptcy, insolvency, moratorium, reorganization. debt adjusanent or other similar laws affecting crediton' righlJ generally (Crcdiur's RighlJ Limitations) heretofore or haeafter enacted. The Govcmmcntal Agency has plcdF(I the Pledged Property (u defined in paragraph ( 4) of Exhibit A to the Loan Agreement) for the punctul1 payment of the principal of and interest on the Loan (u defined in the Loan Aareemcnt), and all Olhcr amounts due under the Loan DocumenlJ aaiording to their rcspec:live terms and the Authority has a tint lien but not necessarily • acluslve fint lien on such source of repaymenL No filings or recordings are required under the Colorado Uniform Commercial Code in order to provide a fint lien on IIICb soun:e of repayment and all actions have been taken u required under Colorado law to inslD'C the priority, validity and enforceability of IIICb lien. The Loan Documents have been duly authorized. executed and delivered by the authorized officers of the Go~ AFDCY; md, auaming in the cue of the Loan Agreement, Iha! the Authority has all the reqaiJile pows 1111d lldbority to authorize, execute and deliver, and has duly audlorized, eucullld and delivend the Loan Agreement. the Loan Documents constitute the lepl, valid and binding obligations of the Governmental Apw;y cnforccable in aa:mlanc:e witb their respective lenDS; subject. however, to the effect of, and lo reslridioDI and limitations imposed by or resulting from Crcdilllr' s RighlJ Umitatioos or oilier laws , judicial decisions and principles of equity rclaling to the enforcement of contractual obligations gcncrally. Assuming compliance with the covenants contained in the Loan Agreement. the Govcmmcntal Agency is not. dircctly or indirc,cdy, (a) using In excess of lllD E-2-2 6. percent of the proceeds of the Authority Bonds (as defined in the Loan Ag,eement) loaned to the Governmental Agency or the Project in a manner that would constitute "private business use" within the meaning of Section 14l(b)(6) o f the lntcmal Revenue Code of 1986, IS amended (the "Code"), and at least one- half of such private business use permitted by clause (a) is neither unrelated to the governmental use of the proceeds of the Authority Bonds loaned to the Governmental Agency (within the meaning of Section 14l(b)(3)(A)(ii)(I) or (DI) of the Code) nor disproportionate related bdsillC!III use (within the meaning of Section 14l(b)(3)(A)(ii)(Il) or (DI) of the Code) nor (B) using. directly or indirectly, 111y of the proceeds of the Authority Bonds loaned to the Governmental Aaency to make or finance loans to ~ other than governmental units (IS such terms is used in Section 14l(c) of the Code). The execution and delivery of the Loan Documents are not subject to the limitations of Article X. Section 20 of the Colorado Constitution ("TABOR") since the System of the Governmental Agency as of the dale hereof~ an enterprise under TABOR. The performance of the obliptions of the Governmental Ap:ncy under the Loan Docmneats is not subject ID lbe limiUlliom of TABOR • long. the System conliNB ID qualify • an Cllllllprile under TABOR. If lbe System is not 1oapr an entaprile under TABOR. the Loan Documents wiU continue to constitute lepl, valid and binding oblipliom of the Govaumental Agency enforcable in accordance with lbeir iespective lllnll; subject, however, to (a) Creditor's Ripll Umilaliom or other laws, judic:ial decisions and principles of equity relating to the enfOltelllelll of contractual rights generally, and (b) subject to lhe next IClltellCe, the revenue and spendina limitations of TABOR . If the System at any time fails ID be an entaprile under TABOR, (a) the Governmental Agency may continue to impale any~ in fees, ratea and cbarJe1 of lbe System without vow approval; (b) all re-of the Govemmental AFDCY used to pay Lou Rlpaynall mil be included in lbe Govemmental Agency's filca1 year spendin1 limit under Sectioa 7(cl) of TABOR, except !hat debt aervice drmpa and redactions are eacepciom ID. and not pat of, the Govenimenral AFDC)''• revenue ..S.,.... baia ..S limi1I; ad (c) if the Govemmental Ap,w:y is iequired ID reduce speadina in onls IO cnmply widl ill fiscal year spendina limit under Seclioa 7(b) of TABOR, the Gol.aWbl Agency will fint be required ID reduce spendin& for pul1)0ICI for which ii de.a not have an obliplion under law or by CIOlllnCt prior ID nidDciaa ..-&Ill required to comply with lhe other COVCIWlb colllained in Ille Lm8 ~. This opinion is rendered on the tmis of Feden1 law and the 1a-of the S1ale of Colondo as enacted and conslnled on the dale hclwf. (insert "I" or "Wcj a..-no opinion a ID uy matter not set forth in the numbered paragraphs herein. [insert "r' or "We") hereby authorize Fulbright cl: Jaworski LLP., Bond Coumel, and Carlson , Hammond & Paddock LLC., General Counsel to the Authority, ID rely OD Ibis opinioll as if [insert "I" or "we") had addressed this opinion to them in addition to you . Very trul y yours , 4S42414U E-2-3 t .. ,- • • EXIDBITF ADDfflONAL COVENANTS AND REQUlllEMENTS Additional Senior, Parity and Subordinate Lien BondL The Govcmmcntal Agency covenants lha1 it will not issue any obligations payable from the Pledged Property, which are superior to the lien of this Loan Agreement OD the Pledged Property. In addition, the Govcmmenlal Agency covenants that it will not issue any obligations with a lien oo the Pledged Property and payable from the Pledged Property which is OD a parity with the lien of the Govcmmenlal Agency Bond unless the Govcmmcnlal Agency certifies to the Authority that Net Revenues (as defined in paragraph 4. of Ellhibil A to this Loan Agreement and subject to the next sentence) for any 12 consecutive months out of the 18 months preceding the month in which such obligations are to be issued is at least equal to the sum (a) of 1 lO'I, of the maximum annual debt service of (i) the Governmental Agency Bond and all obligations of the Governmental Agency outstanding during such 12 month period payable oo a p.-ity with the Govcmmcntal Agency Bond from the Pledged Property, (ii) the 1990 Loan and (iii) such proposed obligations to be issued, and (b) lOO'I, of maximum annual debt s«vice of all other indet4e<IMSS secured by and payable from the Pledged Property in dctcnnining Net Revenues. Net Revenues detamined punuant to the preceding sentence shall exclude any withdrawals from the Rase Slabilization Fund and shall include only one-half of the average of tap fees for the three prior ye.an. Net Revenues may be adjust.eel to reflect any rate increases adopced prior to the issuance of such additional obligations by adding to the actual Net Revenues for the 12 consecutive moodl period and estimated sum equal to 100'1, of the cstillllted inaease in Net Revenues wbicb would have been realized during said period had such rate increase been in effect durina all of said precedina period. Notwithstanding the foregoing. the Governmental A,-:y may issue refunding obligations, payable from the Pledged Property wilbout c:ompliw:e with the requirementa staled above, provided that the debt servic:e payments OD such refundin& oblipliom do not exceed the debt service payments OD the refunded obligations during any c:a1endlr )'Ur. In addition, the Govcnuncntal Agency covenants that it will not issue any obliplicm payable from the Pledpd Property which is subordinare to the lien of this Loan ~ OD the Pledpd Property un1eu the Govenunental Agency certifies to the Audlority that for any 12 consec:ulive llllllllhs OU1 of the 18 months preceding the moodl in whicb such obli.--arc to be iuued Nel a- wcn: at least 100'1, of the maximum annual debt service OD all il'del!ledPes1 ,_,..•,-ti"I durina such period. Opnatlaal and Malalellame llwne. The Govanmental Ap,,q sbw11 mwinlliD an operations and maintenance racrve in an amount equal IO tine llllllllhs al openlioa and maintenance expenses excluding depreciation of the Systan • let forth in the -1 budpt for the current fiscal year but in no event area= than S 1,250.000. Said resm"VC may be ill the funa of unoblipled fund balances or oda unoblipllld cash or securilies (i.e., capital -> m may be in a separate segn:pled fund and shall be maintained u a continuin& -for paymeal of any lawful purpose relating to the System. 1f the operations and mwinlenanc:e reserves fall below this requirement, the shonfall shall be made up in 24 substalllially equal 1D011tbly installua!h beginning the second month after such shortfall or tbe d@ qf dcljvqy. Rate Study. In the event that Revenues collected during a fiscal yea are not sufficient to meet the requirements set forth in the Rate Covenant contained in paragraph , of Exhibit A of 4lotl 4 14' I F·l t • • - this Loan Agreement, the Governmental Agency shall, within 90 days of the end of such fiscal year, cause an independent firm of accountants or consulting engineers, to prepare a rate study for the purpose of recommending a schedule of rates, fees and charges for the usc of the System which in the opinion of the firm conducting the study will be sufficient to provide Revenues to be collected in the next succeeding fiscal year which will provide compliance with the Rate Covenant described in paragraph S of Exhibit A of this Loan Agreement Such a study shall be delivered to the Authority and the Trustee. The Governmental Agency shall within six months of n:ceipt of such study, adopt rates, fees and charges for the usc of the System, based upon the recommendations contained in such study, which provide compliance with said rate covenanL Special Fund. The Governmental Agency covenants to acalC or maintain a special fund into which shall be deposited thc Revenues (as defined in parqrapb 4. of Exhibit· A to this Loan Agreement). The Revenues shall be applied, on or before the last day of each month, tint to the payment of the Operating Expenses (as defined in parqrapb 4. of Exhibit A to this Loan Agreement) and then applied on a pro-rala basis to the payment of the Loan Repayments and other amounts payable on a parity with the Loan Repayments. Any further application shill be as provided by ordinance or resolution of the Governmental Agency. Raae ~doe Amiunt. The Governmental Agcocy a,venanta to crale and maintain a ~-~I~ -~t.,-~~-~-~ -~~!,-~-~ -~-~-~----i.'-' -·-·-----...J minimum balance of SS,000,000 u long u the Governmental Agcocy is relyina upon the~_~,-,-1o'=' _, .. ';.;'--------/. ifabmzation ,F>UDt to meet the rate covenant contained in ~ s~ of Exhibit A of this -'' '' L._. __ , ·-------J. loan agreement. ~-' ~ ... :, ~·-· =';.;'--------/. ' ),,·~· .;..;• .. ·.;.·-------/. ....... 45424144 t F-2 t • • WATER POLLtmON CONTROL REVOLVING FUND LOAN AGllEFMENT BETWEEN COLORADO WATER USOURCES AND POWER DEVELOPMENT AUTHORITY AND CITY or ENGLEWOOD, COLORADO, DRAFl'OF APlllL ,, 28N ACTING BY AND 1111lOlJGH ffS SEWEil U11UTY mrncaPalSE DATEDASOFMAYI,_. .· - mrs LOAN AGREEMENT, made and entered into as of this 1st day of May, 2004, by and between COLORADO WATER ~URCES AND POWER DEVEWPMENT AUTHORITY (the "Authority"), a body corporate and political subdivision of the State of Colorado, and CITY OF ENGLEWOOD, COLORADO, ACTING BY AND THROUGH ITS SEWER UTILITY ENTERPRISE (the ''Governmental Agency''), a home rule municipal corporation and political subdivision of the State of Colorado; ~ETHTHAT: WHEREAS, the United Stales of America, pursuant to the federal Water Quality Act of 1987, requires increased state and local participation in the financing of the costs of wastewater treatment projects and said Water Quality Act of 1987 requires each Stale, as a condition to the receipt of certain funds, to establish a water pollution conttol revolving fund ID be administered by an instrumentality of the state before the stale may receive capitalization grants for sucb projects; WHEREAS, the Authority was created to initiate, acqum. construc:t, maintain, repair and operate or cause ID be openled water management projects which include wastewater treatment facilities and to issue its bonds ID pay the cost of such projects; WHEREAS, Section 37-95-107.6 of the Colorado Revised Slaluta has crealed a water pollution control revolving fund ID be administaed by the Authority which will enable the Slllie of Colorado to comply with the provisions of said federal Water Quality Act of 1987; WHEREAS, the Authority has determined to issue its bonds and ID loan the proceeds of such bonds to public entities in Colorado ID finance the costs of wuaewater llalmelll facilities. and to use moneys on deposit in the Waler pollution control revolvin1 fund ID assist sucb public entities in connection with the financing of such facilities; WHEREAS, the Authority, in aa:onlanc:c with the At;t and the Bond Raollllioo (IS such terms are hereinafter defined). will issue its bonds for the purJIOIC of aama Imm from the proceoJs thereof ID public entities, includin1 the Govemmenlal AFncY, ID finance a portion of the cost of wastewater treatment facilities; WHEREAS. the Govenuncntal ~pcy hlS lllllde timely applicaioa ID the Authority f~ a loan to finance a ponioa of the cost of a wastewaier treallllelll facility; WHEREAS, the Ge.-.1 Assembly of the Stale of Colorado hlS approved a projDl:t eligibility list which includes the wastewater lrealmenl facility propoml ID be financed hereunder; WHEREAS, the Authority hlS approved the Govemmeatal Agaicy's applic:alion for a loan from available proceeds of the bonds of the Authority in an UIIOUlll noc to exceed the amount cl the loan commitment set forth in parapaph (4) of Exhibit 8 hereto ID finance a portion of the cost of a wastewater IJ'calmCnt facility of the Go~ Ap:ncy; -1- .. t • • • - WHEREAS, the Governmental Agency will issue its bond to the Authority to evidence said loan from the Authority; NOW, TIIEREFORE, for and in consideration of the award of the loan by the Authority and of the mutual covenants herein, the Authority and the Governmental Agency each agree to perfonn their respective obligations under this Loan Agreement in accordance with the conditions, covenants and procedures set forth herein and attached hereto as a part hereof, as follows : ARTICLEL DEFINITIONS SECl'ION LOI Dellnltlalll. The following terms u used in this Loan Agreement shall, unless the context clearly requires otherwise, have the following meanings: "Ad" means the "Colorado Water Resources and Power Development Authority Act," being Section 37-95-101 et seq. of the Colorado Revised Statutes, u the same may from time to time be amended and supplemented. "Admlniltntlff flee"' means the fee payable pursuant to subsection (b) of Section 3.03 hereof which is calculated on the basis of an annual fee of eipt-tenths of one perceat (.8~) of the initial principal amount of the Loan, or such lesser amount, if any, u the Authority may approve from time to time . "Allocable lnnammt I_.. means the intc:rest earnings or acaua1 on the Project Loan Subaccount which are to be credited to the Loan Repayments in accOldace wilb subsection (c) of Section 3.03. "Allocable Peraa ..... mcam the pen:enlap al~ 10 the Oo---.1 AFfl'CY under the definition or Allocable Share" contan.i in Seclion 1.01 of the Bond Raolulioa. "Amwal Inf ......... means the infonmlion specified in Sec1ion 2.03 in Ibis Loa Agreement. "Autllortty" means the Colondo Wllllr ~ad~ Dewlopamll Aadlorily, I body corporate and political subdivision of the StMe of Colorado wilb corpon1e succeuioe duly created and validly exisaina under and by virtue of the Act. "Authority._..,. means bonds lllllhorized by the Boed Resolution. topdler widl •Y refunding bonds authenticaicd and deliVCRd pursuanl IO the Bond Raollllion, ill each caae in order to provide the source of fundin g of the Loan. includina the panicular Project Loa Subaccount from whic h the amounts loaned to the Oovemmenlal Apacy pursu.-IO this Loan Agreeme nt are taken. -2- ' .. .. • • "Authorlad Olllttr" means, in the case of the Governmental Agency, the penon whose name is set forth in Exhibit B hereto or such other person or penons authorized pursuant Ill a resolution or ordinance of the governing body of the Governmental Agency to act u an Authorized Officer of the Governmental Agency to perform any act or execute any document relating to the Loan, the Governmental Agency Bond or this Loan Agrccmcnt whose name is furnished in writing to the Authority . "Bond Resolution" means the Water Pollution Control Revolving Fund 2004 Series A Revenue Bond Resolution, as adopted by the Authority on April 23, 2004, authorizing the issuance of the Authority Bonds, and all furthcc amendments and supplcmcots thereto adopted in accordance with the provisions thereof. "Code" means the "Internal Revenue Code of 1986," u the same may from time to time be amended and supplemented, includin& any regulations promulgalal thereunder and any administrative or judicial interpretations thereof. uc-t Date" means the date of COIIIIJICIICClllel of the term of this Loan Agreement, as set forth in Exhibit B attached hcrclll and made a part hereof, which date shall be the dated date of the Authority Bonds autboriz.cd by the Bond Resolution. "Olst" means those costs that arc eligible to be funded from draws under the Federal Capitalization Agrccmcnt and arc reasonable, necasary and allocablc to the Project and are permitted by acnenJly acc:cpled aa:ountin1 principles to be costs of the Project. Cost shall alto include Costs of Issuance (u dcfmed in the Bond Resolution). "E•ml al Dd'ault" means any OCCU1TC11CC or event specified in Section 5.01 hereof. "Federal Capltallatlaa Apeemeat' means the inslrument or aarecmeat cmblisbed or entered into by the United States of America En~ Prolec:tioa Apw:y wilh die Authority to make capitaliution ...... pa)'IIDllS pursuant to the federal W-Pollution Conlrol Act. as amended (33 u.s.c. t 1251 ct. seq.) "fllcal Year" means the fiscal year or the Governmental Ar,cw;y. "GAAP' means acnenJly acc:cpled accountin& principlel • in effect from time to time in the United States. "GoY__.lal Apacy" means the public entity that is a party to and is described in the first paragraph of this Loan Agrccmcnt, and its successors and usips. "Govenuaallll Apaq Band" means the bond executed and dclivmd by the Governmental Agency to the Authority to evidence the Loan. the form of which is attached hereto as Ex hibit D and made a part hm,of .• "Govenuaat.al Aamc-" means the Governmental Aaency and any oda governmental agencies permitted by the Act that ha ~ entered into Loan Agrccmenls with the 0424650..1 -3- .. .. • • -· ~ Authority pursuant to which the Authority will make Loans to such Govcmmcntal Agencies from moneys on deposit in the Project Account financed with the proceeds of the Authority Bonds. ''Holder" means any holder of Authority Bonds as defined under the Bond Resolution and, for the pwposcs of Section 2.03 of this Loan Agreement, shall also mean any beneficial owner of Authority Bonds within the meaning of Rule 13-d under the Securities Exchange Act of 1934. "Loan" means the loan made by the Authority to the Governmental Agency to finance or refinance a portion of the Cost of the Project punuant to this Loan Agreement For all purposes of this Loan Agreement, the principal amount of the Loan at any time shall be equal to thc amount of the loan commitment set forth in paragraph ( 4) of Exhibit B attached hereto and made a part of this Loan Agrccmcnt (which loan commitment amount equals the sum of (i) thc amount actually dcposite<I in the Project Loan Subaccount from the proceeds of the Authority Bonds and moneys of the Authority, (ii) the Governmental Agency's Allocable Percentage of the Costs of Issuance, original issue discount and underwriter's discount for an Authority Bonds issued in connection with the making of the Loan, and (iii) capitalized interest during the Project construction period to be paid with the proceeds of Authority Bonds), less any portion of such principal amount as has been repaid by the Govemmcntal Agency under this Loan Apecmcnt. "1-n Agreement" means this Loan Agrccmcnt, including thc ExhibilS attached hcrclo, as it may be supplemented, modified or amended from time to time in accordance with the terms hereof and of the Bond Resolution. "1-n Ap-eeamits" means this Loan Agrccmcnt and any other loan .,-ts entered into between the Authority and one or IIIIR of the Go-ta! Apncies pinuant to which thc Authority will make Loans to such Go-tal. Ap:ncies from moneys on deposit in the Project Account financed with the proceeds of catain of the Authority Bonds. "1-n Clollns" means the date upon which the Authority shall issue and deliver the initial Authority Bonds. "Lou Repay1m111s" means the payments payable by the Govcnunental AftiDCY pursuant to Section 3.03 of this Loan Apecment, includina payments payable under the Governmental Agency Bond. ,.._ Senlttr" means the Loan Scrvia:r for the Loans. duly appoinled and deslpllllld as such pursuam to the Loan Servicing Apc,cmcnt. dMed as of the dllled dlfe of the Authority Bonds, between the Authority and the Loan Servicer, and its sua:csson as Loan Servicer under the Loan Servicing Agreement. "Loans" means the Loan and loans made by the Alllhority to other Governmental Agencies under loan agreements from moneys on deposit in thc Project Account financed with the proceeds of the Authority Bonds and funds of the Authority . -4- t -.~ .. ~ • • • "Loan Term" means the defined term of this Loan Agreement set forth in paragraph (5) of Exhibit B attached hereto and made a part hereof. "MSRB" means the Municipal Securities Rulemaking Board established in aa:ordaoce with the provisions of Section 15B(b)(I) of the Securities Exchange Act of 1934. "Pledpd Property" means the defined term of this Loan Agreement set forth in paragraph (4) of Exhibit A attached herelO and made a part hereof. "Prl-Rate" means the prevailing commercial inlffl:st rate aooounad by the Trustee from time to time as its prime lending rate. "Project" means the wastewater treatment system project of the Govemmenllll Agency described in paragraph ( 1) of Exhibit A aaacbed hereto and made a part hereof, all or a portion of the Cost of which is finanad or refinanced by the Authority through the making of the Loan under this Loan Agreement "Project ACICDUllt" means the 2004 Series A Project Account ~ under the Bond Resolution. "Project Laa Sui.a:aunt" means the 2004 Series A Project Loan Subaccouot established on behalf of the Govemmenllll Agency in the Project Account in accordaoc:c wi1b the Bond Resolution. "RepoaltDry" meaos any nationally recognized municipal securities information repository within the meaning of Rule 15c2-12. "Rule 15c2-12" means Rule 15c2-12 under the Securities Exc:bmF Act of 1934, • amended throup the dale of adopuoa of the Bond Resolution, toFther with all intaprmve guidances or ocher official intaprd&lioos and exp1aoaliom thereof that are promulplmd by the SEC. "State lafmlloa DepGlltary" means any public or privalle repoaitory desipated by the Stale of Colorado, and recopiz.ed • such by the SF.c for the purpmm of lltale 15c2-12. "SEC' means the United Stares Securities and ExcbmF Commiuioa. "S,.._.. means the sanitary sewer system of the Oovamneotal Ap,,t;y, incladlna the Project. described in paragraph (2) of Exhibit A aaacbed hcmo and made a pat benof for wbic:h the Governmental Agency is making the borrowina under this Loan A.,_...,., • such System may be modified or expanded from time to time. "Trustee" means the Trustee appointed by' the Authority punuaol to the Bond Resolution and its successor or successon and any ocher corpondion which may al any time be substituted in its place as Trustee pursuant to the Bond Raolution . . 5. t .. .. • • "2004 Series A Matchlna Aa:ount" means the 2004 Series A Matching Account crcalcd under the Bond Resolution. Terms not otherwise defined herein shall have the meanings ascribed to them in the Bond Resolution . Except where the context otherwise requires, words importing the singular number shall include the plural number and vice versa, and words importing persons shall include firms, associations, corporations, agencies and disUicts. Words importing one gender shall include the other gender. ARTICLE IL REPRESENTATIONS AND COVENANTS OF GOVERNMENTAL AGENCY SECTION 2.01 lleprNeOla&lolll of Govenumatal Apaq. The Governmental Agency represents for the benefit of the Authority and the holden of the Authority Bonds as follows: (a) Organjµtjon and Authority. (i) The Governmental Agency is a governmental agency u <lefined in the Act and as described in the fint paragraph of this Loan Ap,emenl (ii) The Govcmmcntal Agency hu full legal right and aulbority and all necessary licenses and permits required as of the date hereof to own. operate and maintain the System, to cany OD its activiua relalina therelo. to execute and deliver this Loan Agreement, to cuc:u1e, issue and deliw=r the Governmental Agency Bond, to undertake and complele the Project ( other than licenses and permits rdatina to the CIOllltnlclion and acquisition of the Project which the Oo-.-1 Apor;y apeca to receive in the ordinary course of ~). and ID cany out and consummate all transactions c:ontmnplaled by this Loan ApeemenL The Project is on the project eliajbility list appro-i by the General Aaembly of the Stu: of Colorado punuant to the Act and is a project wbicb the Governmental Agency may undenakc purlUllll to Colorado law and for which the Governmental Agency is authorized by law to bonow-y. (iii) The proceedings of the Governmental Apncy'a aownina body and voters, if a referendum is noccssary, approvina this Loan A..-i and the Governmental Agency Bond and authorizina their eJICClllion. issuucc and delivery OD behalf of the Governmental AFIICY , and IUlborizin& the Governmental Aacncy to undertake and a,mplete the Project ha~ been duly and lawfully adopted in ICCOldance with the laws of Colorado and such proceedings were duly appro-i and published, if neceasary, in accordance with applicable Colondo law, at a mcetina or mcetinp which 4S424650 I -(>. ' .. • • -- were duly called pursuant to necessary public notice and held in accordance with applicable Colorado law, and at which quorums were present and acting throughout. (iv) This Loan Agreement and the Governmental Agency Bond, when delivered at the Loan Closing. will have been, duly authorized, executed and delivered by an Authorized Officer of the Governmental Agency; and, assuming that the Authority has all the requisite power and authority to authorize, eJtccute and deliver, and has duly authorized, eJtecuted and delivered, this Loan Agreement, this Loan Agreement constitutes, and the Governmental Agency Bond when delivered to the Authority will constitute, the legal, valid and binding obligations of the Governmental Agency in accordance with their respective terms, and the information contained under "Description of the Loan" on Ellhibit B attached hereto and made a part hereof is true and accurate in all respec!S. (b > Full Disclosure. There is no fact that the Governmental Agency has not disclosed to the Authority in writing on the Governmental Agency's application for the Loan or Olherwisc that materially adversely affects the properties, activities, prospects or conditioo (financial or otherwise) of the Governmental Agency of the System, or the ability of the Governmental Agency to make all Loan Repayments and othawisc obsave and perform its duties, covenants, obligations and agreements under this Loan Agreement and the Governmental Agency Bond. (c) Pending Ljtjgation. There are no proceedinp pending, or, to the lmowlcdae of the Governmental Agency threalcned, against or affecting the Governmental Agency, in any COUit or before any governmental authority or arbitration board or tnbunal that, if adversely dcamincd, would materially adversely affect the propenies, activities, prospects or condition (financial or otherwise) of the Governmental Asency or the System. or the ability of the Governmental Agency to make all Loan Repayments and otherwise observe and perform its duties, covenants, obligations and agree~ts under this Loan Aareement and the · Governmental Agency Bond, that have not been disclosed in writing to the Authority in the Governmental Agency's application for the Loan or oeherwise to the Authority. (d) Compliance wjlh Existing Laws and Amements. 1ne authorization, execution and delivery of this Loan Agreement and the Governmental Agency Bond by the Governmental Agency, the observation and performance by the Governmental Agency of its duties, covenants, obligations and agreemeEts thereunder and the consummation of the transactions provided for in this Loan Aareement and the Governmental Agency Bond, the compliance by the Governmental Agency with ~ 4542,4650, I .7. t • • provisions of this Loan Agreement and the Governmental Agency Bond and the undertaking and completion of the Project will not result in any breach of any of the tenns, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Governmental Agency pursuant to any existing ordinance or resolution, trust agreement, indenture, mortgage, deed of ttust, loan agreement or other instrument (other than the lien and charge of (i) this Loan Agreement and the Governmental Agency Bond and (ii) any ordinance, resolution or indenture which authorized outstanding debt obligations of the Governmental Agency which are at parity with, or superior to, the Governmental Agency Bond as to lien on, and source and security for, payment thereon from the Pledged Property) to which the Governmental Agency is a party or by which the Governmental Agency, the System or any of its property or assets may be bound, nor will such action result in any violation of the provisions of the charter or other document pursuant to which the Governmental Agency was established or any laws, ordinances, resolutions, governmental rules, regulations or court orders to which the Governmental Agency, the System or its properties or operations is subject. (e) No Defaults. No event has occurnd and no condition eitists that, upon authorization, execution and delivery of this Loan Agreement and the Governmental Agency Bond or receipt of the amount of the Loan, would constitute an Event of Default hereunder. The Governmental Agency is not in violation of, and has not received notice of any clllimcli violation of, any tenn of any agreement or other insttument to which it is a party or by which it, the System or its property may be bound, which violation would materially adversely affect the properties, activities, prospects or condition (financial or otherwise) of the Governmental Agency or the System or the ability of the Governmental Ager,q to make all Loan Repayments or otherwise observe and perform its duties, covenants, obligations and agreements under this Loan Agreement and the Governmental Ager,q Bond. (f) Governmental Consent. The Governmental Agency has obtained all permits and approvals requiJed to date by any governmental body or officer (and reasonably expec:15 to receive all permits required in the future by any governmental agency) for the making, observance and performance by the Governmental Agency of its duties, covenants, obligations and agreemenls under this Loan Agreement and the Governmental Agency Bond or for the undcnalring or completion of the Project and the financing or refinancing theRof; and the Governmental Agency has complied with all applicable provisions of law requiring any notification, declaration, filing or registration with any governmental body or officer in connection with the making, observance and performance by the Governmental Agency of its duties, covenants , obligations and agreements under this Loan Agreement and the Governmental Agency Bond or with the undertaking or completion of the Project and the financin& or refinancing thereof. No consent, approval or authorization of, or filina, repSlrllion or qualification with , any governmental body or officer that has not been obtained (or that is -8- ' .. .. ... • • not reasonably expected to be obtained) is required on the part of the Governmental Agency as a condition to the authorization, execution and delivery of this Loan Agreement and the Governmental Agency Bond, the undertaking or completion of the Project or the consummation of any transaction herein contemplated. (g) Compliance with Law. The Governmental Agency (i) is in compliance with all laws, ordinances, governmental rules and regulations to which it is subject, the failure to comply with which would materially adversely affect the ability of the Governmental Agency to concluct its activities or undertake or complete the Project or the condition (financial or otherwise) of the Governmental Agency or the System; and (ii) 1w obtained all licemes. permits, franchises or other governmental authorizations presently necessary for the owncnhip of its property or for the conduct of its activities which, if not obtained, would mataially adversely affect the ability of the Governmental Agency to conduct its activities or undertake or complete the Project or the condition (financial or otherwe) of the Governmental Agency or the System (other than licenses, permits, frlncbils or other governmental authoriutions rdating to the construction and acquisition of the Project which the Govemmental Agency expects to receive in the ordinary counc of business). Ch) Use of Proceeds. The Governmental Agency will apply the proceeds of the Loan from the Authority (i) to finance or refinance a portion of the Cost of the Project; and (ii) where applicable, to reimburse the Governmental Agency for a portion of the Cost of the Project, which ponion was paid or incwred in anticipation of reimbunement by the Authority. SECl'ION 2.02 Partlcular ecn-11 vi lbe Go9er--aal Aa-cJ. (a) Source of Repaymegt PkidMC, The Governmental Agency irrewcably pledp the Pledpd Property for the punctual payment of the principal of and the intaest on the Loan, and all other IIIIDIIDIS due under this Loan Agreement and the Governmental Agency Bond aa:ording to their respective terms. Cb) Performance Under Lom Agreemcnt. The Governmental Agency covenants and agrees (i) to maintain the System in good repair and operating condition; (ii) to coopcnlC with the Authority in the observmce and performance of the respective duties, covenants, obliplions and ap,ements of such Governmental Agency and the Authority under this Loan Agreement; and (iii) to comply with the covenants described in the Exhibits to this Loan ~L .9. • • < c) Completion of Project and Provjsjon of Moneys Therefor. The Governmental Agcw;;y covenants and agrees (i) to exercise its best efforts in accordance with prudent wastcwaler lrcalmcnt utility practice to complete the Project and to so accomplish such completion on or before the estimated Completion Date set forth in Exhibit B hereto and made a part hcn:of; and (ii) subject to appropriation, to provide from its own Pledged Property all moneys, in excess of the total amount of loan proceeds it rccci vcs under the Loan , required to complete the Project. < d) Disposition of the System, Except for the disposal of any portion of the System which the Governmental Agency dctcnnincs is no longer necessary for the operation of the System, the Govcnunental Agency shall not sell, lease, abandon or otherwise dispose of all or substantially all of the System, or any other component of the System which provides revenues to provide for the payment of this Loan Agreement or the Govcmmcntal Apncy Bond except OD ninety (90) days' prior wrincn notice to the Authority and, in any evcat, shall not ao sell, lease, abandon or otherwise dispose of the same unless the following conditions arc met: (i) the Governmental Agency shall assign this Loan Agreement in accordance with Section 4.02 hereof and its rights and interests bercunder to the ~ or lc:asee of the System and such ~ or lessee shall assume all duties, covenants, obliplions and agreements of the Governmental Agency under this Loan Agreement; and (ii) the Authority shall by appropriate action determine, in its sole discretion, that such sale, lease, abandonment or othec disposition will not advencly affect the Authority's ability to meet ill duties, covenants, obligations and agreements under the Bond Reaolution, and will not adversely affect the value of this Loan Agreement as security for the payment of Authority Bonds and interest thereon, adversely affect the eligibility of interest on Authority Bonds then outstanding for exclusion from gross income fur purposes of Federal income taution or adversely affect any agreement entered into by the Authority or the Statc with, or condition of any grant received by the Authority or the State from, the United States of America, which is related to the Federal Capitalization Agrcemeot or any capitaliz.ation grant received by the Authority or the Statc under the federal Water Pollution Control Act, as amended (33 U.S.C . § 1251 et seq.) (e) Exclusion of Interest from federal Gross Income and Compljanq with Code, <s.424650.1 (i) The Governmental Agency covenants and agrees that it shall not take or permit any action or fail to take any action which action or omission would result in the loss of the exclusion of the interest OD any Authority Bonds (assuming solely for this purpose that the proceeds of the Authority Bonds loaned to the Governmental Agency represent all of the proceeds of the Authority Bonds) from gross income for federal income tu pwposcs pursuant to Section 103(a) of the Code. -1~ , . . , • t • (ii) The Governmental Agency covenants and agrees that it shall not take or pennit any action or fail to take any action, which action or omission would cause the Authority Bonds (assuming solely for this purpoK that the proceeds of the Authority Bonds loaned to the Governmental AFDC)' represent all of the proceeds of the Authority Bonds) to be "private activity bonds" within the meaning of section 141(a) of the Code. Accordingly, unless the Governmental Ag,cocy receives the prior written approval of the Authority, and subject to the conditions of Section 2.02(dXii), the Governmental Agency slwll neither (A) permit in excess of IO percent of either (1) the proceeds (u such term ii used in Section 141 of the Code) of the Authority Bonds loaned to the Clovemmental Aaerr, or (2) the Project financed ( or refinanced) with the proceeds of the Authority Bonds loaned to the Govenuncntal Agency, to be used dinlcdy or indirectly in any manner that would constitute "private busineu use" within the meaning of Section 141(bX6) of the Code, nor (B) use dinlcdy or indirectly any of the proceeds of the Authority Bonds loaned to the Governmental Agency to make or finance loans to penons otber than governmental units (as such tam is used in section 141(c) of the Code); provided funher, that more than one half of the private bull_, use permitted by clause (A) shall be neither (1) disproportioalte rellled business use, nor (2) private business use not relared to the aovemment use of such proceeds of the Authority Bonds, as those terms are used in Section 14l(bX3) of the Code. (iii) The Governmental Arµq covenants and agrees that it shall not directly or indirectly use or permit the use of any proceeds of the Authority Bondi (or amounts treated as replaced with such proceeds) or any otber flm'ds, or take or permit any action or fail to take any actioa, which uae. action or omission would cause the Authority Bonds (assumina aolely for this purpose that the proceeds of the Authority Bonds in the hands of the Governmental A.,-:y represent all of the proceeds of the Authority Bonds) to be "arbitrage bonds" within the meanina of Section 148(a) of the Code. (iv) The Governmental AF,ncy covenants and agrees that it shall not uae or permit the use of any portion of the proceeds of the Authority Bonds to retire any other obligations of the Governmental Ap,rcy or any other entity, unless the Governmental AFfll!Y obtains the wrlaea c:oment of the Authority, which consent may be given or withheld in the Authority's sole discretion. (v) The Governmental Agency covenants and ag,ees to maintain records of its investments, if any, of proceeds of the Authority Bonds loaned to the Governmental Ap:ncy and earnings thereon, and will maintain recorda of expenditures of such amounts. The Governmental Apncy will pay to the 45'2"650 I • 11 • ' • • Aut.'iority any eaminp on proceeds of the Authority Bonds loaned IO the Governmental Agency (including earnings on such earnings) which. in the opinion of the Authority, are required 10 be rebated IO the United States Treasury Dq,artment The Governmental Agency will provide copies of all records of ill investment of such moneys and of ill expenditures IO the Authority on a periodic basis upon request by the Authority and will furnish IO the Authority, in writina. information regarding any facilities financed or refinanced therewith. (vi) Notwithstanding anything herein IO the contrary, as long as is necessary IO maintain the exclusion of interest on the Authority Bonds from poss income for Federal income tu purposes, the c:offllalltS c:ontaincd in this subsection (e) shall survive the payment of the Authority Bonds and the interest thereon, including any payment punuant to section 12.01 of the Bond Resolution or prepayment pursuant IO Section 3.07 of this Loan Agreement, respectively. (vii) The Governmental Agency shall not. punuant to my amnFJICIII formal or informal, purchase Authority Bonds in an amount relared to the UDOUDI of the I.Dan. (viii) The Governmental Agency hereby certifies and reprelCIIII thal it has complied with the requirements of Treasury Regulation Section 1.150-2 in ill llllhorizin1 resolution or ocher official action with reprd to proceeds of the Authority Bonds, if any, to be used IO reimbune the Gowmmental Aaency for expenses i~ by the Govemmental Agency prior to the issuance of the Authority Bonds. In the nm tbal any of the proceeds cl the Authority Bonda are to be used ID pay dellt savice OD my prior issue of the Governmental AaencY, and any of the proceeds cl sucb prior issue (or any obliplions nsfimnml by sucb prior iuue) were used to reimbune the Govemmealal AaencY for expcnditurel incurred prior to tbe issuance of the prior issue (or refinanced obliplions. as the cue may be), the Governmental Agency hereby cenifies and represents that the allocation of such proceeds ID the reimbursed expenditure was a valid expenditure under the applicable law oa n,imbunement expenditures on the dale of issue of the prior issue (or die nsfimnml obliplions), as requ ired by Federal Income Tu Replatioa Sectioa l,150-2(g)(2). In the case of refundin1 of a prior issue iuued before July 1, 1993, the proceeds of which were used to rcimbunc ori&inal ellpeaditures, the Governmental Agency (A) made an official intent prior to July 1, 1993 , which satisfied the applicable pro visions of Treaswy Replation Section l.103-8(a)(5) as in effect prior IO July I, 1993, or (8) made an official intent between January 27 , 1992, and June 30, 1993, which satisfied the applicable provisions of Treasury Replation Section I.I 03-18 as in effoct duriq such period. -12- ~-..• .. • • ,,.,_,, (ix) By executing this Loan Agreement, the Governmcotal Agency hereby certifies, rcprcscnts and agrees that: (I) The proceeds of the Authority Bonds to be loaned to the Governmental Apcy pursuant to this Loan Agrccment do not, taking into account available earnings thereon, exceed the IDIDIIDI necessary to pay for the costs of the Project, including costs of issuance of the Authority Bonds allocated to the Loan. (2) The Governmental Agcnc:y hu entered into (or will enter into within six months from the date hereof) a binding commitment for the acquisition, construction or accomplishment of the Project, and will, within six months from the date of delivery of the Authority Bonds by. the Authority, expend at least five pcrcca1 of the proceeds of the Authority Bonds loaned to the Gova'llmcntal Agency . (3) The Govcrnmcntal Ag,cncy rcuonably expects that all of the proceeds of the Loan will be expended within three years from the date of this Loan Agreement Work OD thc acquisition, construction or accomplishment of the Project will proceed with due diligence to completion. ( 4) The total proceeds of the sale of all obligations issued to date for the Project do DOI exceed the IDtal com of the Projec:t, taking into account available earnings ~. (5) The Govcmmcntal Agcnc:y does DOI expect that thc Project will be sold, lcascd or otherwise dapoled of in whole or in part during thc term of thc Loan or of thc Authority Bonds or for uy ponioa of the term of the Loan or of thc Authority Bonds. The Govemmeotal Agency shall not sell, lease or odlawilc dispose of the Project in whole or in part during thc llllnD of the Loan or of thc Authority Bonds or for uy ponioa rA thc Imm of thc Loan or of the Authority Bonds unless the conditions of Section 2.02(d)(ii) have been satisfied. (6) Any fund established, utilized or held by or OD behalf of the Governmental Agency to pay debt service on the Loan will be used to achieve a proper matching of revenues and debt service and will be depleted at lcut unually except for a reasoaable carryover amount DOI to exceed eaminp OD the fund for thc immediately prcccding year or 1/12 of the annual debt service OD the Lou for the i~atcly prc:ccding year. -13- .. t • • <5016l01 (7) No portion of the amounts reccived from the Loan will be used u a substitute for other funds which were Olherwise ro be used u a source of financing for the Project and which have been or will be used ro acquire. directly or indirectly, obligations producing a yield in excess of the yield on the Authority Bonds. The Governmental Agency docs not e~ to receive any amounts in the future that arc intended to finance the portion of the Project being financed with proceeds of the Loan. No portion of the 11110UDts received from lhc Loan will be used to finance working capital expenditures, The Loan has a weighted avaage llllturity lhat docs not exceed 120 pcrc:ent of lhc avenge l'CISOlllbly expected economic life of the capital projects financ:ed or refinanced by lhc Loan. (8) No portion of lhc proceeds of the Loan will be invested, directly or indirecdy, in fedcrally-insun,d deposits or aa:ounts, or fedcnlly- ~ investmails, other than IIIIOUDb of IIDC!lpended Loan proceeds invested in the debt avice fund. in any reasonably required raenie or rq,lac:emcnt fund. or investments of unexpended Loan proceeds for any remainiq initial lemponry period (e.g., DO larcr than three yem after the date hereof) until the proceeds arc needed for the Project. (9) No other obliptiona of the Gowmmenta1 Agency (1) are reasonably expected IO be paid out of subltantially the same IOUl'Ce of funds (or will have aubstanlially the 11111e claim kl be paid out of substanlially lhc 11111C soma, al funds) a will be .-S IO pay lhc Loans; and (2) an: beina 1111d • l'lbltalllially the -lime • the Loans (i.e., less lbaa 15 days ..-,); and (3) -aold punuam to lhc same plan al financuia widi the Lea. ( I 0) The Govenunenta1 Agency ha nei1bcir received notice that its cenific:alions as to expoc1•1iJm -y not be relied apoa with raped IO its oblipliom nor ha it been adviled Iba! my adwne action by the Commissioner of the 111B1111 Rcveaue ia contemplated. (11) To the best of the knowJeclae and belief of the undeniped officer of the Go~ Aa,ency, the facts and ~ ICC forth in this subsection of the Loan ~DI Oil wbicb the Go-.unenta1 Agency 's expec:tations u to the application al the proceeds of the Authority Bonds loaned to lhe Governmental Aaency an: based. arc reasonabl e. -14- (f) ( 12) None of the proceeds of the Authority Bonds loued IO the Govcmmcntal Aacncy will be invested in iovestmems havin1 a substllltially auaranteed yield of four years or more. Operation and MaiPICPIIJCC of the Svstan. The Govemmcntal Agency covenants 1111d &pees that it shaD, in accordance with prudent utility pnctice, (i) al all times operate the propenies of the Syslmn 1111d any busineu in conna:tioo therewith in an efficiena manner, (ii) maintain the Sylll:m in pJd rq>air, working order 1111d operatina condition, (iii) from time to time make all 1*asary 1111d proper repairs. renewals, replrmls, additionl, bdlameub 1111d impovamatl widl respect to the Sylll:m so that al all limea the business camed OD in coimectiOD lbaewitb shall be properly 1111d advantapously conducted; providlld. however, 1his covenam shall not be COIIS1rUed as requirina the Govenunenlal A,-:y IO upend ay funda wbidl are derived from soun:a ocher lhaD the openlion of the Sysllem or odlcr receipts of die System which are not pledaed under sublectioo (a) of dlil Soction 2.02. 1111d provided funha" that oodiina herein shall be COIIIU1led as prevenlin& die Oovanmelllal Apr,q from doing so. (&) Records; Accounts. The Governmental AFflC/ shall keep accurate records 1111d accouD11 for the Sysllem (die "System Records"), separalC 1111d distinct from its ocher records 1111d &CCOlmll (the "General Records"). Such Sylll:m R.ecords shall be meinc•iNd DI wwwcau widl GAAP and shall be llldiled annually by an independent tcCll'lD!W wllic:b llldit ay be p,rt of the annual llldit of die Gentnl R.ecords af die Oc;wnww.11111 A,a:y. Suell System Records 1111d Gcnenl Records shall be ame •vailallle for iMplClioa by Ille Authority al any reasoaable time, 1111d a eopy of IIICh _... llldil(1) tbmlfor, includlDa all written comments and recommendllicm of such KICll ••• 111111 be funilhed IO die Authority within 180 days of tbe dole of the fllCII yar beiq 11> llldilllL U.,. delhay of its annual llldiled financial S1lleaWiltl, the Gowrmnenlll A.-:y lhall funlilh IO the Authority a certificlle of an Audlorized Offics llllia& lllll. IO the best of IIICh individual's knowledp followiq l'CIIOllablc inquily, no BWlll of Defallll 1111 ocx:uned. or if an Event of Ddauh has oa:urred, specifyina the 11111n tt.eof -i, If Ille Governmental Apncy has a ri&bt IO an pununl IO Section 5.01, llllilla DI Nalllllble dellil the steps, if any, bein& tum by die Go--.! AFfllCY IO cun: such B¥elll of Defllllt. Ch) Inspectjoqs; lnfonnatjop. The Governmental Agency shall permit the Authority, and any party desipared by the Authority , to examine, visit and inspect, at any and all reasonable time&, the popcrty, if any, constituting the Project. and to inspect and make copies of any ICCOUllll, boob and records, includin& (without limitation) its records repnlin1 receipes. ~ contracts, investments and any other mattcn Idalina lherelO and to its finacial stadia&, -15· t • • and shall supply such reports and information as the Authority may reasonably require in connection therewith. The Governmental Agency shall advise the Authority in writing of the issuance of any debt payable from Pledged Property at least 30 days prior to the issue of such debt In addition, the Governmental Agency shall provide the Authority with copies of any official statcmenlS or other forms of offaing prospectus relating to any other bonds, IIOlcs or other indeblcdness of the Governmental Agency which are payable from the Pledged Property at least 30 days after the dale of issuance of such debt. (i) The Governmental Agency shall maintain or cause to be maintained. in force. insurance policies with responsible insurers or self insurance programs providing against risk of dim:t physical loss, damage or destruction of the System, at least to the extent that similar insurance is usually carried by utilities constructing. operating and maintaining utility system facilities of the nature of the System, including liability coverqe. all to the extent available at reasonable cost. Nothing hemn shall be deemed to preclude the Governmental Agency from exating against any party, odler than the Authority, a defense which may be available to the Governmental Agency, including. without limitation, a defense of sovereign immunity. (j) Cost of Project, The Governmental Agarcy a:rtifies that the Cost of the Project, as listed in paraa,aph (3) of Exhibit B hereto and made a part hereof, is a reasonable and ICClll'llle estinmion and upon din,ction of the Authority will supply the same with a catificm from its enginea- stating that such Cost is a reasonable and accurue estimation, taking into account investlMDl income to be realiad dming the coune of the Project and other money that would. absent the Loan. have been used to pay the Cost of the Project. <k> Notjce of Mapjal Mvcne Cblo& The Governmental AFf/CY lhall promptly notify the Authority of any mMmial advene chanee in the activities, prospects or condition (financial or otherwise) of the Governmental AaencY relating to the System, or in the ability of lhe Govemmental Agency to make all Loan Repaymenis and ~ ~ and perform ilJ duliea, covenancs, oblia--and a,reements Ullller Ibis Loan Aa,eetnCD and the Gowmmenlal Agency Bond from the Pledged Property. The Governmental Ageocy shall provide such financial information relating to the Governmental AaencY as the Audiorlty may require in connection with the issuance of Authority Bonds punuant to the Bond Resolution. (I) Rcimburscmcn1 for Ioe!i&ible Costs, The Go vernmental Agency shall promptly reimbune the Authority for the ponioa of the loan wh ic h is determined to be a Cost of the Project which is not eligible for funding from draws under the Federal Capitalization Agreement. Such reimbursement shall be promptl y repaid to the Authority upon written request of the Authority with interest on -1~ t .. • • the amount to be reimbuned at the rate borne by the Authority Bonds from the date of the Loan. Any such reimbursement shall be applied by the Authority to reduce the Loan Repayments due punuant to Section 3.03(a). Eligible costs are costs associated with the approved scope of work, the plans and specifications and any change of orders. (m) Advertising. The Governmental Agency agrees not to advertise the Project for conslrlletion bids witil plans and specifications for the Project have been approwd by the State Department of Public Health and Environment (n) User Charges. The Govcmmcntal Agency will establish a system of user charges to assure that each recipient of utility services from the System will pay such recipient's equitable share of the costs of operation and maintenance, including replaccmenl of the System and lhc Govcmmcntal Agency also agrees that such system of user cbarges will be maintained. Prior to advertising for bids for consttuction of the Project. the user c:hargie system must receive any required prior approvals. Further, lhc Governmental Ag,:w.;y agrees to proceed to cstablisb an cnfon:eablc sewer use resolution to (i) prohibit future clear water connections to scpamc sanitary sewers; (ii) ensure thal new sewers and scwa- conncctions are properly designed and construcled; and (iii) require precrealDIClll of indusaial wastes which would be detrimental to the trcltDlelll worb in its proper and efficient opcntion 1111d maintenance or will otherwise prevent the entry of such waste into the treatment works . ( 0) No free Sgyjce. The Governmental Agency will not furnish or supply or cause to be fumisbed or IIUpplied any use. output, capacity or service of the System fn,c of charJle to any penon. firm. corporation (public or privalc), public qcncy or instrumentality. (p) PJan o{Operation. The Governmental Agency will submit ID the Staie Depanmi:at of Public Heallb and Environment with the ~ pl-and specificaliom a preliminay plan of operation, which shall provide a conciJc. scqucntial dac:riplioa of an ~!!ICion schedule for those activities necessary to asure effic:ienl and relillblc start-up and continual operation of the Project. The Go-,uncntll Agency agrccs to implanent the approved plan of operation. The Governmental Agency shall also submit a draft opcration and mailllellallCC manual prior to 50 percent of the Project bcin& constnacted. The final manual must be submiacd prior to 90 percent of the Project beina constnacted. 041"650 1 .17. ' • • In addition, one year after commencement of operation, the Governmental Agency shall submit to the State, certification of achievement of the applicable Project performance certification standards. < q) Commencement or ConsllUction. Within twelve (12) months after the Loan Closing, the Governmental Agency shall initiate construction of the Project (r) Interest in Project Sjte. As a condition of the Loan, the Governmental Agency will demonstrate to the satisfaction of the Authority before advertising bids for consttuction that the Governmental Agency has or will have a fee simple or such other estate or interest in lbc site of the Project, including necessary casements and rights-of-way, as the Authority finds sufficieat to assure undisturbed use and possession for the purpose of construction and operation of the Project for the estimated life of the Project (s) Archeok>gjcll Artifacts. ln the event that an:beological artifacts or historical soun:cs arc u-1hed during construction excavation of the Project, the Governmental Aga,,;y shall llllp or cause to be stopped. conslrUction activities and will notify the State Historic Conservation Office and the Authority of such ~ng. <•> No Lobbyjn1, No portion of the Loan may be used for lobbyin& or propapnda • prohibited by 18 U.S.C. 11913 or Section <,0'7(a) of Public Law 9<>-74. (u) federal Wg;r Pollution Comrol Act, The Govcmmcntal Aaency covenants to meet the requirements of or Olherwiac be lreafed under 204(d)(2) of the fedcnl Water Pollution Conlrol Act. (v) Clmtinujng ReprescnllliPm, The representations of the Govenuncntal AacncY c:ontained herein shall be true II the time of the execution of this Loan A~meat and • all timm during the am of this Loan Agn,emenL (w) Additional Covwnts and RegYiim¥mts If necessary in connection with the Authority's issuance of the Authority Bondi or the making of the Loan, additional covenants and n,quiremcnts will be included on Exhibit P hereto and made a part hereof. The Governmental Agency qrt,e5 to oblcrw and comply -18- t .. •, • • --· (J with each such additional covenant and requirement, if any, included on Exhibit Fon the date of the Loan Closing. SECI'ION 2.03 Obllptloa to Provide CootinuJoa Dllldolure. (a) If the Governmental Agency is advised in writina by the Authority that the Governmental Agency is required to comply with the provisions of this Section 2.03, the Governmental Agency shall undertake, for the benefit of Holden of the Authority Bonds, to provide or cause to be provided through the Authority: (i) to each Repository and to the State Information Depository, no Iara-than 180 days after the end of each FISC81 Year, COIIIDICllCUl8 with the end of the first Fiscal Year following m:eipt of such advice from the Authority, the Annual Information relating to such Fiscal Year; (ii) if not submitted as part of or with the Annual Information, to each Repository and to the State Information Depository, if any, audited financial statements of the Govcmmental AFJICY for such Fiscal Year when and if they become available; provided that if the Gow:mmc:ntal Agency's audited fillUlcial stalemeDII are not available by the dale set forth in (i) above, the Annual Information shall contain ullllldited financial statements in a format similar to the Governmental Aaency's audited financial statements prepared for its most recent Fiscal Year, and the audited financial swcments shall be filed in the same manner as the Annual Information when and if they become available; and (iii) to each Repository or to the MSRB and to the Stale lnfonnalioo Depository, in a timely manner, DOCic:e of a failure to provide any Annual Information required by subsections (d), (e) and (f) of this Section 2.03. (b) The obligations of the Govenunental AFJICY punllllDl to sublec:tioa (a) of this Section 2.03 may be terminated as to such Go-ial ~y punllllDl to sui-:tion (ki) of this Section 2.03. Upon any such tcrminalion. the Go__... AFf1CY shall provide notice of such termination to each Repository, the State lnfOl"lllllion Depository and the MSRB . (c) Nothing herein shall be deemed to prevent the Govemmental AaencY from disseminating or require the Governmental AFflCY to disseminate any other informalion in addition to that required hereby in the manner set forth herein or in any other manner. lf the Governmental Agency disseminates any such additional information, the Governmental Agency shall have no obligation to update such information or include it in any future materials disseminated hereunder. (d) The required Annual Information shall consist of the Governmental Agency's audited financial statements for the most recent Fiscal Year as provided in subsection -19- t ... .. • • (aX2) of this Section 2.03, and such other information that the Authority may rcqu~ in and to provide compliance with Rule 15(c)2-12. (e) All or any portion of the Annual Information may be incorporated in the Annual Information by cross reference to any other documents which have been filed with (i) the Repositories, the State Information Depository and, if the document is an official statement, the MSRB or (ii) the SEC. (f) Annual Information for any Fiscal Yem-containing any modified operating data or financial information (as contemplated by subsection (jXv) of this Section 2.03 for such Fiscal Year shall explain, in narrative form, the reasons for such modification and in effect of such modification on the Annual Information being provided for such Fiscal Yem-. If a change in IICCOUllling principles is included in any such modificalion, such Annual Information shall present a compuison between lbe financial stalemeDtl or information prepared on the basis of lbe modified accounting principles and those prepared on the basis of lbe former IICCOUllling principles. (g) The Governmental Agency's annual financial sbdelllellll for each FISCal Year shall be prepared in accordance with GAAP as in effect from time to time. Such financial statements shall be audited by an independent accounting firm. (h) If the Governmental Agcacy shall fail to comply with any provision of this Section 2.03, then the Authority or any Holder of lbe Authority's Bonds may enforce, for the equal benefit and protection of all Holders similaty situlled, by mandamus or other suit or proceeding at law or in equity, this Section 2.03 against lbe Governmental AFf/CY and any of the officers, agents and employees of the Govemmenlal Apncy, and may compel the Governmental Apncy or any such officcn, 1p11 or cmployem to perform and carry out their duties under this Seclion 2.03; provided dud lbe sole and exclusive remedy for breach of this Section 2.03 sball be an IClioa to cmupel specific: pafonnance of the obligations of the Govanmental Agency hereunder and no~ or entity sball be entitled to recover monetary danmFI hereunder under any cireulllll111Ce1, and, provided funher, dial any challenge to lbe adequacy of any infonmDoa provided ~ ID subsection (a) of this Seclion 2.03 shall be broupl only by lbe Alllhority or lbe Holden of 25'1, in aggregate principal ..-at of the Authority's Bonds at lbe time outstandina which are affected lbereby. The failure of lbe Govemmenlal AFflCY to comply with lbe provisions of this Section 2 .03 shall not be deemod an Event of Default bereunder and the only remedies available to the Holden or the Authority for such failure to comply are the remedies contained in this subsection (h). (i) The provision~ of this Section 2 .03 are executed and delivered solely fur the benefit of the Holders. No other person (other than the Authority) shall have any ript to enforce the provisions of this Section 2.03 or any other ripts under this Section 2 .03. -20. t .. • • (j) Without the consen\ of any Holden of Authority Bonds, the Authority and the Governmental Agency at any time and from time to time may enter into any amendmenlS or changes to this Section 2.03 for any of the following purposes: (i) to comply with or conform to Rule 15c2-12 or any amendments thereto ( whether required or optional); (ii) to add a dissemination agent for the infonnalioo required to be provided hcrd>y and to make any necessary or desirable provisions with respect thereto; (iii) to evidence the succession of another person to lhe Governmental Agency and the assumption by any such successor of lhe covenanlS of lhe Governmental Agea,;:y under this Section 2.03; (iv) to add to the covenants of the Govemmental Agency for the benefit of the Holden, . or to surrender any ript or power conferred upon the Governmental Agency punuant to this Section 2.03; (v) to modify the coments, presentation and format of lhe Annual Information from time to time u a result of a chmp in circwmtances that arises from a change in legal requirements, chanp in law, or cbanp in the identity, nature or status of lhe Governmental Apw;y, or type of business conducted; provided that, (a) there is filed with the Tnume an opinion of counsel having expenise with respect to sccuritiel laws of the Uni11ed StaleS of America or expertise with respect to the issuance of indebted- by states and poli1ic:al subdivisiom lhcnlaf, 111111 (i) this Soclioa 2.03, u amended, would have complied with the requinmlmlS of Rule 15c:2-12 ll the time of the offerina of the Alllbority Bondi, ... tama ialD ICICOUDl any amendnmlll or authoritaliw, "*ljWdllliona of the Rule 15c:2-12, • well as any c:banp in un.w; and (ii) die •,-'nm or cbanp does not llllla'ially impair die i-.a ofHoldrn. or (b) IUCh diuae or amendment is approved by the vote or comeat of Holden of a imJority ill outstanding principal amount of the Aulhority Bonds affecled thereby ll or prior to !he time of such --.ctnw.l or cbmp. (k) This section 2.03 shall remain in full force and effect unlil the eutier of (i) the Authority provides notice to each Repository~ the Slate lnfonnalioa Dcpolilory and the MSRB that the Governmental Agency is no lonpr an Moblipled s--" within the meaning of Rule 15c2-12 or (ii) all principal, redemplion premimm, if uy, and illlerelt on the Authority Bonds shall have been paid in full OI' die Aulbority Bonds sball haw, otherwise been paid in full or leplly defeaed punuam to Soclioa 12.01 of the Bond Resolution. In the e vent of such payment or lepl defeasance, the Authority shall promptly give written notice thereof to the Governmental AJem:y . -21- ,, t • • ARTICLE UL LOAN TO GOVERNMENTAL AGENCY; AMOUNTS PAY ABLE; GENERAL AGREEMENTS SECTION 3.01 The Loan. The Authority hereby agrees to loan and disburse to the Governmental Agency in acc:ordance with Section 3.02 heieof, and the Governmental Agency agrees to borrow and accept from the Authority, the Loan in the principal amount equal to the loan commitment set forth in paragraph (4) of Exhibit B attached hereto and llllde a part hereof; provided, however, that (i) the Authority shall be under no obliption to mike the Loan if the Govenunental Agency does not deliver a Governmental Agm:y Bond to the Authority OD the Loan Oosing or an Event of Dd'ault has oa:wted and is conlinuin& under the Bond Resolution or this Loan Agreement, and (ii) the proceeds of Authority Bonds shall be available for disbunement, u determined solely by the Authority, to finance the Cost of the Project. The Governmental Agency shall use the proceeds of the Loan strictly in accordance with Soc:tion 2.0l(h) hereof, to fiDIDCC the Cost of the Project SECTION 3.82 l>llburaamat of Lou ........ The Tnlslee. as the agent of the Authority, shall disbune the amounts OD deposit in the Project Loan Subaccount to the Governmental Agency upon receipt of a requisition exec:uted by ID Aulborized Officer thereof and approved by the Authority, and if deemed necessary by the Authority, approved by the Colorado Wata Quality Control Division, in the form set forth in the Bond Resolution. The Authority covenants to direct the Trustee to provide all periodic written reports (u required by the provisions of the Bond Resolution) of Ill moneys on deposit under the Bond Resolution and to furnish such reports to the Governmental Agm:y u soon u practicable after receipt by the Authority. The Authority hereby aa,ees that in the event that ~ OD deposit in the Project Loan Subaalounl are lost due to the ne&liamce or misconduct of the Trus1lee, lbe Audiority on behalf of the Govenuneatal Aaency, shall, upon the wriaen requeat of lbe Go_..._... Agm:y, pursue its remedies against the Trus1me, includina, but not limited to, equitable actions or ICtions for money damap:s. If there uc moneys on deposit in the Project Loan ' Subaccouut upon complelion of lbe Project, the Governmental Agm:y shall advise the Audlority in wrilin& that no further requisitions uc to be submitted to the Authority for disbunemenl of moneys from the Project Loan Subaccount Upon receipt of such wriUm advi<:e, the Audlority sblll file with the Tnastee the Certificate required by Section 5.03 of the Bond Raolution 111d use such moneys to redeem. purchase or provide for the payment of the Authority Bonds. The Authority shall credit enauiq Loan Repayments or portions thereof of the Govenunelllal Agm:y chosen by the Authority as a result of the use of such to purchase, redeem or pay Authorit:, Bonds. -22- • t ... • • SECTION 3.03 Amounta Payable. (a) The Governmental Agency shall repay by electronic means (cilha" by bank wire transfer or by Automated Clearing House "ACH" transfer) the principal of and int.crest on the Loan in accordance with the schedule set forth on Exhibit C attached heelo and made a part hereof, as the same may be amended or modified, pursuant to Section 6.04 hereof. 1bc Governmental Agency shall execute the Governmental Agency Bond to evidence 1he Loan and the obligations of the Governmental Agency under the Govemmental Agency Bond shall be deemed to be amounts payable under subsections (a) and (b) of this Section 3.03. Each portion of the Loan Repayment payable under this subsection (a), whether satisfied entiJely duough a direct payment by the Govemmeatal Agency to lbe Loan Servicer or through a combination of a direct payment and the use of Allocable Investment Income as desaibed in subsection (c) of this Section 3.03 IO pay interest on the Authority Bonds (and to the extent moneys are available therefor, principal of 1he Authority Bonds), shall be deemed IO be a credit apinst the comspouding obligation of the Governmental Agency under this subsection (a) and shall fulfill 1he Gowmmenlll Agency's obliption to pay such amount hereunder and under lbe Govemmental Agcncy Bond. Each payment made to the Loan Servicer pursuant to this subeec:tion shall be applied first to int.crest then due and payable on the Loan, tben IO lbe principal of the Loan. In the event the Authority issues refunding bonds pursuant to the Bond llesolutioa in order to refinance 1he particular Project Aa:ount or Project Loan Subaccount from which amounts loaned to the Go'VCffllDelltal AFJIICY punuant to Ibis Loa Apeement are taken which refunding results in a ~ in total agreplle Loan Repayments, the Aulbority shall amend Exhibit C to reflect such deaaK in IDllll agsepae Loan Repayments. (b) In addition IO the IIIJIOUldl payable under l!INKfinD (a) of lhil Sec:don 3.03, lbe Governmental Agcncy shall pay the Adminislnliw Fee ill the IIIJIOUldl and OD lbe ~ set forth in Exhibit C lltal:hed haelo 11111 made a pan hereof. Each payment made punuant to this subsection {b) shall, for purpolCI of the Loan ud the Governmenlll Agency Bond, be considered U intacst OD the principal mKJUIII dlcnof. (c) The Governmental Apncy shall receive u a aedil apimt each af its semiumal interest payment obliptions set forth OD Eabibit C llladled bcrelo md made a pan hereof (and, as applicable under the Bond Raolution. its -i principal obliplions ID the extent moneys are available thcl'cfor), (i) the UDDUIII of capi1alimd i-available lo be applied apinst such obliptions, u foomoted OD such Exluliit C, and (ii) lbe amount of Allocable Investment income: if any, to be credited apinst sucb obliptioas. u set forth i n each billing statement to be mailed by the Loan Servicer ID the Governmental Aamcy approximately thirty (30) days prior to each Loan Repaymeat due date. (d ) In addition to the payments required by subsections (a) ud (b) af this Section 3.03, the Governmental Agency shall pay a late cbarF for any paymenl that is received -2 3- ' • • by the Loan Servicer later than the fifth (5th) day following its due dale, in an amount equal to the greater of twelve percent (12'1>) per annum or the Prime Rate plus one half of one percent per annum on such late payment from its due date it is actually paid; provided, however, that the int.crest rate payable on the Loan including such late charge shall not be in excess of the maximum rate permitted by law as of the date hereof. (e) The Governmental Agency acknowledges that payment of the Authority Bonds by the Authority, including payment from moneys drawn by the Trustee from the 2004 Series A Matching Account. other than from the investment income thereon, docs not constitute payment of the amounts due under this Loan Ag,ecmcnt or the Govcmmcntal Agency Bond. If at any time the amounts on deposit in the 2004 Series A Matching Account shall be less than the requirement of such Account, as the result of any ll'IIISfcr of moneys from the 2004 Series A Matdting Account to the Debt Service Fund as the result of failure by the Governmental Agency to make any Loan Repayments required hereunder, the Govcmmcntal Agency agrees to (i) replenish such moneys so transfmed, and (ii) replenish any deficiency arising from losses incum,d in making such transfer as the n:sult of the liquidation by the Authority of investment securities acquired as an investment of moneys in the 2004 Series A Matching Account, by making payments to the Authority in equal monthly installments for the lesser of six (6) months or the remaining term of the Loan at an interest rate ID be detennincd by the Authority necessary to make up any loss caused by such deficiency. SECTION 3.04 Unconditional Obllptlom. The obligation of the Governmental Agency to make the Loan Repayments 1111d all other payments required hcramder and the obligation to perform 1111d observe the other duties, oovenants. obligations and agreements on its part contained herein is payable solely from the Pledged Property 1111d shall be absolute and unconditional and shall not be abated, rebated. aet-off, reduced, a1Jropled. terminated. waived, diminished, postponed or othcrwilc modified in any manner or to any exlent whatsoever, while any payments under this Loan Agreement remain unpaid. repnlless of any oontingcncy, act of God, event or cause whatsoever, including (without limitalion) any acts or circumstances that may CODStitutc failure of considemion, eviction or constructive eviction, the taking by eminent domain or dcsttuction of or damqe to the Project or the System, conunm:ial frustration of the purpose, any change in the laws of the United States of America or of the State of Colorado or any political subdivision of either or in the rules or replalions of any governmental authority, any failure of the Authority or the 1iustee to perform and observe any agreement, whether expn:ss or implied. or any duty, liability or obliplion arising out of or connected with the Project. this Loan Agreement or the Bond Resolution or any rishts of set off, recoupment, abatement or counterclaim that the Govcmmcntal Agency might otherwise have against the Authority, the Trustee, the Loan Servicer or any Olhcr party or parties; provided, however, that payments hereunder shall not constitute a waiver' of any such rights. The Governmental Agency shall not be obliptcd to make any payments required to be made by any other Go vernmental Agenc ies under separate Loan Agreements or the Bond Resolution. SECTION 3.85 Loan Aa-t to Survive Bond Ranlullan and Autllnrtty Bonds. The Governmental Agency acknowledges that its duties, covenants, obligations and ,0424650.1 .24- .. ,. • t " • • (J agreements hereunder shall survive the discharge of the Bond Resolution and payment of the principal of, redemption premium, if any, and interest on the Authority Bonds. The Authority acknowledges that all duties, covenants, obligations and agreements of the Governmental Agency shall (except as and to the extent preserved in subsection (e)(vi) of Section 2.02 hereof) terminate upon the date of payment of all amounts payable to the Authority hereunder. SECTION 3.06 Disclaimer of Warranties and lndemnllkalioa. The Governmental Agency acknowledges and agrees that (i) neither the Authority nor the Tnasfce makes any warranty or representation, either express or implied, as to the value, design. condition, merchantability or fitness for particular purpose or fitness for any use of the System or the Project or any portions thereof or any other warranty or represenlalion with respect tba'elo; (ii) except as provided herein, in no event shall the Authority or the Trustee or their respective agents be liable or responsible for any direct, incidental, indirect, special or coascqueotial damages in connection with or Irising out of this Loan Agreement or the Project or the existence, furnishing. functioning or use of the System or the Project or any item or products or services provided for in this Loan Agreement; and (iii) to the extent authoriz.ed by law, the Governmental Agency shall indemnify, save and hold harmless the Authority apinst any and all claims, damages, liability and court awards including costs, expenses and attorney feea incmred as a result of any act or omission by the Governmental Agency, or its employees, apnts or subcontractors pursuant to the terms of this Loan Agreement. provided however that the provisions of this clause (iii) are not inlended to and shall not be construed as a waiwr of any defense or limitation on damages provided for under and punuant to the Colorado Gowrnmental Immunity Act (Section 24-10-101, et seq., C.R.S.), or under the laws of the Unillld Stata or other laws of the State of Colorado. SECTION 3.rt Umlted a-ane. No recourse ahall be had fta' the payment of the principal of or interest on the Governmental Ager,cy Bond or for any claim bued !her.-or upon any obligation, covenant or agreement contained in this Loan Agnanent apimt any past, present or future officer, employee or agent of the Governmental Apoc:y, or of any successor public corporation, as such, either directly or through the Governmental AFf'CY or any successor public corporation, under any rule of law or equity, statule or constitution or by the enfon:ement of any assessment or penalty or otherwise, and all such liability of any IUCb offian, employees or agents as such is hereby expressly waived and released as a conditioa of and considention b the Governmental Agency's execution of this Loan Agreement and the isluance of the Governmental Agencr Bone!. SECTION 3.N Optina to Prepay 1-a RepaylllllllL Subject in all instances to the prior written approval of the Authority and satisfaction of the requirements, if any, of the Bond Resolution relating to Loan prepayments, the Governmental AFDC)' may prepay the portion of the Loan Repayments set fonh in Exhibit C, in whole or in part (but if in part. in the amount ofSI00,000 or any integral multiple of$100,000), upon prior written notice not less than ninety (90) days in addition to the number of days advance notice to the Trustee required for any optional or special redemption of the Authority Bonds, to the Authority and the Trustee and upon payment by the Governmental Agency to the Trustee of the principal amount of the Loan Repayments to be prepaid, plus the interest to accrue on such amount to the date of the next -25- ' -"' .. • • - (J succeeding optional redemption of the Authority Bonds allocable to such Loan Repayment to be prepaid; provided, however, that (i) if the Governmental Agency proposes to prepay in full the Exhibit C Loan Repayments, such prepayment shall be conditioned upon the simultaneous prepayment in full of all Administrative Fees due to and including the date of such redemption plus one year after the date of such redemption or (ii) if the Governmental Agency proposes to prepay a portion of the Exhibit C Loan Repayments, such prepayment shall be conditioned upon the simultaneous prepayment of such portion of the Administrative Fees due to and including the date of such redemption plus one year after the date of such redemption, as shall be determined by the Authority. In addition, if at the time of such prepayment, the Authority Bonds may only be redeemed at the option of the Authority upon payment of a redemption premium, the Governmental Agency shall add to its prepayment an amount, as determined by the Authority, equal to such redemption premium allocable to such Authority Bonds to be redeemed as a result of the Governmental Agency's prepayment Prepayments shall be applied first to. accrued interest on the portion of the Loan to be prepaid and then to the payment of Administrative Fees and then to principal payments (including redemption premium, if any) on the Loan in inverse order of Loan Repayments. The Governmental Agency, in the sole discretion of the Authority, and upon terms and conditions satisfactory to the Authority, may provide for the prepayment in full of the Loan Repayments by depositing with the Authority an amount which, when added to the investment income to be derived from such amount to be deposited with the Authority, shall provide for the full payment of all such Loan Repayments in the manner provided in this Section 3.07. Any amounts so deposited with the Authority shall be invested solely in direct obligations of the United States of America. The provisions of this Section 3.07 shall not be applicable to any mandalory or extraordinary redemption or acceleration required by the Bond Resolution. SECrlON 3.09 Source of Pa,-at of Gonn111mdal Apncy'1 Obllpllo,g The Authority and the Governmental A.-,:y agree that the amounts payable by the Governmental Agency under this Loan Apeemcnt, including. without limitation. the amounts payable by the Governmental Agency punuan1 to Section 3 .03, Section 3.06, Section 3.07 and Section 5 .04 of this Loan Aar-nt are payable solely from the Pledged Propeny and an: not payable from any otbier source whatsoever. Nothing herein sbaJI be deemed to prevent the Governmental Agency from paying the amounts payable under this Loan Agreemeut from any other legally available source. SECflON 3.10 Delivery or Docwmntll. Concum:ntly with the execution and delivery of this Loan Agreement, the Governmental Agency will cause to be delivered to the Authority each of the following items: (a) opinions of the Governmental Agency's counsel substantially in the form set forth in Exhibit E-1 and E-2 hereto (such opinion may be given by one or more counsel); provided, however, that the Authority may permit variances in such opinion from the 4S4 2'650.I -26- • • fonn or substanoe of such Exhibit E if such variances are not to the material detriment of the interests of the holders of the Authority Bonds; (b) executed counterparts of this Loan Agreement; ( c) copies of the resolutions or ordinances of the governing body of the Governmental Agency authorizing the execution and delivery of this Loan Agn,emenl and Govcmmcntal Agency Bond, certified by an Authoriud Officer of the Governmental Agency;and (d) such other certificates, documents, opinions and information as the Authority may require. Concurrently with the delivery at the Loan Closing of tbis Loan Agreement. the Govcmmcntal Agency shall also deliver its Governmental Agency Bond to the Authority upon the receipt of a written certification of the Authority that the moneys to be deposited in the Project Loan Subaccount to fund the Loan shall be so deposited simullaneOUSly with the delivery of the Governmental Agency Bond. ARTICLE IV. ASSIGNMENT SECTION 4.01 Alllpmmt and Tnnsfer by Authority. (a) The Govcmmcntal Agency expressly acknowlcdp that, other than Administrative Fees payable pursuant to subsection (b) of Section 3.03 and the ript, title and interest of the Authority under Sections 3.06, 5.04 111d 5.117, all right, title and interest of the Authority in, to and under this Loan AJreement 111d the Gownunental Agency Bond has been assigned to the Ttustce as security for the Authority Bonds, as applicable, as provided in the Bond Resolution, 111d that if any Event of Ddault shall occur, the Trustee, pursuant to the Bond Resolution. shall be entitled to act bcreundcr in the place and stead of the Authority. The Governmental Agency hereby acknowledges the requirements of the Bond Resolution applicable to the Authority Bonds and consents to such assignment and appointmcnL The Authority shall retain the right to compel or otherwise enforce oblcrvance and performance by the Govcmmcntal Agency of its duties. covenants, obliptions and agreements under subsection (b) of Section 3 .03 to pay Administrative Fees and under Section 3.06 and Section 5.04. · (b) The Governmental Agency hereby approves and consents to any assignment or trans fer of this Loan Agreement and the Governmental Agency Bond that the Authority deems to be necessary in connection with any refunding of the Authority Bonds or the issuance o f additional bonds under the Bond Resolution or otherwise, in connection with the wastewater treatment pooled loan program of the Authority. 4S<24650.I -27- ' ··• ..• • • - SECTION 4.02 Alllpnmd bJ Go,emmea&al Apncy. Neither this Loan Agreement nor the Governmental A,ency Bond may be usigned by the Governmental Agency for any reason, unless the following conditions shall be satisfied: (i) the Authority and the Trustee shall have approved said assignment in writing; (ii) the assignee shall be a governmental unit within the meaning of Section 141(c) of the Code and the assignee shall have expressly assumed in writing the full and faithful observance and performance of the Governmental Agency's duties, covenants, agreements and obligations under the Loan Agreement; (iii) immediately after such assignment, the assignee shall not be in default in the performance or observance of any duties, covenants, obliplions or agreements of the Governmental Agency under the Loan Agreement ; (iv) the Authority shall have received an opinion of bond counsel to the effect that such assignment will not adversely affect the exclusion of interest on the Authority Bonds from gr<>5:i income for pwposes of federal income taxation under Section 103(1) of the Code; and (v) the Authority shall receive an opinion of counsel to the effect that such assignment will not violate the provisions of the Bond Resolution or any agreement entaed into by the Authority with, or condition of any grant received by the Authority from, the United States of America relating to the Federal Capitalization Agreement or any capitalization grant received by the Authority or the State under the federal Water Pollution Control Act. No assignment shall relieve the Governmental Agency from primary liability for any of its obligations under this Loan Agreement and in the event of such assignment, the Governmental Agency shall continue to remain primarily liable for the performance and observance of its obligations to be performed and ollserved under this Loan Agreement. ARTICLEV. DEFAULTS AND REMEDIES SECTION 5.01 E•• fll Default. If any of the followin& events occurs, it is hereby defined as and declared to be and to constitute ID "Event of Default": (a) failure by the Govcmmental Agency to pay, or CIUIC to be paid. uy Loan Repayment, required to be paid hereunder when due, which failure shall oontinue for a period often (10) days; (b) failure by the Governmental Aaency to make, or cause to be made, any required paymeuts of principal of, redemplion premium, if any, and inla'eSI on any bonds, notes or other obligations of the Governmental Agency for borrowed money (ocher than the Loan and the Governmental Agency Bond), after pvina effect to the applicable grace period, the payments of which are secured by the Pledged Property; (c) failure by the Governmental Agency to pay, or cause to be paid, the Administrative Fee or any portion thereof when due or to observe and per.form any duty, covenant, obligatio,n or agreement on its part to be observed or performed under this Loan Agreement, other than as n:fmed to in paraaraph (a) of this Section S.01 and other than a failure to comply with the provisions of Section 2.03 hereof, which failure shall -2 8- .. t .. continue for a period of thirty (30) days after written notic:c, specifying such failure and requesting that it be remedied, is given to the Governmental Ascncy by the Trustee, unless the Trustee shall agree in writing to an extension of such time prior to its expiration; provided, however, that if the failure stated in such notice is COIT'CClable but cannot be corrected within the applicable period the Trustee may not unreasonably withhold its consent to an extension of such time up to sixty (60) days from the delivery of the written notice referred to above if corrective action is instituted by the Governmental Agency within the applicable period and diligently pursued until the Event of Default is corrcctcd; ( d) any representation made by or on bcbalf of the Governmental Agency contained in this Loan Agreement, or in any instrument furnished in compliance with or with reference to this Loan Agreement or the Loan or in connection with the Authority Bonds, is false or misleading in any material respect; and (e) a petition is filed by or against the Governmental Agency Wider any federal or state bankruptcy or insolvency law or other similar law in effect on the date of this Loan Agreement or thcreafta-enacted, unless in the cue of any such petition filed against the Governmental Agency such petition shall be dismissed within thirty (30) days after such filing and such dismissal shall be final and not subject to appeal; or the Govemmcntal Agency shall become insolvent or bankrupt or make an usipmcnt for the benefit of its creditors; or a custodian (including. without limitation, a receiver, liquidltor or trustee of the Governmental Agency or any of its property) shall be appointed by court order to take possession of the Governmental Agency or its property or usell if such order remains in effect or such possession continues for more than thirty (30) days. SECTION 5.02 Nodce al Delaalt. The Govcrnmcntal Agency shall give the Trustee and the Authority prompt telephonic notice of the occurrence of any Event of Defauh referred to in Section 5.0l(e) hereof, and of the occurrence of any ocher cveat or condition that constitutes an Event of Default at such time u any senior adminisnlive or financial offic:cr of the Governmental Agency becomes aware of the exisleac:c thereof. Any telepboaic nolice pursuant to this Section 5.02 shall be confirmed in writing by the end of the next Busineas Day (as defined in the Bond Resolution). SECTION 5.03 Remedies on Default. Whenever ID Event of Default referred to in Section 5.01 bcrcof shall have occurred and be continuing. the Authority shall have the right to take or to direct the Trustee to take any action permitted or rcquin,d punumit to the Loan Agreement and to take whatever other action at law <'r in equity may appear neceumy or desirable to collect the amounts tbcn due and thereafter -~omc due hereunder or to eafon:e the pcrfonnance and observance of any duty, coven , bligation or apecmcnt of the Governmental Agency hereunder, including. without h.u,tation, to obtain Cll pane the appointment of a receiver of the System. SECTION 5.04 Attorney's Fees 1111d Other ~ The Governmental Age ncy shall on demand pay to the Authority or the Trustee the reasonable fees and Cllpenscs of 45424650.l -29- ,. ' ... • • attorneys and other reasonable fees and expenses (including without limitation the reasonably allocated costs of in-house counsel and lepl Slaff) incurred by either of them in the aillection of Loan Repayments or any other sum due hereunder or in the enforcement of performance or observation of any other duties, a,venants, obliptions or agreements of lhe Governmental Agency. SECTION 5..t5 Appllratlon of Money1, Any moneys aillected by the Authority or the Truslee pursuant to Section 5.03 hereof shall be applied (a) tint, to pay any attorney's fees or other fees and expenses owed by the Governmental Agency punuant ID Section 5.04 hereof, (b) seaind, to pay interest due and payable on lhe Loan, (c) third, to pay principal due and payable on the Loan, (d) fourth, to pay any other amounts due and payable under this Loan Ag,eement; and (e) fifth. to pay intaest and principal on the Loan and other amounts payable hcmander • such amounts become due and payable. SECTION 5.06 No ae-lJ Esdalhe; Wamr; Nodet. No remedy herein conferred upon or reserved to the Authority or the Trustee is illlleDded to be exclusi11e and evr:ry such remedy shall be cumulative and shall be in addition ID ~ other remedy given under this Loan Agreement or now or hereafter existing ll law or in equity. No delay or omission ID exercise any right, remedy or power accruing upon any Event of Ddault lhall impair my such right, remedy or power or shall be construed to be a waiwr thereof, but any IIUCb ri&bt, remedy or· power may be exercised from time to time and as often • may be deemed expedient. In onla- to entitle the Authority or the Trustee to exercise any remedy .-ved to it in this Article, it shall not be necessary to give any notice, other than such DOlice as may be required in this Article V. SECTION 5.r7 Retentloa of AutborttJ'• RJslatL Notwi1bslandina my assignment or transfer of this Loan Agreement pursuant to the provisions haeof or of the Bond Resolution, or anything else to the conlrlr}' contained herein, the Authority shall ha11e lhe ript upon the OCCUlffllCe of an ElleDt of Default to take my ac1ion, includin1 (without limilllioD) bringing an action against the Govemmenlal Ap,w:y II law or in equity, as die Aathority may, in its disaetioa, deem necessary to enforce the obliptiolll of the Governmental Att,:,11:y ID the Authority pursuant to Section 3.03, Section 3.06 md Section 5.04 hereof. . SECTION 5.CII Def..it bJ 111t AlllllnrttJ, In the event of any default by the Authority under any duty, a>venant, agreement or obliplioa of this Loan Apeement. the Governmental Agency's remedy for such default shall be limited ID iqjunction, special aclion, action for specific performance or any other available equitable remedy designed to enforce the performance or observance of any duty, covenant, obliplioa or aa,eemmt of the Audlority hereunder as may be necessary or appropiale. The Authority shall on demand pay to the Governmental Agency the reasonable fees and expenses of attomeys and other .-able expenses in the enforcement of such performance or observation. 45424650.1 -30- • t ARTICLEVL MISCELLANEOUS 0 SECTION 6..01 Notices. All notices, certificata or other communications hereunder shall be sufficiently given and shall be deemed given when hand-delivered or mailed by registered or certified mail, postage prepaid, to the Governmental Agency at the address specified on Exhibit B attached hereto and made a pan hereof and to the Authority, the Trustee and the Loan Servicer at the following addresses: (a) Authority: (b) Trustee : (c) Loan Servicer: Colorado Water Resources and Power Development Authority 1580 Logan Street, Suite 620 Denver, Colorado 80203 Attention: Executive Director Wells Fargo Bank. N.A. 1740 Broadway MAC C7301-024 Denver, Colorado 80'274 Attention: Corporate Trust Services Wells Fargo Bank, N.A. 1740 Broadway MAC C7301-024 Denver, Colorado 80'274 Attention: Corporate 1iust Services Any of the foregoing parties may designate any further or cliffereot addresses ID which subsequent notices, certificates or other communications shall be sent, by notice in writing gi- to others. SECTION 6..02 Bladlna Effld. This Lom Apeement shall inure ID the benefit of and shall be binding upon the Authority and the Governmental Agency and their respective successors and assigns. SECTION 6.03 Snenblllty. In the event any provision of this Lom Agreement shall be held illegal, invalid or unenforceable by any court of competent jurisdiction. such holding shall not invalidate, render unenforceable or otherwise affect any other provision hereof. SECTION 6..04 Ammdmeots, Sup.--nts and Modlllcatlolll. This Loan Agreement may not be amended, supplemented or modified without the prior written consent of the Authority and the Governmental Agency. 0424650.1 -3 1- t • • SECTION 6.05 Eacutlon In CounterpartL This Loan Agreement may be executed in several countcrpans, each of which shall be an original and all of which shall constitute but one and the same instrument SECTION 6.16 Applicable Law and Venue. This Loan Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, including the AcL Venue for any action seeking to interpret or enforce the provisions of this Loan Agreement shall be in the Denver District Court. SECTION 6.fn Commas and Approvala. Whenever the written consent or approval of the Authority shall be required under the provisions of this Loan Apment, such consent or approval may only be given by the Authority unless odierwise provided by law or by rules, regulations or resolutions of the Authority or unless expressly delegated to the Trustee. SECTION 6.N CapdoaL The captions or headings in this Loan Agreement are for convenience only and shall DOI in any way define, limit or desaibe lbe scope or intent of any provisions or sections of this Loan Agreement SECTION 6.8' CompliaDce with Band ._..tlaa. The Governmental Agency covenants and agrees to take sud! action as the Authority shall reasonably request so as to enable the Authority to observe and comply with. all duti es , covenants, obliplions and agreements contained in the Bond Resolution insofar as such duties, COVCDlllts, obligations and agreements relate to the obligations of the Governmental Agency under this Loan Agreement SECTION 6.18 Fwtber ~ The Governmental Agency shall, at the request of the Authority, authorize. execute. acknowledge and deliver such further resolutions, conveyances, transfers, assurances. financing statements and other instruments • may be necessary or desinble for better assuring. conveyin&, gnmtin&, assigning and confirming the rights and agn:,ements granted or intended IO be granted by this Loan Agreemeul and the Govemmcntal Agency Bond. SECTION 6.11 RedtllL This Loan Agrccmeat is authorized pursuant ID and in KCOldance with the Constitution of the State of Colondo and all OCber laws of the Stlllie of Colorado thereunto enabling. Specifically, but not by -y of limitation. this Loan Aareement is authorized by the Governmental Agency punuant ID Title 11, Article 57, Part 2. C.R.S. Such recital sliall conclusively impart full complianile with alJ provisions and limitations of such laws, and this Loan Agreement delivered by lbe Governmental A,ency ID the .Authority containing such recital shall be incontestable for any cause whatsoever after ilS delivery for value. -32- .. t • • IN WITNESS WHEREOF, the Authority and the Governmental Agency hne caused this Loan Agreement to be executed, and delivered, as of the Commencement Date set forth on Exhibit B hereto. (SEAL) ATI'EST: City Clerk 4Sotl4650.I COLORADO WATER RESOURCD AND POWER DEVELOPMENT AUTHORITY By:------------ Executive l)in,ctor CITY OF ENGLEWOOD, COLORADO, ACTING BY AND THROUGH ITS SEWEil U1'ILITY ENTDPRISE By:------------ Mayor .33- EXIDBITA SECURITY DF3CRIPTION 1. De,criptlop ol Prp,led 1be Project consists of advanced treatment upgrades !Q._and construction improvements to increase the wastewater treatment capacity of, the existing Littleton/Englewood joint wastewater treatment plant from 36.3 mgd to SO mgd. 2. QncripCioq o( Smem The System all of the Governmental Agency's sanitary sewer facilities and properties now owned or hereafter acquired, whether situated within or without the geographical boundaries of the Governmental Agency, including all present or future improvements, extensions, enlargements, betterments, replacements or additions lhcn:,of or thereto including, but not limited to, the Project and the Governmental Agency's rights pursuant to an Agreement between the Cities of Littleton and Englewood, Colorado, for Joint-Use Wastewater Treatment Facilities, dated Dcc:embcr 6, 1982, as amended including the Governmental Agency's rights to 50'i1, of 32 million gallons per day (mgd) of primary, secondary and advanced treatment capacity at the Joint-Use Plant 3. A~mentand ~ ~~:t~~lJ,=;~~~':'etsiote~~~~~::~>-:-:-:-:-.._---------< on the Pledged Property granted to the Governmental Aaency's loan dated November ll, 1990 payable to the Authority in an original principal 1111DU111 of $12, 750,000 ("the 1990 Loan"). The Pledged Property will be free and clear of any pledge. lien, cbarp or encwntnnce ~ or with respect thereto prior to the obliption of the Governmental Agency to pay Ibis Loan A~ment and the Governmental Agency Baud except for the lien of the 1990 Loan, and all corporate or other action on the part of the Governmental Agency to that end has been and will be duly and validly taken . As of the dale of Ibis Loan ~t, there are the following, outstanding bonds, noccs or evidences of indebudness or COlllnCtUal obliplions payable from the Pledged Property with a lien on the Pledged Property which is on a parity with the lien of the Loan A~ment and Governmental Agency Bond on the Pledged Property; the Govemmental Agency's loan dated May 1, 2004, payable to the Authority in an oripnal amount of $ • Except as permitted by Exhibit F hereto, the Gow:mmental Aaency sbalJ not issue any bonds or other evidences of indebtedness of a similar nature payable out of or secured by a pledge, lien or assignment on the Pledged Property or create a lien or charge dacon. 4. Pledpd Property 0424650 I A-I .. t • • "Pledged Propeny" means the Net Revenues (as defined in this paragraph 4 of Exhibit A of this Loan Agreement). "Net Revenue" shall mean the Revenues less Operation Expenses . "Revenues" means all income from rates, fees, tolls and charges and tap fees, or any combination thereof, but not special assessments, for the services furnished by, or the direct or indirect connection with, or the use of, or any commodity from the System, including without limiting the generality of the foregoing, minimum charges, charges for the availability of service, disconnection fees, reconnection fees and reasonable penalties for any delinquencies, and all income or other realized gain, if any, from any investment of Revenues and of the proceeds of securities payable from Net Revenues (except income or other gain from any inveslJDml of moneys held in an escrow fund or account for the defeasance of securities payable from the Net Revenues or any other similar fund) to the extent not required ID be rebaled to the federal governmenL Revenues shall also include amounts on deposit in a rate stabilization fund. Revenues excludes any refund of rates, tolls and charges due ID Olhers. Notwithstanding anything contained above, amounts deposited in a rate stabilization account shall not be deemed Revenues in the calendar year deposited and amounts withdrawn from the rate stabilization account shall be deemed Revenues in the year withdrawn. "Operating Expenses " means such reasonable and necessary current expenses of the Governmental Agency, paid or accrued, of operating. maintaining and repairing the System as may be determined by the Governmental Agency, including. except as limited by contract or otherwise limited by Jaw, without limiting the generality of the foregoing: (a) Engineering. auditing. legal and other overhead expenses directly related and reasonably allocable to the administration, openlion and maintenance of the System; (b) Insurance, surety bond and interest rate cap qreement premiums appertainina ID the System: (c) The reasonable charges of any paying qent, registrar, ~ apt, depository or escrow bank appenainina to any securities payable from the Net Revenues; ( d) Annual payments ID pension, retirement, health and hospitalizalion funds appertaining to the System; ( e) Any taxes, assessments, franchise fees or other charges or payments in lieu of the foregoing; (I) Ordinary and current rentals or equipment or other property; (g) Contractual services, professional services, salaries, administrative expenses and costs of labor appenainin1 to the System and the cost of ,s.246501 A -2 t • • materials and supplies used for CUJfflll operation or routine maintenance or repair of the Syslem; (h) The costs incurred in the billing and coUection of all or any part of the Revenues; (i) Any costs of utility services furnished to the System by the Governmental Agency or otherwise; (j) Any other such ellpenses considered by the Governmental Agency in determining lhe amount of water rates, fees, tolls and charges imposed for operation and mainlellanc:e; (k) Ellpenses in connectioa with lhe issuance of bonds or other securities evidencing any loin to the Governmental Agency and payable from Revenues. "Operating Expenses" does no( include: 5. (a) Any allowance for depreciation; (b) Any costs of improvement, elltension or beaament that qualify as capital items in accordance with generally aa:epced 1CCOUnting principles; (c) Any accumulation of reserves for capital replacemenlS; ( d) Any reserves for operation. maintenance or repair of the SySlclll; (e) Any allowance for the redemption of any bonds or other securities payable from lhe Net Revenues or the pa~ of any illlaal ~; (f) Any liabilities incurred in lhe acquisition of any facilities constituting pan of the System; (g) Any other ground of legal liability no( bued OIi COllll'ICt. 8"' CoyC91Pt The Governmental Agency shall establish and collect rates and charps for the use or the sale of the products and services of the System, which together with other moneys avlilal>le therefor, are expected to produce Revenues (as defined in paragraph (4) of this Exhibit A IO this Loan Agreement) for each calendar year which will be at least sufficient for such calendar yatr IO pay the sum of: 45'12'650.1 A-3 • t .. • • (a) all amounts estimated to be required to pay Operating Expenses (11 defined in paragraph ( 4) of this Exlubit A of this Loan Ap-eemeot) during such calendar year; (b) a sum equal to llO'I> of the debt service due on theS,Ovemmental Apnr:y ___ --! ......... 19901-""' Bond and the 1990 Loan for such calendar yem-and debt aervice ooming due during such calendar yem-on any indebledness payable on a parity with the lien or clwge of this Loan Agreement OD the Pledged Property, in each case oomputed as of the beginning of such calendar year; (c) the amount, if any, to be paid during such calendar yem-into any debt service reserve account; (d) a sum equal to the debt service OD any subordinated debt for such calendar yem-computed as of the beginning of such caleodar year; and .. t Dl!'SCRIPl'ION OF TIIE LOAN 1. Commenceimnt Date: May 1,2004 l. AcldraaolGove~Aamcy: 3. City of Englewood, Colorado 1000 Englewood Parkway Englewood, CO 80110 Colt ol Project: $110,000,000 4. Prtndplll Amount ol Lou Coaaaltuwt: $. ___ _ EXHIBITB 5. LoenTerm: The final Loan Repayment date set forth in Ellhlbit C. 6. Dacdptlon al tbe Project: See Exhibit A, 1. 7. Autborbed Offlcer(1): Steward Fonda, pjrectgr of Uti!ities ,,,~ ....... a. ,. Project C-,letloa Date: Fnpk GryRlewjcz. Djrector of Fjnarg, December, 20Ql __ --________ --_____ --____ >-41.:.•=·=-=•:__ ____ .J Eucutlon Date: May27,2004 B-1 -. .. LOAN REPAYMENT SCHEDULE Loan Principal Principal Total Repayment Portion al Purtlon al Prlndpal Date Loan Loan Repayment1 Repayment2 r I Allocated to Principal o( Authority B<nda. 2 Allocated 10 Authority Funds Depo1iled in Project I.om Suba:couat. ' Allocated 10 Interest on Authority Bonds. 4S4:!AMO I C -1 latenlt Portlonol Loan Repa,-t3 EXHIBITC Total1- Repa,-t -- (J EXHIBITD GOVERNMENTAL AGENCY BOND FOR VALUE RECEIVED, the undersigned, CITY OF ENGLEWOOD, COLORADO, ACTING BY AND THROUGH ITS SEWER UTILITY ENTERPRISE (the "Governmental Agency") hereby promises to pay to the COWRADO WATER ~URCF.S AND POWER DEVELOPMENT AUTHORITY (the "Authority"), or registered assigns, the principal amount of Dollars, at the times and in the amounts determined as provided in the Loan Agreement daled as of May I, 2004, by and between the Authority and the Governmental Agency (the "Loan Agreement"), together with interest thereon in the amount calculated as provided in the Loan Agreement, payable on the dates and in the amou.nts determined as provided in the Loan AgreemenL This Governmental Agency Bond is issued pursuant to the Loan Agreement and is issued in consideration of the loan made thereunder (the ''Loan") and to evidence the obligations of the Governmental Agency set forth in Section 3.03(a) and (b) thereof. The Governmental Agency Bond has been assigned to Wells Fargo Bank, N.A., as ttustce (the "Trustee") under the Bond Resolution (as defined in the Loan Agreement) and payments hereunder shall, except as otherwise provided in the Loan Agreement, be made dim:tly to the Loan Servicer (as defined in the Bond Resolution) for the account of the Authority punuant to such usignmenL Such assignment has been made as security for the payment of the Authority Bonds (as defined in the Bond Resolution) issued to finance or refinance, and in connection with, the Loan and as otherwise described in the Loan AgreemenL All of the terms, conditions and provisions of the Loan Agreement are, by this reference thereto, incorporated herein u a part of this Governmental Agency Bond. Pursuant to the Loan Agreement, disbursements shall be made in accordance with wrillell · instructions of the Authority by the Trustee to the Govemmcntal Agency, upon the rcc:cipt by the Authority and Trustee of requisitions from the Governmental Aaency executed and delivered in accordance with the requirements set forth in Section 3.02 of the Loan AgreemenL This Governmental Age ncy Bond is entitled to the benefits and is subject to the conditions of the Loan AgreemenL The obligations of the Governmental Aaency to make the payments required hereunder shall be absolute and unconditional without any defense or right of setoff, counterclaim or recoupment by reuon of any default by the Authority under the Loan Agreement or under any other agreement between the Governmental Agency and the Authority or out of any indebtedness or liability at any time owing to the Govemmental Agency by the Authority or for any other reason . Thi s Governmental Agency Bond is subject to optional prepayment under the tams and conditi ons, and in the amounts provided in Section 3.07 of the Loan AgreemenL The obl igation of the Go vernmental Agency to make payments under the Loan Agree ment and th is Governmental Agency Bond is payable solely from the repayment source D-1 t • • described in the Loan AgreemenL This Governmental Agency Bond is a special and limited obligation of the Governmental Agency payable solely out of and secured by an irrevocable pledge of a lien (but not ncccssarily an exclusive lien) upon the PledF(I Property (as defined in paragraph 4. of Exhibit A of the Loan Agreement). This Governmental Agency Bond does not constitute a debt or an indebtedness of the Governmental Agency within the meaning of any constitutional, charter or statutory provision or limitatioll. This Governmental AfPllCY Bond is not payable in whole or in part from the proceeds of genc:ral property taxes, and the full faith and credit of the Govcmmenllll Agency is not pledF(I for the payment of the principal of or interest on this Governmental Agency Bond. This Governmental Agency Bond is issued under the authority of and in full conformity with the Constitution and laws of the State of Colorado, including without limitation, Article X. Section 20 of the Constibllion, Title 31, Article 35, Put 4, C .R.S.; certain provisions of Title 11, Article 57, Put 2, C .R .S. (The ''Supplemental Act"), and punuant to the Loan AgreemenL Pursuant to §11-57-210, of the supplemental act, such recital shall be conclusive evidence of the validity and regularity of the issuance of the Bond after its delivery for value. Pursuant to §31- 35-413, C.R.S., such recital shall conclusively impart full compliance with all the provisions of said statues, and this Bond issued containing such recital is incootatable for any cause whatsoever after its delivery for value. IN WITNESS WHEREOF, the Governmental A&efw:Y has caused this Governmental Agency Bond to be duly executed. sealed and delivered, u of this 1st day of May, 2004. (SEAL) ATTEST: City Clerk CITY OF ENGLEWOOD, COLORADO, ACTING BY AND THROUGH ITS SEWER UTILITY ENTEIU'IUSE By: _____________ __; Mayor D-2 • • .. • • --- EXIDBITE-1 OPINION OF GOVERNMENTAL AGENCY COUNSEL [LETTERHEAD OF COUNSEL TO GOVERNMENTAL AGENCY] (Dale of Closing) Colorado Water Resources and Power Development Authority Wells Fargo Bank, N.A. as Trustee as Representative of the Underwriters Ladies and Gentlemen: [insert "I am an attorney" or "We are anomeys"J admitted to practice in the State of Colorado and ["f' or "We'1 have IClcd as counsel to the CITY OF ENGLEWOOD. COLORADO, ACTING BY AND THROUGH ITS SEWEil UTILITY ENTEllPlllSE (the ''Governmental Agency"), which bu entered into a Loan Apeement (es hemnaftcr defined) with the COLORADO WATER RESOURCE.1 AND POWEil DEVELOPMENT AUTHORITY (the "Authority"), and have IClcd as such in connoction with the llllborizllioa, execution and delivery by the Governmental AlfflCY of the Loan A.--ad its Governmental Agency Bond (u ~ defined). In so acting [insat "f' or "we") have examined the Comlilldioa ad la-of 1111 SUie of Colorado and by-laws of the Govemmemal Agency. [imcn '1" or "Wej have mo cummml originals, or copies certified or Olhcrwise identified 10 (imcn "Illy" or "our") lllisfaclioD, of the following: I. The Authority's Water Pollution Control Revolvin& fund 2004 Scriel A Re-.e Bond Resolution. adopted by the Authority on April 23, 2004 (the "&«.I Resolution"); 2 . 3. the Loan Agreement, dalcd as of May I, 2004 (the '1.oan Apeement") by 111d between the Authority and the Governmental Agency; proceedings of the governing mcmbcn of the Governmental Apocy relllina IO the approval of the Loan Agreement and the execution, issuance 111d delivery E-1-1 t .. • • -- • thereof on behalf of the Governmental Agency, and the authorization of the undertaking and completion of the Project (as defined in the Loan Agreement); 4. the Govcmmeotal Agency Bond, dated May l, 2004 (the "Governmental Agency Bond") issued by the Governmental Agency to the Authority to evidence the Loan ; 5. 6. proceedinp of the governing body of the Oovemmental AFf!CY relating to the issuance of the Governmental Agency Bond and the execution, isslllllCC and delivery thereof to the Authority (the Loan Agreement and the Go~ Agency Bond an referred to herein collectively u the ''Loan Documenbj; and all outstandina instruments relating to bonds, notes or other indebtedness of or relating to the Governmental Agency. [iosat "I" or "We"] have also examined and relied upon originals, or copies ca1ified or otherwise authenticalcd to [insert "my" or "our"] satisfaction, of such Olher ra:ords, documcnls. certificates and other instruments, and made such investigation of law u in (imat "my" or "our") judgment (insert '1" or "we'1 have deemed necessary or appropriare to enable [insert "me" or "us") to render the opinions expressed below. Based upon the foregoing. (insert ''I am" or "We are") of the opinion that: 1. The Governmental Agency is a "governmental agency" within the meaning of the Authority's enabling legislation with the lepl right to canyon the business of the System (as defined in the Loa11 Agreement) as cunently bein& conducted and u proposed to be conducted. 2 . 3. The Governmental AFDC}' bas full lepl right and authority ID eucale the Lou Documents and ID ~ and perform its dutiea, CO-.nb, obliplionl and agreements thereunder and to undertake 111d complete the Project; subject. however, to the effect of, reslric:tiom 111d limitations impoled by or raultiD.a from, banJcrupk:y, insolvaicy, montorium, ieorpniZllion. dellt adjllSlmall or ocher similar laws affectina c:rediton' ripts aeneratJy (Credieor's Rial* Limitations) herelofore or baafter enacted. The procecdinp of the Governmental Ageacy'1 p>vemin& mcmben approvin1 the Loan Documents and aulhorizina their execution, issuance and delivery on behalf of the Governmental AFDC)', and authorizin1 the Govemmental Ap,M:y 10 undenake and complete the Project have been duly and lawfully adopled and authorized in accordance with applicable Colondo law, (hereinafter collectively called the "Authorizing Resolutions;, which Authorizing Resolutions wen: duly approved and published in aa:ordance with applicable Colorado law , at a mcetina or mcetinp which were duly called punuant IO necessary public nooce and held in accordance with applicable Colondo law, and at which quonuns wen: present acting throughout. E-1-2 t • • • -- 4. 5. 6. 1. To the best of [insert "my" or "our") knowledge, after such investigation as [insert "f' or "we"] have deemed appropriate, the authorization, execution and delivery of the Loan Documents by the Governmental Agency, the observation and performance by the Governmental Agency of its duties, covenants, obligations and agreements thereunder and the consummation of the transactions contemplated therein and the undertaking and completion of the Project do not and will not contravene any existing law or any existing order, injunction, judgment, decree, rule or regulation of any court or governmental or administrative agency, authority or penon having jmisdiction over the Governmental Agency or its property or assets or result in a breach or violation of any of the tenns and provisions of, or constitute a default under, my existing bond resolution, trust agreement, indenture, mortgage, deed or trust or Olhcr agreement to which the Governmental Agency is a party or by which it, the System (as defined in the Loan Agreement) or its property or assets is bound. To the best of [insert "my" or wour"J knowledge, after such investigation as (insert 'T' or "we"] ha11e deemed approprialc. all approvals, consents or authorizations of, or registrations of or filinp with, my governmental or public agency, authority or person Rquircd to dale on the part of the Govemmental Agency in connection with the authoriution, exec:ution, delivery and performance of the Loan Documents and, other than llllhorizllions, licenses and permits relating to the siting, construction and acquisition of the Project which [imat 'T' or "we") expect the Governmental Agency to receive in the ordinary course of business, the undertaking and completion of the Project ha11e been oblained or made. To the best of [insert Mmy" or Mour''J knowledge, after such investiplion as (insert "r' or "we"] have deemed appropriate, there is no litigation or other proceeding pending or threatened in any comt or Olher b'ibunal of competmt jurisdictioa (either Slate of Fedenl) queslionina the creation, orpniz.atioD or emtmce of the Governmental Agency or the validity, leplity or enfon:eability of the Loan Documents or the undenakina or cnmpletion of the Project or which if adwnely delennined. could (a) materially adwncly affect (i) the financial position of the Governmental Agency, (ii) the ability of the Govanmental Aa-,.-y to perform its obligations under the Loan Documents, (iii) the security for the Loan Documents. or (iv) the transactions contmnplaled by the Loan Documents, or (b) impair the ability of the Governmental Agency to maintain and operm its syllem. There does not exist my bill, act, law, rule or replalion pendina or, to the best of [insert "my" or "our'1 knowledge. threalencd which, if enacted, could (1) malerially adversely affect (i) the ability of the Governmental Agency to perform its obligations under the Loan Documents, (ii) the security for the Loan Documents, or (iii) the transactions contemplaled by the Loan Documents. or (b) impair the a bility oi the Governmental Aaer,cy to maintain and openae the System. E-1-3 ' .' • • This opinion is rendered on the basis of Federal law and the laws of the State of Colorado as enacted and construed on the date hereof. [ insert "I" or "W e'1 expras no opinion as to any matter not set forth in the numbered parasnphs herein. [insert "I" or "We"] hereby autboriu Fulbright & Jaworski LL.P., Bond Counsel, and Carlson, Hanunond & Paddock L.LC., General Counsel to the AU1hority, to rely on this opinion as if [insert "I" or "we"] had addressed this opinion to them in addition to you. Very !JUiy yours, E-1-4 EXHIBITE-l OPINION OF GOVERNMENTAL AGENCY BOND COUNSEL [LETl'ERHEAD OF BOND COUNSEL TO GOVERNMENTAL AGENCY] (Date of Closing) Colorado Water Resources and Power Development Authority Wells Fargo Bank, N.A. as Trustee as Representative of the Underwriters Ladies and Gentlcmen: [insert 'T' or "We"] have lldcd u bond COUDSd to the CITY OF ENGLEWOOD, COLORADO, ACTING BY AND THROUGH ITS SEWEil UTILITY ENTElll'IUSE (the "Governmental Agency"), which hu entered into a Loan Apeemeal (u baeinaftcr defi-S) with the COLORADO WATER RESOURCES AND POWER DEVELOPMENT AUTHORITY (the "Authority''), and have acted u such in COlllleClion with the audlarizalion, execution and delivery by the Govemmcntal Agency of the Loan Apecment and its Governmental Agency Bond (as hereinafter defined). In so acting [insert 'T' or "we"] have cumined the c.omtitution ud laws of the Stale of Colorado and by-laws of the Govcrnmen1al Agaw:y. [i-1 "I" or "We"] have Ibo eumined originals. or copies cenificd or odawisc identified to [imen "my" or "our"] Ulisfaclicm. of die following: l. 2 . 3 . 4 . The Authority's WIier Polllllioa Conlrol Rcvolvin& Fund 2004 Series A._ Bond Resolution, adopwJd by the Aulbority Oil April 23, 2004 (the "8oad Resolution"'); the Loan AaJeement, dlled as of May l, 2004 (the "Loin Apemelllj by ud between the Authority ud the Govemmenlal Agaw:y; proceedings of the governing memben of the Governmenlll Agaw:y ielaliq to the approval of the Loan Apeemenl and the eu,culion, issuance and delivery thereof OD behalf of the Governmenlal Agaw:y; the Go vernmental Agency Bond. daled May 1, 2004 (the "Oovernmenlll Agaw:y Bond") issued by the Governmental AFfl'!Y to the Audlority to evidence the Loan ;and E-2-1 t .. • • .. ' . • 5. proceedings of the governing body of the Govenuncatal Apncy relating ID the issuance of the Govcmmcntal Agency Bond and the execution, issuance and delivery thereof to the Authority (the Loan AP"iCment and the Governmental Agency Bond are referred to herein collectively as the "Loan Documen11"); and [insert "I" or ''We") have also examined and relied upon migjnals, or copies certified or otherwise authenticated to [insert ''my" or "our"] satisfaction, of such other records, docwncots, certificates and other inslrUmcnts, and made such inveatiptioo of law a in [insert "my" or "our") judgment [insert 'T' or "we'1 have deemed necessary or appropriale to enable [insert "me" or "us'1 to render the opinions expressed below. Based upon the foregoing. [insert '1 am" or "We are") of the opinion that: 1. 1bc Govcmmcntal Agerx:y is a "govcmmcntal agency" wilhin lhc meaning of the Authority's enabling legislation. 2. 1bc Governmental Agerx:y bas full lepl ript and authority ID execute the l..oan Documents and ID observe and perform i duties, COVCDIIID, obliplioas and ~ thereunder and to undertake and complete lhc Project; subjoct, however, to the effect of, restrictions and limitaliom impoled by or n:sulting from. bankruplcy, insolvcacy, Dllll'llmum, reorpnizalion, dellt adjllltmellt or other similar laws affectin& credilOrS' righll aenenJly (Creditor's Righll Limitations) heretofore or hereafter cnacred. 3. 4 . 1bc Govcmmcntal AFflCY has pledpd lhc [insert specific BOUnlC of payment) for the punctual payment Of the principal of and inlllat OD lhc l..oan (as ddined in the Loan Apecmeal). and all other anmll due under lhc I.ca DocuamilS according to lhcir respective tern. and the Aulhority hll a fint lim but not necessarily an exclusive tint lien on sucb IOlll'CIC of repayimat. No filiDp or recordinp are required under lhc Colorado Uniform Commercial Code in IJl'dar ID provide I fint lien OD such IIOlll'CC of repayment and all acliom baw ._ IMen U required under Colorado law ID insure lhc priority, validity and eafon:eability of such lien. 1bc Loan Doaumals have been duly audl:oriud, euculed 111d deliwnd by the authorized offic:cn of lhe GovernmeDIIII Afmcy; and. assumina in die cae of the Lou Apecmenl. Iha lhc Authority ha all die requisite power and audiority 10 aulboril.c, CUCUIC ad deli..-, and ha duly llllhariad, euc:ullcd and delivsed the Loan Aarecmem, the l..oan Docu.-comdtille die lepl. valid and bindiDa obligations of the Govemnntal AFflCY enforceable in accordaace with their respective tams; subjoct, howcvs, ID the effect of, and ID ~ and limitations _imposed by or resulting from Creditor's Righls Limi&lliolll or other laws, judicial decisions and principles of equity relldna ID lhc CIIMW of conlractual obliplions aenenJly. E-2-2 t .. .' • f • • 5. 6. Assuming compliance with the covenants contained in the Loan Agreement, the Governmental Agency is not, directly or indirectly, (a) using in excess of ten percent of the proceeds of the Authority Bonds (as defined in the Loan AgJCCmcnt) loaned to the Governmental Agency or the Project in a manner that would constitute ''private business use" within the meaning of Section 14l(b)(6) of the Internal Revenue Code of 1986, as amended (the "Code"), and at least one- half of such private business use permitted by clause (a) is neither unrelated to the governmental use of the proceeds of the Authority Bonds loaned to the Governmental Agency (within the meaning of Section 14l(b)(3)(A)(ii)(l) or (Ill) of the Code) nor disproportionate related busillCSI use (within the meaning of Section 14l(b)(3)(A)(ii)(Il) or (Ill) of the Code) nor (8) using, directly or indirectly, any of the proceeds of the Authority Bonds loaned to the Governmental Agency to make or financ:e loins to penom other lhan governmental units (as such terms is used in Section 14l(c) of the Code). The execution and delivery of the Loan Documents are not subject to the limitations of Article X. Section 20 of the Colorado Constitution ('7 ABOR") since the System of the Governmental Agency as of the <Ille hereof coastitules an enterprise under TABOR. The performance of the obliptiom of the Governmental Agency under the Loan Documents is not subject to the limitations of TABOR as long as the System continues to qualify as an entaprisc under TABOR . If the System is not longer an enterprise under TABOR, the Loan Documents will continue to constitute lepl, valid and bindina obliptioos of the Governmental Agency enforceable in accordance wilb their respective tmns; subject, however, to (a) Creditor's Ripts Limitations or other laws, judicial decisions and principles of equity relllin& to the enf-t of COlllraclllll ripts generally, and (b) subject to the next sentence, the revenue and spendina limitations of TABOR. If the System at any time fails to be an entaprisc under TABOR, (a) the Governmental Agency may continue to impolC any inaeuc in fees, rates and charges of the System without voeer approval; {b) all revenues of the Governmental Agency used to pay Loan Repaymeota lhall be included in the Governmental Agency's fiscal year spendlna limit under Section 7(d) of TABOR, except that debt service changes and reductions are exceptions to, and not part of, the Governmental Agency's revenue and spendlna buis and limits; and (c) if the Governmental Agency is required to reduce 1pendin1 in order IO comply with its fiscal year spending limit under Section 7(b) of TABOR, the Governmental Agency will first be required to reduce apendlna for purpo1C1 for which it does not !lave an obliption under law or by contract prior IO reducina apendlna required to comply with the other covenants contained in the Loan Documents. Thi s opinion is rendered on the basis of Federal law and the laws of the Swe of Colorado as enacted and construed on the date hereof. [insert "I" or "We"] eJLpress no opinion as to any matter not set forth in the numbered paragraphs herein . 4Sl24650 I E-2·3 .. ' ' .. .. • I f [insert "f' or "We"] hereby authorize Fulbright & Jawonki LL.P., Bond C"..oumcl, and Carlson, Hammond & Paddock L.L.C., General Counsel to the Authority, to rely on this opinion as if [insert "I" or "we") had addressed thi.s opinion to them in addition to you. Very truly yours. E-2-4 • t EXIDBITF ADDITIONAL COVENANTS AND REQUIREMENTS Audit Requirements. For each year in which the Governmental Agency requests a disbursement from the Project Loan Subaccount, the Governmental Agency shall conduct its annual audit in accordance with the fcdcral Single Audit Act, 31 U.S.C. 17501 ct seq. Additional Senior, Parity and Subonlloate Lien Bonds. The Governmental Agency covenants that it will not issue any obligations payable from the Pledged Property, which are superior to the lien of this Loan Agreement on the Pledged Property. In addition, the Governmental Agency covenants that will not issue any obligations with a lien on the Pledged Property which is on a parity with the lien of the Governmental Agency Bond unless the Governmental Agency certifies to the Authority that Net Revenues (as defined in paragraph 4. of Exhibit A to this Loan Agreement and subject to the next sentence) for any 12 consecutive months out of the 18 months preceding the month in which such obligations are to be issued is at least equal to the sum (a) of l lO'l> of the maximum annual debt service of (i) the Governmental Agency Bond and all outstanding obligations of the Govcmmcntal Agency payable on a parity .. ' ... with the Governmental Agency Bond from the Pledged Property, (ii) the 1990 f.l>!1! ~ _@)_ _. -1'-D_,_1,1_,_o _1 _____ __, such proposed obligations to be issued, and (b) lOO'I, of maximum annual debt service of all other indebtedness payable from the Pledged Property. Net Revenues deiennincd punuant to the preceding sentence shall exclude any withdrawals from the Rate Stabilization Fund and shall only include one-half of the average of tap fees for the three prior ycan. Net Revenues may be adjusted to reflect any rate increases adopted prior to the issuance of such additional obligations by adding to the actual Net Revenues for the 12 consecutive month period and estimated sum equal to IOO'I, of the estimated increase in Net Revenues which would have been realized during said period had such rate increase been io effect during all of said preceding period. Notwithstanding the foregoing, the Govcmmcntal Agency may issue refunding obligations, payable from the Pledged Property without compliance with the requirements swed above, provided that the debt service payments on such refunding obligations do not cKCeed the debt service payments on the refunded obligations during any calcodar year. In addition, the Governmental Agency covenants that it will not issue any obligations payable from the Pledged Property which is subordinate to the lien of this Loan Agreement on the Pledged Property unless the Governmental Agency certifies to the Authority that for any 12 consecutive months out of the 18 months preceding the month in which such obligations are to be issued Net Revenues were at least 100% of the maximum annual debt service on all indc!Udocss outstanding during such period. Operations and Maintenance Reserve Fund. The Govcmmcntal Agency shall maintain an operations and maintenance reserve in an amount equal to three months of operation and maintenance expenses excluding depreciation of the System as set forth in the annual budget for the current fiscal year but in no event greater than $1,250,000. Said reserve may be in the form of unobligated fund balances or other unobligatcd cash or securities (i.e., capital reserves) '54l 46SO I F-1 t .... .. • • i Z! - ff~l i 8 f!l>t &!Q~i'lfi ~;1~ tll li11 i lllw~'~if ~all §' ., ~.,.·-i.,-, Si.IS (f i>.si i~&! i.l -rfiir Bj.l,-111 1-=!rii .. ! !!=: : i, atl r I· J-~ , , ! t ';;· ~: ·I!: > r ~ft i il a·l ll l f . f i J < J-f.1, t ~! ( el it -f ( l J r .: 9 -· I ' 111 :1!~ 1 Ill ,j! Jr iiHilsa.!i 1~ l,lr rti I f ! : f = If l fr ~l , i, ~lg a l l; l I(!! · n·1~i H['!HJ 'i l f tf ! l~flf tf!i!; f!,1iit~l1 :!~! 1i;l !I l i. .t a. I 't ! 1 'I ( Si ,81 • ii~I ~11~,i~i ti-1tiftiiit111~1J~ rr.1's er er er [ a ( ! l i. I sa. ei a t ~ ri( I }-a r r r 1· I 11~ t, [ ! i l Ji J · 1· 1 r i :.· 1 -1 l i r i l r i i er 11 [ : IS • : t r I o "'' -.. ,/',' \ JIJIJ I OIU>INANCB NO. SERIES OF 2004 ·• • • BY AUTHORITY COUNCIL BILL NO . 21 INTRODUCED BY COUNCIL MEMBER WOLOSYN AN ORDINANCE OF THE CITY OF ENGLEWOOD, COLORADO, REAFFIRMING THE ESTABLISHMENT OF ITS SEWER UTil.lTY ENTERPRISE; PRESCRIBING DETAILS IN CONNECTION THEREWITH ; AND DECLARING AN EMERGENCY . WHEREAS, the City of Englewood (the "City"), is a home rule municipality of the State of Colorado (the "State") duly organized and operating under the City Charter (the " barter'") and the Constitution and laws of the State ; and WHEREAS , pursuant to Section 121 of the Charter, the City has the right to exerci se with re peel to City owned utilities all of the authority and powers now prov ided by the statutes of the State; and WHEREAS, pursuant to the provisions of Title 31, Article 35, Part 4, Colorado Rev ised Starute , municipalities within the State are authorized to operate and maintain sewerage faci lities; and WH EREAS , Section I OS of the Charter permits the City to issue revenue bonds as now or here after provided by the statutes of the State for municipalities of every class and, purs uant to the provisions of Title 31, Article 35 , Part 4 , Colorado Revised tarut es, municipalities are authorized to issue revenue bonds for the acquisition, construction, reconstruction, lease, improvement, betterment, or extension of any wcra ae fac ilities ; and WHEREAS , pursuant to Section 99 of the Charter, the accounts of each utility owned and operated by the City must be kept separate and distinct from all other count of the City in such manner as to show the true and complete financial result of uc h Ci ty ownership and operation including all assets, liabilities, revenues, and e pc nses in ac cordance with a uniform classification of accounts and shall contain propo rt io na te charges for all services performed by other departments for such utility, a well as proportionate credits for all services rendered; and WHEREAS, pursuant to the provisi on s of Title 37 , Article 45.1 , Colorado Rev ised Statutes (the "W ater Activity Law '"), municipalities which have their own bonding capacity are authori zed : (i) to continue to maintain water enterprises for the purpose of pursuing or co nt inuing water activities , including activities related to wastewater facili ties; (ii) to issue or reissue bonds or other obligations payable from the revenues de rived or to be derived from the enterprise, the terms and conditions of such bonds or o th er o bli gation s to be as set forth in the legislative measure authorizing the same and, as nearly as practicable , as pro vided in Part 4 of Article 35 of Title 31 , C .R.S ., relating to th e iss uance of water revenue bonds ; and WHEREAS, in order to qual ify as a water enterprise under the Water Activity Law , the enterp rise mu st consist of a government water activity bus iness owned by a gove rn men tal ent ity such as the Ci ty, which enterprise re ceives under 10% of it s annual -1- 11 bl ' · .. .. • I • t • • 0 0 revenues in grants from all Colorado State and local governments combined, and which is authorized to issue its own revenue bonds; and WHEREAS, as stated in the Water Activity Law, any water activity enterprise maintained pursuant to the provisions thereof are excluded from the provisions of Section 20 of Article X of the State Constitution; and WHEREAS, the System (as defined hereafter) has historically been and continues to be operated as an "enterprise" within the meaning of the Water Activity Law ; and WHEREAS, it is the intent of the City to reaffirm the City "Sewer Utility Enterprise" under the Water Activity Law; therefore NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS : Section I, Sewer Utility Enterprise. There is hereby reaffirmed, pursuant to the terms and provisions of the Water Activity Law, the City of Englewood "Sewer Utility Enterprise" (the "Enterprise"). The Enterprise shall consist of the business represented by all of the City's sanitary sewer facilities and properties, now owned or hereafter acquired, whether situated within or without the City boundaries, including all present or future improvements, extensions, enlargements, betterments, replacements, or additions thereof or thereto (the "System"). The Enterprise shall have all of the authority, powers, rights, obligations, and duties as may be provided or permitted by the Water Activity Law, the Charter, and the Colorado Constitution, and as may be further prescribed by ordinance or resolution of the City. The governing body of the Enterprise (the "Governing Body") shall be the City Council of the City, and shall be subject to all of the applicable laws, rules, and regulations pertaining to the City Council. Whenever the City Council is in session exercising its legal authority relating to any Enterprise matter, the Governing Body shall also be deemed to be in session. It shall not be necessary for the Governing Body to meet separately from any meeting of the City Council, nor shall it be necessary for the Governing Body to specifically announce or acknowledge that actions taken thereby are taken by the governing body of the Enterprise. The Governing Body is authorized to exercise the City's legal authority relating to sanitary sewer activities as provided in the Water Activity Law and to take action in whatever form determined by the City Council ; provided howe ,·er, the Governing Body may not levy a tax which is subject to Article X, Section 20(4) of the State Constitution . · Se c tion 2. Ratification and Approval of Prior Actions . All actions heretofore taken by the officers of the City and_ the members of the City Council, not inconsistent with the provisions of this Ordinance, relating to the operation or creation of the Enterprise, are hereby ratified, approved and confirmed. Section 3. Repealer . All orders, bylaws, ordinances, and resolutions of the City , or parts thereof, inconsistent or in conflict with this Ordinance, arc hereby repealed to th e extent only of such inconsistency or conflict. -2- ' ... .. • • Section 4. Severablllty. If any section, paragraph, clause, or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause, or provision shall not affect any of the remaining provisions of this Ordinance, the intent being that the same are severable. Section 5. Declaration of Emergency. The need to close on a funding through the Colorado Water Resources and Power Development Authority to secure the award of bids by the City for certain improvements to the Littleton/Englewood Wastewater Treatment Plant require that this Ordinance be effective immediately; therefore, the Council hereby finds and determines that this Ordinance is necessary for the immediate preservation of public property, health, peace and safety and shall be in full force and effect immediately upon final passage by the Council . Introduced, read in full, and passed as an emergency ordinance on first reading on the 5th day of April, 2004. Published as a Bill for an Emergency Ordinance on the 9th day of April, 2004. Read by title as an Emergency Ordinance and passed on final reading on the I 9th day of April, 2004. Published by title as Emergency Ordinance No. __, Series of 2004, on the 23 111 day of April, 2004. ATTEST: Douglu Garrett, Mayor Loucrisbia 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 the Emergency Ordinance passed on final reading and published by title as Emergency Ordinance No . __, Series of 2004. Loucrishia A . Ellis -3 - 0 COUNCIL COMMUNICATION Date April 19, 2004 Subject Amendment for Denitrification System Equipment and Services Purchase INITIATED BY STAFF SOURCE The L/E WWTP Supervisory Committee Stewart H. Fonda, Utilities Director COUNCIL GOAL AND PREVIOUS COUNCIL ACTION Approval of the Planning and Capacity Assessm ent Study and the Phase 2 Predesign Project Report. Approval of the Denitrification System Equipment and Services Contract. RECOMMENDED ACTION Approve, by motion, Amendment #1 to the purcJ)ase~~~ lyetalt equipment and installi!,tion services for the L/E wwrP from Severn 'rrerit Services in the amount of $98,581. BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED The Littleton/Englewood WWTP has a current treatment capacity of 36.3 million gallons per day (mgd) and 63,000 pounds per day of organic matter. Two primary factors have been identified that w ill require expansion of the present facility: 1) higher than anticipated population growth in the facility 's service area and ; 2) the regulatory requirement to remove nitrate from the plant effluent These two factors and the need for expansion were presented to both Littleton and Englewood City Councils at a study session in November 1999. A planning and capacity assessment project was authorized as a result of the study session and Brown & Caldwell completed the project at the end of 2000. The results of the project were presented to both councils at a study session in February 2001 . Brown & Caldwell recommended increasing plant ca pacity to a nominal SO mgd and discussed the need for nitrate removal that may result from the o ngoing nitrate Total Maximum Daily Load (TMDL) study. Results of the TMDL are now anticipated in June . A pre-design project was completed to identify specific plant components needed to expand the facility to the recommended capacity and include a denitrification (nitrate removal) system. The pre-design project also included the identification of the regulatory work required to obtain appro va l from the Water Quality Control Division and the Denver Regional Council of Governm ents, th e 208 planning agency in the Denver area . As part of the pre-design project. a preliminary es timate of project costs was developed. The findings and recommendati ons of the Pre-design Project Report have been accepted and the engineering tinal design oi the Phase 2 project is now complete. Project cost estimates have been upda ted anJ reflned as the design progresses. ' ,, • • The Seve rn Trent Services contract for pre-construction technical services, denitrification equipment, and startup and testing for the Tetra denitrification system in the amount of $3 ,080,300 was rev iewed and approved by City Council in July 2003. During the final design phase additional equipment items were identified that need to be part of the Severn Trent Services scope of supply. Amendment #1 to the original contract has been drafted and includes this equipment in their scope of supply in the amount of $98,581 . This will increase the total Severn Trent contract amount to $3,178,881 for process equipment, startup services and testing. These services will be provided to the Phase 2 construction general contractor. The payment of the contract amount will be made through the Phase 2 Construction Contractor to Severn Trent as equipment is delivered, installed and tested . The increase is included in the total Phase 2 Expansion project budget estimate of $110,000,000. FINANCIAL IMPACT The cost of the Dentrification System Equipment and Services will increase by $98,581 to $3, 178,881, is a capital cost and will be split 50/50 with the City of Litdeton . Funds to complete the equipment purchase are included in the Phase 2 Expansion project budget LIST OF ATTACHMENTS Amendment #1 to the Agreement for Vendor Services and Equipment with Severn Trent Services ... ..• ... ' .. • • AMENDl\ilENT 1 TO AGREEJ\IIENT FOR VENDOR SERVICES BETWEEN SEVERi"l TRENT SERVICES AND CITY OF ENGLEWOOD FOR SUPPLY O F DENITRICATION FILTRATION SYSTEM TIIlS AMENDMENT NO. 1 to the Agreement, made and entered into effective as of the_ ___ day of ___ , 20_, by and between the City of Englewood, hereinafter referred to as "CLIENT," and Severn Trent Services , a Pennsylvania corporation, hereinafter referred to as "VENDOR.": WITNESSETH: WHEREAS , Owner and VENDOR entered into an Agreement on July 23, 2003, to provide vendor services in connection with implementation of Phase 2 Littleton/Englewood WWTP Expansion , herein referred to as the "Project"; and WHEREAS, the Client has entered into a separate agreement for engineering consulting services with Brown and Caldwell, hereinafter referred to as ''ENGINEER"; WHEREAS, the Client shall enter into a separate agreement for construction services with a general CONTRACTOR, hereinafter referred to as "CONTRACTOR," NOW, THEREFORE, Owner and Engineer agree to amend the Agreement as follows : I. THE AGREEMENT The following paragraph shall be added under Section I. ''THE VENDOR AGREES" "L. To c ompl y with all the requirements of the Contract Documents, and specifically wi th Specification 13529 of th e Bidding Documents" Il. E,XHIBIT B : SCHEDULE OF VENDOR SERVICES Paragra ph C .Section II shall be changed from ; To: "VENDOR will deliver equipment to jobsite , fabricated items and filter media no late r than 16 weeks after shop drawing approval by the ENGINEER." Amendment 1 :"vtar 16 . 1004 .. ... • ' • - 0 "VENDOR will deliver equipment to jobsite, fabricated items and filter media in accordance with CONTRACTOR's schedule and only after shop drawing approval by the ENGINEER." ill. EXHIBIT D : VENDOR SUPPLIED EQUIPMENT IV. Vendor supplied equipments shall be modified according to changes listed in the attached Table l. These changes have been incorporated into the attached (revised) Exhibit D. EXHIBIT C: PAYMENT PROVISIONS l. The Construction Phase Services and Equipment Compensation shall be changed from $2,930,300 to $3,028,881, an increase of 98,581. The total contract value is thereby modified from $3,080,300 to $3,178,881. 2. The first paragraph under Construction Phase Services and Equipment Compensation shall be changed from; "Construction Phase Services and Equipment Compensation -$2,930,000 85% Invoiced through CONTRACTOR's progress payments for services performed or upon shipment and verified by ENGINEER that material and equipment is shipped, received and suitably stored on-site at the Littleton/Englewood WWTP or at CONTRACTOR's designated storage site (less retention). Invoices shall be submitted to the CON1RACTOR and payments shall be received from the CONTRACTOR" 15% Invoiced upon completion of stan-up, Testing Services and certification of performance guarantee. To; "Construction Phase Services and Equipment Compensation -$3,028,881 "85% Invoiced through CONTRACTOR's progress payments for services performed or upon shipment and verified by Consuuction Manager that material and equipment is shipped, received and suitably stored on-site at the Littleton/Englewood WWTP (less retention) and in accordance with the CONTRACTOR's schedule. Invoices shall be submitted to the CONTRACTOR and payments shall be received from the CONTRACTOR 1sr.o lnvo1ced upon complcuon of start-up . Testmg Services and cerufication of performance ,,,uar:uuce . ' • • Or; The VENDOR may choose to ship the material and equipment earlier than the CONTRACTOR's schedule. Under this situation, the VENDOR shall incur all costs of storage in a bonded warehouse, and transfer from the storage location to the Littleton/Englewood WWTP. The storage location shall be within 20 miles of the WWTP and shall be approved by the ENGINEER. The storage of material and equipment does not change the warranty, which shall be effective from the substantial completion date, for a period of one (1) year. If the VENDOR chooses to store equipment in a bonded warehouse prior to the delivery time called for in the CONTRACTOR's schedule, construction phase services and equipment compensation shall be as follows: 70% Invoiced through CONTRACTOR's invoice for shipment verified by ENGINEER that material and equipment is shipped. received and suitably stored at designated bonded warehouse storage site. 15% Invoiced through CONTRACTOR's invoice upon delivery to the Littleton/Englewood WWTP site as called for in the CONTRACTOR's schedule. · 15% Invoiced upon completion of stan-up, Testing Services and certification of performance guarantee." IN WITNESS WHEREOF, the Construction Manager and th e Owner do hereby execute this ~mendment 1 to the Agreement. Amendment 1 Mar 16.1004 Pap 3 of~ f• t .. • • SEVERN 1RENT SER VICES BY----------~--- Name __ -"----------- Title _____________ _ Date ______________ _ CITY OF ENGLEWOOD By _____________ _ Name _____________ ~ Title. ______________ _ Date ______________ _ t .. • • COUNCIL COMMUNICATION Date Agenda Item April 19, 2004 0 0 Subject: Award of joint construction contract for Concrete Utility 2004, Concrete Program 2004, and Sidewalk Missin Links 2004 INITIATED BY: STAFF SOURCE: Department of Public Works Rick Kahm, Capital Pr.:>jects Director COUNCIL GOAL ANO PREVIOUS COUNCIL ACTION Council approved Ordinance No. 36, Series 1997 creating a Concrete Utility and Concrete Utility Enterprise Fund (EMC Chapter 8, Title 12) on May 5, 1997. City Council has established a citywide goal to meet ADA standards for all street improvements in the public way. City Council passed the 2004 Budget to appropriate funding for this annual program, which was first implemented in 1996. On March 1, 2001, Council directed staff to begin programming construction for completion of the Sidewalk Missing Links in the City of Englewood. On June 16, 2003, City Council approved Notice of Award of Concrete Utility 2003 to Thoutt Brothers Concrete Contractors. The 2003 bid package contained a provision for the extension of the contra ct for up to two additional years, with council approval RECOMMENDED ACTION ~...,, Cl(, Concreta P~-Sidewalk Missing Links 2004 to Thoutt in the MnOUOt of $428,535.00 BACKGROUND, ANALYSIS, ANO ALTERNATIVES IDENTIFIED • Section 11-38-1 of th e Municipal Code makes it the responsibility of every property owner to maintain th e con crete curbs, gutters, and sidewalks adjacent to their property. An option available to property own ers is t o participate in the Concrete Utility. The Concftte Utility provides a funding mechanism for conc rete repair at a reasonable cost ($5 to $7 per quarter for a typical residential property) and a convenient way to pay (96% of the fees are collected with the water and sewer bills). The City cont ribu tes its share of th e fees just like any pri ate owner. • For th e past se eral years, staff has worked towards developing a Citywide Concrete "'°IRffl addre sing e is l ing sub-tandard concrete and complying with the Americans with Disabilities Act in con t ru _ting c urb ramps. t .· .. ,, • • The cost of these improvements are borne by the City through monies budgeted in the Public Improvement Fund (PIF). Costs include concrete construction, incidental storm drainage construction, administration, engineering, surveying, testing, and miscellaneous incidentals. • In 2001 staff identified and prioritized 16 Missing Links of Sidewalks in the City of Englewood. The total cost of constructing these segments was estimated to be $1,657,000. These links represent walks that have never been completed in a Paving District or by other means. Council concurred that these areas do need walk and began appropriating funding in the 2001 Public Improvement Fund (PIF) towards this goal. In 2004 we hope to complete the segment of Zuni St., east side, from the Vassar to the Colorado's Finest Alternative High School providing Xcel Energy relocates the poles that are in the way of construction. • Staff has combined all three concrete projects into to one construction project in order to take advantage of the economy of scale. Staff was pleased with the quality, timeliness, and performance of Thoutt Brothers Concrete Contractors Inc this past year and believes that it is in the City's best interest to continue this relationship into 2004. This extension will save the City costs on bidding the project as well as Project administration cost because we will be able to work with a contractor who knows the City standards and follows them with minimal direction. • New unit prices were requested from Thoutt Brothers Concrete Contractors Inc. the first of the year. All concrete unit prices will be extended to this year, however the pricing for tree removal and asphalt patching increased slightly. Staff obtained a copy of a bid for removal and replacement concrete job in Aurora. Thoutt's unit prices were comparable to the Aurora project accounting for size of the project With Council approval, the City will be able to take advantage of quality work and favorable prices. Concrete Utility 2004, Concrete Program 2004, and Sidewalk Missing Links 2004 are scheduled for construction during the summer and fall of 2004. FINANCIAL IMPACT Funding and cost breakdowns for the project are as follows: • Concrete Utility 2004 breakdown: Funding available from Concrete Utility Construction contract Contingency for unidentified work $ 376,035.00 $85,965.00 Administration/engineering/surveying/inspection Material testing and necessary Incidentals associated with the Concrete Utility. $ 1 79,000.00 12s% of total project) CONCRETE UTILITY TOTAL $641,000.00 $716,000.00 .. .. . .. • ' • • Concrete Program 2004 breakdown: Funding available from PIF Construction contract Contingency/additional work (Allowing full benefit of low bids) Administration/engineering/surveying/inspection Material testing and necessary Incidentals associated with the Concrete Program . CONCRETE PROGRAM TOTAL • Sidewalk Missing links 2004 breakdown: Has yet to be determined. $52,500.00 $18,500.00 $ 7350.00 $78,350.00 PROJECT CONSTRUCTION TOTAL $428,535.00 LIST OF ATTACHMENTS Contract $100,804.00 t • • _,,_ • CONTRACT CITY OF ENGLEWOOD, COLORADO THIS CONTRACT and agreement, made and entered into this Nineteenth day of ~~A.P~r~i~l~~~~~~~~~' 2004~ by and between the City of Englewood, a municipal corporation of the State of Colorado hereinafter referred to as the "City•, party of the first part, and THOUTT BROTHERS CONCRETE CONTRACTORS INC. hereinafter referred to as the •contractor•, party of the second part . WITNESSETH, commencing on the 12™ day of January, 2004, the City exercised its option to e x tend the original contract dated June 16th, 2003 pursuant to Special Condition 2 .32 for furnishing all labor, tools, supplies, equipment, materials and everything necessary and required for the following: PROJECT: coscarr. UTXLITY, COJITllCT PROQJIAII, and 8:IDDALlt la:SSUIG LIBS 2004 WHEREAS, the letter of extension of the 2003 contract has been received by the City Engineer and forwarded to the Mayor and City Council with a recommendation that a contract for said work be awarded to the above named Contractor who was the lowest reliable and responsible bidder therefore, and WHEREAS, pursuant to said recommendation the Contract has been extended to the abov e name Contractor by the Mayor and City Council and said Contractor is now willing and able to perform all of said work in accordance with said contract provisions. NOW THEREFORE, in consideration of the compensation to be paid the Contract, the mutual agreements hereinafter contained are subject to the terms hereinafter stated: A. Contract Documents: It is agreed by the parties hereto that the following list of instrument&, drawing& and documents which are attached hereto, bound herewith or incorporated herein by referenc~ constitute and shall be referred to either aa the Contract Document& or the Contract and all of said inatrumenta, drawing,, and document, taken together as a whole con1titute the Contract between the partie1 hereto and they are as fully a part of thia agreement aa if they were set out verbatim and i n full herein : Letter of Extension of 2003 Contract Propo1al Contract (thia in1trument) Performance Payment Maintenance Bond ,, t .... ,• • • Receipt, Release, Waiver of Claims Special Provisions General Conditions Detailed Specifications Plans and Drawings B. Scope of Work: The Contractor agrees to and shall furnish all labor, tools, supplies, equipment, materials and everything necessary for and required to do, perform and complete all the work described, drawn, set forth, shown and included in said Contract Documents. c. Terms of Performance: The Contractor agrees to undertake the performance of the work under this Contract within ten (10) days from being notified to commence work by the Director of Public Works and agrees to fully complete said work within One-hundred Twenty (120) calendar days from the date of said notice, plua auch extension or extensions of time as may be granted by the Director of Public Works in accordance with the provisions of the CJeneral Conditiona. D. Terms of Payment: The City agree• to pay the Contractor for the performance of all the work required under thia contract, and the Contractor agreea to accept as hia full and only compensation wherefore, auch aum or suma of money aa may be proper in accordance with the price or pricea set forth in the Contractor'• Propoaal hereto attached and made a part hereof, the total eatimated coat thereof being Three hundred twenty five thouaand four hundred thirty five dollars and 75 centa ($325 1 435.75). B. Appropriation of Funda: At preaent, $325 1 435.75 haa been appropriated for the project. Notwithatanding anything contained in thia Agreement to the contrary, in the event no funds or inaufficient funds are appropriated and budgeted by the governing body or are otherwise unavailable by any means whataoever in any following fiscal period for which appropriations were received without penalty or expense except aa to those portiona on the Agreement or other amounta herein for which funds have already been appropriated or are otherwise available . The City shall illlllBdiately notify Tboutt Brothers Concrete Contractor• Inc. or ita assignee of auch occurrence in the event of auch termination. F. Contract Binding : It ia agreed that tbia Contract shall be binding on and insure to the benefit of the parties hereto, their heirs, executors, adminiatratora, aaaigna, and 1ucceaaor1. • t : • IN WITNESS WHEREOF, the parties have caused these presents to be signed personally or by their duly authorized officers or agents and their seals affixed and duly attested the day and year first above written . This Contract is executed in~-•~ counterparts. CITY OF ENGLEWOOD Contractor by~~~~~~~~~~~~~~~ Mayor by~~~~~~~~~~~~~~ Party of the First Part Party of the Second Part A'ITEST: A'ITEST: City Clerk Secretary ... • • -- 1. Call to order. 2. Invocation. ~ 3. Pledge of Allegiance. ~ 4 . Roll Call . t1J/ '7 ~ 5 . Minutes. 0 0 {Jm I ~-0 Minutes from the Regular City Council meeting of April 5, 2004. -f7 ~ ,l -.~-!J,(L/1~ 6 . Scff d Visitors. (Please limit your presentation to t~n minutes.) /lJ, ; 7. ur,t~')/}'[: ~i:)/ja~ li~~o~,w~i,five minutes.) ]~Dfof oil· ~~ mmunications, Proclamations, and Appointments. A letter from Jeffery Baker m_c~ti'}B_ ~ resigpation from the Englewood Board of Adjustment and Appeals. lf!l(LUl,IJ,(/ A letter from Ger&._Stan~orb indicating his resignation from the Keep Englewood Be,1utiful Commission . O~ A proclama tion recognizing the Museum of Outdoor Arts' Design & Build program~ _Al(}'AJ_~ Plea l' note · If you h, ,e a d1sablli1y and nttd au,aury aids or services, ~ase notify lhe City of Enllewoocl (303· 62 2 5) at l~a t 48 hours in advance of when seMCes ate needed . Thank you_.-----------' ' • • D -~ , . l:] Eng lewood City Counci l Agenda Apri l 19, 2004 1' Page 2 9. Public Hearin&_: (No Public Hearing Scheduled) ~ 10. ~e!!t ~{r d-t::!,, rJ~ ?tfJ(9~~~rdinances on First Reading. ~v b. Approval of Ordinances on Second Reading . .A1-1L m~cil Bill No. 6, approving an Intergovernmental Agreement with the City of ~ -Westminster for equipment sharing. I\... J J, ~/ ii. Council Bill No. 15, approving an agreement for realignment of Brown Ditch in I/ ta:?--Columbine Valley Estates along Watson lane. I JJ, f"'\.i iii. Council Bill No. 19, approving four Intergovernmental Subgrantee Agreements {AdP-~ with Arapahoe County for 2004 Community Devetopment Block Grant funding. c. "ff' ~d Motk>o, • PJA:' ~3 ~ wJJ/; 11 . """''"-~-~~nJJnad~ ~ a. App,m~ofO..dl~R..a10, r~,~, ""'-~ /) ~ £\ i. Council Bill No. 1 • ecommendation from the City Manager's Office to adopt a f / · ~{)N I or an ordinance approving an Intergovernmental Agreement with the Regional • 'Transportation District for landscaping requirements at RTD Elati Maintenance ~ /~ µ v~Z. ~ Micmel Fbherty, Assistant City Manager. L -"'f"'O ii. Council Bill No. 22 · Recommendation from the Safety Services Department to f7 /1 aaopt a bill for an ordinance approving an Intergovernmental Agreement wjth · 1-v the State of Colorado for Colpra;r~e~/ ~~ge~~· ?TAFF SOURCE: Don Schoenbein, Fire B.tulion ~ -(Jldf-t' b . Approval of Ordinances on Second Reading. i. Council Bill No. 20, an emergency ordinance authorizing two (2) /n "''~ Intergovernmental Agreements with the Colorado Water Resources and Power () u}1f,--'} ~evelopment Authority for the issuance of Water Revenue and Wat~lu1~ _ -l/Control Revolving Fund bonds for the Phase 2 Expansion Project ft)~ ,J~-Council Bill No. 21 , an ~~r~')t.°_!i~ reaffirming the establishment of the ~ ~ SewerUtilityEnterprise. w~r- f)-{)? ,156 l'teas e note: If you have a disab~ity and nttd awaliary .iods or seMCfl,, plN.se nollfy 1he City ol Enpewood (3 03 -7 62 -240 5) at least 48 hours In advance of when seMCts are Oftdtd. Th.ink ' • • Englewood Cily Council Agenda April 1 9, 2004 Page 3 c. Resolutions and Motions. i. ~--0 ii. ~ 12. General Discussion. a. Mayor's Choice. b. Council Members' Choice. 13. City Manager's Report. 14. City Attorney's Report. Adjournment. The following minutes were transmitted to Cily Council between April 2 and 15, 2004: • Off-Leash Task Force meeling of February 24, 2004 • Englewood Cu ltural Arts Commission meeting of March 3, 2004 • Englewood Transportation t,dvisory Committee meeling of March 11, 2004 • Englewood Planning and Zoning Commission meeling of March 16, 2004 • Englewood Liquor Licensing Authorily meelin~ of March 1 7, 2004 Plea e note: If you ha e a dlsabYity and need auxilwy aids Of sevlc~. ple.ue notify lhe City of Enllewood (303-7 62 -2405 ) at lea t 48 hours in advance of when servic~ are needed. Thank ' .. . ··' • • --·• • • • n ~llll~ncil M~ng i<JtVf 1ty 119. O'f 1. Call to onler I);~ 2. Invocation _____ _ 3. Pledge of Allegiance----- 4. Roll call Members: _ _,'7 _ _,present 5 . . cc i/c.;uf mi~utes TCIITI I 11 • ,,,- Moore Y y Garrett _.... ,,,. y- ,,,,-~-~---------' ____ absent ' • -. • ·• • • • t \ \ . l \ 's.,..,' } -~-~l ,!_ _J ' ' , · .. . . . ' \ • . . ·• • -· • • (.., . .., I . I ! . l~~ . ' .. . • . I . ~ . . ·• • • . ' . . .. . • . . . l . ' . . . . . . - ,,:)~ !,, • • • i"r