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HomeMy WebLinkAbout8-14-23 - City Council Meeting Agenda PacketAGENDA CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO 7500 W. 29th Ave. Wheat Ridge CO August 14, 2023 6:30 pm This meeting will be conducted as a virtual meeting, and in person, at 7500 West 29th Avenue, Municipal Building. City Council members and City staff members will be physically present at the Municipal building for this meeting. The public may participate in these ways: 1. Attend the meeting in person at City Hall. Use the appropriate roster to sign up to speak upon arrival 2. Provide comment in advance at www.wheatridgespeaks.org (comment by noon on August 14, 2023) 3. Virtually attend and participate in the meeting through a device or phone: • Click here to join and provide public comment • Or call +1-669-900-6833 with Access Code: 861 0030 1940 Passcode: 906959 4. View the meeting live or later at www.wheatridgespeaks.org, Channel 8, or YouTube Live at https://www.ci.wheatridge.co.us/view Individuals with disabilities are encouraged to participate in all public meetings sponsored by the City of Wheat Ridge. Contact the Public Information Officer at 303-235-2877 or wrpio@ci.wheatridge.co.us with as much notice as possible if you are interested in participating in a meeting and need inclusion assistance. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL OF MEMBERS APPROVAL OF MINUTES City Council Meeting Minutes July 24, 2023 Special Study Session Notes July 24, 2023 Study Session Notes August 7, 2023 APPROVAL OF AGENDA PROCLAMATIONS AND CEREMONIES None PUBLICS’ RIGHT TO SPEAK a. Public may speak on any matter not on the Agenda for a maximum of 3 minutes under Publics’ Right to Speak. Please speak up to be heard when directed by the Mayor. b. Members of the Public who wish to speak on a Public Hearing item or Decision, Resolution, or Motion may speak when directed by the Mayor at the conclusion of the staff report for that specific agenda item. c. Members of the Public may comment on any agenda item in writing by noon on the day of the meeting at www.WheatRidgeSpeaks.org. Comments made on Wheat Ridge Speaks are considered part of the public record. 1. CONSENT AGENDA a. Motion to award the 2023 Mill and Overlay Project to Martin Marietta Materials, Inc., of Lakewood, Colorado, and approve subsequent payments in the amount of $1,969,977.80 with a contingency amount of $157,598.20, for a total not-to-exceed amount of $2,127,576.00 b. Resolution No. 39-2023 – a resolution authorizing the execution of an Intergovernmental Agreement by and between the County of Jefferson, State of Colorado, and the City of Wheat Ridge, Colorado, regarding the production of a mailed TABOR Notice concerning ballot issues and the administration of their respective duties concerning the conduct of the coordinated election to be held on November 7, 2023 PUBLIC HEARINGS AND ORDINANCES ON SECOND READING 2. Council Bill No. 18-2023 – an ordinance approving the sale of certain property owned by the City located at 7575 W. 44th Avenue ORDINANCES ON FIRST READING 3. Council Bill No. 19-2023 – an ordinance approving the rezoning of property located at 4735 Kipling Street from Commercial-One (C-1) to Mixed-Use-Commercial Interstate (MU-C Interstate) 4. Council Bill No. 20-2023 – an ordinance amending Sections 11-561, 11-566, and 26- 114 of the Wheat Ridge Code of Laws, concerning the Hotel Licensing Program 5. Council Bill No. 21-2023 – an ordinance giving notice of and calling for submitting a ballot question at the City’s regular November 7, 2023 election concerning the issuance of debt and an extension of the expiring sales and use tax of one-half of one cent (0.50%) to pay such debt; and other matters related thereto DECISIONS, RESOLUTIONS, AND MOTIONS 6. Motion approving a participating addendum to the NASPO ValuPoint Fleet Card Services Contract with the State of Colorado for implementation of the WEX fuel card system CITY MANAGER’S MATTERS CITY ATTORNEY’S MATTERS ELECTED OFFICIALS’ MATTERS ADJOURN TO SPECIAL STUDY SESSION City Council Meeting Minutes CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING  July 24, 2023  Note:    This meeting was conducted both as a virtual meeting and hybrid, where some members of the Council or City staff were physically present at the Municipal building, and some members of the public attended in person as well. Eight members of Council were present in Council Chambers for this session.  Before calling the meeting to order, Mayor Starker stated the rules and procedures necessitated by this meeting format.  Mayor Starker called the Regular City Council Meeting to order at 6:31 p.m. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA ROLL CALL OF MEMBERS Scott Ohm         Rachel Hultin          Janeece Hoppe Amanda Weaver     Korey Stites       Valerie Nosler Beck (virtual) Absent: Judy Hutchinson and Leah Dozeman Also, present: City Manager Patrick Goff; City Attorney Gerald Dahl; City Clerk, Steve Kirkpatrick; Director of Public Works Maria D’Andrea; Director of Parks and Rec, Karen O’Donnell; Director of Community Development, Lauren Mikulak; other staff, guests and interested citizens.  APPROVAL OF MINUTES • Study Session Notes of June 5 • Special Study Session Notes of June 12, June 26 and July 10 • City Council Meeting Minutes of June 12, June 26 and July 10, All of the above Notes and Minutes were approved without changes to any of these records. APPROVAL OF AGENDA Without objection or correction, the agenda stood as announced. PROCLAMATIONS AND CEREMONIES Catherine Kearney-Marinelli Day Mayor Starker proclaimed July 24, 2023, Catherine Kearney-Marinelli Day as she is the Executive Director of the Metro Mayors Caucus (MMC) and will retire after 28 years of service on August 2, 2023. Catherine has extensive education and has facilitated multi- jurisdictional regional compacts on energy efficiency, water conservation, health and wellness, and growth, and led efforts on Water Conservation best practices adopted by the Colorado Water Conservation Board. Catherine has also worked with the caucus since 1996 to identify and build consensus on policy necessary to implement statewide, regional, and local policy solutions. Catherine has also led initiatives such as $300 million + in low-rate mortgages and down payment assistance, 2015 creation of the Housing Stability Flex Fund, coordinated condominium construction liability reform, coordinated MMC efforts to promote the passage of Proposition-123 to provide funding for affordable and work- force housing, and coordinated Built-for-Zero efforts to eliminate veteran homelessness across the region. PUBLIC’S RIGHT TO SPEAK No one came forward to speak tonight, neither in person nor online. Note about Wheat Ridge Speaks: Members of the Public may visit the Wheat Ridge Speaks website and enter written comments of up to 1,000 words on any Council agenda item.  The deadline for citizens to submit comments is 12:00 Noon Mountain Time on the day of a Council session so that Council members, other elected officials and City Staff have time to review the comments before the meeting on Monday evening.  The City Clerk’s Office transcribes those Wheat Ridge Speaks comments into these minutes, placing each comment along with the record for that agenda item, including items that address a public hearing (verbatim, if the comments do not contain lascivious language or unlawful hate speech) No comments appeared in WR Speaks for this session of Council. 1. CONSENT AGENDA CM Hoppe introduced the consent agenda. a. Motion to approve the purchase and payment of four 2023 vehicle replacements and the purchase and payment for installation of lighting and auxiliary equipment in a total amount not to exceed $256,559 Issue Each year, the city identifies a proposed list of vehicle replacements within the city fleet. In 2023, 16 vehicles were identified for replacement. Staff recommends the purchase of the following vehicles under various State of Colorado Purchase Agreements: • One (1) 2024 Chevrolet Silverado 3500HD Pickup Truck with traffic control equipment • One (1) 2024 Chevrolet Silverado 2500HD Pickup Truck with long bed • Two (2) 2024 Chevrolet Silverado 2500HD Pickup Trucks with standard beds The total price of the four vehicles is $216,559. Staff also requests approval to purchase, install and/or relocate auxiliary equipment required for the operation of the new vehicles along with the installation of lighting, markings, and auxiliary snow removal equipment at a total additional cost of $40,000. Therefore, the total requested amount is $256,559. The funds for these purchases are budgeted in the 2023 Public Works Department budget for fleet replacement. Motion by CM Hoppe to approve the purchase and payment of four 2023 vehicle replacements and the purchase and payment for installation of lighting and auxiliary equipment in a total amount not to exceed $256,559; seconded by CM Ohm. Motion carried unanimously 5-0. PUBLIC HEARINGS AND ORDINANCES ON SECOND READING 2. Council Bill No. 17-2023 – An Ordinance reappointing Presiding Municipal Judge Christopher Randall and approving a Presiding Municipal Judge Services Agreement. CM Ohm introduced Council Bill 17-2023 Issue The City’s Home Rule Charter provides for appointment of the Municipal Court Judge for a term of two years. The current term of Presiding Judge Christopher Randall expired on June 30, 2023. Staff Presentation City Manager Patrick Goff introduced City Attorney Dahl, who commented on the proposed contract renewal and Judge Randall’s excellent performance under prior contracts. Judge Randall reported that he is now the senior municipal judge in the Front Range, following more than 20 years of service. He also recounted how the Court functioned during the pandemic. The Judge also discussed changes in the recent few years that have added to his list of duties and the number of Court sessions held each week. Afterwards he stood by to answer any questions. Public Comment No citizens appeared in chambers to address this issue. There were none who wanted to speak through the Zoom format. Council Questions and comments CM made several comments in support of the motion, recognizing Judge Randall for his excellent service and sterling reputation. MPT Stites asked whether the current budget for Homeless Court is still adequate; Mr. Goff replied that there are budgeted funds. CM Ohm asked whether WR has a juvenile court session; Judge Randall answered affirmatively and described the operations of that court session. Motion by CM Ohm to approve Council Bill 17-2023 – an ordinance reappointing Presiding Municipal Judge Christopher Randall and approving a presiding Municipal Judge Services Agreement, seconded by MPT Stites, motion carried 5-0. During discussion of the motion, CM Hultin recalled her first visit to WR Court shortly after she moved to our City. She was so impressed she was motivated to get involved in community organizing and council membership. MPT Stites opined that the longevity of the Court staff is a strong indicator of how well Judge Randall leads his department. CM Hoppe discussed how two of her children had to appear in traffic court, one in WR and the other in a different municipality. She opined that the experience in WR was far superior. PUBLIC HEARINGS AND ORDINANCES ON FIRST READING 3. Council Bill 18-2023 – An Ordinance approving the sale of certain property owned by the City located at 7575 W. 44th Avenue CM Hultin introduced Council Bill 17-2023 Issue The City purchased the Bank of the West property located at 7525 W. 44th Avenue in January 2021 for right-of-way required for the Improve Wadsworth project. After the necessary right-of-way was dedicated for the Wadsworth project, a remnant parcel of 15,435 square feet and a structure remains. Foothills Regional Housing (FRH) has made a request to the City to contribute this parcel for inclusion into The Ives affordable housing development project. Staff Presentation There was none Public Comment There was none Council Questions and comments Nothing tonight Motion by CM Hultin to approve Council Bill 18-2023 – an ordinance approving the sale of certain property owned by the City located at 7575 W. 44th Avenue, on first reading, order it published, public hearing set for Monday, August 14, 2023 at 6:30 p.m. as a virtual meeting and in City Council Chambers and that it take effect immediately upon adoption, seconded by CM Hoppe, motion carried 5-0. DECISIONS, RESOLUTIONS AND MOTIONS There were none tonight. CITY MANAGER’S MATTERS Nothing tonight CITY ATTORNEY’S MATTERS Nothing tonight ELECTED OFFICIALS’ MATTERS CM Nosler Beck expressed her gratitude for the opportunity to join online this evening. As she undergoes medical treatment for cancer she is still online and available to our residents. She recognized the Parks and Recreation staff efforts to support a swim meet upcoming soon at Anderson Park. CM Hultin was happy to see the grant for $950,000 from the Federal Government for trail improvements. She asked whether the City has a program to replace electric vehicles (EV) as they age. Ms. D’Andrea discussed the City’s policy and practices regarding EV. She also opined that it is time to give recognition to the Municipal Court staff who have been with the City for 20, 30 or, in one case, 40 years. CM Ohm recently traveled to Europe and noted the number of round-about traffic junctions and how they keep traffic moving and strongly suggested we consider more of them in WR. He congratulated Parks and Rec for their outstanding effort to hire enough lifeguards. WR Cyclery has two different group rides on Monday afternoons. CM Stites cut the ribbon for the WR Business Association last week as they opened a new facility. Congratulations to the Association. The Mayor, CM Hutchinson and he attended an opening of a Bundt cake shop at Gold’s Marketplace. Mayor Starker echoed MPT Stites comments and asked all to drive carefully. ADJOURN TO SPECIAL STUDY SESSION The meeting adjourned at 7:08 pm. APPROVED BY CITY COUNCIL ON August 14, 2023 _________________________________ Steve Kirkpatrick, City Clerk _________________________________ Korey Stites, Mayor Pro Tem The preceding Minutes were prepared according to §47 of Robert’s Rules of Order, i.e., they contain a record of what was done at the meeting, not what was said by the members. Special Study Session – City Council CITY OF WHEAT RIDGE, COLORADO City Council Chambers 7500 W. 29th Avenue July 24, 2023 Upon adjournment of the Regular City Council Meeting, and after a short recess, the Mayor called this Special Study Session to order at 7:08 p.m. This meeting was conducted both as a virtual meeting and hybrid, where some members of the Council or City staff were physically present at the Municipal building, and some members of the public attended in person as well. After calling the meeting to order, presiding official Mayor Starker stated the rules and procedures necessitated by this meeting format. Mayor Starker welcomed the Council, other elected officials, staff and interested citizens. The Mayor also explained the virtual/hybrid meeting format, how citizens will have the opportunity to be heard, and the procedures and policies to be followed. Councilmembers present:  Scott Ohm, Rachel Hultin, Janeece Hoppe, Korey Stites, and Valerie Nosler Beck (virtually). Absent: CM Hutchinson, CM Weaver and CM Dozeman. Also, present: City Manager Patrick Goff; City Attorney Gerald Dahl; City Clerk, Steve Kirkpatrick; Business Development Manager, Steve Art; Public Works Director Maria D’Andrea, Director of Parks and Rec, Karen O’Donnell; Director of Community Development, Lauren Mikulak; other staff, guests and interested citizens.  Public Comment on Agenda Items – No one came forward to speak. Please, also see the minutes of tonight’s regular Council session. Note about Wheat Ridge Speaks: Citizens may visit the Wheat Ridge Speaks website and enter written comments of up to 1,000 words on any Council agenda item. The deadline for citizens to submit comments is 12:00 Noon Mountain Time on the day of a Council session so that Council members, other elected officials and City Staff have time to review the comments before the meeting on Monday evening. The City Clerk’s Office transcribes those Wheat Ridge Speaks comments into these minutes, placing each comment along with the record for that agenda item, including items that include a public hearing (verbatim, if the comments do not contain lascivious language or unlawful hate speech). There were no citizen comments entered into Wheat Ridge Speaks related to this session, but there were at this evening’s regular Council Meeting. Those comments appear in the minutes for tonight’s regularly scheduled City Council business meeting. 1. Comprehensive Plan and Other Planning Efforts Update Issue The purpose of this item is to share information with City Council about the upcoming comprehensive plan update. Staff plans to bring a consultant contract award recommendation and comprehensive plan scope of work to council in fall of 2023, with a project kickoff by the end of 2023. Staff Report Mr. Goff introduced Ms. Mikulak, who gave a detailed presentation and explanation. She described the history of planning, the plans for the renewed, current effort to update various plans. Ms. Mikulak also listed the plans that will appear in the Comprehensive Plan when drafted and the process for writing the Comp Plan. She also reviewed the timeline for completing the Comp Plan. Councilmember questions and comments: CM asked about contractors, staff, Council and their respective roles and responsibilities during the planning process. CM expressed our sadness with the departure of Jeff Hurt from Comm Dev and wished him luck. CM encouraged staff to include Local Works in the Comp Plan process. CM commented on the amazing progress and future plans for engaging our residents. CM and Mayor Starker thanked the staff for all of their hard work in preparing for this update of the Comp Plan, a process that will continue over the next 2 years. 2. Staff Report(s) Nothing more. 3. Elected Officials’ Report(s) City Clerk Kirkpatrick reminded all that the Cultural Commission Art Drop event continues this weekend and the first weekend in August. CM Hultin commented on how enjoyable a visit to Happy Gardens these days is. She acknowledged the work of volunteers for their work at the Gardens. ADJOURNMENT The Special Study Session adjourned at 7:29 pm. APPROVED BY CITY COUNCIL ON August 14, 2023. _________________________________ Steve Kirkpatrick, City Clerk _________________________________ Korey Stites, Mayor Pro Tem STUDY SESSION NOTES CITY OF WHEAT RIDGE, COLORADO Hybrid - Virtual Meeting August 7, 2023 Mayor Starker called the Study Session to order at 6:30 p.m. This meeting was conducted both as a virtual meeting and hybrid, where some members of the Council or City staff were physically present at the Municipal building, and some members of the public attended in person as well. A quorum of members (eight) of Council were present in Council Chambers for this session. Mayor Starker welcomed the Council, other elected officials, staff, guests and interested citizens. The Mayor also explained the virtual/hybrid meeting format, how citizens will have the opportunity to be heard, and the procedures and policies to be followed. Council members present Scott Ohm, Judy Hutchinson, Korey Stites, Amanda Weaver, Leah Dozeman, Janeece Hoppe, and Rachel Hultin. Valerie Nosler Beck was absent due to illness. Also present: City Clerk, Steve Kirkpatrick, City Manager Patrick Goff; Deputy City Manager, Allison Scheck; Assistant City Manager, Marianne Schilling; Management Analyst, Cole Haselip; Elizabeth Moran, Executive Director, ARC; and interested residents. Public’s Right to Speak Betsy Coppock, 25 Skyline Dr. Came to support charging stations for electric vehicles (EV). She asserted that currently a lack of charging stations at rental properties create a gap between those residents and people living in single family homes. People also need and want opportunities to purchase EV and get the various rebates and tax credits. Please, make those opportunities available to more residents as you make decisions about EV charging requirements for new residential and business construction. Kelly Blynn, 4175 Brentwood St., also came to support EV charging stations. She works for an agency that supports state efforts to foster EV purchases and use. She urged the City to pass an ordinance requiring EV charging stations in several locations across the City. She noted that within 10-12 years, all new vehicles built or sold in the US will be EV. She also fosters requiring E-bike charging stations at new construction of multi-family homes. Jenny Snell, 7020 W. 35th Ave. – she came to speak about a diversity and inclusion task force. She served as vice-chair of the current task force. She came to thank Council for supporting these prior efforts and sustaining them going forward. Note about Wheat Ridge Speaks: Members of the public may visit the Wheat Ridge Speaks website and enter written comments of up to 1,000 words on any Council agenda item. The deadline for the public to submit comments is 12:00 Noon Mountain Time on the day of a Council session so that Council members, other elected officials and City Staff have time to review the comments before the meeting on Monday evening. The City Clerk’s Office transcribes those Wheat Ridge Speaks comments into these minutes, placing each comment along with the record for that agenda item. No comments appeared in Wheat Ridge Speaks for this session of Council. 1. Presentation from The ARC Thrift Store, Wheat Ridge Location Issue The Arc Thrift in Wheat Ridge opened in March 2023. Staff from The Arc would like to share more about their organization and how The Arc and the City can work together encourage Wheat Ridge to be a fully inclusive place where people with disabilities are welcome and valued members of the community. Staff Reports Assistant City Manager, Marianne Schilling presented the background on the issue and discussion of the issue which included how in 1968, the first Arc Thrift Store (then called Value Village) opened in Denver. Since then, Arc Thrift has provided millions of dollars of mission-critical funding to chapters of The Arc in Colorado's front range communities, allowing them to collectively advocate for countless people. Elizabeth Moran, Executive Director, who represented Arc Thrift, shared a video of the Fischer family, Wheat Ridge residents with firsthand experience of navigating the world with an IDD. We will also have a discussion on the common barrier’s individuals with IDDs face and ways that Wheat Ridge can become an even more inclusive community. Afterwards they were available to answer questions from City Council. Councilmembers had questions and comments: • Several CM thanked Staff and Arc for their hard work that yielded the presentation tonight. • CM asked detailed questions about the program and how to achieve the City’s objectives. A lengthy discussion among staff and CM addressed several of these questions. • CM Hultin recounted her family’s friendship with the Fisher family, who appeared in the promotion video The Arc presented. She later suggested that one way to include The Arc in our efforts is through our boards and commissions. • Ms. Moran opined that The Arc believes that people with disabilities should be included in any effort at inclusiveness in our community. • CM Hutchinson disclosed that her brother had Down’s Syndrome but in the 1950’s there was simply no resource to help him or their family. There were strong impacts on the family as they tried to cope. So, CM Hutchinson thanked The Arc for all they have done to change that situation and continues to do. • The Mayor graciously thanked The Arc representatives. 2. Boards and Commissions Code Update Discussion Issue The City of Wheat Ridge has seen an exceptional increase in the desire to join City Boards and Commissions. Recognizing this, Council requested the City’s Boards and Commissions Code be studied to provide greater opportunities for interested residents, streamline the board application process, and allow residents to serve on multiple boards. Additionally, Staff has included an analysis of several other related changes for the Council to review and consider. Staff Reports Management Analyst, Cole Haselip, presented the issue and summarized background on the issue. Discussion on the items included where the Council specifically requested the following items: 1. Term limits that do not prevent a term-limited board member from serving another term in the absence of any other applicants. 2. Serving on more than one board at once. 3. Improving the board application process. And after further analysis, Staff has identified the following topics for consideration by the Council: 4. Broadening Council’s authority to remove board members. 5. Simplifying the Unexcused Absences Code. 6. Amending the City Manager’s appointment to the Cultural Commission. 7. Codifying the Board of Adjustment’s Alternate Board Members. 8. Developing a policy to determine when committee members should be appointed by the Council, City Staff, or both. 9. Amending the resident and registered voter requirement to allow people who live, work, attend school, own a business, or represent a relevant organization to serve on certain boards. Mr. Haselip also reported that the City of Wheat Ridge that uses three different public bodies, in addition to the Council, to support the achievement of its objectives, examples given were: 1. Renewal Wheat Ridge, the City’s Urban Renewal Authority, operates under the governance of Colorado’s Urban Renewal Laws. The Wheat Ridge Housing Authority is governed by the U.S. Department of Housing and Urban Development (HUD). 2. Boards and commissions are a part of the city. They are governed by the City’s Charter and Municipal Code. 3. Uncodified committees, task forces, authorities and other city-created or sanctioned groups also exist in the City of Wheat Ridge. These bodies are not bound by the City’s Charter or Municipal Code. He listed additional data where: • boards have three-year terms, except for the election commission which has a two-year term. • analyzed a dataset tracking the number of years that a person has served on a board since 1970. Since that time, there have been 468 appointments to City boards. • long-term board members have had a disproportionate impact on their respective boards. Despite accounting for only 11% of all appointees, board members that have held their position for more than nine years account for 42% of the time served by all board members in the City of Wheat Ridge since 1970 and asked for direction on the following items: 1. Mid-Term Appointments 2. Extended Term Length 3. Maximum Number of Extended Terms 4. Permanent or Consecutive Term Limits 5. Serving on Multiple Boards at Once 6. Application Changes 7. Liaison Recommendations 8. Board Member Removal Process 9. Defining an Unexcused Absence 10. Maximum Unexcused Absences 11. Amending the City Manager’s Appointment to the Cultural Commission. 12. Codifying Alternates to the Board of Adjustment 13. Committee Appointments Policy 14. Resident and Registered Voter Requirement Councilmembers asked detailed questions about several topics, engaging in discussion among themselves and with staff including: • Several CM expressed their thanks for the staff efforts on this complex issue. • A detailed discussion of Mr. Haselip research and recommended actions. He presented a series of 13 issues he had researched, offering Council a list of at least three options for moving forward with each of the 13. • The Mayor and CM Hultin opined that the role of the Mayor should be included in this process and that the Mayor should have a role to play. CM Hoppe proposed a consensus to accept staff recommendations on items 2, 3, 8, 12, and 13. Consensus attained. CM Hultin asked later in the session to revise this consensus to further study item 13 at a future Study Session focusing on who appoints members to which groups. Change in the consensus attained. Council then discussed each of the remaining items. CM Stites and the Mayor proposed a consensus to require each board or commission to deliver an annual report to Council, including the board/commission’s activities, accomplishments and attendance data.. Consensus attained. Item 1 – CM Hoppe proposed a consensus to codify three-year terms and limited to two terms, for any one board or commission. Consensus attained without unanimity. Item 4 – CM Hoppe proposed a consensus to move forward with staff’s recommendations regarding item 4. Consensus attained. Item 6 – CM Hoppe proposed a consensus take no actions to limit serving on multiple boards at once. Consensus attained. Item 7 – CM Hoppe proposed a consensus to not take any action on this item, and that Councilmembers may informally seek input from staff, or from the chairs of boards and commissions as the CM see fit. Consensus attained. CM Hoppe asked that staff begin developing and delivering training for staff liaisons focusing on their roles, responsibilities and operating practices. Item 9 – MPT Stites proposed a consensus to accept the staff recommendations on this item. Consensus attained. Item 10 – CM MPT Stites proposed a consensus to accept the staff recommendations with the additional proviso that a member with 2 unexcused absences may appeal to the board or commission to reverse one or both of the excused absences by a majority vote of the members present (excluding that member whose absences are under review). Consensus attained. Item 11 – CM Hoppe proposed a consensus to adopt staff recommendation 1. Consensus attained. Council expects to discuss these issues further in either another Study Session or when proposed Ordinances come before them. 3. Creating a Diversity, Equity and Inclusion Focused Advisory Committee Issue Staff requests consensus from the City Council to determine the scope of work, structure, budget, implementation timeline and title of a diversity, equity, and inclusion focused advisory committee. Staff Reports Management Analyst, Cole Haselip presented the issue, prior actions and summarized the background of the issue. Where staff as completed a thorough analysis of regional and national diversity, equity, and inclusion advisory committees and prepared several recommendations and options for the Council to determine the committee’s scope of work, structure, budget, implementation timeline, and title. Discussion on the items included: • Scope of Work • Structure • Committee Size • Rules • Council Liaison • Budget • Implementation Timeline • Title Councilmembers had questions and comments: • CM asked detailed questions about several topics, engaging in discussion among themselves and with staff, who answered their questions in detail. • CM thanked staff for their hard work on this issue. • CM had several questions about how the proposed changes would impact various aspects of creating this board, or committee, or commission. • CM discussed ensuring that a majority of the members are WR residents, while also allowing non-residents to join the committee so that people with strong backgrounds and qualifications are eligible for appointment. CM Hoppe asked for a consensus to accept staff’s recommendations with the following changes and decisions: • Choose the name IDEA (Inclusion Diversity Equity and Accessibility) • Defer discussion on appointments until the Item 1 is discussed at a future Study Session. Consensus attained. 4. Parking and Charging for Electric Vehicles and Bicycles By Consensus, this item 4 was postponed to a future study session due to the long discussion of items 1 and 2 and the late hour when Council took up item 3 (9:08 pm). 5. Staff Report(s) Mr. Goff reminded us that the Carnation Festival is this weekend. 6. Elected Officials’ Report(s) CM Hultin reported on the progress at Happiness Gardens, which a number of volunteers have made possible. She also opined that there are too many off-leash dogs in the Wilmore Davis neighborhood. CM Weaver discussed the Carnation Festival and the pie baking contest. Anyone in Wheat Ridge may enter a pie to win prizes. After the judging the public will be able to purchase pieces of the pies. MPT Stites, a judge for many years, asked that the pie baking competitors bring their best efforts. He announced that CM Nosler Beck contacted him about her absence this evening, expressing her regrets she was unable to attend. He attended the opening of a new restaurant this past week and is delighted to have welcomed the new business to our City. Mayor Starker thanked those who attended his restaurant’s 10-year anniversary celebration. WR Native Mathew Dominic will command a NASA mission to space in 2024. CM Dozeman also commented on the pie baking contest at the Festival. She expressed her gratitude for all who have worked so hard to make the Festival a success. She also noted that Mr. Goff made a successful effort to get media coverage about transforming Fruitdale Elementary to housing with solar power. CM Hutchinson noted that those solar panels are on a flat roof, which is very unusual for a solar panel installation. ADJOURNMENT The Study Session adjourned at 9:39 pm. APPROVED BY CITY COUNCIL ON August 21, 2023. _________________________________ Steve Kirkpatrick, City Clerk _________________________________ Korey Stites, Mayor Pro Tem ITEM NO: 1a DATE: August 14, 2023 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION TO AWARD THE 2023 MILL AND OVERLAY PROJECT TO MARTIN MARIETTA MATERIALS, INC. OF LAKEWOOD, COLORADO, AND APPROVE SUBSEQUENT PAYMENTS IN THE AMOUNT OF $1,969,977.80, WITH A CONTINGENCY AMOUNT OF $157,598.20, FOR A TOTAL NOT-TO-EXCEED AMOUNT OF $2,127,576.00 PUBLIC HEARING ORDINANCES FOR 1ST READING BIDS/MOTIONS ORDINANCES FOR 2ND READING RESOLUTIONS QUASI-JUDICIAL: YES NO _________________________ Director of Public Works City Manager ISSUE: The 2023 Mill and Overlay Project is being undertaken to provide repairs to roadways in need of corrective maintenance. Streets included within this project were identified by staff and evaluated for effectiveness of this particular treatment. Also included with this project was some striping and signage to install on-street walking paths to serve as safer routes to school for school children. Seven bids were received for this work in response to an Invitation to Bid. Staff recommends awarding a contract to the lowest responsive bidder, Martin Marietta Materials, Inc. of Lakewood, Colorado in the amount of $1,969,977.80 plus a staff-managed contingency of $157,598.20 for a total not-to-exceed amount of $2,217,576.00. PRIOR ACTION: None Council Action – 2023 Mill and Overlay Project August 14, 2023 Page 2 FINANCIAL IMPACT: Funding for this project has been approved in the 2023 CIP Budget in line item 30-303-800-884. Funding for the signage and striping of on-street walks will come from budget line item 30-303- 800-852. The city contracted with EST, Inc. to prepare the necessary plans for this work. This work cost $34,000 and was also funded from 30-303-800-884. EST prepared an Engineer’s Estimate, prior to bidding, of $2,012,690.00. An Invitation to Bid for this project was issued on July 5, 2023. Five bids were received in response and opened on July 27, 2023. The bid from Martin Marietta Materials, Inc. of Lakewood, Colorado represents the lowest responsive and responsible bid. The low bidder’s price was $42,712.20 less than the Engineer’s Estimate. Bidder Base Bid Alt Bid #1 Alt Bid #2 Total Bid Martin Marietta $1,519,625.64 $238,941.65 $211,410.51 $1,969,977.80 Holcim-WCR $1,522,500.69 $253,538.00 $245,032.20 $2,021,070.89 Co. Asphalt Specialties $1,589,421.40 $251,662.50 $228,993.30 $2,070,077.20 Asphalt Specialties $1,631,981.44 $276,792.50 $255,327.75 $2,164,101.69 Chavez Construction $1,827,673.82 $289,108.50 $267,135.10 $2,383,917.42 APC Construction Co $2,150,201.50 $352,830.00 $325,799.00 $2,828,830.50 Brannan Sand & Gravel $2,249,194.32 $379,174.43 $360,012.43 $2,988,381.18 Engineer’s Estimate $1,530,430.00 $249,870.00 $232,390.00 $2,012,690.00 Amount under Engineer’s Estimate $10,804.36 $10,928.35 $20,979.49 $42,712.20 An 8% staff-managed contingency of $157,598.20 is recommended to account for unknown circumstances that might be encountered on the project. This 8% contingency will only be utilized, if necessary, to account for items not already included in the plans. Contract Amount $1,969,977.80 10% Contingency $157,598.20 Total not-to-exceed Costs $2,127,576.00 BACKGROUND: The work to be performed includes removal of the top 2-3 inches of the street via rotomilling. Full depth asphalt patching in localized areas will then take place as necessary followed by resurfacing of all milled areas with new asphalt. A mill and overlay treatment is intended to extend the life of pavement on streets that are structurally sound. Council Action – 2023 Mill and Overlay Project August 14, 2023 Page 3 The following streets will receive a mill and overlay treatment as a part of this project: • Kendall Street, 29th Avenue to 30th Avenue • Pierce Street, 26th Avenue to 38th Avenue (including bike lanes) • Holland Street, 32nd Avenue to 38th Avenue • Ridge Road, Quail Street to Miller Street • 38th Avenue, Kipling Street to Dover Street The following streets will have signage and striping added to them to provide on-streeet walk areas: • Oak Street, 38th Avenue to 39th Place • Ammons Street, 44th Avenue to approx. 200 feet south • 35th Avenue, Parfet Street to Kipling Street • Teller Street, 32nd Place to 35th Avenue The contractor will supply all labor, equipment, and materials necessary to complete the work in accordance with the project plans and specifications. Martin Marietta has successfully performed similar work for other local municipalities including the city’s mill and overlay project in 2022. Project Schedule The contract terms stipulate forty-five (45) working days to complete the work. Assuming that a Notice to Proceed is issued around August 21, 2023 the project would be completed by approximately October 23, 2023. Communication/Outreach A letter or post card will be mailed from the city to all affected property owners in advance of the start of construction to provide more detailed information on the project schedule, on-street parking, garbage collection, and a point of contact at the city. This letter will be shared with City Council at or around the same time as the letters are mailed to property owners. RECOMMENDATION: Staff recommends approval of this award to Martin Marietta Materials, Inc. for the 2023 Mill and Overlay project. RECOMMENDED MOTION: “I move to award the 2023 Mill and Overlay Project and approve subsequent payments to Martin Marietta Materials, Inc. in the amount of $1,969,977.80, with a contingency amount of $157,598.20 for a total not to exceed amount of $2,127,576.00.” Or, “I move to deny award of the 2023 Mill and Overlay Project to Martin Marietta Materials, Inc. for the following reason(s) __________________.” Council Action – 2023 Mill and Overlay Project August 14, 2023 Page 4 REPORT PREPARED/REVIEWED BY: Maria D’Andrea, Director of Public Works Whitney Mugford-Smith, Procurement Manager Patrick Goff, City Manager ATTACHMENTS: 1. Plan Cover Sheet 2. Contract with Martin Marietta Materials, Inc. © 2023 Microsoft Corporation © 2023 Maxar ©CNES (2023) Distribution Airbus DS © 2023 Microsoft Corporation © 2023 Maxar ©CNES (2023) Distribution Airbus DS © 2023 Microsoft Corporation © 2023 Maxar ©CNES (2023) Distribution Airbus DS © 2023 Microsoft Corporation © 2023 Maxar ©CNES (2023) Distribution Airbus DS © 2023 Microsoft Corporation © 2023 Maxar ©CNES (2023) Distribution Airbus DS © 2023 Microsoft Corporation © 2023 Maxar ©CNES (2023) Distribution Airbus DS Sheet Number Project No. Drawing Number TITLE SHEET 0101 TS-001 C. RIDDELL-BROSIG C, DREESEN TITLE CITY OF WHEAT RIDGE PROJECT NO. 23-03074 2023 MILL AND OVERLAY 0 1500' 3000' SCALE: 1"=3000' VICINITY MAP N JEFFERSON COUNTY, COLORADO STANDARD CROSS WALK DETAIL: (TYP. CROSSWALK SPACING DETAIL UNLESS OTHERWISE NOTED) 8' 2' 4' PATCHING TYPICAL SECTION Existing AsphaltVARIES ASPHALT PATCH MATCH EXIST. MATCH EXIST. ELEV. MATCH EXIST. ELEV. TACK COAT FULL DEPTH ALL SIDES 4" ROAD BASE Designer: Sheet Subset: Detailer: No Revisions: Revised: Void:Sheet Number Init.CommentsDate: Sheet Revisions As ConstructedPrint Date: File Name: Project No. J:\ _ C O \ _ D E N V E R \ G E N E R A L \ C O \ 2 3 - 0 3 0 7 4 - 2 0 2 3 W H E A T R I D G E R O A D W A Y M A I N T E N A N C E \ 0 0 _ C A D O V E R L A Y & S T R I P I N G \ C U T S H E E T S \ 2 3 - 0 3 0 7 4 _ T I T L E S H E E T . D W G Plo t D a t e : 6/2 2 / 2 0 2 3 1 0 : 4 1 A M P l o t t e d B y : Da v i s o n , J o e y Structure Numbers Subset Sheets: of Drawing Number1873 S. Bellaire Street Suite 1101 Denver, CO 80222 P: 303-798-9445 www.estinc.com 23-03074City of Wheat Ridge Public Works 11220 W. 45th Avenue Wheat Ridge, CO 80033 6/22/23 23-03074_TITLE SHEET.DWG W. 38TH AVE. KIP L I N G S T . HO L L A N D S T . PIE R C E S T . KE N D A L L S T . SH E R I D A N B L V D . FE N T O N S T . I-70 W. 32ND AVE. W. 29TH AVE. W. 26TH AVE. W. RIDGE R D . WA D S W O R T H B L V D . W. 44TH AVE. W. 30TH AVE. MI L L E R S T . PA R F E T S T . 6" SP-100 PG (64-22) S 1" EDGE MILL TYPICAL SECTION Existing Asphalt 7'-6" MIN. STANDARD MILLING MACHINE WIDTH MATCH EXIST. MATCH EXIST. ELEV. MATCH EXIST. ELEV. 1" EDGE MILL DEPTH Existing Curb and Gutter 0" MILL DEPTH CENTERLINE OVERLAY THICKNESS PER PLANS 6" DEPTH MOISTURE & DENSITY CONTROL - COST INCLUDED IN WORK AM M O N S S T . OA K S T . W. 35TH AVE. TE L L E R S T . W. 33RD AVE. W. 35TH AVE. 1 ATTACHMENT 1 ITB-23-0123-Asphalt Overlay Project CITY OF WHEAT RIDGE ITB-23-0123 2023 Asphalt Overlay Program AGREEMENT THIS AGREEMENT, made this day of August, 2023 by and between the City of Wheat Ridge, Colorado, hereinafter called "Owner" and Martin Marietta Materials, Inc., 1627 Cole Blvd. Ste. 200, Lakewood, CO 80401, hereinafter called "Contractor". WITNESSETH: That for and in consideration of the payments and agreements hereinafter mentioned the parties agree as follows: 1. The Contractor agrees to furnish all materials, supplies, tools, equipment, labor and other services necessary to complete the construction of the Project titled, ITB-23-0123-Asphalt Overlay Project, in accordance with the Contract Bid Documents: • Base Bid and Alternate Bids #1 and #2. 2. The Contractor agrees to perform all the Work described in the Contract Bid Documents and comply with the terms therein for the Total Contract amount of one million, nine hundred sixty-nine thousand, nine hundred seventy-seven dollars and eighty cents, ($1,969,977.80). 3. The Contractor agrees to commence the Work required by the Contract Documents within Fourteen (14) calendar days after the date of the Notice to Proceed and to complete the same within 45 working days after the date of the Notice to Proceed unless the time for completion is extended otherwise by written changes to the Contract Bid Documents. Striping and Signage work on the following streets must be completed no later than September 8, 2023:  Oak Street, 38th Ave. to 38th Pl.  Ammons Street, 44th Ave. to approx. 260 feet south  35th Avenue, Parfet St. to Kipling St.  Teller Street, 32nd Pl. to 38th Ave. 4. The term "CONTRACT BID DOCUMENTS" means and includes the following: A Signature Page K Agreement B Advertisement for Bids L Payment Bond C Information for Bidders M Performance Bond D Contractor Qualification N Notice to Proceed E Bid Form O Final Receipt F Bid Schedule P Project Special Provisions G List of Subcontractors Q General Provisions H Non-Discrimination Assurance R Addenda I Non-Collusion Affidavit Q Drawings/ Exhibits J Bid Bond S Keep Jobs in Colorado 5. The Owner will pay to the Contractor in the manner and at such times as set forth in the General Conditions, such amounts as required by the Contract Documents. 6. Section 2-3 (a) – (e) of the City's Code of Laws is presented below: (a) Fiscal year. Fiscal year for the city shall commence on January 1 and end on December 31. (b) Budget contains appropriations. The city council shall annually adopt a budget in a manner consistent with the provisions of Chapter X of the Home Rule Charter of the City of Wheat Ridge. Upon the annual adoption by the city council of each fiscal year's budget, levels of authorized expenditures from the funds indicated within the annual budget itself and/or the adopting resolution shall constitute the appropriation of the amounts specified therein for the purposes specified therein. During the course of each fiscal year, approval by the city council of contracts for goods or services, and/or approval of bids for the provision of specified goods or services, shall likewise constitute appropriations of the amounts specified therein for the purposes specified therein. (c) No contract to exceed appropriation. During each and any fiscal year, no contract entered into by or on behalf of the city shall expend or contract to expend any money, or incur any liability, nor shall any contract be entered into nor any bid be awarded by or on behalf of the city which, by its terms, involves the expenditure of money for any of the purposes for which provision is made either in the ATTACHMENT 2 ITB-23-0123-Asphalt Overlay Project adopted budget or adopting resolution, including any legally authorized amendments thereto, in excess of the amount appropriated in the budget or the approved contract or bid award. Any contract or bid award, either verbal or written, made in violation of the provisions of this section shall be void as to the city and no city monies from any source whatsoever shall be paid thereon. (d) Amendments and authorized expenditures. Nothing contained herein shall preclude the city council from adopting a supplemental appropriation in a manner consistent with the provisions of Section 10.12 of the Home Rule Charter of the city. Further, nothing contained in this section shall prevent the making of contracts for governmental services or for capital outlay for a period exceeding one (1) year if such contracts are otherwise allowed by the Home Rule Charter of the city; provided, however, any contract so made shall be executory only for the amounts agreed to be paid for such services to be rendered in succeeding fiscal years. (e) Notice to parties contracting with the city. All persons contracting with, or selling goods or services to, the city are hereby placed upon notice of the provisions of this section. The provisions of this section shall become a part of the Merit System Personnel Rules and Regulations of the City of Wheat Ridge; shall be referred to specifically in all public works bid documents and contracts; and shall be incorporated into, and specially noted within, all other contracts entered into by or on behalf of the city wherein city funds are used to pay for said contract. 7. Section 2-4 of the City Code of Laws is presented below: (a) The city may, by contract, require the contractor awarded a public works contract to waive, release or extinguish its rights to recover costs or damages, or obtain an equitable adjustment, for delays in performing such contract if such delay is caused, in whole or in part, by acts or omissions of the city or its agents, if the contract provides that an extension of time for completion of the work is the contractor's remedy for such delay. Such a clause is valid and enforceable, any provision of state law to the contrary notwithstanding. (b) The city council, by this ordinance (Ordinance No. 812), declares its local contracting powers to be a matter of purely local concern, and further specifically intends to supersede, pursuant to its powers under Article XX of the Colorado Constitution, the provisions of Sections 24-91-101 and 24-91-103.5, C.R.S., insofar as they conflict with the provisions of this section of the Code of Laws of the City of Wheat Ridge, Colorado. 8. Any notice or communication given pursuant to this Agreement to the City shall be made in writing: Contact Information City Contractor Name: Maria D’Andrea Trevor Norton Phone: 303-205-7601 720-245-6400 Email Address: mdandrea@ci.wheatridge.co.us Trevor.norton@martinmarietta.com Address: 11220 W 45th Ave. 1627 Cole Blvd. Ste. 200 City, State, Zip Code Wheat Ridge, CO 80033 Lakewood, CO 80401 9. The Contractor agrees to abide by the requirements under EXECUTIVE ORDER NO. 11246 as amended, including specifically the provisions governed by the Equal Opportunity Commission and also to abide by the requirements of the IMMIGRATION REFORM AND CONTRACT ACT OF 1986 and the requirements of the AMERICANS WITH DISABILITIES Act of 1991; and the United States Department of Transportation Title VI Regulations at 49 CFR Part 21 requirements under the Civil Rights Act of 1964, assuring that no person shall on the grounds of race, color, or national origin be excluded from participation in the opportunity to bid, or be discriminated against in consideration of award of this project. 10. In accordance with CRS Title 24, Article 91, Section 103.6, Paragraph 2, Subparagraph a, the City of Wheat Ridge hereby states that funds have been appropriated for this Project in an amount equal to or in excess of the Original Contract Amount. In accordance with CRS Title 24, Article 91, Section 103.6, Paragraph 2, Subparagraph a, the City of Wheat Ridge hereby states that funds have been appropriated for this Project in an amount equal to or in excess of the Original Contract Amount. 11. Vendor Performance Feedback The City of Wheat Ridge has implemented a requirement for Project Managers to assess each vendor’s performance and issue a determination as to whether the City should award the vendor future City contracts. All contracts will need to be considered as part of the requirement. The following criteria will be evaluated annually for renewable contracts and at contract closeout for one-time agreements: a. Work completed on time ITB-23-0123-Asphalt Overlay Project b. Work completed within budget c. Work completed as per the Scope of Work d. Future awards recommendation 12. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. 12. Each party has reviewed the items contained within this contract and recommend executing this contract to proceed with the agreed upon Statement of Work. ______________________________________ __________ Whitney Mugford-Smith, Procurement Manager Date Signed ______________________________________ __________ Maria D’Andrea, Director of Public Works Date Signed ______________________________________ __________ Patrick Goff, City Manager Date Signed ITB-23-0123-Asphalt Overlay Project IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in two (2) copies, each of which shall be deemed an original on the date first above written. ATTEST: OWNER CITY OF WHEAT RIDGE 7500 WEST 29TH AVENUE STEVE KIRKPATRICK, CITY CLERK WHEAT RIDGE, C0 80033 303-234-5900 DATE BUD STARKER, MAYOR (Seal) APPROVED AS TO FORM: CONTRACTOR GERALD DAHL, CITY ATTORNEY COMPANY NAME ADDRESS ATTEST TO CONTRACTOR: AUTHORIZED SIGNATURE PRINT NAME NAME TITLE TITLE DATE DATE ITB-23-0123-Asphalt Overlay Project PAYMENT BOND KNOW ALL MEN BY THESE PRESENTS: that Martin Marietta Materials, Inc. (Name of Contractor) 1627 Cole Blvd., Ste. 200, Lakewood, CO 80401 (Address of Contractor) A Limited Liability Company hereinafter called "PRINCIPAL", and (Name of Surety) (Address of Surety) hereinafter called "Surety", are held and firmly bound unto the City of Wheat Ridge, 7500 West 29th Avenue, Wheat Ridge, Colorado 80033, hereinafter called "Owner", in the penal sum of One million, nine hundred sixty-nine thousand, nine hundred seventy-seven dollars and eighty cents ($1,969,977.80). in lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION is such that whereas, the Principal entered into a certain contract with the Owner, dated the day of _________, 2023, a copy of which is hereto attached and made a part hereof for the Project titled, ITB-23-0123-Asphalt Overlay, in accordance with the Contract Bid Documents including: Base Bid Bid Alternates 1 and 2 8% Contingency NOW, THEREFORE, if the Principal shall promptly make payment to all persons, firms, Subcontractors and corporations furnishing materials for or performing labor in the prosecution of the Work provided for in such contract, and any authorized extension or modification thereof, including all amounts due for materials, lubricants, oil, gasoline, coal and coke, repairs on machinery, equipment and tools, consumed or used in connection with the construction of such Work, and all insurance premiums on said WORK, and for all labor performed in such work whether by Subcontractor or otherwise, then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED, FURTHER, that the said Surety for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the Work to be performed or the Specifications accompanying the same shall in any wise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract or to the Work or to the Specifications. *Insert "a corporation", "a partnership", or "an individual" as applicable. ITB-23-0123-Asphalt Overlay Project IN WITNESS WHEREOF, this instrument is executed in one part, each of which shall be deemed an original, this the day of , 2018 ATTEST: PRINCIPAL CORPORATE SECRETARY PRINCIPAL ADDRESS BY ADDRESS (SEAL) SURETY ATTEST: SURETY ADDRESS BY (ATTORNEY IN FACT) ADDRESS (SEAL) Note: Date of Bond must not be prior to date of Contract. If Contractor is partnership, all partners should execute bond. IMPORTANT: Surety companies executing bonds must appear on the Treasury Department's most current list (Circular 570, as amended) and be authorized to transact business in the State of Colorado. ITB-23-0123-Asphalt Overlay Project PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: that Martin Marietta Materials, Inc. (Name of Contractor) 1627 Cole Blvd. Ste. 200, Lakewood, CO 80401 (Address of Contractor) A hereinafter called "PRINCIPAL", and (Name of Surety) (Address of Surety) hereinafter called "Surety", are held and firmly bound unto the City of Wheat Ridge, 7500 West 29th Avenue, Wheat Ridge, Colorado 80033, hereinafter called "Owner", in the penal sum of One million, nine hundred sixty-nine thousand, nine hundred seventy-seven dollars and eighty cents ($1,969,977.80) in lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION is such that whereas, the Principal entered into a certain contract with the Owner, dated the day of _________, 2018, a copy of which is hereto attached and made a part hereof for the Project titled, ITB-23-0123-Asphalt Overlay, in accordance with the Contract Bid Documents including: Base Bid – Bid Alternate 1 – Bid Alternate 2 –. NOW, THEREFORE, if the Principal shall well, truly and faithfully perform its duties, all the undertakings, covenants, terms, conditions, and agreements of said Contract during the original term thereof, and any extensions thereof which may be granted by the Owner, with or without notice to the Surety and during the one year guarantee period, and if he shall satisfy all claims and demands incurred under such contract, and shall fully indemnify and save harmless the Owner from all costs and damages which it may suffer by reason of failure to do so, and shall reimburse and repay the Owner all outlay and expense which the Owner may incur in making good any default, then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED, FURTHER, that the said Surety for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract or to the Work to be performed or the Specifications accompanying the same shall in any wise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract or to the Work or to the Specifications. PROVIDED, FURTHER, that no final settlement between the Owner and the Contractor shall abridge the right of any beneficiary hereunder, whose claim may be unsatisfied. *Insert "a corporation", "a partnership", or "an individual" as applicable. ITB-23-0123-Asphalt Overlay Project IN WITNESS WHEREOF, this instrument is executed in one part, each of which shall be deemed an original, this the day of , 2018 ATTEST: PRINCIPAL CORPORATE SECRETARY PRINCIPAL ADDRESS BY ADDRESS (SEAL) SURETY ATTEST: SURETY ADDRESS BY (ATTORNEY IN FACT) ADDRESS (SEAL) Note: Date of Bond must not be prior to date of Contract. If Contractor is partnership, all partners should execute bond. IMPORTANT: Surety companies executing bonds must appear on the Treasury Department's most current list (Circular 570, as amended) and be authorized to transact business in the State of Colorado. ITEM NO: 1b DATE: August 14, 2023 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION 39-2023 – A RESOLUTION AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BY AND BETWEEN THE COUNTY OF JEFFERSON, STATE OF COLORADO, AND THE CITY OF WHEAT RIDGE, COLORADO, REGARDING THE PRODUCTION OF A MAILED TABOR NOTICE CONCERNING BALLOT ISSUES AND THE ADMINISTRATION OF THEIR RESPECTIVE DUTIES CONCERNING THE CONDUCT OF THE COORDINATED ELECTION TO BE HELD ON NOVEMBER 7, 2023 PUBLIC HEARING ORDINANCES FOR 1ST READING BIDS/MOTIONS ORDINANCES FOR 2ND READING RESOLUTIONS QUASI-JUDICIAL: YES NO _______________________________ ______________________________ Steve Kirkpatrick, City Clerk Patrick Goff, City Manager ISSUE: The City of Wheat Ridge will participate in a coordinated election on November 7, 2023. The attached resolution and intergovernmental agreement (IGA) must be executed and forwarded to Jefferson County by Tuesday, August 28, 2023. The documents refer to the respective duties of the County and the City of Wheat Ridge concerning the production of a mailed TABOR Notice concerning a ballot issue that will be submitted to eligible voters of the City of Wheat Ridge and regarding the administration of the Coordinated Election. PRIOR ACTION: None Council Action Form – IGA for Coordinated Election August 14, 2023 Page 2 FINANCIAL IMPACT: The City of Wheat Ridge shall pay a pro-rated amount for the costs to produce and mail the TABOR Notice. The pro-ration shall be made based upon the percentage of households in which an "active" registered voter resides who is an eligible elector of the jurisdiction. Funding in the amount of $20,000 is budgeted in the 2023 budget for this purpose. BACKGROUND: The duties of the County Clerk include, but are not limited to, ballot preparation, voter lists, staff selection and training, providing election supplies, counting of the ballots, and certification of results. The duties of the City of Wheat Ridge include, but are not limited to, Call and Notice and ballot preparation. The City Clerk shall act as the City of Wheat Ridge’s “Election Officer” and the designated election official. He shall act as the primary liaison between the City of Wheat Ridge and the Contact Officer for the County Clerk and Recorder. RECOMMENDATIONS: The County Clerk and Recorder and the Clerk of the City of Wheat Ridge have determined that it is in the best interests of Jefferson County, the City and their respective inhabitants to cooperate and contract concerning the election upon the terms and conditions in the intergovernmental agreement. RECOMMENDED MOTION: “I move to approve Resolution 39-2023, a resolution authorizing the execution of an Intergovernmental Agreement by and between the County of Jefferson, State of Colorado and the City of Wheat Ridge, Colorado, regarding the production of a mailed TABOR Notice concerning ballot issues and the administration of their respective duties concerning the conduct of the Coordinated Election to be held on November 7, 2023.” Or, “I move to table indefinitely Resolution 39-2023, a resolution authorizing the execution of an Intergovernmental Agreement by and between the County of Jefferson, State of Colorado and the City of Wheat Ridge, Colorado, regarding the production of a mailed TABOR Notice concerning ballot issues and the administration of their respective duties concerning the conduct of the Coordinated Election to be held on November 7, 2023 for the following reason(s)__________.” REPORT PREPARED BY: Steve Kirkpatrick, City Clerk Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 39-2023 2. Intergovernmental Agreement City of Wheat Ridge RESOLUTION NO. 39 SERIES of 2023 TITLE: A RESOLUTION AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BY AND BETWEEN THE COUNTY OF JEFFERSON, STATE OF COLORADO, AND THE CITY OF WHEAT RIDGE, COLORADO, REGARDING THE PRODUCTION OF A MAILED TABOR NOTICE CONCERNING BALLOT ISSUES AND THE ADMINISTRATION OF THEIR RESPECTIVE DUTIES CONCERNING THE CONDUCT OF THE COORDINATED ELECTION TO BE HELD ON NOVEMBER 7, 2023 WHEREAS, pursuant to Section 1-7-116(2), C.R.S., as amended, the Jefferson County Clerk (“County Clerk”) and the City of Wheat Ridge (“City”) shall enter into an agreement for the administration of their respective duties concerning the conduct of the coordinated election to be held on November 7, 2023 (“Election”): and WHEREAS, the County Clerk and the City Clerk of the City of Wheat Ridge are authorized to conduct elections as provided by law; and WHEREAS, the County Clerk will conduct the Election as a “coordinated mail ballot election” as such term is defined in the Uniform Election Code of 1992, C.R.S. Title 1, as amended (“Code”) and the Current Rules and Regulations Governing Election Procedures adopted by the Secretary of State, as amended (“Rules”); and WHEREAS, the City has a certain ballot issue and/or ballot questions to present to its eligible electors and shall participate in this coordinated election; and WHEREAS, Article X, Section 20(3)(b) of the Colorado Constitution (“TABOR”) and Section 1-7-901, et seq, C.R.S. require the production of a mailed notice concerning Ballot Issues as defined in the Uniform Election Code of 1992, Title I, C.R.S., as amended (the “Code”) that will be submitted to eligible voters of the City of Wheat Ridge in connection with the general election to be held on November 7, 2023 (the “Election”); and WHEREAS, the County Clerk and the City have determined that it is in the County’s and City’s best interests to cooperate in connection with the Election upon the terms and conditions contained in the Intergovernmental Agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge: Section 1. The appropriate City Officials are hereby authorized to execute the Intergovernmental Agreement by and between the City of Wheat Ridge and the County of Jefferson regarding the administration of the County’s and City’s respective duties concerning the requirement of a mailed TABOR Notice and the conduct of the ATTACHMENT 1 coordinated election to be held on November 7, 2023 (“IGA”), attached hereto as Exhibit A. DONE AND RESOLVED on this 14th day of August 2023. Bud Starker, Mayor ATTEST: ______________________ Steve Kirkpatrick, City Clerk EXHIBIT A Intergovernmental Agreement dated July 31, 2023 TM 23-0279 Page 1 of 18 REVISED - INTERGOVERNMENTAL AGREEMENT FOR ELECTION COORDINATION THIS INTERGOVERNMENTAL AGREEMENT FOR ELECTION COORDINATION (this “Agreement”), dated for reference purposes only this 31st day of July, 2023, is by and between the CLERK AND RECORDER FOR THE COUNTY OF JEFFERSON, STATE OF COLORADO (“County Clerk”) and the City of Wheat Ridge (the “Jurisdiction,” and together with the County Clerk, the “Parties.”) RECITALS A.The County Clerk and the Jurisdiction are authorized to conduct elections under Colorado law; B.The Parties wish to coordinate the administration of their respective election matters at the upcoming election to be held on November 7, 2023 (the “Election”); and C.This Agreement sets forth the Parties’ respective duties and responsibilities in connection with the preparation for, and conduct of, the Election. AGREEMENT In consideration of the foregoing recitals and the mutual covenants and promises herein contained, the Parties agree as follows: 1.Definitions. Capitalized terms not otherwise defined herein shall have the meanings set forth below: a.“Applicable Law” means all law applicable to the Election, including, without limitation, the Colorado Constitution, the Uniform Election Code (as defined below), UOCAVA (as defined below) and the Rules (as defined below). b.“Ballot Box” means a locked and secured container meeting the requirements of Applicable Law in which ballots may be deposited. c.“Ballot Issue” shall have the meaning ascribed to that term in C.R.S. § 1-1-104(2.3). d.“Ballot Issue Notice” shall have the meaning ascribed to that term in C.R.S. § 1-1- 104(2.5). e. “Ballot Measure” means any Ballot Issue or Ballot Question. f.“Ballot Question” shall the meaning ascribed to that term in C.R.S. § 1-1-104(2.7). g.“Election Audit” means a risk-limiting audit performed in accordance with the requirements of C.R.S. § 1-7-515. h.“Election Canvass” means the process of reconciling the ballots cast in the Election to the ballots counted, which is performed in accordance with the requirements of C.R.S. § 1-10-101, et seq. ATTACHMENT 2 TM 23-0279 Page 2 of 18 i. “Notice Packet” means a packet containing Ballot Issue Notices prepared and mailed to eligible voters in accordance with Applicable Law and the terms of this Agreement. j. “Precinct” means an area with established boundaries within the Jurisdiction used to establish election districts. k. “Rules” means the current rules and regulations governing election procedures adopted by the Colorado Secretary of State, including any amendments adopted after execution of this Agreement. l. “Shared Election Costs” means all costs incurred by the County Clerk in connection with the Election that are eligible to be shared between the County Clerk and the Jurisdiction. Shared Election Costs include, without limitation, all costs incurred by the County related to temporary election staff (such as election judges), including training and onboarding costs, regular County Clerk employee overtime costs related to the Election, the cost of printing ballots, costs for support, maintenance, handling and delivery of Election equipment, hardware and software, the cost of preparing minority language sample ballots and Notice Packets, costs of Election forms, materials, supplies and postage, VSPC rental and setup costs, and costs of Election Day meals. m. “Uniform Election Code” means Articles 1 to 13 of Title 1 of the Colorado Revised Statutes. n. “UOCAVA” means the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301, et seq., as incorporated in Colorado pursuant to C.R.S. 1-8.3-101, et seq. 2. Term. The term of this Agreement shall commence on the date it is validly executed by both Parties and shall continue until all obligations of both Parties under the Agreement have been completed. 3. Designation of Coordinated Election Official. The Parties agree that the County Clerk shall serve as the “Coordinated Election Official” for the Election. As the Coordinated Election Official, the County Clerk shall conduct the Election on behalf of the Jurisdiction and shall be responsible for performing such duties as are assigned to a Coordinated Election Official under Applicable Law, except to the extent specifically modified herein. 4. Designation of Liaisons. a. Each Party designates the individuals listed below as its liaison and alternate liaison hereunder. County Clerk Liaison Cynthia Rasor Jefferson County Elections Division 3500 Illinois Street, Suite 1100 Alternate County Clerk Liaison Geneice Murphy Jefferson County Elections Division 3500 Illinois Street, Suite 1100 TM 23-0279 Page 3 of 18 Golden, CO 80401 Direct Phone: (303) 271-8115 Office Phone: (303) 271-8111 Email: logistics@jeffco.us Golden, CO 80401 Office Phone: (303) 271-8111 Email: gmurphy@jeffco.us Jurisdiction Liaison Name Title/Office Address City, State, Zip Code Direct Phone Number Office Phone Number Email Alternate Jurisdiction Liaison Name Title/Office Address City, State, Zip Code Direct Phone Number Office Phone Number Email b. The County Clerk Liaison shall act as the County Clerk’s primary liaison with the Jurisdiction for the Election and shall have primary responsibility for performance of the County Clerk’s obligations hereunder. In the event the Jurisdiction needs immediate assistance and the Election Liaison is unavailable, the Jurisdiction shall contact the Alternate County Clerk Liaison. c. The Jurisdiction Liaison shall act as the Jurisdiction’s primary liaison with the County Clerk for the Election and shall have primary responsibility for the performance of the Jurisdiction’s obligations hereunder. In the event the County Clerk needs immediate assistance and the Jurisdiction Liaison is unavailable, the County Clerk shall contact the Alternate Jurisdiction Liaison. 5. Notices. All correspondence and notices required to be given under this Agreement shall be delivered to the Parties’ respective liaisons identified above at the addresses listed above and shall be deemed received: (1) three days after the same is mailed by first class, certified mail; (2) immediately upon hand delivery; or (3) immediately upon email transmission, if TM 23-0279 Page 4 of 18 transmitted on a business day and during normal business hours of the recipient, and otherwise on the next business day following transmission. 6. Mail Ballot Election. The Election shall be held on November 7, 2023 (“Election Day”) and shall be conducted as a mail ballot election in accordance with the procedures of the Mail Ballot Election Act, C.R.S. § 1-7.5-101, et seq. 7. Jurisdictional Limitation. If the Jurisdiction encompasses territory outside of Jefferson County, Colorado, this Agreement shall be construed to apply only to that portion of the Jurisdiction that falls within Jefferson County. 8. Responsibilities of the Parties. The Jurisdiction and County Clerk shall perform the following responsibilities in connection with the preparation for, and conduct of, the Election, in accordance with the terms of this Agreement and Applicable Law: a. Execution and Documentation of Authority. On or before August 29, 2023, the Jurisdiction shall email the County Clerk: i. a PDF of this Agreement validly executed by the Jurisdiction; and ii. a copy of a duly-passed resolution stating that the Jurisdiction will coordinate with the County Clerk in the Election in accordance with the terms of this Agreement and Applicable Law and authorizing the Jurisdiction to enter into this Agreement. The email shall be sent to logistics@jeffco.us. b. Maps and Legal Descriptions. i. Promptly upon execution of this Agreement, the Jurisdiction shall provide the County Clerk with the Jurisdiction’s current shapefiles (point-to-point geometry using points, lines and area features to define the Jurisdiction’s boundaries) or updated address library files, including each Precinct, district/ward and the voting jurisdiction, if there were any changes to the boundaries of the Jurisdiction after January 1, 2023. c. Election Preparation and Support i. VSPCs. The County Clerk shall establish, staff, equip and operate all Voter Service Polling Centers. ii. Election Judges. The County Clerk shall engage, train and coordinate the scheduling of all election judges. iii. Equipment and Supplies. The County Clerk shall obtain all necessary equipment and supplies to conduct the Election, including all voting equipment, ballots and forms. iv. Ballot Boxes. The County Clerk shall establish, maintain, and collect ballots from all Ballot Boxes. TM 23-0279 Page 5 of 18 1) The Jurisdiction shall not take any action that would prevent voters from accessing any Ballot Box twenty-four hours per day during the period beginning October 16, 2023 through and including Election Day. v. Ballot Counting Process. The County Clerk shall (1) establish, staff, equip and operate a centralized ballot counting location for the Election, (2) establish ballot counting procedures for the Election; and (3) establish backup ballot counting procedures and sites for ballot counting in the event its ballot counting equipment fails during the Election. vi. Voter Support. The County Clerk shall provide telephone and in-person support to voters during the early voting period and from 7:00 a.m. to 7:00 p.m. on Election Day. vii. Election Notices. The County Clerk shall publish all Election notices required by Applicable Law. 1) The Jurisdiction shall not publish any notice related to the Election without first obtaining the approval of the County Clerk. To request approval to publish a notice the Jurisdiction shall provide the County Clerk with all relevant information related to the proposed publication, including a copy of the proposed notice, at least one (1) week prior to the Jurisdiction’s deadline for submitting the proposed notice to the publisher. The Jurisdiction shall bear full responsibility for any Election notices published without the County Clerk’s approval and shall comply with all instructions issued by the County Clerk to remedy any incorrect or improper notices. d. Logic and Accuracy Test. The County Clerk shall prepare for and conduct the Logic and Accuracy Test (“LAT”). 1) If the Jurisdiction chooses to attend and witness the LAT for the Election, the Jurisdiction Liaison shall submit the name of the Jurisdiction’s attendee in writing to the County Clerk on or before 3:00 p.m. on September 8, 2023. If the Jurisdiction fails to meet this deadline, the County Clerk shall deem the failure to be a decision by the Jurisdiction not to witness the LAT and will act on behalf of the Jurisdiction, as appropriate. e. Candidate Voice Messages. The Jurisdiction shall inform all candidates running for office in the Jurisdiction to call the County Clerk at (303) 271-8115 between September 1, 2023 and 3:00 p.m. on September 8, 2023 and leave a message containing the following information: i. The proper pronunciation of the candidate’s name; ii. The title of the office that the candidate is running for; and iii. The name of the Jurisdiction that the office is part of. TM 23-0279 Page 6 of 18 f. Certification of Jurisdiction Ballot Measures. The Jurisdiction shall be responsible for certifying, and for taking all actions required by Applicable Law to certify, any Ballot Measures included on the Jurisdiction’s ballot certification (including both Ballot Measures referred by the Jurisdiction itself and citizen-initiated Ballot Measures affecting the Jurisdiction). g. Ballot Preparation i. No later than 3:00 p.m. on September 8, 2023, the Jurisdiction shall electronically submit its ballot certification to the County Clerk via text document (preferably Microsoft Word – no PDF). If the Jurisdiction fails to submit the ballot certification by the above deadline, the ballot certification may not be accepted by the County Clerk. 1) The Jurisdiction shall submit its ballot certification using the ballot certification template provided by the County Clerk. 2) The Jurisdiction’s ballot certification shall include all of the races, candidates and contests that will be presented to the Jurisdiction’s voters in the Election, including the text of all Ballot Measures, in the exact order that they need to appear on the ballot. 3) The ballot certification shall not be embedded in an email and shall not contain any extraordinary (unique) formatting. Examples of extraordinary (unique) formatting not permitted in the ballot certification include, but are not limited to: (a) text boxes; (b) charts; (c) spreadsheets; (d) strikeouts; (e) bolding; and (f) symbols. 4) The Jurisdiction shall proofread the language of any Ballot Measures that appear in the ballot certification prior to sending it to the County Clerk for initial text lay out. The Jurisdiction shall be solely responsible for ensuring the legality and accuracy of all Ballot Measure language. 5) The Jurisdiction shall ensure the correct spelling of the name of each candidate running for Jurisdiction office, if applicable. 6) The Jurisdiction shall not assign a ballot number to any Ballot Measure. The County Clerk shall determine the numbering of all Ballot Measures and will provide the Jurisdiction with the ballot number after ballot certification. ii. Upon receipt of the ballot certification from the Jurisdiction, the County Clerk will: 1) Consolidate the ballot certification content received from all Jurisdictions and organize it into the structure in which it will appear on the printed ballot(s); TM 23-0279 Page 7 of 18 2) Determine the numbering of all Ballot Measures; and 3) Provide a document containing the Jurisdiction’s final draft ballot printing layout and text to the Jurisdiction, with instructions to perform a final review and provide final approval by a date set forth in the instructions. 4) The County Clerk reserves the right to change the content of the Jurisdiction’s ballot certification (other than candidate name/ballot question content) in order to ensure ballot consistency. iii. Upon receipt of the final draft ballot layout from the County Clerk, the Jurisdiction’s liaison or alternate liaison shall be available to perform a final review and proofread of the ballot layout and provide final approval to the County Clerk by the deadline included in the instructions sent to the Jurisdiction. Once approved, the ballot layout cannot be changed. iv. Between October 16, 2023 and October 20, 2023, the County Clerk shall print and mail ballots to each eligible Jefferson County voter, together with voter instructions, outgoing envelope, return envelope and any other items required by Applicable Law. v. From October 17, 2023 through the 8-day mailing cutoff, the County Clerk shall mail supplemental ballots to eligible Jefferson County voters who were not included in the initial mailing. h. Preparation of Spanish Language Ballot i. In accordance with Applicable Law, the County Clerk will prepare an in-person Spanish language ballot containing all of the same content that is on the English language ballot and make the Spanish language ballot accessible to Jefferson County voters on the County Clerk’s public website, at Voter Service Polling Centers, and at such other locations as the County Clerk determines. The County Clerk reserves the right to determine whether the in-person Spanish language ballot is made available to voters in printed or electronic form. ii. The Jurisdiction shall be responsible for preparing a Spanish language translation of the title and text of all Ballot Measures included on the Jurisdiction’s ballot certification (including both Ballot Measures referred by the Jurisdiction itself and citizen-initiated Ballot Measures affecting the Jurisdiction) and all Jurisdiction offices on the ballot. 1) The Jurisdiction’s Spanish language ballot translation shall be prepared in accordance with Applicable Law including, without limitation, all applicable requirements of the Ballot Access for All Citizens Act, C.R.S. §§ 1-5-901 et seq., and the Secretary of State’s rules promulgated thereunder. Without limiting the generality of the foregoing, the TM 23-0279 Page 8 of 18 Jurisdiction (a) shall have the Spanish language ballot translation prepared by a “qualified translator or interpreter,” as that term is defined in C.R.S. § 1-5-903(4) and Secretary of State Rule 4.8.9; and (b) shall provide a Spanish language ballot translation that is linguistically accurate, culturally appropriate, and technically consistent with the original documents. iii. On or before September 8, 2023, the Jurisdiction shall electronically submit its Spanish language ballot translation to the County Clerk via text document (preferably Microsoft Word – no PDF). 1) The Jurisdiction’s Spanish language ballot translation shall include the text of all Ballot Measures on the Jurisdiction’s ballot certification, in the exact order that they will appear on the ballot. iv. The County Clerk shall be responsible for providing Spanish language translations of all voter instructions and other ballot content not required to be provided by the Jurisdiction or other participating jurisdictions. The Jurisdiction agrees to release the County Clerk from all claims it may have relating to the County Clerk’s translation of such content (including, without limitation, all claims relating to the accuracy of the translation) provided that the County Clerk (a) has the translation performed by a qualified translator or interpreter; and (b) otherwise complies with Applicable Law. i. Ballot Issue Notice Preparation i. On or before 3:00 p.m. on September 25, 2023, the Jurisdiction shall provide the County Clerk with the full text of the Ballot Issue Notice covering all of the Jurisdiction’s Ballot Issue(s). The Ballot Issue Notice shall include all information required by Applicable Law, including without limitation the following: 1) The name of the Jurisdiction; 2) The identity and contact information of the Jurisdiction contact person; 3) The text of each Ballot Issue; 4) All other required Ballot Issue language, including but not limited to: a) A fiscal impact statement, if required; and b) Summaries of all comments for and against each Ballot Issue validly received by the Jurisdiction, or a statement that no comments were filed by the constitutional deadline. i) The Jurisdiction shall be responsible for accepting, filing, summarizing and retaining comments concerning the Jurisdiction’s Ballot Issues and shall ensure that all requirements TM 23-0279 Page 9 of 18 of Applicable Law are complied with, including, without limitation, ensuring that all comments submitted to the Jurisdiction include a signature and a physical address where the signor is registered to vote. ii. Delivery and Formatting Requirements 1) The Jurisdiction shall electronically deliver the Ballot Issue Notice to the County Clerk via text document (preferably Microsoft Word – no PDF). 2) The Jurisdiction shall use the TABOR Ballot Issue Notice template provided by the County Clerk. 3) The text of the Ballot Issue shall be in all UPPERCASE. 4) All other text in the Ballot Issue Notice (including the identity and contact information of the Jurisdiction contact person, the fiscal impact statement, if required, and the summaries of comments for and against each Ballot Issue), shall be in upper and lower case. 5) The Ballot Issue Notice shall not be embedded in an email and shall not contain any extraordinary (unique) formatting. a) Examples of extraordinary (unique) formatting not permitted in the Ballot Issue Notice includes, but are not limited to: (a) text boxes; (b) charts; (c) spreadsheets; (d) strikeouts; (e) bolding; and (f) symbols. 6) The Jurisdiction shall be solely responsible for ensuring the legality and accuracy of all Ballot Issue Notice language. iii. Ballot Issue Notice Layout. Upon receipt of the Ballot Issue Notice from the Jurisdiction, the County Clerk shall: 1) Consolidate the Ballot Issue Notice content received from all Jurisdictions and organize it into the structure in which it will appear in the Notice Packet; 2) Add a list of County VSPCs and Ballot Boxes, and any other information required by Applicable Law, to the Notice Packet; and 3) Provide a final draft layout of the Notice Packet to the Jurisdiction with instructions to perform a final review of their portion of the Notice Packet and provide final approval by a date set forth in the instructions. 4) The County Clerk reserves the right to change the content of the Jurisdiction’s Ballot Issue Notice content (other than the ballot question content) in order to ensure consistency. TM 23-0279 Page 10 of 18 iv. Final Review and Proofread. The Jurisdiction’s liaison or alternate liaison shall be available to perform a final review and proofread of the Jurisdiction’s portion of the Notice Packet and provide final approval of such portion to the County Clerk by the deadline included in the instructions sent to the Jurisdiction. Upon completion of the Jurisdiction’s review and proofread of their portion of the Notice Packet, the Jurisdiction Liaison shall send approval of its content via electronic transmission to the County Clerk. Once approved, Ballot Issue Notice text cannot be changed. 1) The Jurisdiction’s liaison or alternative liaison shall have no more than 2 hours from the time the County Clerk sends the Notice Packet to perform the final review and proofread. v. Printing and Mailing. On or before October 6, 2023, the County Clerk shall print and mail the Notice Packets to each address in Jefferson County at which one or more active, registered Jefferson County voter resides. 1) Nothing herein shall preclude the County Clerk from including ballot issue notices for more than one jurisdiction in the Notice Packet if doing so arises from the County Clerk’s efforts to mail the Notice Packet at “least cost” and such mailing conforms with Applicable Law. vi. Notice Packets for Non-Jefferson County Voters. The Jurisdiction shall be solely responsible for preparing and mailing Notice Packets to voters who reside outside of Jefferson County. 1) Notwithstanding the foregoing, the County Clerk may agree to print extra Notice Packets for voters who reside outside of Jefferson County upon request by the Jurisdiction. If the Jurisdiction desires to have the County Clerk print extra Notice Packets for non-Jefferson County residents, the Jurisdiction shall notify the County Clerk no later than 3:00 p.m. on September 25, 2023 of the quantity of extra Notice Packets the Jurisdiction needs for non-Jefferson County residents. 2) If the County Clerk agrees to print extra Notice Packets for non-Jefferson County residents, the Jurisdiction shall be responsible for all costs associated with their printing, which costs shall be invoiced to the Jurisdiction, together with any Shared Election Costs. 3) If the County Clerk agrees to print extra Notice Packets for non-Jefferson County residents, the Jurisdiction shall be responsible for addressing, affixing adequate postage to, and mailing these Notice Packets to its eligible voters. The extra Notice Packets will contain the same content as the Notice Packets prepared for and mailed to Jefferson County residents and, therefore, may contain Ballot Issue Notices that are not applicable to TM 23-0279 Page 11 of 18 non-Jefferson County residents. The County Clerk will not agree to print special Notice Packets for non-Jefferson County residents. j. Ballot Counting / Result Reporting i. The County Clerk shall count all ballots received during the Election voting period. ii. Between 7:00 p.m. and 8:00 p.m., and between 8:00 p.m. and 9:00 p.m., on Election Day, the County Clerk shall upload unofficial Election results to the Election Night Reporting (“ENR”) system (unless the Secretary of State waives or modifies these deadlines or the ENR system is offline or otherwise unavailable). iii. Upon completion of the Election Canvass on November 29, 2023, the County Clerk shall upload a Jurisdiction-wide summary of the official Election results to the ENR system. iv. If there is not a recount affecting the County, the County Clerk shall upload official Precinct or District-level Election results to its public website and make these results available to the Jurisdiction upon request on December 8, 2023. If there is a recount affecting the County, the County Clerk shall upload official Precinct or District-level results to its public website and make these results available to the Jurisdiction upon request within three (3) business days following completion of the recount. k. Election Audit. On or before November 28, 2023, the County Clerk, in collaboration with the Election audit board(s), shall conduct, assist and oversee the Election Audit. i. If the Jurisdiction chooses to attend and witness the Election Audit, the Jurisdiction shall submit the name of the Jurisdiction’s attendee to the County Clerk on or before 3:00 p.m. on October 17, 2023. If the Jurisdiction fails to meet this deadline, the County Clerk shall deem the failure to be a decision by the Jurisdiction not to witness the Election Audit and will act on behalf of the Jurisdiction, as appropriate. l. Election Canvass. On or before November 29, 2023, the County Clerk shall instruct and oversee the board of canvassers, who are responsible for conducting an Election Canvass and certifying the official abstract of votes cast for all candidates and Ballot Measures in the Election. i. If the Jurisdiction chooses to attend and witness the Election Canvass, the Jurisdiction shall submit the name of the Jurisdiction’s attendee to the County Clerk on or before 3:00p.m. on October 17, 2023. If the Jurisdiction fails to meet this deadline, the County Clerk shall deem the failure to be a decision by TM 23-0279 Page 12 of 18 the Jurisdiction not to witness the Election Canvass and will act on behalf of the Jurisdiction, as appropriate. m. Election Recount. The County Clerk shall conduct an Election recount, if required by Applicable Law. 9. Duties Subject to Jurisdiction Performance. The responsibility of the County Clerk to perform the duties set forth above are contingent upon the Jurisdiction’s performance of its own duties hereunder. The County Clerk shall not be responsible for failing to meet any deadlines for mailing the Notice Packet if such failure was caused by the Jurisdiction’s failure to timely submit the required information in a form required by this Agreement and Applicable Law. 10. Compliance with Deadlines. The County Clerk may provide the Jurisdiction with a schedule of Election-related dates and deadlines. If the County Clerk provides such a schedule, the Jurisdiction shall comply with the deadlines included therein. 11. Withdrawal/Cancellation a. The Jurisdiction may cancel an election of persons to office or withdraw a Ballot Measure only as permitted by Applicable Law. b. If the Jurisdiction resolves to cancel an election to office or withdraw a Ballot Measure, the Jurisdiction shall do the following: i. Provide the County Clerk with written notice of such determination immediately; ii. Provide public notice by publication of such cancellation or withdrawal as required by Applicable Law; and iii. Pay the County Clerk its actual costs incurred in connection with the cancelled election or withdrawn Ballot Measure, which may include costs incurred by the County Clerk both before and after receipt of the Jurisdiction’s notice of cancellation or withdrawal. Such payment shall be due within thirty (30) days after the Jurisdiction’s receipt of an invoice from the County Clerk for such payment. c. The Jurisdiction must provide written notice of a cancelled election or withdrawn Ballot Measure no later than 3:00 p.m. on September 8, 2023 in order to have such election or Ballot Measure removed from the ballot. 12. Recordkeeping. The County Clerk shall store all Election records, including but not limited to all voted and unvoted ballots, voter affidavits, and Election Canvass and results reports. 13. Use and Confidentiality of Voter Records. The Jurisdiction shall be responsible for ensuring that any voter records received by the Jurisdiction are used for the sole purpose TM 23-0279 Page 13 of 18 of performing its duties described herein. The Jurisdiction shall ensure that all voter records are maintained in accordance with the requirements of Applicable Law, including, without limitation, the Colorado Open Records Act, C.R.S. §§ 24-72-200.1, et seq. 14. Payment of Shared Election Costs. The Jurisdiction shall reimburse the County Clerk for the Jurisdiction’s pro-rated share of the Shared Election Costs. The Jurisdiction’s share of the Shared Election Costs shall be calculated in accordance with the formulas set forth in Exhibit A to this Agreement. The Jurisdiction’s payment of its share of the Shared Election Costs shall be due within thirty (30) days after the Jurisdiction’s receipt of an invoice from the County Clerk for such payment. Any amount not paid by the above- referenced deadline will be subject to an interest charge equal to (a) 1.5% per month; or (b) the highest rate permitted by law, whichever is lower. 15. Payment of Recount Costs. In the event of a required or requested Election recount, responsibility for the costs incurred by the County Clerk in connection with such recount shall be determined in accordance with C.R.S. §§ 1-10.5-101 and 1-10.5-106. If the Jurisdiction is responsible for any portion of such costs, payment of such portion shall be due within thirty (30) days after the Jurisdiction’s receipt of an invoice from the County Clerk for such payment. Any amount not paid by the above-referenced deadline will be subject to an interest charge equal to (a) 1.5% per month; or (b) the highest rate permitted by law, whichever is lower. 16. Miscellaneous Provisions a. Amendment. This Agreement may not be modified or amended except in writing signed by the Parties. b. Entire Agreement. This Agreement and its exhibits constitute the entire agreement between the Parties as to the subject matter hereof and supersede all prior or contemporaneous agreements, proposals, negotiations, understandings, representations and all other communications, both oral and written, between the Parties. c. Indemnification. The Parties understand and agree that liability for claims for injuries to persons or property arising out of the acts or omissions of either party is controlled and limited by the Colorado Constitution and the Colorado Governmental Immunity Act (C.R.S. § 24-10-101, et seq.). Each party shall be responsible for any and all claims incurred as a result of any alleged act or omission of the said party and its employees, which occurred or is alleged to have occurred during the performance of their duties within the scope of their employment, except where such acts or omissions are willful and wonton. d. Conflict with Law. In the event that any provision in this Agreement conflicts with Applicable Law, this Agreement shall be modified to conform thereto. TM 23-0279 Page 14 of 18 e. Time of Essence. Time is of the essence in the performance of this Agreement. Any deadlines or other time limits set forth in Applicable Law shall apply to completion of the tasks required by this Agreement. f. No Third-Party Beneficiaries. Enforcement of the terms and conditions of this Agreement and all rights of action relating to such enforcement shall be strictly reserved to the Parties, and nothing contained in this Agreement shall give or allow any such claim or right of action by any other person or entity not a party to this Agreement. g. Further Assurances. The Parties shall execute any other documents and to take any other action necessary to carry out the intent of this Agreement. h. Governing Law; Jurisdiction & Venue. This Agreement and the rights of the Parties under it will be governed by, and construed in accordance with, the laws of the State of Colorado, without regard to the conflicts of laws and rules of Colorado. The courts of the State of Colorado shall have sole and exclusive jurisdiction of any disputes or litigation arising under this Agreement. Venue for any and all legal actions arising under this Agreement shall lie in the District Court in and for the County of Jefferson, State of Colorado. i. Headings. The section headings in this Agreement are for reference only and shall not affect the interpretation or meaning of any provision of this Agreement. j. Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, void or unenforceable, such provision shall be deemed to be severable, and all other provisions of this Agreement shall remain fully enforceable, and this Agreement shall be interpreted in all respects as if such provision were omitted. k. Immunities Preserved. It is the intention of the Parties that this Agreement shall not be construed as a contractual waiver of any immunities or defenses provided by the Colorado Governmental Immunities Act, § 24-10-101, C.R.S., et seq. l. Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The Parties approve the use of electronic signatures for execution of this Agreement. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Acts, C.R.S. §§ 24-71.3-101 to -121. [The remainder of this page is intentionally left blank.] TM 23-0279 Page 15 of 18 The Parties hereto have signed this Agreement as of the date indicated below. JURISDICTION: By: Name/Title: Date: JURISDICTION LEGAL COUNSEL – OPTIONAL By: Name/Title: Date: COUNTY CLERK: CLERK AND RECORDER FOR THE COUNTY OF JEFFERSON, STATE OF COLORADO By: Amanda Gonzalez, Jefferson County Clerk & Recorder Date: APPROVED AS TO FORM: Jean R. Biondi Assistant County Attorney TM 23-0279 Page 16 of 18 EXHIBIT A Shared Election Costs are divided into “TABOR Election Costs” and “Non-TABOR Election Costs.” TABOR Election Costs are the costs of printing and mailing Notice Packets and are allocated among the County Clerk and those jurisdictions that have Ballot Issues subject to TABOR, in accordance with Section I below. Non-TABOR Election Costs are all other Shared Election Costs and are allocated among all coordinating jurisdictions in accordance with Section II below. Please note that the dollar amounts used in this Exhibit A are for illustration purposes only and do not reflect actual or estimated costs of the Election. I. Allocation of TABOR Election Costs This section only applies to Jurisdictions with Ballot Issues subject to TABOR. The costs incurred by County Clerk during the Election for printing and mailing Notice Packets (the “TABOR Election Costs”) are allocated among the County Clerk and jurisdictions that have Ballot Issues subject to TABOR as follows: 1. First, the County Clerk ascertains the total printing and mailing costs for all Notice Packets. a. Example: The County Clerk incurred costs of $10,000 to print and mail all Notice Packets. 2. Next, the County Clerk ascertains (a) the number of active, registered voters in each jurisdiction that had one or more Ballot Issues during the Election; and (b) the percentage of the total active, registered voters that each jurisdiction (including the County) comprises, as of Election Day. a. Example: Jurisdictions A and B had Ballot Issues in the Election. The County has 500 active, registered voters, Jurisdiction A has 300 active, registered voters, and Jurisdiction B has 200 active, registered voters. The County comprises 50% of the total (500 out of 1,000), Jurisdiction A comprises 30% of the total (300 out of 1,000), and Jurisdiction B comprises 20% of the total (200 out of 1,000). 3. Finally, the County Clerk calculates each jurisdiction’s total share of the TABOR Election Costs by multiplying its percentage responsibility by the total printing and mailing costs for all Notice Packets. a. Example: The County Clerk is responsible for $5,000 in TABOR Election Costs (50% of $10,000), Jurisdiction A is responsible for $3,000 in TABOR Election Costs (30% of $10,000) and Jurisdiction B is responsible for $2,000 in TABOR Election Costs (20% of $10,000). TM 23-0279 Page 17 of 18 II. Allocation of Non-TABOR Election Costs All Shared Election Costs besides the costs of printing and mailing Notice Packets (the “Non- TABOR Election Costs”) are allocated among the County Clerk and all coordinating jurisdictions as follows: 1. First, the County Clerk ascertains the total Non-TABOR Election Costs incurred during the Election. a. Example: The County Clerk incurred Shared Election Costs of $20,000 to administer the Election, of which $10,000 was incurred to print and mail Notice Packets, leaving a balance of $10,000 in Non-TABOR Election Costs. 2. Next, the County Clerk subtracts from the Non-TABOR Election Costs any reimbursements received by the County from the State of Colorado and other Election participants whose reimbursements are determined by law. a. Example: Because there were statewide ballot measures included in the Coordinated Election, the County Clerk receives a reimbursement of $2,000 from the State of Colorado for the Election. The County Clerk subtracts this amount from the $10,000 in Non-TABOR Election Costs, leaving a balance of $8,000 in Non-TABOR Election Costs. 3. Next, the County Clerk ascertains (a) the number of active, registered voters in each coordinating jurisdiction that participated in the Election; (b) the total number of active, registered voters in the County; and (c) the percentage of the total active, registered voters that each coordinating jurisdiction (including the County) comprises, as of Election Day. a. Example: Jurisdictions A, B and C participated in the Election. Jefferson County has 500 active registered voters, Jurisdiction A has 300 active, registered voters, Jurisdiction B has 200 active, registered voters, and Jurisdiction C has 1,000 active, registered voters. The County comprises 25% of the total (500 out of 2,000), Jurisdiction A comprises 15% of the total (300 out of 2,000), Jurisdiction B comprises 10% of the total (200 out of 2,000), and Jurisdiction C comprises 50% of the total (1,000 out of 2,000). 4. Finally, the County Clerk calculates each jurisdiction’s share of the Non-TABOR Election Costs by multiplying its percentage responsibility by the total amount of Non-TABOR Election Costs (minus any reimbursements from the State of Colorado and other Election participants whose reimbursements are determined by law). a. Example: The County is responsible for $2,000 in Non-TABOR Election Costs (25% of $8,000), Jurisdiction A is responsible for $1,200 in Non-TABOR Election Costs (15% of $8,000), Jurisdiction B is responsible for $800 in Non-TABOR Election Costs (10% of $8,000), and Jurisdiction C is responsible for $4,000 in Non-TABOR Election Costs (50% of $8,000). TM 23-0279 Page 18 of 18 III. Calculation of Total Amount Due 1. The County calculates the total amount due from each coordinating jurisdiction by adding the Jurisdiction’s share of the Non-TABOR Election Costs to the Jurisdiction’s share of the TABOR Election costs (if the Jurisdiction had a Ballot Issue subject to TABOR). Each jurisdiction is assessed a minimum of $1,000, so if this total is less than $1,000, the jurisdiction would be assessed $1,000. a. Example: Jurisdiction A owes $3,000 in TABOR Election Costs and $1,200 in Non-TABOR Election costs, which totals $4,200. Jurisdiction B owes $2,000 in TABOR Election Costs and $800 in Non-TABOR Costs, which totals $2,800. Jurisdiction C owes $0 in TABOR Election Costs and $4,000 in Non-TABOR Election Costs, which totals $4,000. ITEM NO: 2 DATE: August 14, 2023 REQUEST FOR CITY COUNCIL ACTION TITLE: COUNCIL BILL NO. 18-2023 - AN ORDINANCE APPROVING THE SALE OF CERTAIN PROPERTY OWNED BY THE CITY LOCATED AT 7575 W. 44TH AVENUE PUBLIC HEARING ORDINANCES FOR 1ST READING (07/24/2023) BIDS/MOTIONS ORDINANCES FOR 2ND READING (08/14/2023) RESOLUTIONS QUASI-JUDICIAL: YES NO _______________________________ ______________________________ City Attorney City Manager ISSUE: The City purchased the Bank of the West property located at 7575 W. 44th Avenue in January 2021 for right-of-way required for the Improve Wadsworth project. After the necessary right-of-way was dedicated for the Wadsworth project, a remnant parcel of 15,435 square feet and a structure remains. Foothills Regional Housing (FRH) has made a request to the City to contribute this parcel for inclusion into The Ives affordable housing development project. Section 16.5 of the City Charter requires approval from three-fourths of the entire city council to sell municipally owned property. PRIOR ACTION: This request was reviewed with City Council at the June 22, 2023 study session and consensus was provided to bring forward an ordinance to contribute the former Bank of the West property to FRH for The Ives affordable housing development project. City Council approved this ordinance on first reading on July 24, 2023. A motion was made by Councilmember Hultin and seconded by Councilmember Hoppe and was approved by a vote of 5 to 0. Council Action Form – Sale of 7575 W. 44th Ave. August 14, 2023 Page 2 FINANCIAL IMPACT: Property appraisals were conducted by the City and the Bank of the West in March 2020 and June 2020, respectively. The just compensation for the parcel was valued at between $1.7 million and $2.3 million. The City’s consultant negotiated a final price of $1,738,000 for the parcel plus an additional settlement amount of $242,000 as an incentive to sell for a total cost of $1,980,000. The purchase price for the property to be paid by FRH is $10. In addition, FRH will pay all costs associated with the closing. BACKGROUND: In April 2015, the City was awarded funding through the Denver Regional Council of Governments (DRCOG) Transportation Improvement Program (TIP) to improve Wadsworth Boulevard from 35th Avenue to 48th Avenue. A professional services contract for right-of-way acquisition was approved by City Council in December 2018 to negotiate with and purchase from property owners, along this segment of Wadsworth Boulevard, the necessary rights-of-way to complete this project. Right-of-way from the Bank of the West property located at 7575 W. 44th Avenue was required for construction of improvements along Wadsworth Boulevard. The amount of right-of-way required for those improvements impacted the business operations of the Bank of the West to such an extent, the City was required to purchase the entire parcel. FRH is currently working through pre-development activities to produce new affordable housing at the NW corner of 44th Avenue and Wadsworth Boulevard. FRH already owns three parcels at the site, and the zoning is in place as use-by-right to allow affordable housing. This site, what FRH is calling The Ives, is a master-planned assemblage of various parcels and is anticipated to be developed in four phases. FRH recently closed financing and broke ground on 50 affordable units at one of these sites and intends to pursue a future phase of development by submitting a Low-Income Housing Tax Credit (LIHTC) application on August 1, 2023. All units in Phase 1 and Phase 2 will house households earning up to 80% of Area Median Income, which equates to a salary of $69,520 for one person in Jefferson County. FRH is asking for the City Council to consider contributing the remaining Bank of the West parcel for Phase 2 of The Ives project which will produce another 97 affordable units. In exchange, the City’s homeless and housing navigation program will be able to make direct referrals to FRH for residents they work with for housing in these subsidized units. RECOMMENDATIONS: "I move to approve Council Bill No. 18-2023, an ordinance approving the sale of certain property owned by the city located at 7575 W. 44th Avenue, on second reading, and that it takes effect immediately upon adoption.” Or, Council Action Form – Sale of 7575 W. 44th Ave. August 14, 2023 Page 3 "I move to postpone indefinitely Council Bill No. 18-2023, an ordinance approving the sale of certain property owned by the city located at 7575 W. 44th Avenue for the following reason(s) _________________________________________." REPORT PREPARED BY: Gerald Dahl, City Attorney Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill 18-2023 2. Exhibit A – Description of Property 3. Exhibit B – Purchase and Sale Agreement 4. Letter from FRH, dated June 22, 2023 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER HULTIN Council Bill No. 18 Ordinance No. 1770 Series 2023 TITLE: AN ORDINANCE APROVING THE SALE OF CERTAIN PROPERTY OWNED BY THE CITY LOCATED AT 7575 W. 44TH AVENUE WHEREAS, the City of Wheat Ridge is a home rule municipality having all powers conferred by Article XX of the Colorado Constitution; and WHEREAS, pursuant to its home rule authority and C.R.S. § 31-23-101, the City, acting through its City Council (the “Council”), is authorized to adopt ordinances for the protection of the public health, safety or welfare; and WHEREAS, The City is the owner of real property located at 7575 W. 44th Avenue, Wheat Ridge, Colorado 80033, formerly known as the Bank of the West property, as further described in Exhibit A (the “Property”). WHEREAS, the City is authorized by Section 16.5 of the Charter to sell or convey City-owned property by ordinance; and WHEREAS, the Property is not designated park land and is not needed for any City purpose; and WHEREAS, the City now wishes to sell the Property to Foothills Regional Housing as described in the Purchase and Sale Agreement attached as Exhibit B. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Sale Agreement. The Council hereby approves the Purchase and Sale Agreement and authorizes and directs the Mayor and the City Clerk to execute the same, as well as the required deed conveying the property. The Council further authorizes the City Manager to execute such additional instruments as necessary to complete the sale transaction approved hereby. Section 2. Effective Date. As authorized by Charter Section 5.11, this Ordinance shall take effect immediately upon adoption at second reading and signature by the Mayor. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 5 to 0 on this 24th day of July 2023, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for August 14, 2023 at 6:30 p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. ATTACHMENT 1 READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of ___ to ___, this _____ day of ______________, 2023. SIGNED by the Mayor on this _____ day of ____________, 2023. Bud Starker, Mayor ATTEST: Stephen Kirkpatrick, City Clerk Approved as to Form Gerald E. Dahl, City Attorney First Publication: July 27, 2023 Second Publication: August 17, 2023 Effective Date: August 14, 2023 Published: Jeffco Transcript and www.ci.wheatridge.co.us EXHIBIT A Description of Property at 7575 W. 44th Avenue Wheat Ridge, CO 80033 [attached] EXHIBIT B Purchase and Sale Agreement [attached] EXHIBIT "A" CITY OF WHEAT RIDGE PROJECT NUMBER: M-01-015 COOT PROJECT NUMBER: NHPP 1211-086 PARCEL NUMBER: RM-39 PROJECT CODE: 21006 DATE: March 24, 2020 DESCRIPTION A tract or parcel of land No. RM-39 of the City of Wheat Ridge, State of Colorado, Project No. M-01-015 (COOT Project No. NHPP 1211-086; Project Code 21006) containing 15,435 sq. ft. (0.354acres) of land, more or less, being a portion of that parcel of land as described in the Quit ClaimDeed recorded at Reception Number 89074573, in the Jefferson County Colorado Clerk and Recorder's Office on August 30, 1989, lying in the Southwest Quarter of the Northeast Quarterof Section 23, Township 3 South, Range 69 West, of the 6th Principal Meridian, in JeffersonCounty, Colorado, said tract or parcel being more particularly described as follows: COMMENCING at the Center Quarter corner of said Section 23 (a 3 1/4" brass cap on pipe in range box stamped "LS 13212"), whence the Center-North Sixteenth Corner of said Section 23 (a 3 1/4'' brass cap on pipe in range box stamped "LS 11434"), bears N.00°10'09"W., a distance of 1,321.98 feet; Thence N.25°16'41"E., a distance of 199.57 feet, to a point on the north line of said parcel ofland as described in the Quit Claim Deed recorded at Reception Number 89074573, said point being the POINT OF BEGINNING; 1.Thence along said north line, N. 89"41'34" E., a distance of 119.25 feet to the northeastcorner of said parcel; 2.Thence along the east line of said parcel, S. 00°10'09" E., a distance of 129.50 feet; 3.Thence S. 89°41'34" W., a distance of 108.85 feet; 4.Thence N. 82"05'311!W., a distance of 10.50 feet; 5.Thence N. 00°10'09" W., a distance of 128.00 feet, more or less, to the POINT OF BEGINNING. The above described tract or parcel contains 15,435 square feet (0,354 acres) of land, more or less. Bearings used in this description are based on a grid bearing of N 00°47'02" W from Clty of Wheat Ridge published control point "PHAC 1" (being a 9/16" stainless steel rod in monument box stamped PHAC 1), to City of Wheat Ridge published control pojn ° · C 3" (being a 9/16" stainless steel rod in monument box stamped PHAC 3). Said gri .. ·. 1� . 83 (1992), Colorado State Plane coordinate system, Central Zone (502), si� . .'�!t�A .. , .. r·/4:��0.·. Jeremy S. Pegues, PLS 38447 · · · · · •· ·· ··if!$''2:i/2-'·l c.o:\': .C(.,•. For and on behalf of The Lund Partnership, Inc. . : . 4 1 · .: 0 12265 W. Bayaud Avenue, Suite 130 i ·. ,, Lakewood, CO 80228 · · � "· • • .• •· .. �� ' . . ,-,, .S10 ATTACHMENT 2 1 AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY (the "Agreement") is made and entered into as of the 14th day of August 2023, by and between the JEFFERSON COUNTY HOUSING AUTHORITY d/b/a FOOTHILLS REGIONAL HOUSING ("Buyer"), and the CITY OF WHEAT RIDGE, a Colorado municipal corporation ("Seller"). RECITALS This Agreement is made with respect to the following facts: A. Seller is the owner of the real property and all appurtenances and improvements thereon located in the County of Jefferson, State of Colorado located at 7575 W. 44th Avenue, Wheat Ridge, Colorado, more particularly described as follows: See Exhibit 1 attached (the "Property"). B. Buyer is offering to purchase the Property from Seller upon the terms and conditions set forth herein. AGREEMENT In consideration of the promises and agreements of the parties contained herein, the sufficiency of which is hereby acknowledged by each of the parties hereto, Seller and Buyer do hereby promise and agree as follows: 1. Sale and Purchase. Seller shall sell the Property to Buyer, and Buyer shall purchase the Property from Seller, on the terms and conditions set forth in this Agreement. 2. Purchase Price; Additional Consideration. The purchase price for the Property (the "Purchase Price") to be paid by Buyer to Seller shall be $10.00. The Purchase Price shall be adjusted for net of all credits and prorations provided for herein and shall be paid by Buyer to Seller at the Closing in cash or by certified check, cashier's check, wire transfer, or other immediately available funds acceptable to Seller. As additional consideration for conveyance of the Property, and to the extent permitted under applicable Federal and State Law, the Buyer agrees to give the Seller a preference in the Seller’s waitlist for housing vouchers in the project Buyer intends to operate on the Property. This preference shall be memorialized in an exchange of correspondence between Buyer and Seller on or before closing. The Seller agrees that the preference provided for in this Section 2 shall in no way be applied or administered in a manner that violates Internal Revenue Code Section 42, and any other applicable Federal and State Laws. 3. Title and Survey. a. Permitted Exceptions. Title to the Property shall be free and clear of all liens and encumbrances, subject only to the permitted exceptions which Buyer accepts pursuant to Section 3(d) ("Permitted Exceptions"). At the Closing, Seller shall execute and deliver the standard form mechanic's lien affidavit used by and acceptable to Continental Divide Title Company (the "Title Company") to provide for the deletion of the standard printed exception from the Owner's Policy for liens arising against the Property for work or materials ordered or contracted for by Seller prior to the Closing, and Seller shall provide ATTACHMENT 3 2 for the deletion of the other standard printed exceptions from the Owner's Policy. If a mineral reservation exists, the Buyer may request the Title Company to provide Endorsement 100.31 or a similar endorsement selected by Buyer with respect thereto, at Buyer's expense. From and after the date hereof, Seller shall not sell, convey, option, mortgage, deed in trust, encumber, lease, or contract to do any of the foregoing with respect to the Property. Promptly after the Closing, Seller shall, at Buyer’s expense, cause the Title Company to issue to Buyer an ALTA owner's title insurance policy insuring title to the Property in Buyer in the amount of the Purchase Price, subject only to the Permitted Exceptions. b. Title Commitment. Within fifteen (15) business days hereof, Seller shall furnish Buyer with a copy of the Title Company's Commitment covering the Property (the "Commitment"), committing to insure title to the Property in Buyer in the amount of the Purchase Price, subject to the requirements and exceptions set forth therein. The Seller shall cause the Title Company to deliver to Buyer legible copies of all recorded instruments referred to in the Commitment (the "Title Documents"). Seller shall, within fifteen (15) days after the date hereof, furnish to Buyer, at Buyer’s expense, a tax certificate from the Treasurer of Jefferson County confirming the payment of real estate taxes on the Property for all years prior to 2023. c. Survey. Within fifteen (15) business days of the date hereof, Seller shall furnish to Buyer five (5) copies of an Improvement Survey Plat ("Survey") of the Property prepared by a surveyor registered in the State of Colorado to be dated not more than thirty (30) days prior to the date of this Agreement, certified to Buyer, Seller, and Title Company as of a recent date. Buyer may at its discretion, waive the requirement of survey. The cost of such Survey, if required, shall be paid by the Buyer. d. Title Defects. Within ten (10) business days after Buyer's receipt of the Commitment, the Title Documents, and Survey, Buyer shall give Seller notice of all title defects shown in the Commitment, Survey and/or Additional Materials, as defined in item 4 below, which are not consented to by Buyer as Permitted Exceptions. Any and all exceptions affecting all or any portion of the Property disclosed by the Commitment (as exceptions, requirements, or otherwise), Survey or Additional Materials which are not the subject of a notice from Buyer to Seller given within the applicable period of time, shall be deemed accepted by Buyer as Permitted Exceptions. In the event Buyer notifies Seller of any title defects shown by the Commitment, Survey and/or Additional Materials which are not consented to and have not been consented to by Buyer as Permitted Exceptions, Seller within ten (10) business days after receipt of Buyer's title objection notice shall advise Buyer what, if anything, it intends to do with respect to each title matter to which Buyer objects. For purposes hereof, a title defect or exception shall be deemed cured if to the reasonable satisfaction of the Buyer (i) the Title Company deletes the defect from the Commitment or (ii) the Title Company undertakes in writing to add a provision to the Owner's Policy obligating the Title Company, within the limits of such Owner's Policy, to protect Buyer against all loss or damage incurred on account of such defect or exception. Prior to or at the Closing, Seller shall discharge any and all monetary liens and monetary encumbrances on the Property, except for the Permitted Exceptions. Such liens and encumbrances, if any, may be satisfied from the proceeds of the sale of the Property. If each of the defects objected to by Buyer has not been cured on or before the last day of the 3 Inspection Period (as hereinafter defined), Buyer may, by written notice to Seller at any time, either (i) terminate this Agreement or (ii) waive such defects and accept the same as Permitted Exceptions. In the event Buyer does not notify Seller of its decision to terminate or waive on or before the last day of the Inspection Period, Buyer shall be deemed to have waived its objection to such defects and to have accepted such defects as Permitted Exceptions. In the event of a termination of this Agreement by Buyer pursuant to this Section 3(d), both parties shall thereupon be relieved of all further obligations hereunder. 4. Additional Materials. Within ten (10) business days after the date hereof, Seller shall furnish Buyer with copies of all documents and other information concerning the Property which Seller has in its possession, if any (the "Additional Materials"). If for any reason Buyer shall not purchase the Property, Buyer shall promptly return such Additional Materials to Seller. 5. Inspection. Buyer shall have thirty (30) days from the date of this Agreement (the "Inspection Period"), to inspect and evaluate the Property to determine whether the Property is materially contaminated by any Hazardous Materials (as defined below). If any Hazardous Materials are found on the Property which materially and adversely affect the Buyer's intended use of the Property or expose the Buyer to liability to third parties for damages or environmental remediation costs, Buyer may terminate this Agreement by written notice (the "Notice of Termination") to Seller given on or before the last day of the Inspection Period. If Buyer delivers to Seller its Notice of Termination prior to the expiration of the Inspection Period, this Agreement shall be deemed to have been terminated by Buyer. In the event of such termination both parties shall thereupon be relieved of all further rights and obligations hereunder. 6. Property Sold "As Is". Buyer is relying upon its own inspection of the Property to evaluate the condition of the Property and the suitability of the Property for Buyer's intended use. Buyer acknowledges and agrees that it is purchasing the Property in its as-is, where-is condition, without warranty of any kind, whether express or implied, except as expressly set forth in this agreement or in the deed conveying the property to buyer. Buyer hereby acknowledges that it is familiar with the Property and has determined that it is suitable for its intended purposes and that the opportunity to inspect the Property provided herein is sufficient for Buyer to obtain whatever information regarding the environmental condition of the Property that Buyer may deem necessary. Nothing contained in this Section 5 shall alter or restrict the warranties of Seller contained in this Agreement or the warranties of title contained in the Deed to be delivered by Seller to Buyer at the Closing. 7. Access; Mechanics' Liens. Buyer, its agents, employees, contractors, or subcontractors may, at all times after the date hereof, at no charge to Buyer, and until the earlier of the Closing or the termination of this Agreement, have the right of access to the Property to test, inspect, and evaluate the Property as Buyer deems appropriate. Buyer shall promptly restore any alterations made to the Property by Buyer, or at Buyer's instance or request, and Buyer shall pay for all work performed on the Property by Buyer, or at Buyer's instance or request, as such payments come due. Any and all liens on any portion of the Property resulting from the actions or requests or otherwise at the instance of Buyer shall be removed by Buyer at its expense within fifteen (15) days after notice thereof is given to Buyer. Buyer shall, at Buyer's expense, defend, indemnify, and hold harmless Seller from and against any and all obligations, claims, loss, and damage, including costs and attorneys' fees, resulting from or related to Buyer's access to the Property. 4 8. Seller's Representations. Seller hereby represents to Buyer as of the date of this Agreement and as of the Closing as follows: a. No Violations. To the best of Seller's knowledge, the Property is not in violation, nor has been or is currently under investigation for violation of any federal, state, or local laws, ordinances or regulations, including the subdivision regulations of the City of Wheat Ridge, Colorado. b. Non-Foreign Person. Seller is not a "foreign person" as that term is defined in the federal Foreign Investment in Real Property Tax Act of 1986, the 1984 Tax Reform Act, as amended, and Section 1455 of the Internal Revenue Code, and applicable regulations and, at Closing, will deliver to Buyer a certificate standing that Seller is not a "foreign person" as defined in said laws in a form complying with the federal tax law. c. Fee Title. Seller owns good and marketable fee simple title to the Property and has the authority to enter into and execute this Agreement. Except as disclosed in the Permitted Exceptions, the Property is not subject to any leasehold or other possessory interests of any person or entity except Seller. d. Hazardous Materials. To the best of Seller's actual knowledge, without any special investigation, since Seller acquired the Property, Seller has not caused or contributed to: (i) any toxic or Hazardous Materials being present on, over, under, or around the Property, (ii) any present or past generation, recycling, use, reuse, sale, storage, handling, transport, and/or disposal of any toxic or Hazardous Materials on, over, under, or around the Property, (iii) any failure to comply with any applicable local, state, or federal environmental laws, (iv) any spills, releases, discharges, or disposal of toxic or Hazardous Material that have occurred or are presently occurring on or onto the Property or any adjacent properties, or (v) any spills or disposal of toxic or Hazardous Materials that have occurred or are presently occurring off the Property as a result of any construction or operation and use of the Property. The term "Hazardous Materials" includes, but is not limited to, substances defined as Hazardous Substances as defined in the Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Hazardous Materials Transportation Act, as amended, the Toxic Substances Control Act, or any other law, statute, rule, or regulation pertaining to the protection of the environment or the health and safety of persons or property. e. Materiality of Representations. Each of the representations made by Seller in this Agreement, or in any document or instrument delivered pursuant hereto shall be true and correct in all material respects on the date hereof and shall be deemed to be made again as and at the date of the Closing and shall then be true and correct in all material respects. The material truth and accuracy of each of the representations and the material performance of all covenants of Seller contained in this Agreement are conditions precedent to the Closing. 9. Closing. The closing of the sale of the Property from Seller to Buyer (the "Closing") shall take place at 10:00 a.m. in the offices of the Title Company on such date that is 5 45 days from the date of full and complete execution of this Agreement, unless a later date is agreed to by the Seller and Buyer, by both Seller and Buyer. At the Closing: a. Buyer shall pay to Seller the Closing Payment in cash or by certified check, cashier's check, wire transfer, or other immediately available funds acceptable to Seller. b. General real property taxes and assessments for the year in which the Closing occurs shall be apportioned between the parties based upon the most recent levy and assessment, but such apportionment shall, if necessary, be subject to readjustment between the parties upon final billing therefor. Buyer shall receive a credit at Closing for Seller's share of such taxes. Seller shall be responsible for payment of the real property taxes and assessments due for the period prior to Closing and the Title Company shall remit payment of all such taxes to the Jefferson County Treasurer just as soon as is practical after the Closing. Buyer shall request the cancellation of all applicable property taxes and assessments as required under Colorado law at the earliest possible date. c. Seller shall convey fee simple title to the Property to Buyer by general warranty deed, free and clear of any and all taxes, assessments, liens, encumbrances, and other matters which would affect title, subject only to the Permitted Exceptions (the "Deed"). d. Seller shall, at Buyer’s expense, cause the Title Company to deliver to Buyer an unconditional written commitment to issue to Buyer its ALTA owner's policy (the "Owner's Policy") insuring title to the Property in Buyer in the amount of the Purchase Price subject only to the Permitted Exceptions. e. At Closing, the parties agree that Buyer shall be vested with title to the Property. The parties further agree that Seller will lease the Property back to Buyer upon Closing, for a period to expire on June 31, 2024, or earlier, at Seller’s discretion. The parties agree such lease shall be for no rent or lease charge, provided however that Seller shall pay all utility charges, and will continue to list the Property on its policies of insurance, during the leasehold term. Seller shall deliver exclusive possession of the Property to Buyer at the conclusion of the leasehold term. f. The parties shall each do or cause to be done such other matters and things as shall be reasonably necessary to close the transaction contemplated herein. Buyer shall pay any charges imposed by the Title Company to prepare the closing documents and provide similar closing services. Buyer shall pay the premium charged by the Title Company for the Owner's Policy and all recording, documentary, and similar fees incurred in connection with the Closing, except for recording and other similar fees required for Seller to remove any Title Defects it has agreed to remove, which cost will be paid by Seller. Buyer shall pay any other customary closing costs and charges; provided, however, that obligations attaching to the Property itself while in Seller’s ownership or leasehold, including without limitation taxes, assessments, and utility charges, shall be paid by Seller. 6 10. Brokerage Commissions. Buyer and Seller each hereby warrant and represent to the other that neither has dealt with any broker in connection with the transaction contemplated herein. 11. Assignment. This Agreement shall be binding and effective on and inure to the benefit of the successors and assigns of the parties hereto. Any assignment hereof, except where the assignment is to an affiliate of Buyer, shall be in writing and shall require the prior written consent of Seller. 12. Attorneys' Fees. In the event that a lawsuit is brought to enforce or interpret all or any portion of this Agreement, the prevailing party in such suit shall be entitled to recover, in addition to any other relief available to such party, reasonable costs and expenses, including, without limitation, reasonable attorneys' fees, incurred in connection with such suit. 13. Remedies. (a) In the event of any breach or default under this Agreement by Buyer prior to Closing, Seller shall, as Seller's only remedy, be entitled to terminate this Agreement. (b) In the event of any breach or default by Seller at or prior to Closing, Buyer may elect to treat this Agreement as terminated, or Buyer may elect to treat this Agreement as being in full force and effect and may seek specific performance from a court of competent jurisdiction. 14. Voluntary Acquisition. Seller acknowledges that the transaction contemplated by this Agreement is a voluntary and arm’s length sale of the Property and that Seller has entered into this Agreement with the full knowledge that Seller would not be eligible to receive any relocation benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA) under 49 CFR Part 24 or other HUD relocation programs as the result of this voluntary acquisition. 15. Notices. All notices provided for herein shall be in writing and shall be deemed given to a party when a copy thereof, addressed to such party as provided herein, is actually delivered, by personal delivery, by commercial courier or by successful facsimile transmission, at the address of such party as provided below. If to Seller: Patrick Goff City of Wheat Ridge 7500 W. 29th Avenue Wheat Ridge, CO 80033 Email: pgoff@ci.wheatridge.co.us With a copy to: Gerald E Dahl, Esq. Murray Dahl Beery Renaud LLP 710 Kipling Street, Suite 300 Lakewood, CO 80215 7 If to Buyer: Amy Case Chief Executive Officer and Executive Director Jefferson County Housing Authority d/b/a Foothills Regional Housing 11941 West 48th Ave. Wheat Ridge, Colorado 80033 Email: ACase@foothillsrh.org With a copy to: Winthrop & Weinstine, P.A. 225 South Sixth Street, Suite 3500 Minneapolis, Minnesota 55402 Attn: Jason C. Harby, LL.M. Email : jharby@winthrop.com 16. Governing Law. The validity and effect of this Agreement shall be determined in accordance with the laws of the State of Colorado. Jurisdiction and venue shall be proper and exclusive in the district court for Jefferson County, Colorado. 17. Condemnation. In the event that any portion of the Property shall be taken in condemnation or under the right of eminent domain after the date of mutual execution hereof and before the Closing, Seller or Buyer may declare this Agreement to be null and void and all parties shall be released from any further obligations hereunder, except as expressly provided in this Agreement, or the parties may agree that the description of the Property will be modified to exclude the portion of the Property so condemned and the Purchase Price shall be reduced in proportion to the percentage of the land area of the Property condemned. Seller shall be entitled to retain all proceeds of such condemnation action and to assert all of the rights of the respondent in such condemnation proceeding, whether occurring before or after the Closing. 18. Partial Invalidity. In the event that any condition or covenant herein contained is held to be invalid or void by any court of competent jurisdiction prior to Closing, this Agreement shall be deemed void, and both parties shall be relieved of any further rights and obligations hereunder. 19. Computation of Time. If any event or performance hereunder is scheduled or required to occur on a date which is on Saturday, Sunday, or legal state or federal holiday in Denver or Lafayette, Colorado, the event or performance shall be required to occur on the next day which is not a Saturday, Sunday, or legal state or federal holiday in Denver or Wheat Ridge, Colorado. 20. Time. Time is of the essence with respect to each provision requiring performance within a stated period of time. 21. Counterparts; Execution. This Agreement may be executed in counterparts and, when counterparts of this Agreement have been executed and delivered by both of the parties hereto, this Agreement shall be fully binding and effective, just as if both of the parties hereto had executed and delivered a single counterpart hereof. Without limiting the manner in which execution of this Agreement may otherwise be affected hereunder, execution by either party may 8 be effected by facsimile transmission of a signature page hereof executed by such party. If either party effects execution in such manner, such party shall also promptly deliver to the other party the counterpart physically signed by such party, but the failure of such party to do so shall not invalidate the execution hereof effected by facsimile transmission. 22. Entire Agreement. This Agreement contains the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior commitments, understandings, warranties, and negotiations, all of which are by the execution hereof rendered null and void. No amendment or modification of this Agreement shall be made or deemed to have been made unless in writing, executed by the party or parties to be bound thereby. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below intending that it be valid and effective from and after the date first written above. BUYER: JEFFERSON COUNTY HOUSING AUTHORITY, d/b/a Foothills Regional Housing, a Colorado public body corporate By: _________________________________ Lori Rosendahl Chief Executive Officer and Executive Director SELLER: City of Wheat Ridge, Colorado By: ____________________________________ Bud Starker, Mayor ATTEST: _____________________________ Stephen Kirkpatrick, City Clerk APPROVED AS TO FORM: __________________________________ Gerald E. Dahl, City Attorney 11941 West 48th Avenue, Wheat Ridge, CO 80033 ∙ Phone: 303.422.8600 ∙ Fax: 303.422.3229 Admin. Fax 720.974.5808 Colorado Relay 711 ∙ Web: www.foothillsrh.org June 22, 2023 Patrick Goff, City Manager City of Wheat Ridge 7500 W 29th Ave Wheat Ridge, CO 80033 RE: 7525 W 44th Ave Dear Mr. Goff, The Jefferson County Housing Authority d/b/a Foothills Regional Housing (FRH) is the housing authority serving Colorado’s 774 square mile Jefferson County. FRH provides housing opportunities including affordable apartments, rental assistance vouchers, emergency home repairs, housing navigation, new development and redevelopment in both incorporated and unincorporated areas of Jefferson County. Our mission is to create vibrant, stable communities in areas of opportunity, via bold and strategic initiatives, and to provide families and individuals with housing options driven by compassion and respect throughout Jefferson County. FRH’s portfolio includes 21 rental properties with 1200+ units. Our mission is not achievable without the partnership of entities such as the City of Wheat Ridge. FRH is currently working through pre-development activities to produce new affordable housing within the City of Wheat Ridge and is seeking an investment from the City to further our ability to maximize the development potential of the site via the inclusion of adjacent City-owned real property currently known as the Bank of the West property at 7525 W 44th Ave. This site, part of what FRH is calling The Ives (master-planned assemblage of various parcels and developed in four Phases) is on a major throughfare (Wadsworth) with public transit access running north/south through Wheat Ridge. FRH already owns three parcels at the site, and the zoning is in place as use-by-right to allow affordable housing at an acceptable density per our current project plans on the others. FRH recently closed financing and broke ground on 50 affordable units at one of these sites and intends to pursue a future phase of development on this site by submitting a LIHTC application on August 1, 2023. We anticipate synergies could exist not only in quick construction rollover from Phase 1 to Phase 2, but also with the current service provider partners agreeing to serve Phase 1 able to support any similar needs of future phase residents. All units in Phase 1 and Phase 2 will house households earning, on average, less than 60% of Area Median Income. The city’s support of this project will directly benefit the local economy in generating likely over $20 million in construction costs alone, including many job creation opportunities. This investment will allow FRH to secure affordability and increase housing supply by building new Transit-Oriented, environmentally sustainable, service-enriched units in the City of Wheat Ridge. By doing so, we will ATTACHMENT 4 create long-term, high quality affordable assets that will serve as a welcoming place to call home for lower-income Wheat Ridge residents for decades to come. To meet the real estate needs of developing our target of 97 affordable units in Phase 2, FRH requests that the City of Wheat Ridge contribute the Bank of the West site and improvements at 7525 W 44th Ave in calendar year 2023. Without this site included in our buildable area, we can only produce approximately 80 units in Phase 2 and would not be able to offer Wadsworth forward street scape experience. In partnership, FRH routinely contributes over a million dollars towards its redevelopments by deferring developer fees and land carryback (or capital lease) loans as construction capital sources and intends to do so with this project. Additionally, FRH intends to offer project-based Housing Choice Vouchers to this project to make units affordable to even the lowest income residents of Wheat Ridge, likely up to 30. The value of this contribution alone is estimated at nearly $6,000,000 ($1,100 average per unit cost x 30 vouchers x 12 months x 15 years), not considering inflation. The City’s homeless coordinator will be able to make direct referrals to FRH for residents they work with for housing in these subsidized units. FRH will assume financial responsibility for the legal and transactional costs of the rezone and the real property transaction, as well as any demolition and environmental responsibilities. In exchange for the contribution of the land, FRH will offer the city a $1 lease back for the bank building for up to 12 months, so that it can continue using it for its own purposes until FRH needs to break ground. Based on surrounding leases for similar SF retail buildings that are between $20-$24/SF, an annual market rate value of this $1 lease for the 6,625 building is between $132,500-$159,000. This value is further supported by West Retail Submarket statistics from Costar showing market rent/SF at $22.38, for an annual estimated lease value of $145,750. We look forward to the opportunity to present this request to Wheat Ridge City Council. Sincerely, Amy Case Chief Real Estate Development Officer ITEM NO: 3 DATE: August 14, 2023 REQUEST FOR CITY COUNCIL ACTION TITLE: COUNCIL BILL NO. 19-2023 – AN ORDINANCE APPROVING THE REZONING OF PROPERTY LOCATED AT 4735 KIPLING STREET FROM COMMERCIAL-ONE (C-1) TO MIXED USE-COMMERCIAL INTERSTATE (MU-C INTERSTATE) (CASE NO. WZ-23-05) PUBLIC HEARING ORDINANCES FOR 1ST READING (08/14/2023) BIDS/MOTIONS ORDINANCES FOR 2ND READING (09/11/2023) RESOLUTIONS QUASI-JUDICIAL: YES NO _____________________________ Community Development Director City Manager ISSUE: The applicant is requesting approval of a zone change from Commercial-One (C-1) to Mixed Use-Commercial Interstate (MU-C Interstate) for property located at 4735 Kipling Street. The zone change will result in a zoning that enables revitalization and reuse of the site by expanding permitted uses. PRIOR ACTION: Planning Commission reviewed this request at a public hearing held on July 20, 2023, and recommended approval. The staff report and a copy of the draft Planning Commission minutes will be provided with the second reading materials. FINANCIAL IMPACT: The proposed ordinance is not expected to have a direct financial impact on the City. Fees in the amount of $700 were collected for the review and processing of Case No. WZ-23-05. If the rezoning is approved, the City may benefit from various fees collected depending on how the property is repurposed in the future, such as building permit fees or sales tax. Council Action Form – Proposed Rezoning at 4735 Kipling Street August 14, 2023 Page 2 BACKGROUND: The property is located on the west side of Kipling Street, south of I-70. The site is currently zoned Commercial-One (C-1) and is approximately 133,729 square feet (3.07 acres) in size. It currently contains the Best Interstate Inn, which is comprised of one 22,668-square foot building and one 18,260-square foot building, both built in 1971. The hotel is considered legally nonconforming because hotels are now considered Special Uses in the code in the C-1 zone, but the property was developed before that requirement was in place. The adjacent properties to the west and south are zoned Planned Residential Development (PRD). Adjacent properties to the east and north are zoned C-1. The area is predominantly commercial and residential in nature with a majority of the City’s hotels concentrated in the vicinity. There are currently two access points onto the site from the I-70 Frontage Road and Kipling Street. Current Zoning The current zone district, C-1, is a legacy zone district dating back to 1972 and was established to provide commercial land uses which include office, general business, and retail sales and service establishments. It was originally designed for and is more often seen on larger properties with adjacency to commercial corridors. Proposed Zoning The applicant is requesting the property be rezoned to MU-C Interstate, a zone district established to accommodate a wide range of uses from residential to commercial. This district is intended for properties that are generally within five hundred (500) feet of I-70 and that are located on a commercial corridor with direct access to I-70. It follows the MU-C framework but is intended for highway-adjacent sites that may require variation in design or land use due to direct proximity to the interstate. The highway-adjacency allows for more auto-oriented uses than compared to other mixed use districts. The MU-C Interstate zone district is more appropriate than C-1 in terms of allowed land uses and will expand the permitted uses on the subject property. The proposed zoning would enable reinvestment by allowing a wider range of uses, encouraging a better utilization of land, and ensuring high quality urban design. The applicant is seeking the zone change specifically to allow the conversion of the existing hotel into apartments. If redevelopment occurs in the future for the site or a portion of the site, the MU-C zone district is appropriate given the property’s size and location. A full analysis of the zone change criteria will be provided in the Planning Division staff report at second reading. RECOMMENDATIONS: The application in this case is for the rezoning of property. This action is quasi-judicial, and as a result, the applicant is entitled to a public hearing on the application. As Council is aware, rezoning in Wheat Ridge is accomplished by ordinance (Charter Sec. 5.10; Code Section 26-112). Ordinances require two readings, and by Charter, the public hearing takes place on second reading. Council Action Form – Proposed Rezoning at 4735 Kipling Street August 14, 2023 Page 3 First reading in these cases is a procedural action that merely sets the date for the (second reading) public hearing. No testimony is taken on first reading. Because it is important that the applicant and all interested parties have their due process rights to a hearing, the City Attorney advises Council to approve rezoning ordinances on first reading. This merely sets the date for the public hearing, and for this reason, the packet materials provided on first reading are generally limited. The Planning Division staff report and Planning Commission minutes will be included in the City Council packet for the public hearing. RECOMMENDED MOTION: “I move to approve Council Bill No. 19-2023, an ordinance approving the rezoning of property located at 4735 Kipling Street from Commercial-One (C-1) to Mixed Use-Commercial Interstate (MU-C Interstate) on first reading, order it published, public hearing set for Monday, September 11, 2023 at 6:30 p.m. as a virtual meeting and in City Council Chambers, and that it take effect 15 days after final publication.” REPORT PREPARED/REVIEWED BY: Alayna Olivas-Loera, Planner I Jana Easley, Planning Manager Lauren Mikulak, Community Development Director Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill No. 19-2023 ATTACHMENT 1 CITY OF WHEAT RIDGE INTRODUCED BY COUNCIL MEMBER __________ COUNCIL BILL NO. 19 ORDINANCE NO. 1771 Series of 2023 TITLE: AN ORDINANCE APPROVING THE REZONING OF PROPERTY LOCATED AT 4735 KIPLING STREET FROM COMMERCIAL- ONE (C-1) TO MIXED USE-COMMERCIAL INTERSTATE (MU-C INTERSTATE) (CASE NO. WZ-23-05) WHEREAS, Chapter 26 of the Wheat Ridge Code of Laws establishes procedures for the City’s review and approval of requests for land use cases; and, WHEREAS, Ville 4735, LLC. has submitted a land use application for approval of a zone change to the Mixed Use-Commercial Interstate (MU-C Interstate) zone district for property located at 4735 Kipling Street; and, WHEREAS, the City of Wheat Ridge has adopted a comprehensive plan— Envision Wheat Ridge— which specifically designates the area surrounding the I-70 and Kipling interchange, including the subject site, as a priority area for infill and high-quality redevelopment; and, WHEREAS, the City of Wheat Ridge Planning Commission held a public hearing on July 20, 2023, and voted to recommend approval of rezoning the property to Mixed Use-Commercial Interstate (MU-C Interstate). NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Upon application by Ville 4735, LLC. for approval of a zone change ordinance from Commercial-One (C-1) to Mixed Use-Commercial Interstate (MU-C Interstate) for property located at 4735 Kipling Street, and pursuant to the findings made based on testimony and evidence presented at a public hearing before the Wheat Ridge City Council, a zone change is approved for the following described land: PARCEL A: THE SOUTH 134.0 FEET OF THE NORTH 7.5 ACRES OF THE E 1/2 OF THE E 1/2 OF THE NE 1/4 OF SECTION 21, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, EXCEPT THE EAST 45 FEET THEREOF. ALSO, MORE PARTICULARLY DESCRIBED AS THE SOUTH 134 FEET OF THE NORTH 491.4 FEET OF THE E 1/2 OF THE E 1/2 OF THE NE 1/4 OF SAID SECTION 21, EXCEPT THE EAST 45 FEET THEREOF, AND FURTHER EXCEPTING THAT PORTION THEREOF DESCRIBED IN THE DEED TO CHEVRON OIL COMPANY RECORDED APRIL 12, 1971 IN BOOK 2251 AT PAGE 87, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NE CORNER, SECTION 21, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN; THENCE SOUTHERLY ALONG THE EAST LINE OF SAID SECTION 357.40 FEET; THENCE AT AN ANGLE TO THE RIGHT OF 89 DEGREES 36 MINUTES, 45 FEET AND PARALLEL WITH THE NORTH LINE OF SAID SECTION 21 TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING WESTERLY AND PARALLEL WITH THE NORTH LINE OF SAID SECTION 21, 174.75 FEET; THENCE SOUTHERLY AND PARALLEL WITH THE EAST LINE OF SECTION 21, 181.60 FEET; THENCE EASTERLY AND PARALLEL WITH THE NORTH LINE OF SECTION 21, 174.75 FEET; THENCE NORTHERLY AND PARALLEL WITH THE EAST LINE OF SECTION 21, 181.60 FEET TO THE TRUE POINT OF BEGINNING, COUNTY OF JEFFERSON, STATE OF COLORADO. PARCEL B: A TRACT OF LAND IN THE E 1/2 OF THE E 1/2 OF THE NE 1/4 OF SECTION 21, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT 491.40 FEET SOUTH OF THE NORTH LINE OF SAID SECTION 21 AND 45 FEET WEST OF THE EAST LINE OF SAID SECTION 21, SAID POINT BEING ON THE SOUTH LINE OF THE NORTH 7.5 ACRES OF THE E 1/2 OF THE E 1/2 OF THE NE 1/4 OF SAID SECTION 21; THENCE SOUTH AND PARALLEL WITH THE EAST LINE OF SAID SECTION 21, A DISTANCE OF 47.6 FEET; THENCE WEST PARALLEL TO THE NORTH LINE OF SAID SECTION 21, A DISTANCE OF 5.0 FEET; THENCE SOUTH PARALLEL TO THE EAST LINE OF SAID SECTION 21, A DISTANCE OF 124.3 FEET; THENCE WEST PARALLEL TO THE NORTH LINE OF SAID SECTION 21, A DISTANCE OF 614.54 FEET, MORE OR LESS, TO THE WEST LINE OF THE E 1/2 OF THE E 1/2 OF THE NE 1/4 OF SAID SECTION 21; THENCE NORTH ALONG SAID WEST LINE, A DISTANCE OF 171.90 FEET TO THE SOUTH LINE OF THE NORTH 7.5 ACRES OF THE E 1/2 OF THE E 1/2 OF THE NE 1/4 OF SAID SECTION 21; THENCE EAST ALONG SAID SOUTH LINE, A DISTANCE OF 619.65 FEET, MORE OR LESS, TO THE POINT OF BEGINNING, EXCEPT THAT PORTION THEREOF DESCRIBED IN THE DEED TO CHEVRON OIL COMPANY RECORDED APRIL 12, 1971, IN BOOK 2251 AT PAGE 87, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NE CORNER OF SECTION 21, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN; THENCE SOUTHERLY ALONG THE EAST LINE OF SAID SECTION, 357.40 FEET; THENCE AT AN ANGLE TO THE RIGHT OF 89 DEGREES 36 MINUTES, 45 FEET AND PARALLEL WITH THE NORTH LINE OF SAID SECTION 21 TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING WESTERLY AND PARALLEL WITH THE NORTH LINE OF SAID SECTION 21, 174.75 FEET; THENCE SOUTHERLY AND PARALLEL WITH THE EAST LINE OF SECTION 21, 181.60 FEET; THENCE EASTERLY AND PARALLEL WITH THE NORTH LINE OF SECTION 21, 174.75 FEET; THENCE NORTHERLY AND PARALLEL WITH THE EAST LINE OF SECTION 21, 181.60 FEET TO THE TRUE POINT OF BEGINNING, AND FURTHER EXCEPTING THAT PORTION THEREOF, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NE CORNER OF SECTION 21, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN; THENCE SOUTHERLY ALONG THE EAST LINE OF SAID SECTION; 539.00 FEET; THENCE AT AN ANGLE TO THE RIGHT 89 DEGREES 36 MINUTES WEST, A DISTANCE OF 50.00 FEET AND PARALLEL WITH THE NORTH LINE OF SECTION 21 TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING WESTERLY AND PARALLEL WITH SAID NORTH LINE OF SECTION 21, A DISTANCE OF 169.75 FEET; THENCE SOUTHERLY AND PARALLEL WITH THE EAST LINE OF SECTION 21, A DISTANCE OF 124.30 FEET; THENCE EASTERLY AND PARALLEL WITH SAID NORTH LINE, A DISTANCE OF 169.75 FEET; THENCE NORTHERLY AND PARALLEL WITH SAID EAST LINE, A DISTANCE OF 124.30 FEET TO THE TRUE POINT OF BEGINNING, COUNTY OF JEFFERSON, STATE OF COLORADO. PARCEL C: THE NORTHERLY 20 FEET OF THE FOLLOWING DESCRIBED PROPERTY: BEGINNING AT THE NE CORNER OF SECTION 21, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN; THENCE SOUTHERLY ALONG THE EAST LINE OF SAID SECTION, 539.00 FEET; THENCE AT AN ANGLE TO THE RIGHT OF 89 DEGREES 36 MINUTES WEST, A DISTANCE OF 50.00 FEET AND PARALLEL WITH THE NORTH LINE OF SECTION 21 TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING WESTERLY AND PARALLEL WITH SAID NORTH LINE OF SECTION 21, A DISTANCE OF 169.75 FEET; THENCE SOUTHERLY AND PARALLEL WITH THE EAST LINE OF SECTION 21, 1 DISTANCE OF 124.30 FEET; THENCE EASTERLY AND PARALLEL WITH SAID NORTH LINE, A DISTANCE OF 169.75 FEET; THENCE NORTHERLY AND PARALLEL WITH SAID EAST LINE A DISTANCE OF 124.30 FEET TO THE TRUE POINT OF BEGINNING, COUNTY OF JEFFERSON, STATE OF COLORADO. Section 2. Vested Property Rights. Approval of this zone change does not create a vested property right. Vested property rights may only arise and accrue pursuant to the provisions of Section 26-121 of the Code of Laws of the City of Wheat Ridge. Section 3. Safety Clause. The City of Wheat Ridge hereby finds, determines, and declares that this ordinance is promulgated under the general police power of the City of Wheat Ridge, that it is promulgated for the health, safety, and welfare of the public and that this ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the ordinance bears a rational relation to the proper legislative object sought to be attained. Section 4. Severability: Conflicting Ordinance Repealed. If any section, subsection, or clause of the ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 5. Effective Date. This Ordinance shall take effect 15 days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of __ to __ on this 14th day of August 2023, ordered it published with Public Hearing and consideration on final passage set for Monday, September 11, 2023, at 6:30 p.m., as a virtual meeting and in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado, and that it takes effect 15 days after final publication. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of _____ to _____, this _____ day of ___________, 2023. SIGNED by the Mayor on this _______ day of _______________, 2023. ______________________________________ Bud Starker, Mayor ATTEST: _______________________________________ Stephen Kirkpatrick, City Clerk Approved as to Form _______________________________________ Gerald Dahl, City Attorney 1st publication: August 17, 2023 2nd publication: September 14, 2023 Jeffco Transcript: Effective Date: September 29, 2023 ITEM NO: 4 DATE: August 14, 2023 REQUEST FOR CITY COUNCIL ACTION TITLE: COUNCILBILL NO. 20-2023 - AN ORDINANCE AMENDING SECTIONS 11-561, 11-566 AND 26-114 OF THE WHEAT RIDGE CODE OF LAWS, CONCERNING THE HOTEL LICENSING PROGRAM PUBLIC HEARING ORDINANCES FOR 1ST READING (8/14/2023) BIDS/MOTIONS ORDINANCES FOR 2ND READING (8/28/2023) RESOLUTIONS QUASI-JUDICIAL: YES NO _______________________________ ______________________________ Deputy City Manager City Manager ISSUE: On October 25, 2021, City Council passed ordinance 1723, adding a new article XIV to Chapter 11 and updating use schedules in Chapter 26 of the Wheat Ridge Code of Laws to establish a hotel licensing program. Sec. 11-569 of the Code requires Council to review the implementation of the ordinance on or before June 30, 2023, and every 18 months thereafter. Council conducted a review of the ordinance on June 12, 2023, and provided consensus for some updates to the Wheat Ridge Code of Laws. PRIOR ACTION: On July 15, 2019, staff presented options to City Council for an extended stay lodging ordinance. Based on input from City Council at the study session, staff sent a framework from the proposed ordinance to several regional hotel operators and received comment back in September 2019 from one operator. On June 28, 2021, unanimous consensus was received from City Council to direct staff to draft a hotel licensing and extended stay ordinance and to reach out to the Wheat Ridge business community for feedback. A copy of the draft ordinance and a frequently asked question document was sent to all motel business owners and managers in Wheat Ridge on August 13, CAF - Hotel Licensing Code Update Date: August 14, 2023 Page 2 2021. A virtual meeting was held on August 30, 2021, to receive input from the motel industry on the draft ordinance. On October 25, 2021, City Council passed ordinance 1723 with an effective date of November 12, 2021. On June 12, 2023, staff presented an update to Council regarding hotel licensing program and described some of the challenges caused by the current code language. Council provided consensus to prepare an ordinance updating the code to address the following: • Making extended stays without an approved extended stay addendum a hotel licensing violation. This amendment provides a more direct and logical enforcement avenue to enforce the length of stay provision (29 days) set forth in the original ordinance. Licensees that permit extended stays without a City issued extended stay addendum would be subject to license suspension/revocation under the updated Code language. • Clarifying the length of stay calculation to consecutive days anywhere on the property and including a provision that guests must vacate the property for sixty (60) days for the stay to not be considered an extended stay. This amendment provides clarity to hotel management about the City’s expectation that guests stays are restricted to twenty-nine (29) days or less unless the Licensee’s property offers required extended stay amenities as set forth in the ordinance. • Clarifying the types of calls included and excluded in the calls for service (CFS) rate calculation. For example, severe weather days as declared by the Severe Weather Shelter Network are excluded from the CFS calculation. Calls for fire or medical assistance without police response, or police-initiated calls including officer-initiated traffic stops or routine patrols are excluded from the CFS calculation. This amendment provides clarity to hotel management about how exactly the CFS rate is calculated. • Reducing the validity of the special use permit to six months from one year. This amendment reduces the “grace period” offered to a hotel during property renovations from 24-months to 12-18 months, depending on application submittals. FINANCIAL IMPACT: The update to the code has no financial impact. The current hotel license fee is $300 annually. Due to the expected expense of fulfilling the extended stay requirements through renovations, there is no charge for an extended stay addendum. The City’s lodging tax rate is 10%, in lieu of sales tax. This tax generated $2,094,008 in revenues in 2022 - $1,004,941 to the General Fund; $626,548 to the Crime Prevention Fund; $420,506 to the Capital Improvement Program Fund; and $42,013 to the Housing Fund. City Council allocated $500,000 of ARPA funds to help long-term residents in the City’s hotels find permanent housing through an innovative partnership with Family Tree. CAF - Hotel Licensing Code Update Date: August 14, 2023 Page 3 BACKGROUND: The intent of the hotel licensing ordinance is to address the significant public safety and other related concerns involving City hotels. At the time Council was considering this licensing program, the nine hotels in Wheat Ridge represented less than 0.05% of the total number of households and businesses in the City yet accounted for approximately 10% of the total police calls for service. As a result of ordinance 1723, hotels in Wheat Ridge must have a hotel license, in addition to their regular business license, to operate. To receive a hotel license, hotels must do the following: • Have achieved and maintain a call for service (CFS) rate of 1.8 (2022 metric) within 12 months of initially receiving a hotel license. On January 1, 2023, the CFS requirement was reduced to 1.5 and will remain at 1.5 under the current ordinance. • Participate in the City’s certified crime free hotel/motel program. • Make necessary corrective actions in response to the annual hotel/motel inspection coordinated by the Police and Community Development Departments. • Comply with the City’s landscape inspection program. • Comply with applicable building codes. • Have a current and approved Wheat Ridge Police Department (WRPD) security plan on file with the City. • Not offer guest stays of more than 29 days without obtaining an extended stay addendum to the hotel license. To obtain an extended stay addendum, properties must meet certain criteria including: o Units must be at least 300 square feet with a separate living room of at least 120 square feet. o Cooking facilities must be in units including a refrigerator, cooktop, dedicated sink and cabinets with cooking and dining supplies. o Maximum occupancy per room is two persons per dedicated bedroom. o Adequate storage must exist per unit. o Housekeeping must be available. o 24-hour desk staffing. o WIFI must be available within the room charge. o In-room or common area laundry facilities. o Properties must include three of the following common area amenities:  Business center;  Fitness center;  Swimming pool;  Meeting areas or conference rooms; or  On-site restaurant or other food options. Overall, the hotel licensing program is having the desired effect of reducing crime in Wheat Ridge, particularly in the area surrounding I-70 and Kipling. Since the adoption of the ordinance, a 19% reduction in criminal complaints and criminal activity within a geographical area approximately ¼ mile from the 170/Kipling corridor has been recorded. The reduction in crimes in and around the hotels was a major contributor to the 26% overall crime reduction citywide last year. CAF - Hotel Licensing Code Update Date: August 14, 2023 Page 4 When the hotel regulations were developed and adopted, Wheat Ridge had nine (9) hotels. Shortly thereafter, the Howard Johnson hotel located at 44th Avenue and Ward Road sold to 2nd Chance Homes, Inc. and was rezoned to Mixed Use-Commercial (MU-C) on January 10, 2022. In January 2023, Terrapin Hospitality, the owner of the Holiday Inn Express in Wheat Ridge, purchased the American Motel at 10101 W Interstate 70 Frontage Rd. Trinsic Residential Group is now under contract with Terrapin to purchase the property by January 2024 for a scrape of the current structure and construction of a 350 multi-unit residential development. In May 2023, the Best Interstate Inn at 4735 Kipling Street sold to Ville Property Management out of Salt Lake, Utah. Ville is in the process of requesting a rezoning of the property to MU-C and plans to renovate the property to create a deeply affordable multi-unit community complete with case management and onsite services. The remaining six hotels are all properly licensed and monitored for compliance with the regulations contained in the hotel ordinance. At the time the regulations were developed, staff was aware that numerous individuals and households were using the hotels for long-term lodging. To help these residents find permanent housing, City Council allocated $500,000 of ARPA funds to a contract with Family Tree to provide case management services, rental deposits, and other assistance. To date, $221,040 has been spent on these services with 21 households housed, a total of 43 individuals. RECOMMENDATIONS: Staff recommends approval of this ordinance. RECOMMENDED MOTION: “I move to approve Council Bill No. 20-2023, an ordinance amending sections 11-561, 11-566, and 26-114 of the Wheat Ridge Code of Laws, concerning the hotel licensing program on first reading, order it published, public hearing set for Monday, August 28, 2023 at 6:30 p.m. as a virtual meeting and in City Council Chambers, and that it take effect 15 days after final publication.” Or, “I move to postpone indefinitely Council Bill No. 20-2023, an ordinance amending sections 11-561, 11-566, and 26-114 of the Wheat Ridge Code of Laws, concerning the hotel licensing program” for the following reason(s) _________________.” REPORT PREPARED BY; Nick Klein, Associate Attorney Allison Scheck, Deputy City Manager Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill No. 20-2023 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER ___________ COUNCIL BILL NO. 20 ORDINANCE NO. 1772 Series 2023 TITLE: AN ORDINANCE AMENDING SECTIONS 11-561, 11-566, AND 26-114 OF THE WHEAT RIDGE CODE OF LAWS, CONCERNING THE HOTEL LICENSING PROGRAM WHEREAS, the City of Wheat Ridge (the “City”) is a home rule municipality having all powers conferred by Article XX of the Colorado Constitution; and WHEREAS, pursuant to its home rule authority and C.R.S. § 31-23-101, the City, acting through its City Council (the “Council”), is authorized to adopt ordinances for the protection of the public health, safety or welfare; and WHEREAS, in the exercise of this authority the Council has previously adopted hotel licensing regulations, codified as Wheat Ridge Code of Laws (“Code”) Article XVI of Chapter 11, to regulate hotel businesses in order to reduce illegal and criminal activity in hotel establishments and ensure they are operated in a manner compatible and consistent with other City licensed businesses; and WHEREAS, the Code requires the Council to conduct a review of the implementation of the hotel licensing program and consider any amendments deemed appropriate in response to the review; and WHEREAS, the Council conducted the Code required review of the hotel licensing program at the June 12, 2023 Special Study Session; and WHEREAS, the Council finds and determines that amendments to the Code to properly enforce the hotel licensing program’s extended stay provisions, better define the calls for service rate, and reduce the time an extended stay special use permit remains in effect are necessary to the continued success of the City’s hotel licensing program. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. The below definitions in Code Section 11-561 are amended to read as follows: Sec. 11-561. - Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: ATTACHMENT 1 Calls for service are public initiated dispatched calls for police assistance that are generated by the community, through a call or text to 911 or the non-emergency line. CALLS FOR SERVICE INCLUDES COMMUNITY CALLS FOR ANY POLICE RESPONSE SUCH AS NON-CRIMINAL ACTIVITY, DISTURBANCES, SUPICIOUS VEHICLES OR PERSONS, AND CRIME REPORTS. CALLS FOR SERVICE DOES NOT INCLUDE CALLS FOR FIRE OR MEDICAL ASSISTANCE WITHOUT POLICE RESPONSE, CALLS INITIATED BY THE WHEAT RIDGE POLICE DEPARTMENT, OFFICER INITIATED TRAFFIC STOPS, ROUTINE PATROL, OR 911 HANG UPS WITHOUT POLICE RESPONSE. Calls for service rate is equal to the total calls for service at the licensed premises divided by the total number of hotel rooms in the applicable period. CALLS FOR SERVICE RECEIVED ON SEVERE WEATHER DAYS, AS DECLARED BY THE SEVERE WEATHER SHELTER NETWORK, ARE NOT INCLUDED IN A HOTEL’S CALLS FOR SERVICE RATE CALCULATION. Section 2. Section 11-566(a) is amended by the addition of a new subsection (10) to read as follows: Sec. 11-566. - Suspension or revocation of license: grounds. (a) The treasurer may suspend or revoke a hotel license upon the treasurer's finding of any of the following facts in the treasurer's reasonable discretion, based upon available information. It is not required that any criminal conviction be obtained to support the treasurer's administrative action. (10) THE LICENSEE HAS PERMITTED EXTENDED STAY LODGING WITHOUT AN APPROVED EXTENDED STAY LICENSE ADDENDUM ISSUED PURSUANT TO SECTION 11-568. (1) FOR PURPOSES OF THIS SECTION, THE LENGTH OF A GUEST’S STAY AT ANY LICENSED PREMISES SHALL BE MEASURED BY CONSECUTIVE OVERNIGHT STAYS AT ANY LOCATION WITHIN THE LICENSED PREMISES. ADDITIONALLY, THE DURATION OF EXTENDED STAY LODGING ON A LICENSED PREMISES SHALL CONTINUE TO ACCRUE UNLESS THE GUEST VACATES THE LICENSED PREMISES FOR SIXTY (60) CONSECUTIVE DAYS. Section 3. Section 26-114(g) is amended to read as follows: g. Term. 1. A special use permit is valid so long as the conditions of approval are maintained by the applicant unless a specific time limit for the use or development is set forth as part of the permit approval by the community development director or city council. Except as otherwise provided herein, if an approved special use ceases operation for any reason for a period of one (1) year, the special use permit shall be deemed expired, unless otherwise provided in the permit itself. If an approved special use for a medical marijuana center, retail marijuana store, HOTEL AS DEFINED BY SECTION 11-561, or collocated center and store ceases operation for any reason for a period of six (6) months, the special use permit shall be deemed expired, unless otherwise provided in the permit itself. 2. If the conditions of a special use permit become the responsibility of a person or entity other than the applicant, the community development department shall be notified in writing, identifying the new person or entity responsible for maintaining the conditions of the permit. Until such notice is received, the applicant shall remain responsible for maintaining those conditions. The notice shall be attached to the permit on file with the community development department. A special use permit for a medical marijuana center, a retail marijuana store, A HOTEL AS DEFINED BY SECTION 11-561, or a collocated center and store may be transferred to a person or entity other than the original applicant only upon the review and approval of the community development director. It shall be the burden of the proposed new permit holder to demonstrate that its continuation of the special use shall meet the special use review criteria set forth in section 26-114.D. Section 4. Severability, Conflicting Ordinances Repealed. If any section, subsection, or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 5. Effective Date. This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of ___ to ___ on this 14th day of August 2023, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for August 28, 2023, at 6:30 p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of ___ to ___, this _____ day of ______________, 2023. SIGNED by the Mayor on this _____ day of ____________, 2023. Bud Starker, Mayor ATTEST: Stephen Kirkpatrick, City Clerk Approved as to Form Gerald E. Dahl, City Attorney First Publication: August 17, 2023 Second Publication: August 31, 2023 Effective Date: September 15, 2023 Published: Jeffco Transcript and www.ci.wheatridge.co.us ITEM NO: 5 DATE: August 14, 2023 REQUEST FOR CITY COUNCIL ACTION TITLE: COUNCIL BILL NO. 21-2023 – AN ORDINANCE GIVING NOTICE OF AND CALLING FOR SUBMITTING A BALLOT QUESTION AT THE CITY’S REGULAR NOVEMBER 7, 2023 ELECTION CONCERNING THE ISSUANCE OF DEBT AND AN EXTENSION OF THE EXPIRING SALES AND USE TAX OF ONE-HALF OF ONE CENT (0.50%) TO PAY SUCH DEBT; AND OTHER MATTERS RELATED THERETO PUBLIC HEARING ORDINANCES FOR 1ST READING (08/14/2023) BIDS/MOTIONS ORDINANCES FOR 2ND READING (08/28/2023) RESOLUTIONS QUASI-JUDICIAL: YES NO _______________________________ City Manager ISSUE: On July 17, 2023, City Council directed staff to move forward with a ballot question for the November 2023 election to extend the City’s one-half of one cent (0.50%) sales and use tax for 20 years and to issue debt to finance up to $75 million in public infrastructure improvements. These improvements would include sidewalk, bike lane and street improvements along primary street corridors, sidewalk gap construction and other sidewalk maintenance along major pedestrian corridors and routes to schools and drainage and floodplain infrastructure improvements at priority locations in the City. To include this question on the 2023 ballot, the City Council must set the final ballot language and submit it to the Jefferson County Clerk and Recorder by September 8th. Setting the ballot language by ordinance requires a first reading on August 14th and a second reading and public hearing on August 28th to meet this deadline. The attached ordinance accomplishes this. CAF – Notice of Election August 14, 2023 Page 2 PRIOR ACTION: On April 3, 2023, results from a survey conducted between March 9 to March 23 by Magellan Strategies to obtain input from Wheat Ridge residents and to measure support for or against this ballot measure were presented to City Council. Sixty-eight percent (68%) of respondents to this survey indicated they would likely support a ballot measure to extend the one-half of one cent sales and use tax for a variety of public infrastructure projects at the November 8th election. On June 12, 2023, results from the Resident Survey conducted in March 2023 by Polco NRC were presented to City Council. The Resident Survey included two questions measuring residents support for this ballot measure. Seventy-seven to eighty-four percent (77% to 84%) of respondents to this survey said they would support a ballot measure to fund street, sidewalk and drainage improvements. On July 17, 2023, results from a second survey conducted between June 26th and July 7th by Magellan Strategies to obtain input from Wheat Ridge residents and to measure support for or against this ballot measure were presented to City Council. Seventy-nine percent (79%) of respondents indicated they would support the ballot measure as drafted in this ordinance. FINANCIAL IMPACT: Based on estimated sales and use tax revenues for fiscal year 2023, a one-half of one cent extension of the tax rate would generate approximately $5.2 million in 2024. Over 20 years that would result in approximately $126 million which would net out approximately $75 million in available project funds upon sale of the bonds. BACKGROUND: In 2016, Wheat Ridge voters approved a ½ cent temporary sales and use tax increase and authorized the issuance of debt in the amount of $33 million for four public infrastructure projects. The tax increase will expire on December 31, 2028 or when $38.5 million is raised, whichever occurs first. City staff anticipates the temporary tax increase will generate $38.5 million and hit the cap by late 2024. The $33 million was allocated for the following projects: Clear Creek Crossing – new access ramps off I-70 for a 100-acre mixed use development including a new Intermountain Healthcare Lutheran medical campus, multi-family housing, Life Time Fitness health club, hotels, new restaurants, and shopping. The access ramps are complete. Anderson Park – modernization of the park to include upgrades to the Anderson Building recreation center and outdoor pool, baseball field replacement with a multi-purpose sports field, reconstruction of soccer field and upgrade of park pavilion. This project is complete. Wadsworth Boulevard – reconstruction of Wadsworth between 35th Avenue and I-70 to include additional lanes to decrease congestion, continuous sidewalks on both sides of the street for improved pedestrian and bicyclist mobility, and enhanced streetscape and landscaping. This project is underway. Wheat Ridge – Ward Commuter Rail Station – reconstruction of the adjacent streets, new traffic signals, pedestrian bridge over the rail line, and pedestrian access improvements to CAF – Notice of Election August 14, 2023 Page 3 facilitate redevelopment and economic development opportunities in the area surrounding the rail station. This project is underway. The Mayor and City Council held a planning retreat with staff on January 20 and 21 to review past accomplishments and to plan for the future. This year’s retreat focused primarily on a discussion about a potential November 2023 ballot measure to extend the City’s temporary ½ cent sales tax; for a number of years beyond 2024 and to issue debt to provide funding for additional, critical capital improvement projects across the City. City Council and staff participated in a facilitated exercise at the retreat to prioritize which unfunded capital improvement projects should be considered next for funding. Projects under consideration included: • Recreation Center Expansion • Sidewalks and street improvements along 38th Avenue from Youngfield to Kipling • Sidewalks and street improvements along 38th Avenue from Wadsworth to Harlan • Wider sidewalks along 44th Avenue from Ward to Kipling • Improvements on 44th Avenue including new signals and pedestrian crossings between Kipling and Ward • Sidewalks along Youngfield Street from 38th to 44th Avenue • Sidewalks and bike lanes on 32nd Avenue from Kipling to Wadsworth • Sidewalk gap improvements throughout the city with emphasis on areas near transit and schools • Drainage and floodplain infrastructure improvements throughout the city The City sought resident input on a proposed ballot measure through three separate survey instruments. Consistent and strong support was received from respondents to all three surveys. Staff also worked with an engineering firm to develop rough cost estimates for each of the defined projects. RECOMMENDATIONS: Based on the consistent and strong support received from respondents to all three surveys and the cost estimates for the proposed projects, Staff recommends that City Council approve this ordinance to submit ballot language for the November 8, 2023 election to extend the City’s current one-half of one cent sales and use tax for 20 years with the authority to bond for the following public infrastructure projects: • Sidewalk, bike lane and street improvements on primary street corridors such as 32nd Ave., 38th Ave., 44th Ave, and Youngfield St. • Filling sidewalk gaps and other sidewalk repair and replacement with an emphasis on major pedestrian corridors and routes to schools • Drainage and floodplain infrastructure improvements at priority locations in the City CAF – Notice of Election August 14, 2023 Page 4 RECOMMENDED MOTION: “I move to approve Council Bill No. 21-2023, an ordinance giving notice of and calling for submitting a ballot question at the City’s regular November 7, 2023 election concerning the issuance of debt and an extension of the expiring sales and use tax of one-half of one cent (0.50%) to pay such debt; and other matters related thereto, on first reading, order it published, public hearing set for Monday, August 28, 2023 at 6:30 p.m. as a virtual meeting and in City Council Chamber and that it take effect immediately upon adoption.” Or, “I move to postpone indefinitely Council Bill No. 21-2023, an ordinance giving notice of and calling for submitting a ballot question at the City’s regular November 7, 2023 election concerning the issuance of debt and an extension of the expiring sales and use tax of one-half of one cent (0.50%) to pay such debt; and other matters related thereto, on first reading, order it published, public hearing set for Monday, August 28, 2023 at 6:30 p.m. as a virtual meeting and in City Council Chamber and that it take effect immediately upon adoption for the following reason(s) _________________.” REPORT PREPARED BY; Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill 21-2023 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER _______ Council Bill No. 21 Ordinance No. 1773 Series of 2023 TITLE: AN ORDINANCE GIVING NOTICE OF AND CALLING FOR SUBMITTING A BALLOT QUESTION AT THE CITY’S REGULAR NOVEMBER 7, 2023 ELECTION CONCERNING THE ISSUANCE OF DEBT AND AN EXTENSION OF THE EXPIRING SALES AND USE TAX OF ONE-HALF OF ONE CENT (0.50%) TO PAY SUCH DEBT; AND OTHER MATTERS RELATED THERETO WHEREAS, the City of Wheat Ridge (the “City”), is a Colorado home rule municipal corporation duly organized and existing under laws of the State of Colorado and the City Charter (the “City Charter”); and WHEREAS, the members of the City Council of the City (the “City Council”) have been duly elected and qualified; and WHEREAS, Article X, Section 20 of the Colorado Constitution, also referred to as the Taxpayer’s Bill of Rights (“TABOR”) requires voter approval for any new tax, any increase in any tax rate, the creation of any debt, extension of an expiring tax, and the spending of certain funds above limits established by TABOR; and WHEREAS, the City will hold a regular election on November 7, 2023, as a coordinated election pursuant to the Uniform Election Code of 1992, as amended; and WHEREAS, TABOR requires that the City submit ballot issues, as defined in TABOR, to the City’s registered electors on specified election days before action can be taken on such ballot issues; and WHEREAS, November 7, 2023, is one of the election dates at which TABOR ballot issues may be submitted to the registered electors of the City pursuant to TABOR; and WHEREAS, the City Council hereby determines that it is necessary to submit to the electors of the City, at a regular election to be held on November 7, 2023 (the “Election”), the questions of increasing the debt of the City to construct the improvements as described in the ballot question below (the “Project”), and to pay such debt by extending the originally approved sales and use tax approved by the voters at the 2016 election and not imposing any new tax (the “debt question”); and ATTACHMENT 1 2 WHEREAS, the Council is authorized to refer questions to the voters by the Home Rule Charter and by CRS 31-11-111; and WHEREAS, the Council desires to give notice of and call submitting a ballot issue to the voters of the City at a regular election to be held as a coordinated election on November 7, 2023; and WHEREAS, it is necessary to set forth certain procedures concerning the conduct of the Election. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Ballot Question Election Called. Pursuant to the Wheat Ridge City Charter Sections 2.2 and 6.3 and CRS 31-10-501 and 31-11-111, the City hereby gives notice of and calls for the submittal of a ballot question at a Regular Municipal Election to be held November 7, 2023 for the purpose of referring the Ballot Question set forth in Section 2 to the voters of the City. Section 2. Ballot Question Referred to Voters SHALL THE CITY OF WHEAT RIDGE DEBT BE INCREASED BY UP TO $75 MILLION, WITH A REPAYMENT COST OF NOT MORE THAN $125 MILLION, AND SHALL THE ONE-HALF OF ONE CENT (0.50%) SALES AND USE TAX APPROVED BY THE VOTERS OF THE CITY IN 2016 BE EXTENDED, WITH THE PROCEEDS OF SUCH TAX, AND OTHER SALES AND USE TAX REVENUE AS THE CITY MAY DETERMINE, BE USED FOR THE PAYMENT OF THE 2017 BONDS ISSUED UNDER THE AUTHORITY OF THE 2016 ELECTION AS WELL AS THE DEBT AUTHORIZED BY THIS QUESTION, SUCH DEBT TO BE ISSUED FOR CAPITAL IMPROVEMENT PROJECTS OF THE CITY INCLUDING: • SIDEWALK, BIKE LANE AND STREET IMPROVEMENTS ON PRIMARY STREET CORRIDORS SUCH AS 32ND AVE., 38TH AVE., 44TH AVE, AND YOUNGFIELD ST. • FILLING SIDEWALK GAPS AND OTHER SIDEWALK REPAIR AND REPLACEMENT WITH AN EMPHASIS ON MAJOR PEDESTRIAN CORRIDORS AND ROUTES TO SCHOOLS • DRAINAGE AND FLOODPLAIN INFRASTRUCTURE IMPROVEMENTS AT PRIORITY LOCATIONS IN THE CITY; AND, TO THE EXTENT FUNDS ARE AVAILABLE, TO PAY DOWN THE 2017 BONDS, AND SHALL SUCH ONE-HALF OF ONE CENT (0.50%) SALES AND USE TAX EXPIRE UPON THE EARLIER TO OCCUR OF THE PAYMENT IN FULL OF THE BONDS OR DECEMBER 31, 2043; SUCH DEBT TO BE SOLD IN ONE SERIES OR 3 MORE AT A PRICE ABOVE, BELOW OR EQUAL TO THE PRINCIPAL AMOUNT OF SUCH DEBT AND ON SUCH TERMS AND CONDITIONS AS THE CITY MAY DETERMINE, INCLUDING PROVISIONS FOR REDEMPTION OF THE DEBT PRIOR TO MATURITY WITH OR WITHOUT PAYMENT OF A PREMIUM OF NOT TO EXCEED 3.00%; AND SHALL THE REVENUES RAISED BY SUCH SALES AND USE TAX AND PROCEEDS OF SUCH DEBT, AND ANY OTHER REVENUE USED TO PAY SUCH DEBT, INCLUDING ANY INTEREST AND INVESTMENT INCOME THEREFROM, BE COLLECTED AND SPENT BY THE CITY AS A VOTER- APPROVED REVENUE CHANGE PURSUANT TO ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION? YES: _____ NO: ______ Section 3. Conduct of Election. The election shall be conducted as a coordinated election in Jefferson County in accordance with articles 1 to 13 of title 1, C.R.S. (the “Uniform Election Code”), and Intergovernmental Agreement (the “Intergovernmental Agreement”) between the Board of County Commissioners of Jefferson County, the Jefferson County Clerk and Recorder (the “County Clerk”) and the City of Wheat Ridge. Section 4. Setting of Title and Protests. For purposes of CRS 31-11-111, this Ordinance shall serve to set the title and content for the ballot issues set forth herein and the ballot titles for such questions shall be the text of the questions themselves. Any protest to the ballot titles shall be filed in writing with the City Clerk within five (5) business days following the date of adoption of this Ordinance and shall be resolved thereafter by the City Council following a hearing with published notice. The officers of the City are hereby authorized to enter into one or more intergovernmental agreements with the County for the conduct of the Election pursuant to CRS 1-7-116. Any such intergovernmental agreement heretofore entered into in connection with the Election is hereby ratified, approved and confirmed. Section 5. Authorized Action. The City Clerk and other City officials and employees are hereby authorized and directed to take all action necessary or appropriate to effectuate the provisions of this Ordinance. Section 6. Ongoing Authorization of Debt Increase. If a majority of the votes cast on the debt question submitted at the Election shall be in favor of increasing debt as provided in such debt question, the City, acting through the City Council, shall be authorized to proceed with the necessary action to increase debt in accordance with such debt question. Section 7. Election Contests. Pursuant to CRS 1-11-203.5, any election contest arising out of a ballot issue or ballot question election concerning the order of 4 the ballot or the form or content of the ballot title shall be commenced by petition filed with the proper court within five days after the title of the ballot issue or ballot question is set. Section 8. Ratification of Prior Actions. All actions not inconsistent with the provisions of this Ordinance heretofore taken by the members of the City Council and the officers and employees of the City and directed toward holding the election for the purposes stated herein are hereby ratified, approved and confirmed. Section 9. Repealer. All prior acts, orders or resolutions, or parts thereof, by the City in conflict with this Ordinance are hereby repealed, except that this repealer shall not be construed to revive any act, order or resolution, or part thereof, heretofore repealed. Section 10. Severability. If any section, paragraph, clause or provision of this Ordinance shall be adjudged to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining sections, paragraphs, clauses or provisions of this Ordinance, it being the intention that the various parts hereof are severable. Section 11. Effective Date. This Ordinance shall take effect upon final adoption and signature by the Mayor as permitted by Section 5.11 of the Home Rule Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of ___ to ___ on this 14th day of August, 2023, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for August 28, 2023 at 6:30 p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. ADOPTED on second and final reading following public hearing and ordered published by a vote of ___ to____on the ___ day of _____________, 2023. SIGNED by the Mayor on this ________ day of ____________________, 2023. Bud Starker, Mayor ATTEST: Steve Kirkpatrick, City Clerk 5 Approved As To Form ______________________________ Gerald E. Dahl, City Attorney First Publication: August 17, 2023 Section Publication: August 31, 2023 Jeffco Transcript Effective Date: August 28, 2023 ITEM NO: 6 DATE: AUGUST 14, 2023 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION APPROVING A PARTICIPATING ADDENDUM TO THE NASPO VALUPOINT FLEET CARD SERVICES CONTRACT WITH THE STATE OF COLORADO FOR IMPLEMENTATION OF THE WEX FUEL CARD SYSTEM PUBLIC HEARING ORDINANCES FOR 1ST READING BIDS/MOTIONS ORDINANCES FOR 2ND READING RESOLUTIONS QUASI-JUDICIAL: YES NO _________________________ Director of Public Works City Manager ISSUE: The city currently utilizes two underground tanks at the Public Works Shop to provide diesel and unleaded fuel for city vehicles. The tanks are 34 years old and are nearing the end of their useful life. Therefore, staff evaluated fueling options and is recommending implementation of a 4- to 6-month pilot program with the Police Department to consider the WEX fuel card system. The WEX fuel card system allows for fueling of city vehicles at all participating gas stations nation-wide which will improve efficiency for staff as well as provide improved reporting and monitoring. Slightly higher costs are anticipated as the city will pay the advertised cost at the pump (less any taxes) which will likely be more than the bulk rate currently provided through the city’s vendor. The pilot program will allow for an evaluation of the pros and cons as well as the actual cost increases, if any. Therefore, staff recommends that the city enter into an agreement with WEX Bank by approving an addendum to a State of Colorado Contract #163711 under National Association of State Procurement Officials (NASPO) Master Agreement No. 00819. PRIOR ACTION: None. FINANCIAL IMPACT: There is no cost to initiate the WEX program. The city pays the price advertised at the pump so it can vary from day-to-day and location-to-location. Therefore, it is anticipated that the city will pay Council Action Form – Agreement for WEX Fuel Card System August 14, 2023 Page 2 more per gallon under this system due to not buying fuel in bulk. Staff was able to determine historical monthly average prices from the US Energy Information Administration website (www.eia.gov). Based on comparisons of the city’s costs to the average monthly prices for Denver, it is anticipated that the city will pay approximately $0.35 more per gallon for mid-grade unleaded fuel. This would result in an annual increased estimated cost of $22,750, based on usage of 66,000 gallons. Currently, fuel is purchased by the city directly from Synergy/Hill Petroleum based on procurement through the Colorado Multiple Assembly of Procurement Officials (MAPO). Because fuel costs can be very volatile, the MAPO contract terms provide that fuel costs are on a rolling price structure, which reflects the industry costs, at the time of ordering. Despite a dip in 2020, the average monthly price of both unleaded and diesel gasoline has increased: 2019 2020 2021 2022 2023 (6/1/23) Diesel (gal) 11,014 11,405 12,518 11,812 4,592 Diesel ($) $23,545.41 $16,321.78 $28,581.79 $43,630.92 $17,337.68 Diesel ($ avg) $2.16 $1.39 $2.32 $3.80 $3.52 Unleaded (gal) 64,219 66,397 68,604 64,999 28,517 Unleaded ($) $140,282.81 $105,266.05 $174,852.97 $204,211.48 $93,900.83 Unleaded ($ avg) $2.18 $1.58 $2.53 $3.11 $3.29 Total ($) $163,828.22 $121,587.83 $203,434.76 $247,842.40 $111,238.51 Currently, the federal gas tax is 18.4 cents per gallon. WEX will credit that tax on the monthly invoice. The Colorado gas tax is 22 cents per gallon. For these state taxes, the city must apply to the State Department of Revenue to seek reimbursement of the state tax on an annual basis. BACKGROUND: The city currently utilizes two underground tanks at the Public Works Shop to provide diesel and unleaded fuel for city vehicles. A chip key system is used whereby each vehicle user is provided with a key to obtain fuel at the pumps, on site. This system requires the employee fueling the vehicle to enter the mileage before fuel will dispense. A proprietary software is in place to monitor activities and provides reports to the Fleet Division. This aids in preventing theft and makes the pump shut off if pre-set mileage limits are triggered requiring vehicle servicing. The tanks were installed in 1989. The city maintains a license for the tanks through the Colorado Department of Labor and Employment - Division of Oil and Public Safety (OPS). The tanks are inspected yearly for cathodic protection in accordance with OPS regulations. It was determined that the software cannot be upgraded without losing elements of the monitoring capabilities. Fuel Usage The tanks are filled approximately every 4-6 weeks, depending on the time of year. Usage (in gallons) over the past 4 ½ years is summarized below: Council Action Form – Agreement for WEX Fuel Card System August 14, 2023 Page 3 2019 2020 2021 2022 2023 (6/1/23) Diesel 11,014 11,405 12,518 11,812 4,592 Unleaded 64,219 66,397 68,604 64,999 28,517 Total 75,233 77,802 81,122 76,811 33,109 Monthly Avg. 6,269 6,484 6,760 6,401 6,622 Given the age of the tanks (34 years) and the issues with the fueling software, staff undertook an analysis of alternate means to provide fuel. Staff is recommending that the city enter into an agreement with WEX Bank by approving an addendum to a State of Colorado Contract #163711 under National Association of State Procurement Officials (NASPO) Master Agreement No. 00819. WEX Fuel Card System The WEX system provides a fuel card for each city vehicle that can be used at any participating gas station in their network (approximately 95% of stations nation-wide). An employee can download the WEX app and locate the nearest gas station and/or the one with the lowest current price. Based on trial usage of the app, it appears that most gas stations in the city are considered participating. Thus, employees would not need to access the Shop but could go anywhere and fill their vehicle. The fuel cards can be set with limits on total purchases, transactions per period, dollars per period, and gallons per period. Standard and custom reports are available to the Fleet Division staff to track information. One bill is provided monthly for payment. Despite the higher costs, staff feels that there could be significant benefits to the WEX program for the city. As there is no startup cost, the city will implement the WEX program as a pilot project with the Police Department for a 4- to 6-month period to determine its effectiveness. Meanwhile, all other departments would continue to fuel from the Shop. Upon completion of the pilot program, staff will evaluate the outcomes and make a recommendation to either 1) move the entire city to the WEX program or 2) abandon WEX and go back to fueling at the Shop. Since the Shop tanks will still be in operation, there is no cost consequence to abandoning the WEX program. RECOMMENDATION: Staff recommends approval of this agreement. RECOMMENDED MOTION: “I move to approve a participating addendum to the NASPO ValuPoint Fleet Card Services Contract with the State of Colorado for implementation of the WEX Fuel Card System.” Or, “I move to not approve a participating addendum to the NASPO ValuPoint Fleet Card Services Contract with the State of Colorado for the following reason(s) __________________.” Council Action Form – Agreement for WEX Fuel Card System August 14, 2023 Page 4 REPORT PREPARED/REVIEWED BY: Maria D’Andrea, Director of Public Works Gerald Dahl, City Attorney Patrick Goff, City Manager ATTACHMENTS: 1. NASPO ValuPoint Fleet Card Services Contract with the State of Colorado 2. Addendum to Fuel Card Services Agreement CMS # 163711 Contract Number:163711 Page 1 of 31 Version 062020 PARTICIPATING ADDENDUM to NASPO ValuePoint Fleet Card Services Administered by the State of Washington with WEX Bank Master Agreement No. 00819 And The State of Colorado Contract # 163711 1. PARTIES AND SCOPE This Participating Addendum, including all of its attached exhibits and other documents incorporated by reference (the “Participating Addendum”), is entered into by and between WEX Bank (the “Contractor”), and the State of Colorado (the “State”). This Participating Addendum covers participation in the Fleet Card Services Master Agreement led by the State of Washington (the “Master Agreement”), for use by State agencies and other entities located in Colorado which are authorized by law to utilize State contracts with the prior approval of the State Purchasing Director. The specific Goods and Services provided under the Master Agreement are listed in Exhibit B Fleet Card Products of this agreement. Please note that items copied from the Master Agreement No. 00819 are as last amended in this Participating Addendum. 2. PARTICIPATION Agencies, political subdivisions and other entities (including cooperatives) authorized by the State’s statutes to use State contracts may make purchases under this Participating Addendum as of its Effective Date. Issues of interpretation and eligibility for participation are solely within the authority of the Chief Procurement Officer. 3. STATE MODIFICATIONS TO MASTER AGREEMENT AND APPLICABILITY A. To the extent not modified by this Participating Addendum and all its exhibits, the Master Agreement and all its terms and conditions shall apply to this Participating Addendum. If any term of this Participating Addendum conflicts with the Master Agreement, then this Participating Addendum shall control for all transactions between the State and the Contractor under this Participating Addendum. All terms defined in the Master Agreement shall have the meaning given to them in the Master Agreement, except for those terms specifically defined differently in this PARTICIPATING ADDENDUM. B. Master Agreement §14.2 Claims shall be modified as follows: “THIRD-PARTY CLAIMS; INDEMNITY. Contractor shall defend, indemnify, and hold harmless the State and any Purchasing Entity and their employees and agents from and against all claims, demands, judgements, assessments, damages, penalties, fines, costs, liabilities, or losses including, without limitation, sums paid in settlement of claims, reasonable attorneys’ DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 2 of 31 Version 062020 fees, consultant fees, and expert fees (collectively “claims”) arising from any negligant act or ommission, or willful misconduct, of Contractor or its agents and subcontractors under this Participating Addendum, except claims caused solely by the State or any Purchasing Entity’s negligence. Contractor shall take all steps needed to keep Purchasing Entity’s property free of liens arising from Contractor’s activities, and promptly obtain or bond the release of any such liens that may be filed. C. Master Agreement §14.3 shall be modified as follows: THIRD-PARTY CLAIMS; INDEMNITY – INTELLECTUAL PROPERTY and PERSONALLY IDENTIFIABLE INFORMATION (PII). Contractor shall defend, indemnify and hold harmless the State and any Purchasing Entity, along with their officers and employees, from and against claims, damages or causes of action brought against the State or any Purchasing Entity including reasonable attorney fees and related costs arising out of the claim that Contractor’s operations/products or their use, infringes Intellectual Property rights or PII of any person or entity. a. The Contractor’s obligations under this section shall not extend to any combination of the Product with any other product, system or method, unless the Product, system or method is: i. Provided by the Contractor or the Contractor’s subsidiaries or affiliates; ii. Specified by the Contractor to work with the Product; or iii. Reasonably required, in order to use the product in its intended manner, and in the infringement could not have been avoided by substituting another reasonably available product, system or method capable of performing the same function; or iv. It would be reasonably expected to use the Product in combination with such product, system or method. b. The indemnified party shall notify the Contractor within a reasonable time after receiving notice of an Intellectual Property or PII claim. Even if the indemnified party fails to provide reasonable notice, the Contractor shall not be relieved from its obligations unless the Contractor was prejudiced in defending the intellectual property claim or the PII claim resulting in increased expenses or loss to the Contractor. If the Contractor promptly and reasonably investigates and defends any DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 3 of 31 Version 062020 intellectual property or PII claim, it shall have no control over the defense and settlement of it. However, the indemnified party must consent in writing for any money damages or obligations for which it may be responsible. The indemnified party shall furnish, at the Contractor’s reasonable request and expense, information and assistance necessary for such defense. If the Contractor fails to vigorously pursue the defense or settlement of the intellectual property or PII claim, the indemnified party may assume the defense or settlement of it and the Contractor shall be liable for all costs and expenses, including reasonable attorneys’ fees and related costs, incurred by the indemnified party in the pursuit of the intellectual property or PII claim. Unless otherwise agreed in writing, this section is not subject to any limitations of liability in this Participating Addendum or in any other document executed in conjunction with this Participating Addendum. D. Master Agreement §16.4(a) Limitation on Damages shall be modified as follows: Except as otherwise required under applicable law, Contractor makes no warranty with respect to goods, products, merchantability, or services purchased with a card or the account, or through Contractor. Contractor is not responsible for any failure of a merchant to accept a card issued by Contractor hereunder. E. Master Agreement 16.4(b) shall me modified as follows: The liability of (Contactor), its Subcontractors, and their respective personnel to the State for any claims, liabilities, or damages relating to this Contract shall be limited to direct losses, consequential, special, indirect, incidental, punitive or exemplary loss, loss of State Records or unauthorized disclosure of State Confidential Information, not to exceed three (3) times the annual maximum amount payable by the State under this Contract; provided, however, that in the case of claims directly resulting from a data breach(i.e., any access, destruction, loss, theft, use or disclosure of State Confidential Information by an unauthorized party), Contractor’s liability for such damages shall not exceed six (6) times the annual maximum amount payable by the State under this Contract (such amount, in each case, the “Cap”). No limitation on Contractor & subcontractor liability to the State under this Section shall limit or affect: DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 4 of 31 Version 062020 i. Contractor’s indemnification obligations to the State under this Contract; (provided, however, that indemnification obligations shall be subject to the Cap set forth in subsection E above); ii. Any claims, losses, or damages for which coverage is available under any insurance required under this Participating Addendum; iii. Claims or damages arising out of bodily injury, including death, or damage to tangible property of the State; or iv. Claims or damages resulting from the recklessness, bad faith, or intentional misconduct or Contractor its Subcontractors. F. Master Agreement §6.2 (a) shall be deleted in its entirety and replaced with Exhibit A §6Ai. G. Master Agreement §6.2 (g) shall be deleted in its entirety. H. Master Agreement §6.2 (f) shall be deleted in its entirety. I. Master Agreement §16.4 shall be deleted in its entirety. J. Master Agreement §17.8 shall be deleted in its entirety. 4. RESERVED 5. PRIMARY CONTACTS AND PERSONNEL RESPONSIBILITIES The primary contacts for this Participating Addendum are the individuals named in this section. Either Party may change its primary contacts or primary contacts contact information by notice submitted to the other party in writing no later than 5 days following the date on which the change occurs, without a formal amendment to this Participating Addendum. The Contractor’s primary contact shall be ultimately responsible for ensuring that all Goods are delivered and all Services are completed in accordance with this Participating Addendum. Primary Contact for the State: Primary Contact for the Contractor: Amy Risley Denise Baumgart Colorado State Purchasing & Contracts Office 97 Darling Ave 1525 Sherman Street, 3rd Floor South Portland, ME 04106 Denver, CO 80203 303-866-5663 913-393-3208 Amy.risley@state.co.us Denise.baumgart@wexinc.com Each individual identified in this §5 of the Participating Addendum shall be the primary contact of the designating Party. All notices required or permitted to be given under this Participating Addendum shall be in writing and shall be delivered (A) by hand with receipt required, (B) by certified or registered mail to such Party’s primary contact at the address set forth above or (C) as an email with read receipt requested to the primary contact at the email address, if any, set forth DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 5 of 31 Version 062020 above. If a Party delivers a notice to another through email and the email is undeliverable then, unless the Party has been provided with an alternate email contact, the Party delivering the notice shall deliver the notice by hand with receipt required or by certified or registered mail to such Party’s primary contact at the address set forth above. Unless otherwise provided in this Participating Addendum, notices shall be effective upon delivery of the written notice. In addition to the primary contact in this section, the Contractor shall also provide an individual who is ultimately responsible for the creation and submission of the quarterly volume report described in Exhibit A of this Participating Addendum. This individual, as named in this section, shall ensure that all required quarterly volume reports are accurate and delivered by the appropriate due date for that quarterly volume report. The Contractor may change this individual or their contact information by notice submitted to the other party in writing no later than 5 days following the date on which the change occurs, without a formal amendment to this Participating Addendum. Individual Responsible for Quarterly Volume Report Creation and Submission: Denise Baumgart 97 Darling Ave South Portland, ME 04106 913-393-3208 Denise.baumbart@wexinc.com 6. SUBCONTRACTORS The Contractor may only use Subcontractors, as defined in Exhibit A. §4, under this Participating Addendum if the State has provided written approval for the Contractor to use that Subcontractor. All such approved Subcontractors authorized in the State of Colorado, as shown on the dedicated Contractor website, are approved to provide sales and service support to the State and any Purchasing Entity in the State. The Contractor’s Subcontractor’s participation shall be in accordance with the terms and conditions set forth in the Master Agreement and this Participating Addendum, as appropriate. 7. PURCHASES Any charge made by a Cardholder in the State of Colorado for a Transaction available under this Participating Addendum shall be deemed to be a sale using an Account (and governed by the prices and other terms and conditions) under the Master Agreement and this Participating Addendum unless the parties agree in writing that another Agreement applies to the use of the Card. 8. ORDER OF PRECEDENCE AND ATTACHED EXHIBITS All of the exhibits listed in this section are attached to this Participating Addendum and are incorporated herein by reference. In the event of a conflict or inconsistency between this Participating Addendum and any exhibits or attachment such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority: A. Colorado Special Provisions in §20 of Exhibit A, State Specific Terms B. Exhibit D Information Technology Provisions C. The provisions of this Participating Addendum D. All other sections of Exhibit A, State Specific Terms DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 6 of 31 Version 062020 E. Exhibit B Statement of Work F. Exhibit C Rebate/Incentive Share G. Exhibit E Establishing a Card Account Agreement Notwithstanding anything to the contrary herein, the State and Purchasing Entities shall not be subject to any provision incorporated in any terms and conditions appearing on Contractor’s or Subcontractor’s website, any provision incorporated into any click-through or online agreements, or any provisions incorporated into any other document or agreement between the Parties that (i) requires the State to indemnify or hold harmless Contractor or any other party, (ii) is in violation of State law as, regulations, rules, fiscal rules, policies, or other State requirements as deemed solely by the State or (iii) is contrary to any of the provisions incorporated into Exhibit A, §19 or the main body of this Participating Addendum. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 7 of 31 Version 062020 THE PARTIES HERETO HAVE EXECUTED THIS PARTICIPATING ADDENDUM CONTRACTOR WEX Bank By: Tim Laukka Title: President ______________________________________________ *Signature Date: _________________________ STATE OF COLORADO Jared Polis, Governor Department of Personnel and Administration State Purchasing and Contracts Office Kara Veitch, Executive Director ______________________________________________ By: John Chapman, State Purchasing Manager Date: _________________________ CONTRACTOR WEX Bank Initials (Gabriel Weiss) _______________ In accordance with §24-30-202, C.R.S., if this Contract is for a Major Information Technology Project, this Contract is not valid until signed and dated below by the Chief Information Officer or an authorized delegate. STATE CHIEF INFORMATION OFFICER Anthony Neal-Graves, Chief Information Officer and Executive Director Signed: ___________________________________________ Printed Name: _____________________________________ Title: _____________________________________________ Date: _________________________ ALL CONTRACTS REQUIRE APPROVAL BY THE STATE CONTROLLER §24-30-202, C.R.S. requires the State Controller to approve all State Contracts. This Participating Addendum is not valid until signed and dated below by the State Controller or an authorized delegate. STATE CONTROLLER Robert Jaros, CPA, MBA, JD By: ___________________________________________ Name: __________________________________________ Delegate Effective Date: _____________________ DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B 4/6/2021 4/6/2021 Shainna Uy 4/6/2021 Contract Administrator II Clark Bolser 4/6/2021 CMS # 163711 Contract Number:163711 Page 8 of 31 Version 062020 PARTICIPATING ADDENDUM EXHIBIT A STATE SPECIFIC TERMS 1. PARTIES AND SCOPE ............................................................................................................ 1 2. PARTICIPATION ..................................................................................................................... 1 3. STATE MODIFICATIONS TO MASTER AGREEMENT AND APPLICABILITY ............. 1 4. RESERVED ............................................................................................................................... 4 5. PRIMARY CONTACTS AND PERSONNEL RESPONSIBILITIES ..................................... 4 6. SUBCONTRACTORS .............................................................................................................. 5 7. PURCHASES ............................................................................................................................ 5 8. ORDER OF PRECEDENCE AND ATTACHED EXHIBITS ................................................. 5 1. AUTHORITY ............................................................................................................................ 8 2. PURPOSE .................................................................................................................................. 8 3. TERM ........................................................................................................................................ 9 4. DEFINITIONS .......................................................................................................................... 9 5. STATEMENT OF WORK ...................................................................................................... 13 6. PAYMENTS TO CONTRACTOR ......................................................................................... 13 A. PAYMENTS ............................................................................................................................ 13 7. REBATE INCENTIVE ........................................................................................................... 16 8. REPORTING – NOTIFICATION ........................................................................................... 16 9. RESERVED ............................................................................................................................. 18 10. CONFIDENTIAL INFORMATION-STATE RECORDS ...................................................... 18 11. CONFLICTS OF INTEREST.................................................................................................. 19 12. INSURANCE .......................................................................................................................... 20 13. BREACH OF CONTRACT .................................................................................................... 21 14. REMEDIES ............................................................................................................................. 22 15. DISPUTE RESOLUTION ....................................................................................................... 23 16. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ........................................ 24 17. OBLIGATIONS AND RIGHTS IN THE EVENT OF TERMINATION OF ORDER OR CONTRACT ........................................................................................................................................ 25 18. STATEWIDE CONTRACT MANAGEMENT SYSTEM ..................................................... 25 19. GENERAL PROVISIONS ...................................................................................................... 25 20. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ....................... 28 EXHIBIT B STATEMENT OF WORK.................................................................................... 1 EXHIBIT C FUEL CARD REBATE/INCENTIVE SHARE ................................................... 1 EXHIBIT D, INFORMATION TECHNOLOGY PROVISIONS ............................................. 1 EXHIBIT E, ESTABLISHING A CARD ACCOUNT AGREEMENT ................................... 1 1. AUTHORITY Authority to enter into this Participating Addendum exists in the Colorado Procurement Code, §24- 102-202, C.R.S. and 1 CCR 101-9 R-24-102-202-01., and its associated rules. 2. PURPOSE The Parties are entering into this Participating Addendum for the Contractor to provide Fleet Card Services to Purchasing Entities. The Contractor was selected as a result of Commercial Card DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 9 of 31 Version 062020 Services Competitive Solicitation No. 00719/00819 resulting in two separate Master Agreements, this one for Fleet Card Services No. 00819. 3. TERM A. Initial Term - Work Commencement The Parties’ respective performances under this Participating Addendum shall commence on the Effective Date and shall be co-terminus with NASPO ValuePoint Master Agreement 00819. Unless this Participating Addendum is terminated earlier, as described herein, or the State cancels its participation as described in the Master Agreement (the “Term”), the term of the Participating Addendum shall follow the Master Agreement initial term and will be automatically extended beyond the initial term if the Master Agreement term is extended (See Section 3.B.). B. Extension of Term If the term of NASPO ValuePoint Master Agreement is extended for any reason, the Term of this Participating Addendum shall be automatically modified to account for that extension, so long as such extension complies with the Colorado Procurement Code. C. RESERVED D. RESERVED E. Early Termination in the Public Interest The State is entering into this Participating Addendum to serve the public interest of the State of Colorado as determined by its Governor, General Assembly, or Courts. A determination that this Contract should be terminated in the public interest shall not be equivalent to a State right to terminate for convenience. This subsection shall not apply to a termination of this Participating Addendum by the State for breach by Contractor, which shall be governed by §i. i. Method and Content The State shall notify Contractor of such termination in accordance with §5 of this Participating Addendum. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Participating Addendum, and shall include, to the extent practicable, the public interest justification for the termination. ii. Obligations and Rights Upon receipt of notice for termination in the public interest, Contractor shall be subject to the rights and obligations set forth in §Error! Reference source not found.. iii. Payments If the State terminates this Participating Addendum in the public interest, the Purchasing Entities shall pay Contractor according to their Accounts with the Contractor. The sum of any and all payments shall not exceed the maximum amount payable to Contractor under each Account. 4. DEFINITIONS The following terms shall be construed and interpreted as follows: A. “Account” means any Fleet Card Products provided to a Cardholder for use under this Participating Addendum. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 10 of 31 Version 062020 B. “Affiliate” means political subdivisions and Institutions of Higher Education within the State of Colorado that will receive their own rebate under the Program, and which are authorized by the State to participate in the Fleet Card Products program with the Contractor. C. “Breach of Contract” means the failure of a Party to perform any of its obligations in accordance with this Contract, in whole or in part or in a timely or satisfactory manner. The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Contractor, or the appointment of a receiver or similar officer for Contractor or any of its property, which is not vacated or fully stayed within thirty (30) days after the institution of such proceeding, shall also constitute a breach. If Contractor is debarred or suspended under §24-109- 105, C.R.S. at any time during the term of this Contract, then such debarment or suspension shall constitute a breach. D. “Business Day” means any day in which the State is open and conducting business, but shall not include Saturday, Sunday or any day on which the State observes one of the holidays listed in §24-11-101(1), C.R.S. E. “Cardholder” means an employee, contractor, or representative of a Participant to whom a Fleet Card is issued for making designated purchase/payments on behalf of his or her organization. F. “Chief Procurement Officer” means the individual to whom the Executive Director of the Department of Personnel & Administration has delegated his or her authority pursuant to §24- 102-202, C.R.S. to procure or supervise the procurement of all supplies and services needed by the state. G. “CJI” means criminal justice information collected by criminal justice agencies needed for the performance of their authorized functions, including, without limitation, all information defined as criminal justice information by the U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Security Policy, as amended, and all Criminal Justice Records as defined under §24-72-302, C.R.S. H. “Confidential Information” means any and all information that is normally considered confidential in nature, and includes, but is not limited to, all State Records not subject to disclosure under the Colorado Open Records Act, §§24-72-200.1, et seq., C.R.S. (“CORA”). I. “Contract” means this Participating Addendum, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto. J. “Contract Funds” means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by a Purchasing Entity for Orders placed under this Participating Addendum. K. “CORA” means the Colorado Open Records Act, §§24-72-200.1, et. seq., C.R.S. L. “Effective Date” means the date Contract is signed by the State Controller or their designee. M. “End of Term Extension” means the time period defined in §3. C. of this Exhibit A. N. “Environmentally Preferable Products” means products that have a lesser or reduced adverse effect on human health and the environment when compared with competing products that serve the same purpose, as defined in §24-103-904, C.R.S. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 11 of 31 Version 062020 O. “Effective Date” means the date on which this Participating Addendum is approved and signed by the Colorado State Controller or designee, as shown on the Signature Page for this Participating Addendum. If this Contract is for a Major Information Technology Project, as defined in §24-37.5-102(2.6), C.R.S., then the Effective Date of this Contract shall be the later of the date on which this Contract is approved and signed by the State’s Chief Information Officer or authorized delegate or the date on which this Contract is approved and signed by the State Controller or authorized delegate, as shown on the Signature Page for this Contract. P. “Exhibits” means the following exhibits attached to this Contract: i. Exhibit A, State Specific Terms. ii. Exhibit B, Statement of Work. iii. Exhibit C, Rebate/Incentive Share iv. Exhibit D, Information Technology Provisions v. Exhibit E, Establishing a Card Account Agreement Q. “Extension Term” means the time period defined in §3. B. R. “Goods” means any movable material acquired, produced, or delivered by Contractor as set forth in this Participating Addendum and shall include any movable material acquired, produced, or delivered by Contractor in connection with the Services. S. “Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of any communications or information resources of the State, which are included as part of the Work, as described in §§24-37.5-401, et. seq., C.R.S. Incidents include, without limitation (i) successful attempts to gain unauthorized access to a State system or State Information regardless of where such information is located; (ii) unwanted disruption or denial of service; (iii) the unauthorized use of a State system for the processing or storage of data; or (iv) changes to State system hardware, firmware, or software characteristics without the State’s knowledge, instruction, or consent. T. “Initial Term” means the time period defined in §3.A of this Exhibit A. U. “Purchasing Entity Agreement” means a Card User Agreement, or Card Account Agreement as found in Exhibit E V. “Party” means the State or Contractor, and “Parties” means both the State and Contractor. W. “Participant” means any entity or organization that has been authorized by the State and approved by the Contractor to participate in the Fleet Card Program with the Contractor, and may include without limitation, State Agencies, government-supported institutions of higher education within the State, and political subdivisions of the State. In addition, Participant shall also have the same meaning as “Purchasing Entity”. X. “Participant Agreement” means the agreement (reference Exhibit E) entered into and between the Affiliate and the Contractor, which allows the government entity (“Participant”) to utilize the goods and services provided under this Participating Addendum and the NASPO Master Agreement. Participant Agreement shall also have the same meaning as “Card User Agreement”, as described in the Master Agreement, and shall also include any documents agreed upon by Contractor and the State to allow State Agencies to participate in the Program. Y. “Purchasing Entity” means Affiliate and State Agencies. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 12 of 31 Version 062020 Z. “PCI” means payment card information including any data related to credit card holders’ names, credit card numbers, or the other credit card information as may be protected by state or federal law. AA. “PII” means personally identifiable information including, without limitation, any information maintained by the State about an individual that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; and any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information. PII includes, but is not limited to, all information defined as personally identifiable information in §§24-72-501 and 24-73-101, C.R.S. BB. “Rebate” means a monetary payment based on the spend volume during a specified time period and shall be paid by the Contractor in accordance with the terms and conditions of the Participating Addendum and Master Agreement. CC. “Services” means the customer support to be performed by Contractor to support Purchasing Entities use of the fleet fuel card as listed in the Master Agreement Exhibit G Section 2 Administration of Accounts, Section 8 – Customer Service Section 9 Implementation / Transition Section 12 Training, Section 15 – Fraud Protection and Section 16 – Disputed Transactions. and shall include any services to be rendered by Contractor in connection with the Goods. DD. “State Confidential Information” means any and all State Records not subject to disclosure under CORA. State Confidential Information shall include, but is not limited to, PII, PCI, and State personnel records not subject to disclosure under CORA. State Confidential Information shall not include information or data concerning individuals that is not deemed confidential but nevertheless belongs to the State, which has been communicated, furnished, or disclosed by the State to Contractor which (i) is subject to disclosure pursuant to CORA; (ii) is already known to Contractor without restrictions at the time of its disclosure to Contractor; (iii) is or subsequently becomes publicly available without breach of any obligation owed by Contractor to the State; (iv) is disclosed to Contractor, without confidentiality obligations, by a third party who has the right to disclose such information; or (v) was independently developed without reliance on any State Confidential Information. EE. “State Fiscal Rules” means that fiscal rules promulgated by the Colorado State Controller pursuant to §24-30-202(13) (a), C.R.S. FF. “State Fiscal Year” means a 12-month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single calendar year follows the term, then it means the State Fiscal Year ending in that calendar year. GG. “State Records” means any and all State data, information, and records, regardless of physical form, including, but not limited to, information subject to disclosure under CORA. HH. “Subcontractor” means third-parties, if any, engaged by Contractor pursuant to §19.B. to aid in performance of the Work. The term “Subcontractor” includes, without limitation, any dealers, distributors, partners or resellers engaged by the Contractor to perform the Work. II. “Tax Information” means federal and State of Colorado tax information including, without limitation, federal and State tax returns, return information, and such other tax-related information as may be protected by federal and State law and regulation. Tax Information includes, but is not limited to all information defined as federal tax information in Internal Revenue Service Publication 1075. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 13 of 31 Version 062020 JJ. “Transaction” means the using of card to pay for authorized vehicle related expenses. KK. “Work” means the Goods delivered and Services performed pursuant to this Contract. LL. “Work Product” means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and any other results of the Work. “Work Product” does not include any material that was developed prior to the Effective Date that is used, without modification, in the performance of the Work. Any other term used in this Participating Addendum that is defined in an Exhibit shall be construed and interpreted as defined in that Exhibit. 5. STATEMENT OF WORK Purchasing Entities use by card pursuant to Section 7 Purchases of the Participating Addendum to complete vehicle Transactions and other vehicle related purchases. Purchasing Entities shall establish a Card User Agreement (CUA). Participating Entities payments to Contractor for that will be according to Section 6 of Exhibit A. to and uses of Contractor shall complete the Work as described in this Participating Addendum and in accordance with the provisions of Exhibits A, B, C and D, and with any Purchasing Entity’s Account. Contractor personnel shall work cooperatively with State and Purchasing Entity staff to ensure the completion of the Work. Purchasing Entities shall establish a Card User Agreement in order to receive cards, establish access to the online system, and leverage any other Goods and Services from this Participating Addendum. Account Fulfillment Contractor shall provide a complete and accurate Internal Revenue Service form W9 to the State prior to accepting an Order from any Purchasing Entity. Upon a request by a Purchasing Entity, Contractor shall provide a complete and accurate Internal Revenue Service form W9 to that Purchasing Entity. Each Purchasing Entity may complete an Account in accordance with its own rules and policies, as available to Contractor, using the appropriate documentation for that organization to issue an Account. Contractor shall communicate directly with each Purchasing Entity related to that Purchasing Entity’s Account. 6. PAYMENTS TO CONTRACTOR A. PAYMENTS i. Payment is the sole responsibility of, and will be made by, the Purchasing Entity. Payment is due in full within the earlier of (a) forty-five (45) days of statement or (b) the date required pursuant to the applicable Participating Entity's prompt pay act or similar legislation, in each case on or before the relevant cutoff time on or before the Due Date. If Purchasing Entity fails to make timely payment(s) (i.e., by the applicable Due Date) in full, such failure shall constitute a "Payment Default." "Due Date" means the date on which the repayment of the balance of the account is due as provided on a billing statement. In the event of a Payment Default, starting the 45th day, Contractor may invoice in the amount DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 14 of 31 Version 062020 of up to one percent (1%) per month on the amount not paid by the 45th day or a minimum of $1 (or as otherwise agreed in the applicable Participating Addendum) (the "Interest). The Interest payment will be applied to those invoices not paid within 45 days. ii. Each Purchasing Entity shall be liable for all Transactions on the account to the fullest extent permitted by applicable law, except as expressly provided in this Agreement. Purchasing Entities may pay the entire balance of the account or a portion of it, at any time prior to its Due Date without penalty. iii. Payments made via paper check are posted to the account after processing and must arrive at Contractor at least three Business Days before the Due Date on the billing statement. It can take up to three Business Days to process a check from the time the envelope containing a check arrives at Contractor's facility to posting of the check amount to the account. iv. For payments not made by paper check, payments on a Business Day before the cut-off time (the "Cut-off Time") will be posted on that Business Day. Payments after the Cut-off following Business Day. The Cut-off Times for payments not made by check are as follows: a payment transaction made via Contractor's online payment portal must be completed by 3:00 p.m. ET; a payment transaction made via IVR must be completed by 3:00 p.m. ET; and a payment transaction made via ACH must arrive to Contractor by 3:00 p.m. ET. v. Regardless of payment method, each Purchasing Entity must ensure that Purchasing Entity's account number is provided with the payment. Failure to do so will cause processing delays in posting the payment to the account. Payments that are received at locations other than the address specified on the billing statement, or that do not otherwise comply with instructions on the billing statement or this Master Agreement, may be delayed in posting. B. OVERPAYMENTS. Contractor promptly shall refund to Purchasing Entity the full amount of any erroneous payment or overpayment. Such refunds shall occur promptly upon discovery by Contractor or within thirty (30) days of written notice to Contractor; Provided, however, that Purchasing Entity shall have the right to elect to have either direct payments or written credit memos issued. If Contractor fails to make timely payment(s) or issuance of such credit memos, Purchasing Entity may impose a one percent (1%) per month on the amount overdue 45 days after notice to the Contractor. (Section 6.3 Payments of Master Agreement No 00819, modified as required by Colorado law.) C. Payment Procedures DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 15 of 31 Version 062020 i. Invoices Refer to Exhibit A Payments §6 A i for Payment Terms. The State shall not pay any amount to Contractor under this Participating Addendum for Purchasing Entity Cardholders statements unless State is the Purchasing Entity on that Cardholder statement. ii. Payment Disputes Purchasing Entity shall use its best efforts to resolve purchase disputes directly with the relevant merchant particularly such disputes arising out of quality or warranty issues. During dispute a temporary or permanent credit may be placed on Purchasing Entity’s account. All disputed items must be submitted in writing within sixty (60) days from the billing date or they will be final and binding. Purchasing Entity may dispute an amount reflected on a billing statement if:  The amount does not reflect the face value of the Transaction;  The amount being disputed is a fee that is not properly accrued under this Agreement;  Purchasing Entity does not believe it is liable for that amount, Dispute credits and temporary credits shall be issued to a Purchasing Entity’s account within the billing cycle in which the dispute is identified, reported to and processed by the Contractor. For disputes occurring within a billing cycle, the total amount due on the invoice shall be reduced by the amount in dispute. For disputes occurring after the relevant billing cycle has closed, where an invoice has been created, the permanent or temporary credit shall be reflected on the subsequent billing cycle’s invoice. Transactions made at an island card reader where the Purchasing Entity or account user did not obtain a receipt at the time of sale are eligible for dispute. However, the receipt may provide the only opposing record to the transaction information submitted by the merchant. It is also important to note that island card reader transactions require both a valid card and Driver ID (DID) to be authorized. Transactions in dispute may qualify for charge back to the merchant. Contractor shall attempt to charge the transaction back to the merchant in accordance with its procedures under its merchant acceptance agreements. Any accepted charge back will be credited to the relevant Purchasing Entity account. The Purchasing Entity may be liable for the transaction if the disputed item is found to be no fault of the merchant and therefore cannot be charged back to the merchant. iii. Notice of Loss, Theft or Unauthorized Use. In the event that a Purchasing Entity or Cardholder knows of or suspects the loss, theft or possible unauthorized use of a Card or Account or if Purchasing Entity would like to terminate an Account, Contractor must be immediately notified by calling 1-800-492-0669. iv. Available Funds-Contingency-Termination of Cardholder Agreement Purchasing Entities, except for authorized non-profit entities, are prohibited by law from making commitments beyond the term of the current Purchasing Entity’s Fiscal Year. Payment to Contractor beyond the current Purchasing Entity’s Fiscal Year is contingent on the appropriation and continuing availability of Contract Funds in any DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 16 of 31 Version 062020 subsequent year (See Colorado Special Provision). If federal funds, non-State funds or funds from any other source constitute all or some of the Contract Funds, the Purchasing Entity’s obligation to pay Contractor shall be contingent upon such funding continuing to be made available for payment. Usage of a card under this Participating Addendum shall be made only from Contract Funds, and the Purchasing Entity’s liability for such payments shall be limited to the amount remaining of such Contract Funds. If State, federal or other Purchasing Entity funds are not appropriated, or otherwise become unavailable to fund an Order under this Participating Addendum, the Purchasing Entity may, upon written notice, terminate the Order, in whole or in part, without incurring further liability. The Purchasing Entity shall, however, remain obligated to pay for Services and Goods that are delivered and accepted prior to the effective date of notice of termination of Order. A State Purchasing Entity Order termination shall otherwise be treated as if the Order was terminated in the public interest as described in §3. E. of this Exhibit A. The Purchasing Entity may effect such termination by giving Contractor a written notice of termination, to the Contractor’s primary contact in accordance with §5 of the Participating Addendum, and by paying to Contractor any amounts which are due and have not been paid through the last day of the Fiscal Year for which appropriated funds are available. The Purchasing Entity shall endeavor to give notice of such termination not less than 30 days prior to the day of non-availability of funds, and shall notify Contractor of any anticipated termination. 7. REBATE INCENTIVE Contractor shall follow Rebate/Incentive Share as set forth in Exhibit C. 8. REPORTING – NOTIFICATION A. Volume Reporting The State will use a centralized method of tracking volume. Contractor shall provide a quarterly volume report to the State’s primary contact identified in §5 of this Participating Addendum within 60 calendar days following the end of the State Fiscal Year quarter that the report covers. The quarterly volume report shall be submitted in a form as directed by the State, which may be modified by the State from time to time. The quarterly volume report shall contain, at a minimum, all of the following: i. A summary volume report that includes, but is not limited to, all of the following for the quarter that the report covers: a. The total spent by each type of Purchasing Entity under this Participating Addendum. b. The total of the list price of all items purchased by each type of Purchasing Entity under this Participating Addendum. c. The total sales of environmentally preferable products, as defined in the State’s Environmentally Preferable Purchasing Policy, for each Purchasing Entity under this Participating Addendum. d. The amount of the total Rebate/Incentive share to the state as from Exhibit C of Participating Addendum. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 17 of 31 Version 062020 e. Any additional summary information as requested by the State. ii. A detail report that includes, but is not limited to, all of the following for each Transaction that occurred during the quarter that the report covers: a. The name of the Purchasing Entity who the Transaction was made to. b. The date of the Transaction. c. A listing of each item purchased in the Transaction, including the name of the item, the quantity of the item, the unit price for the item, the extended price for the item calculated by multiplying the unit price by the quantity, the list price per unit for the item, the extended list price for the item calculated by multiplying the quantity by the list price, and the savings on the item calculated by subtracting the extended cost from the extended list price. d. Any other detail information as requested by the State. B. Additional Operational Reporting Upon request by the State, the Contractor shall provide operational reporting that includes all detailed and summary transaction, historical or payment information related to the State or any of the Participating Entities as requested by the State. The Contractor shall provide all such additional reports within 10 Business Days following the State’s request for that information, unless the State agrees to a longer period of time in writing. C. Environmentally Preferable Product Reporting Upon request by the State, the Contractor shall provide detailed reporting on environmentally preferable products, as defined in the State’s Environmentally Preferable Purchasing Policy, that are purchased or made available under this Participating Addendum. The scope and detail of such reports shall be agreed upon by the State and the Contractor. The Contractor shall provide all such additional reports within 10 Business Days following the State’s request for that information, unless the State agrees to a longer period of time in writing. D. Litigation Reporting If Contractor is served with a pleading or other document in connection with an action before a court or other administrative decision making body, and such pleading or document relates to this Participating Addendum or may affect Contractor’s ability to perform its obligations under this Participating Addendum, Contractor shall use commercially reasonable efforts to, within 10 days after being served, notify the State of such action and deliver copies of such pleading or document to the State’s primary contact identified in §5 of the Participating Addendum. E. Performance Outside the State of Colorado or the United States, §24-102-206, C.R.S. To the extent not previously disclosed in accordance with §24-102-206, C.R.S., Contractor shall provide written notice to the State’s primary contact in accordance with §5 of the Participating Addendum and in a form designated by the State, within 20 days following the earlier to occur of Contractor’s decision to perform Services outside of the State of Colorado or the United States, or its execution of an agreement with a Subcontractor to perform Services outside the State of Colorado or the United States. Such notice shall specify the type of Services to be performed outside the State of Colorado or the United States and the reason why it is necessary or advantageous to perform such Services at such location or locations, and such notice shall be a public record. Knowing failure by Contractor to provide notice to DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 18 of 31 Version 062020 the State under this section shall constitute a breach of this Participating Addendum. This section shall not apply if the Participating Addendum Funds include any federal funds. 9. RESERVED 10. CONFIDENTIAL INFORMATION-STATE RECORDS A. Confidentiality Contractor shall keep confidential, and cause all Subcontractors to keep confidential, all State Records, unless those State Records are publicly available. Contractor shall not, without prior written approval of the State, use, publish, copy, disclose to any third party, or permit the use by any third party of any State Records, except as otherwise stated in this Participating Addendum, permitted by law or approved in Writing by the State. Contractor shall provide for the security of all State Confidential Information in accordance with all policies promulgated by the Colorado Office of Information Security and all applicable laws, rules, policies, publications, and guidelines. If Contractor or any of its Subcontractors will or may receive the following types of data, Contractor or its Subcontractors shall provide for the security of such data according to the following: solely to the extent applicable and relevant: (i) the most recently promulgated IRS Publication 1075 for all Tax Information and in accordance with the Safeguarding Requirements for Federal Tax Information attached to this Contract as an Exhibit, if applicable, (ii) the most recently updated PCI Data Security Standard from the PCI Security Standards Council for all PCI, (iii) the most recently issued version of the U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Security Policy for all CJI, and (iv) the federal Health Insurance Portability and Accountability Act for all PHI and the HIPAA Business Associate Agreement attached to this Contract ,. Contractor shall promptly forward any request or demand for State Records to the State’s primary contact as identified in §5 of the Participating Addendum. B. Other Entity Access and Nondisclosure Agreements Contractor may provide State Records to its agents, employees, assigns and Subcontractors as necessary to perform the Work, but shall restrict access to State Confidential Information to those agents, employees, assigns and Subcontractors who require access to perform their obligations under this Participating Addendum. Contractor shall ensure all such agents, employees, assigns, and Subcontractors sign agreements containing nondisclosure provisions at least as protective as those in this Participating Addendum, and that the nondisclosure provisions are in force at all times the agent, employee, assign or Subcontractor has access to any State Confidential Information. Contractor shall provide copies of those signed nondisclosure provisions to the State upon execution of the nondisclosure provisions. C. Use, Security, and Retention Contractor shall use, hold and maintain State Confidential Information in compliance with any and all applicable laws and regulations in facilities located within the United States, and shall maintain a secure environment that ensures confidentiality of all State Confidential Information wherever located. Contractor shall provide the State with access, subject to Contractor’s reasonable security requirements and upon 30 days advance written request from the State, for purposes of inspecting and monitoring access and use of State Confidential Information. Upon the expiration or termination of this Participating Addendum, Contractor shall return State Records provided to Contractor or destroy such State Records and confirm in writing to the State that it has done so, as directed by the State. If Contractor is prevented by law or regulation from returning or destroying State Confidential Information, Contractor DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 19 of 31 Version 062020 warrants it will guarantee the confidentiality of, and cease to use, such State Confidential Information. D. Incident Notice and Remediation If Contractor becomes aware of any Incident, it shall notify the State promptly (and in any event within three business days) and communicate with the State regarding Contractor’s recovery, remediation, and the necessity to involve law enforcement. Unless Contractor can establish that neither Contractor nor any of Contractor’s agents, employees, assigns or Subcontractors are the cause or source of the Incident, Contractor shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Contractor shall take steps to reduce the risk of incurring a similar type of Incident in the future to the extent agreed between the State and Contractor, which may include, but is not limited to, developing and implementing a remediation plan, that is agreed between Contractor and the State at no additional cost to the State. The State may, to the extent agreed between State and Contractor and Contractor’s sole expense, require Contractor to engage the services of an independent, qualified, State-approved third party to conduct a security audit. Contractor shall provide the State with evidence of Contractor’s planned remediation in response to any negative findings. E. Data Protection and Handling Contractor shall ensure that all State Records and Work Product in the possession of Contractor or any Subcontractors are protected and handled in accordance with the requirements of this Contract, including the requirements of any Exhibits hereto, at all times. F. Safeguarding PII If Contractor or any of its Subcontractors will or may receive PII under this Contract, Contractor shall provide for the security of such PII, in a manner and form acceptable to the State, including, without limitation, State non-disclosure requirements, use of appropriate technology, security practices, computer access security, data access security, data storage encryption, data transmission encryption, security inspections, and audits. Contractor shall be a “Third-Party Service Provider” as defined in §24-73-103(1)(i), C.R.S. and shall maintain security procedures and practices consistent with §§24-73-101 et seq., C.R.S. 11. CONFLICTS OF INTEREST A. Actual Conflicts of Interest Contractor shall not engage in any business or activities, or maintain any relationships that conflict in any way with the full performance of the obligations of Contractor under this Participating Addendum. Such a conflict of interest would arise when a Contractor or Subcontractor’s employee, officer or agent were to offer or provide any tangible personal benefit to an employee of the State, or any member of his or her immediate family or his or her partner, related to the award of, entry into or management or oversight of this Participating Addendum. B. Apparent Conflicts of Interest Contractor acknowledges that, with respect to this Participating Addendum, even the appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s prior written approval, Contractor shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Contractor’s obligations under this Participating Addendum. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 20 of 31 Version 062020 C. Disclosure to the State If a conflict or the appearance of a conflict arises, or if Contractor is uncertain whether a conflict or the appearance of a conflict has arisen, Contractor shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the actual or apparent conflict constitutes a breach of this Participating Addendum. 12. INSURANCE Contractor shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance as specified in this section at all times during the term of this Participating Addendum and until all orders for goods or Services or both have been delivered and accepted, regardless of whether this Participating Addendum has expired or has been terminated. All insurance policies required by this Participating Addendum shall be issued by insurance companies as approved by the State. A. Workers’ Compensation Workers’ Compensation insurance as required by state statute, and employers’ liability insurance covering all Contractor or Subcontractor employees acting within the course and scope of their employment. Insurance must stay in place and in effect even if the contract terms expires, until all product or terms of the contract are completed and satisfied up to 180 days after contract term expires. B. General Liability Commercial general liability insurance covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: i. $2,000,000 each occurrence; ii. $4,000,000 general aggregate; and iii. $1,000,000 products and completed operations aggregate; C. Automobile Liability Automobile liability insurance covering any auto (including owned, hired and non-owned autos) with a minimum limit of $1,000,000 each accident combined single limit. D. Technology Errors & Omissions (Including Professional and Cyber Liability) Liability insurance covering civil, regulatory, and statutory damages, contractual damages, data breach management exposure, and any loss of income or extra expense as a result of actual or alleged breach, violation or infringement of right to privacy, consumer data protection law, confidentiality or other legal protection for personal information, as well as State Confidential Information with minimum limits as follows: i. $8,000,000 each occurrence; and ii. $8,000,000 general aggregate. E. Crime Insurance Crime insurance including employee dishonesty coverage with minimum limits as follows: i. $2,000,000 each occurrence; and DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 21 of 31 Version 062020 ii. $2,000,000 general aggregate. F. Additional Insured The State shall be named as additional insured on all commercial general liability policies (leases and construction contracts require additional insured coverage for completed operations) required of Contractor and Subcontractors. G. Primacy of Coverage Coverage required of Contractor and each Subcontractor shall be primary over any insurance or self-insurance program carried by Contractor or the State. H. Cancellation WEX or its insurer representative will endeavor to provide 30 days advance written notice to the State of cancellation of any policy required under this Participating Addendum. I. Subrogation Waiver Except with respect to loss or damage caused solely by the State, Contractor’s automobile liability, general liability and any applicable umbrella or excess liability policy shall include a waiver of subrogation in favor of the State, its agencies, institutions, organizations, officers, agents, employees and volunteers. J. Public Entities If Contractor is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §§24-10-101, et seq., C.R.S. (the “GIA”), Contractor shall maintain, in lieu of the liability insurance requirements stated above, at all times during the term of this Participating Addendum such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. If a Subcontractor is a public entity within the meaning of the GIA, Contractor shall ensure that the Subcontractor maintain at all times during the terms of this Participating Addendum, in lieu of the liability insurance requirements stated above, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations under the GIA. K. Certificates Prior to the start of services under this Participating Addendum and upon the renewal of any required insurance under this Participating Addendum, Contractor shall provide to the State certificates evidencing said coverage. At any other time during the term of this Participating Addendum, upon request by the State, Contractor shall supply to the State evidence satisfactory to the State as soon as practicable. 13. BREACH OF CONTRACT In the event of a Breach of Contract, the aggrieved Party shall give written notice of breach to the other Party. If the notified Party does not cure the Breach of Contract, at its sole expense, within 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §14 of this Exhibit A, for that Party. Notwithstanding any provision of this Participating Addendum to the contrary, the State, in its discretion in order to protect the public interest of the State, need not provide notice or a cure period and may immediately terminate this Participating Addendum in whole or in part or institute any other remedy in this Participating Addendum; or if Contractor is debarred or suspended under §24-109-105, C.R.S., the State, in its discretion, need not provide notice or cure period and may terminate DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 22 of 31 Version 062020 this Contract in whole or in part or institute any other remedy in this Contract as of the date that the debarment or suspension takes effect. 14. REMEDIES A. State’s Remedies With the exception of §7 and §10 of this Exhibit A, if Contractor is in material breach under any provision of this Participating Addendum and fails to cure such breach, the State, following the notice and cure period set forth in §13 of this Exhibit A, shall have all of the remedies listed in this section in addition to all other remedies set forth in this Participating Addendum or at law. The State may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively. i. Termination for Breach In the event of Contractor’s uncured breach, the State may terminate this entire Participating Addendum or any part of this Participating Addendum. Contractor shall continue performance of this Participating Addendum to the extent not terminated, if any. If after termination by the State, the State agrees that Contractor was not in breach or that Contractor's action or inaction was excusable, such termination shall be treated as a termination in the public interest, and the rights and obligations of the Parties shall be as if this Participating Addendum had been terminated in the public interest under §3. E. ii. Remedies Not Involving Termination The State, in its discretion, may exercise one or more of the following additional remedies: a. Suspend Performance Suspend Contractor’s performance with respect to all or any portion of the Work pending corrective action as specified by the State without entitling Contractor to an adjustment in price or cost or an adjustment in the performance schedule. Contractor shall promptly cease performing Work and incurring costs in accordance with the State’s directive, and neither the State nor any Purchasing Entity shall be liable for costs incurred by Contractor after the suspension of performance. b. Removal Demand immediate removal of any of Contractor’s employees, agents, or Subcontractors from the Work whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or whose continued relation to this Participating Addendum is deemed by the State to be contrary to the public interest or the State’s best interest. c. Intellectual Property If any Work infringes, or if the State in its sole discretion determines that any Work is likely to infringe, a patent, copyright, trademark, trade secret or other intellectual property right, Contractor shall, at the option of and as approved by the State or Purchasing Entity (i) secure that right to use such Work for the State, Purchasing Entity and Contractor; (ii) replace the Work with noninfringing Work or modify the Work so that it becomes noninfringing; or, (iii) remove any DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 23 of 31 Version 062020 infringing Work and refund the amount paid for such Work to the Purchasing Entity. B. Contractor’s Remedies If the State is in breach of any provision of this Participating Addendum and does not cure such breach, Contractor, following the notice and cure period in §13 of this Exhibit A, and the dispute resolution process in §15 of this Exhibit A, shall in addition to all remedies set forth in the Master Agreement or this Participating Addendum, have all remedies available at law and equity. If a Participant is in breach of a provision of a Participant Agreement, Contractor shall have all remedies available to it under that Participant Agreement and this Participating Addendum and available at law and equity. C. Participant’s Remedies i. If Contractor is in breach under any provision of the Master Agreement, Participating Addendum, or Participant Agreement, the Participant shall have all of the remedies listed in §14. A. ii above, all remedies listed here in §14.C and all other remedies available by law or equity. The Participant may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively. ii. If a Participant gives Contractor notice of breach or terminates a Participant Agreement because of Contractor’s breach of that Participant Agreement, Contractor shall provide notice to the State of that breach or termination within 5 Business Days following Contractor’s receipt of that notice of breach or termination. iii. Payments and Damages a. Notwithstanding anything to the contrary, Participants shall pay Contractor for all obligations incurred by Participant up to and including the date of the termination or last charges made on cards issued to Participants hereunder, whichever is later. b. Notwithstanding any other remedial action by the State, Contractor shall remain liable to the State or appropriate Participant for any damages sustained by the State or Participant in connection with any breach by Contractor. 15. DISPUTE RESOLUTION A. Disputes, Termination and Resolution i. If a dispute related to a Participant Agreement arises between Contractor and a Participant, Contractor shall meet with the Participant to attempt to resolve the issue. If Contractor is unable to resolve the issue with the Participant, then Contractor may request assistance from the State by submitting a request in writing, which includes the pertinent information about the dispute and the assistance sought by Contractor, in accordance with §5 of the Participating Addendum. Nothing in this section shall be interpreted as limiting the rights or obligations of Contractor, the State or any Participant under this Contract. ii. A Participant may terminate a Participant Agreement if it determines that Contractor was in breach of that Participant Agreement and has failed to cure the breach. Termination of a Participant Agreement shall not terminate any other Participant Agreement or this Participating Addendum. iii. If a Participant gives Contractor notice of breach or terminates a Participant Agreement because of Contractor’s breach of that Participant Agreement, Contractor shall provide DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 24 of 31 Version 062020 notice to the State of that breach or termination within 5 Business Days following Contractor’s receipt of that notice of breach or termination. B. Initial Resolution Except as herein specifically provided otherwise, disputes concerning the performance of this Participating Addendum which cannot be resolved by the designated Participating Addendum primary contacts, as identified in §5 of the Participating Addendum, or through a dispute on a Participant Agreement, shall be referred in writing to a senior departmental management staff member designated by the State and a senior manager designated by Contractor for resolution. C. Resolution of Controversies arising under this Participating Addendum If the initial resolution described in §15.B. fails to resolve the dispute within ten (10) Business Days, Contractor shall submit any alleged breach of this Participating Addendum by the State to the Procurement Official of the State Purchasing and Contracts Office as described in in §24- 102-202(3), C.R.S. for resolution in accordance with the provisions of §§24-109-101.1 through 24-109-505, C.R.S., (the “Resolution Statutes”), except that if Contractor wishes to challenge any decision rendered by the Procurement Official, Contractor’s challenge shall be an appeal to the Executive Director of the Department of Personnel and Administration, or their delegate, under the Resolution Statutes before Contractor pursues any further action as permitted by such statutes. Except as otherwise stated in this Section, all requirements of the Resolution Statutes shall apply including, without limitation, time limitations. It is expressly acknowledged and agreed that this Section 15 shall not apply to disputes regarding card invoices or charges, which for the avoidance of doubt shall be governed by Exhibit A Payments §6 C ii and Exhibit G Section 16 of the Master Agreement. 16. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION A. Work Product Solely to the extent relevant and applicable, Contractor assigns to the Purchasing Entity and its successors and assigns, the entire right, title, and interest in and to all causes of action, either in law or in equity, for past, present, or future infringement of intellectual property rights related to the Work Product and all works based on, derived from, or incorporating the Work Product under an Order. Whether or not Contractor is under contract with the State at the time, Contractor shall execute applications, assignments, and other documents, and shall render all other reasonable assistance requested by the State, to enable the Purchasing Entity to secure patents, copyrights, licenses and other intellectual property rights related to the Work Product. To the extent that Work Product would fall under the definition of “works made for hire” under 17 U.S.C.S. §101, the parties intend the Work Product to be a work made for hire. B. Exclusive Property of the State Except to the extent specifically provided elsewhere in this Participating Addendum, any pre- existing State Records, State software, research, reports, studies, photographs, negatives or other documents, drawings, models, materials, data and information shall be the exclusive property of the State (collectively, “State Materials”). Contractor shall not use, willingly allow, cause or permit State Materials to be used for any purpose other than the performance of Contractor’s obligations in this Participating Addendum without the prior written consent DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 25 of 31 Version 062020 of the State. Upon termination of this Participating Addendum for any reason, Contractor shall provide all State Materials to the State in a form and manner as directed by the State. C. Exclusive Property of Contractor Contractor retains the exclusive rights, title, and ownership to any and all pre-existing materials owned or licensed to Contractor including, but not limited to, all pre-existing software, licensed products, associated source code, machine code, text images, audio and/or video, and third-party materials, delivered by Contractor under the Contract, whether incorporated in a Deliverable or necessary to use a Deliverable (collectively, “Contractor Property”). Contractor Property shall be licensed to the State as set forth in this Contract or a State approved license agreement: (i) entered into as exhibits to this Contract; (ii) obtained by the State from the applicable third-party vendor; or (iii) in the case of open source software, the license terms set forth in the applicable open source license agreement. 17. OBLIGATIONS AND RIGHTS IN THE EVENT OF TERMINATION OF ORDER OR CONTRACT To the extent specified in any termination notice, Contractor shall not incur further obligations or render further performance past the effective date of such notice, and shall terminate outstanding orders and subcontracts with third parties. However, Contractor shall complete and deliver to Purchasing Entities all Work not cancelled by the termination notice, and may incur obligations as necessary to do so within this Participating Addendum’s terms. Upon termination, Contractor shall take timely, reasonable and necessary action to protect and preserve property in the possession of Contractor in which the appropriate Participant has an interest. At the State or Participant’s request, Contractor shall return materials owned by the Participant that Contractor possesses at the time of any termination. Contractor shall deliver all completed Work Product to the appropriate Participant at the State or Participant’s request. 18. STATEWIDE CONTRACT MANAGEMENT SYSTEM If the maximum amount payable to Contractor under this Contract is $100,000 or greater, either on the Effective Date or at any time thereafter, this section shall apply. Contractor agrees to be governed by and comply with the provisions of §§24-102-206, 24-106-103, 24-106-106, and 24- 106-107, C.R.S. regarding the monitoring of vendor performance and the reporting of contract information in the State’s contract management system (“Contract Management System” or “CMS”). Contractor’s performance shall be subject to evaluation and review in accordance with the terms and conditions of this Contract, Colorado statutes governing CMS, and State Fiscal Rules and State Controller policies. 19. GENERAL PROVISIONS A. Assignment The Contractor may assign its rights under the Participating Addendum, except the assignment will not be effective until the following occurs: 1) the Assignor, Assignee and the State enter into the State Consent to Assign Agreement, 2) the Assignee provides the State a W-9 and 3) the assignment shall not be effective against a Participating Entity until the Assignee provides a W-9 to the Participating Entity. B. Subcontracts Contractor has engaged two third party service providers, FIS and Sykes, to provide certain limited services related to and in support of the provision of the Services being provided DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 26 of 31 Version 062020 hereunder (respectively, physical charge card production (i.e.,”cutting cards”) and limited overflow customer service functions). Contractor hereby represents and warrants that it will be fully responsible and liable to the State for any claims or damages that are indemnifiable hereunder, to the extent caused by either of such entities. The parties further agree and acknowledge that, notwithstanding anything set forth herein to the contrary, references to this agreement to “Subcontractor” (except for those set forth in Section 19. B) shall be deemed not to apply or to have any effect between the Parties. Contractor shall not enter into any new subcontract in connection with its obligations under this Contract without providing notice to the State. The State may reject any such subcontract, and Contractor shall terminate any subcontract that is rejected by the State and shall not allow any Subcontractor to perform any work after the Subcontractor’s subcontract has been rejected by the State. Contractor shall submit to the State a copy of each subcontract upon request by the State. All subcontracts entered into by Contractor in connection with this Participating Addendum shall comply with all applicable federal and state laws and regulations C. . Binding Effect Except as otherwise provided in §19.A., all provisions of this Participating Addendum, including the benefits and burdens, shall extend to and be binding upon the Parties’ respective successors and assigns. D. Authority Each Party represents and warrants to the other that the execution and delivery of this Participating Addendum and the performance of such Party’s obligations have been duly authorized. E. Captions and References The captions and headings in this Participating Addendum are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. All references in this Participating Addendum to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted. F. Counterparts This Participating Addendum may be executed in multiple, identical, original counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. G. Entire Understanding This Participating Addendum represents the complete integration of all understandings between the Parties related to the Work, and all prior representations and understandings related to the Work, oral or written, are merged into this Participating Addendum. Prior or contemporaneous additions, deletions, or other changes to this Participating Addendum shall not have any force or effect whatsoever, unless embodied herein. H. Digital Signatures If any signatory signs this agreement using a digital signature in accordance with the Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of digital signatures issued under the State Fiscal Rules, then any agreement or consent to use DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 27 of 31 Version 062020 digital signatures within the electronic system through which that signatory signed shall be incorporated into this Contract by reference. I. Modification Except as otherwise provided in this Participating Addendum, any modification to this Participating Addendum shall only be effective if agreed to in a formal amendment to this Participating Addendum, properly executed and approved in accordance with applicable Colorado State law and State Fiscal Rules. Modifications permitted under this Participating Addendum, other than contract amendments, shall conform to the policies issued by the Colorado State Controller. J. Statutes, Regulations, Fiscal Rules, and Other Authority. Any reference in this Participating Addendum to a statute, regulation, State Fiscal Rule, fiscal policy or other authority shall be interpreted to refer to such authority then current, as may have been changed or amended since the Effective Date of this Participating Addendum. K. Severability The invalidity or unenforceability of any provision of this Participating Addendum shall not affect the validity or enforceability of any other provision of this Participating Addendum, which shall remain in full force and effect, provided that the Parties can continue to perform their obligations under this Participating Addendum in accordance with the intent of this Participating Addendum. L. Survival of Certain Contract Terms Any provision of this Participating Addendum that imposes an obligation on the Contractor or a Participant after termination or expiration of this Participating Addendum shall survive the termination or expiration of this Participating Addendum and shall be enforceable by the other Party. M. Taxes The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84-730123K) and from State and local government sales and use taxes under §§39-26-704(1), et seq., C.R.S. (Colorado Sales Tax Exemption Identification Number 98-02565). The State shall not be liable for the payment of any excise, sales, or use taxes, regardless of whether any political subdivision of the State imposes such taxes on Contractor. Contractor shall be solely responsible for any exemptions from the collection of excise, sales or use taxes that Contractor may wish to have in place in connection with this Participating Addendum. Contractor shall honor any tax exemption that any Purchasing Entity has, and shall not charge any Purchasing Entity any excise, sales, or use taxes from which that Purchasing Entity is exempt. N. Third Party Beneficiaries Except for a Purchasing Entity and/or the Parties’ respective successors and assigns described in §19.A, this Participating Addendum does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties. Enforcement of this Participating Addendum and all rights and obligations hereunder are reserved solely to the Parties. Any services or benefits which third parties receive as a result of this Participating Addendum are incidental to this Participating Addendum, and do not create any rights for such third parties. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 28 of 31 Version 062020 O. Waiver A Party’s failure or delay in exercising any right, power, or privilege under this Participating Addendum, whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise of such right, power, or privilege. P. CORA Disclosure To the extent not prohibited by federal law, this Participating Addendum and the performance measures and standards required under §24-106-107, C.R.S., if any, are subject to public release through the CORA. Q. Standard and Manner of Performance Contractor shall perform its obligations under this Participating Addendum in accordance with the highest standards of care, skill and diligence in Contractor’s industry, trade, or profession. R. Licenses, Permits, and Other Authorizations. Contractor shall secure, prior to the Effective Date, and maintain at all times during the term of this Participating Addendum, at its sole expense, all licenses, certifications, permits, and other authorizations required to perform its obligations under this Participating Addendum, and shall ensure that all employees, agents and Subcontractors secure and maintain at all times during the term of their employment, agency or subcontract, all license, certifications, permits and other authorizations required to perform their obligations in relation to this Participating Addendum. 20. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) These Special Provisions apply to all contracts except where noted in italics. A. STATUTORY APPROVAL. §24-30-202(1), C.R.S. This Contract shall not be valid until it has been approved by the Colorado State Controller or designee. If this Contract is for a Major Information Technology Project, as defined in §24-37.5-102(2.6), then this Contract shall not be valid until it has been approved by the State’s Chief Information Officer or designee. B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S. Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. C. GOVERNMENTAL IMMUNITY. Liability for claims for injuries to persons or property arising from the negligence of the State, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq. C.R.S. No term or condition of this Contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes. D. INDEPENDENT CONTRACTOR DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 29 of 31 Version 062020 Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees. Contractor shall pay when due all applicable employment taxes, income taxes and local head taxes incurred pursuant to this Contract. Contractor shall (i) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible for its acts and those of its employees and agents. E. COMPLIANCE WITH LAW. Contractor shall comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F. CHOICE OF LAW, JURISDICTION, AND VENUE. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Contract. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Contract shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. G. PROHIBITED TERMS. Any term included in this Contract that requires the State to indemnify or hold Contractor harmless; requires the State to agree to binding arbitration; limits Contractor’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Contract shall be construed as a waiver of any provision of §24-106-109 C.R.S. Any term included in this Contract that limits Contractor’s liability that is not void under this section shall apply only in excess of any insurance to be maintained under this Contract, and no insurance policy shall be interpreted as being subject to any limitations of liability of this Contract. H. SOFTWARE PIRACY PROHIBITION. State or other public funds payable under this Contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this Contract and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Contractor is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Contract, including, without limitation, immediate termination of this Contract and any remedy consistent with federal copyright laws or applicable licensing restrictions. I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and 24-50-507, C.R.S. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 30 of 31 Version 062020 The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Contract. Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Contractor’s services and Contractor shall not employ any person having such known interests. J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30- 202.4, C.R.S. [Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (i) unpaid child support debts or child support arrearages; (ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and (v) other unpaid debts owing to the State as a result of final agency determination or judicial action. The State may also recover, at the State’s discretion, payments made to Contractor in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Contractor by deduction from subsequent payments under this Contract, deduction from any payment due under any other contracts, grants or agreements between the State and Contractor, or by any other appropriate method for collecting debts owed to the State. K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S. [Not applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements, or information technology services or products and services] Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Contract, through participation in the E-Verify Program or the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract or enter into a contract with a Subcontractor that fails to certify to Contractor that the Subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract. Contractor (i) shall not use E-Verify Program or the program procedures of the Colorado Department of Labor and Employment (“Department Program”) to undertake pre-employment screening of job applicants while this Contract is being performed, (ii) shall notify the Subcontractor and the contracting State agency or institution of higher education within 3 days if Contractor has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under this Contract, (iii) shall terminate the subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within 3 days of receiving the notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5), C.R.S., by the Colorado Department of Labor and Employment. If Contractor participates in the Department program, Contractor shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that Contractor has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If Contractor fails to comply with any requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State agency, DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Contract Number:163711 Page 31 of 31 Version 062020 institution of higher education or political subdivision may terminate this Contract for breach and, if so terminated, Contractor shall be liable for damages. L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S. Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that Contractor (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of §§24-76.5-101, et seq., C.R.S., and (iii) has produced one form of identification required by §24-76.5-103, C.R.S. prior to the Effective Date of this Contract. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Exhibit B Page 1 EXHIBIT B STATEMENT OF WORK 1. WEX will not be providing Work Product in this contract. 2. GOODS AND/OR SERVICES 3. Contractor will follow Exhibit A as last amended in Master Agreement Exhibit B. For a description of what the Participating Addendum will provide, see Exhibit B, C, D, and E of Participating Addendum or as last amended Section 5 of Master Agreement Exhibit A(Fleet Card Products), Exhibit E (Establishing a Card Account Agreement), Exhibit E (Wex Forms, Fuel Card Services Agreement) and Exhibit G (Fleet Card Service Requirements) of the Master Agreement #00819, “Description of Products, Price, and Services” i. Fleet Card Products information from Exhibit A Master Agreement): A. Fleet Card – Physical specialized Commercial Card used to capture fleet- related expenses (e.g., fuel, vehicle maintenance, aviation, marine, electric, repair and service). i. Level III data capture on 99.8% of transactions, including remote sites that may only transmit Level I or II using MasterCard, for greater insight and fraud protection ii. Nine levels of hierarchy for more flexible reporting and billing options iii. Advanced card-to-PIN functions; ability to tie one card to one PIN, etc. iv. More flexible prompting options at point of sale v. Acceptance at more than 95% of all retail fuel sites in the U.S., plus expanded acceptance through virtual MasterCard technologies vi. Comprehensive Federal and State tax exemption, reporting and recovery program vii. Robust online reporting tools through WEXOnline®, including ability to schedule and share custom reports viii. Ability to customize data fields and add GL codes for accounts, drivers, vehicles or cards for greater financial control and visibility ix. Control user access to the online system, with advanced administrative functions B. Cardless Account (WEXPay) – Virtual card (no plastic) account used for maintenance services. i. Enables out-of-network purchases by utilizing a virtual card interface. Typically used for independent or geographically remote fuel and service sites, WEXPay provides the control of a fleet card. ii. Using WEXPay™ in conjunction with a Custom Control fleet card lets Purchasing Entity set the rules for drivers. Custom Control cards allow Purchasing Entity to set merchant, transaction, and even product type limits. The limits apply to both WEX Fleet Card and WEXPay™ MasterCard Transactions. Expanded coverage combined with integrated reporting and invoicing will further streamline Purchasing Entity fleet purchasing and operations. iii. WEXPay worked as a MasterCard issuing bank, WEX uses Single-Use Account Number technology to authorize a one-time payment to a merchant. The account DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Exhibit B Page 2 number provided to the merchant by phone is fast and secure-good for only that one purchase. When the merchant calls for authorization, WEX applies the Purchasing Entity’s purchase controls and collects the same level of purchase detail, including Prompt ID and odometer. WEX integrates the purchase details into Purchasing Entity WEX Fleet Card invoice and reports. Once card, one invoice, one report with the same controls and service. C. WEX Service Network i. WEX Service Network offers acceptance for service and maintenance needs. WEX Custom Control cards can be used to purchase tires, transmissions, brakes, mufflers, oil changes, glass replacement, car washes, and other routine vehicle maintenance products and services at national brand and local service stations, including Goodyear, Sears, Jiffy Lube, Valvoline, and Bridgestone/Firestone. D. WEX EV Fleet Charge i. Allows a Purchasing Entity to use their WEX Fleet card to pay for charges at Electric Vehicle charging sites. Purchasing Entities will also get reporting on EV charges that integrates with their traditional liquid fueling activity for a total fleet view of their fuel usage. E. AVCARD Program i. Purchasing Entities can manage their aircraft fueling, maintenance, and activity. AVCARD cards function as both a credit card and a contract fuel card. Purchasing Entities can sign up and use the AVCARD program at no additional charge. F. Marine Fuel i. Cardholders can purchase gasoline and diesel fuel at marine fueling locations the WEX Fleet Card and WEXPay™ would be used at the accepting locations just like any other fueling location to purchase fuel and related services. Additional terms and conditions apply. G. Alternative Fuel & Additional Acceptance i. Certain WEX-accepting merchants supply ethanol, natural gas (CNG, LNG), propane (LPG), hydrogen, biodiesel, methanol, and other alternative fuels. WEX uniquely reports ethanol, methanol, CNG, LNG, and biodiesel. H. Additional Merchants i. Purchasing Entities may request additional merchants to be a part of the WEX accepting network who do not already have direct acceptance or cannot utilize the WEXPay™ tool, WEX will request the following information from the Purchasing Entity: A. Merchant name B. Merchant address C. Merchant contact person D. Phone and fax numbers E. Expected utilization/volume from a Purchasing Entities fleet DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Exhibit B Page 3 F. Name and phone number of Cardholder requesting WEX card acceptance I. WEX Optional Products/Services i. WEX Fleet ClearView™ is a cloud-based analytic solution that automatically organizes, interprets, and intuitively displays fleet-related information. WEX ClearView products present complex fleet data in straight-forward and compelling graphics. Please go to Master Agreement Exhibit A for additional details and costs of the Optional Products/Services. J. Tax Exemption, Recovery, and Reporting Program i. Federal Gasoline and Diesel Excise Tax-Exempt Program is currently offered by WEX for eligible tax-exempt Purchasing Entities. The program has reporting and is based on merchant participation. The program supports the following levels of tax, including: A. State Primary (Excise Tax) B. State Secondary (Sales Tax) C. State Special D. County Primary (Excise Tax) E. County Secondary (Sales Tax) F. County Special G. City Primary (Excise Tax) H. City Secondary (Sales Tax) I. City Special ii. Additional details on the program including information on Non-Participating Merchants can be found in the Master Agreement Exhibit A. K. Private Site and Bulk Fuel Solutions i. For Purchasing Entities with private site and bulk fueling needs WEX provides secure, live authorizations and integrated reporting for onsite bulk fueling transactions. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Exhibit C Page 1 EXHIBIT C FUEL CARD REBATE/INCENTIVE SHARE 1. Contractor will follow Exhibit B as last amended in Master Agreement Exhibit B. 2. Rebate Amounts will be based on total spend less write-offs, returns, and fraudulent charges. 3. A single payment combining Incentive Share Components 1 and 2 will be paid directly to the Purchasing Entity on a quarterly basis. Incentive Share Payments can be made via account credit, mailed check, ACH or EFT payment. Incentive Share Payments must be received no later than the 60th day following the end of each calendar quarter. 4. Incentive Share Components Incentive Share #1 – Standard Volume Incentive 5. Each Purchasing Entity will receive a basis point (percentage) of their quarterly standard sales volume. The formula for calculating the Standard Volume Incentive is: 6. Quarterly Total Volume x basis points = Quarterly Standard Volume Incentive 7. Basis Points: 170 basis points (1.70%) 8. Conditions: The Rebate set forth herein is expressly conditioned on the following: (1) monthly billing; (2) payment in full within 45 calendar days of the billing date appearing on the Purchasing Entity’s invoice; (3) credit approval 9. Quarterly Total Volume spend by all Cardholders for all card liability products in a quarter. Quarterly Total Volume includes the total amount of all purchases made using cards at retail locations that appear on invoices provided to the Purchasing Entity in three calendar months. Quarterly Total Volume shall not include: (i) those amounts representing credits, disputed items, fees, late fees or charges posted to their accounts (such as returned check fees, collection costs, administrative fees and reporting fees), (ii) fuel purchased at Tier 1 Truck Stop locations* (currently Flying J, Loves, TA, Petro, and Pilot), or (iii) any amounts posted to an account with respect to which card has been reported lost or stolen. *Purchasing Entities will be charged the posted cash price at Tier 1 truck stops. 10. Incentive Share #2 – Prompt Payment Incentive 11. Each Purchasing Entity will receive a basis point (percentage) of their quarterly total volume based on the Purchasing Entity’s average speed of pay. The formula for calculating the Prompt Payment Incentive is: 12. Quarterly Total Volume x Basis Points for Entity average file turn days = Quarterly Prompt Payment Incentive. 13. Conditions: The Prompt Payment Incentive set forth herein is expressly conditioned on the following: (1) electronic reporting (i.e. no paper reports); and (2) Contractor receipt of payment in full in accordance with one of the Average File Turn Days in the Prompt Payment Table Avg File Turn Days Basis Point Avg File Turn Days Basis Point Avg File Turn Days Basis Point 1 20 21 7.375 41 1.25 2 19 22 7 42 1 3 18 23 6.625 43 0.75 DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Exhibit C Page 1 4 17 24 6.25 44 0.5 5 16 25 5.875 45 0.25 6 15 26 5.5 46 0 7 14 27 5.125 47 0 8 13.5 28 4.75 9 13 29 4.375 10 12.5 30 4 11 12 31 3.75 12 11.5 32 3.5 13 11 33 3.25 14 10.5 34 3 15 10 35 2.75 16 9.5 36 2.5 17 9 37 2.25 18 8.5 38 2 19 8.125 39 1.75 20 7.75 40 1.5 14. Incentive Share #3 –National Annual Volume Incentive 15. The State will receive an incentive based on the total National Annual Volume (total annual sales for all Participating States/Participating Entities). The formula for calculating the National Annual Sales Volume Incentive is: 16. National Annual Volume (for all Fleet products) x basis points = National Annual Sales Volume Incentive 17. Conditions: The Rebate set forth herein is expressly conditioned on the following: (1) monthly billing; (2) payment in full within 45 calendar days of the billing date appearing on the Purchasing Entity’s invoice; (3) credit approval. 18. Total annual volume spend by all Participating States/Purchasing Entities for all card products in a calendar year. “National Annual Volume” includes the total amount of all purchasing made by Cardholders at retail locations that appear on invoices to the Purchasing Entities in a calendar year. National Annual Volume not include: (i) those amounts representing credits, disputed items, fees, late fees or charges posted to their accounts (such as returned check fees, collection costs, administrative fees and reporting fees), (ii) fuel purchased at Tier 1 Truck Stop locations* (currently Flying J, Loves, TA, Petro, and Pilot), or (iii) any amounts posted to an account with respect to a which a card has been reported lost or stolen. *Purchasing Entities will be charged the posted cash price at Tier 1 truck stops. Basis Points: Total Annual Spend Basis Points $50,000,000 - $100,000,000 10 $100,000,001 - $200,000,000 15 $200,000,001 - $300,000,000 20 $300,000,001 - $400,000,000 25 DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Exhibit C Page 1 $400,000,001 + 30 Fees Below is a list of fees allowed under this Participating Addendum: Fee Type Fee Amount Foreign Transaction Fee 1.5% of the total transaction value Overnight Delivery Fee $15.00 per occurrence DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Exhibit D Page 1 of 2 EXHIBIT D, INFORMATION TECHNOLOGY PROVISIONS This Exhibit regarding Information Technology Provisions (the “Exhibit”) is an essential part of the agreement between the State and Contractor as described in the Contract to which this Exhibit is attached. Unless the context clearly requires a distinction between the Contract and this Exhibit, all references to “Contract” shall include this Exhibit. 1. PROTECTION OF SYSTEM DATA Master Agreement No. 00819, Exhibit G Section 7 2. DATA HANDLING A. Contractor may not maintain or forward these State Records to or from any other facility or location, except for the authorized and approved purposes of backup and disaster recovery purposes, without the prior written consent of the State. Contractor may not maintain State Records in any data center or other storage location outside the United States for any purpose without the prior express written consent of OIS. A. Contractor shall not allow remote access to State Records from outside the United States, including access by Contractor’s employees or agents, without the prior express written consent of OIS. Contractor shall communicate any request regarding non-U.S. access to State Records to the Security and Compliance Representative for the State. The State shall have sole discretion to grant or deny any such request. B. Within the document retention period set forth in this Participating Addendum, upon request by the State made any time prior to 60 days following the termination of this Contract for any reason, whether or not the Contract is expiring or terminating, Contractor shall make reasonable efforts to make available to the State a complete download file of all State data as follows: i. This download file shall be made available to the State within 10 Business Days of the State’s request, shall be encrypted and appropriately authenticated, and shall contain, without limitation, all State Records, Work Product, and the schema pursuant to which Contractor provides the data file, or delimited text files with documents, detailed schema definitions along with attachments in its native format. i. Upon the termination of Contractor’s provision of data processing services, Contractor shall, as directed by the State, return all State Records provided by the State to Contractor, and the copies thereof, to the State or destroy all such State Records and certify to the State that it has done so. If any legal obligation imposed upon Contractor or data backup system prevents it from returning or destroying all or part of the State Records provided by the State to Contractor, Contractor shall guarantee the confidentiality of all State Records provided by the State to Contractor and will not actively process such data anymore. Contractor shall not interrupt or obstruct the State’s ability to access and retrieve State Records stored by Contractor, to the extent possible. 3. DELIVERY AND ACCEPTANCE DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Exhibit D Page 2 of 2 Master Agreement No. 00819 Section 5.9 4. WARRANTY Master Agreement No. 00819 Section 16.4(a). 5. COMPLIANCE A. In addition to the compliance obligations imposed by the main body of the Contract, Contractor shall comply with: i. All applicable Colorado Office of Information Security (OIS) policies and procedures which OIS has issued pursuant to §§24-37.5-401 through 406, C.R.S. and 8 CCR §1501-5 and posted at http://oit.state.co.us/ois i. As applicable to this Agreement, Contractor shall comply with and adhere to Section 508 of the U.S. Rehabilitation Act of 1973, as amended, and §§24-85- 101, et seq., C.R.S. Contractor shall comply with all State of Colorado technology standards related to technology accessibility and with Level AA of the most current version of the Web Content Accessibility Guidelines (WCAG), incorporated in the State of Colorado technology standards and available at https://www.w3.org/TR/WCAG21/. B. Contractor shall allow the State reasonable access and shall provide the State with information reasonably required to assess Contractor’s compliance. Such access and information shall include copies of Contractor’s annual SOC1 Type II and PCI reports. C. Master Agreement No. 00819, Exhibit G Section 7. 6. TRANSITION OF SERVICES Master Agreement No. 00819 Section 4.14. 7. LICENSE OR USE AUDIT RIGHTS D. Master Agreement No. 00819 Section 11. DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Exhibit E Page 1 of 6 EXHIBIT E, ESTABLISHING A CARD ACCOUNT AGREEMENT Introduction This exhibit explains the process and documentation for establisting an account for an individual Purchasing Entity. New Account & Card Set-Up State Agency Accounts: A. In the initial implementation phase, a universal credit line will be established for a State Agency based on the State Agency’s needs and spend requirements. Contractor has the ability to place protection against credit lines to ensure a State Agency does not experience any service interruptions due to sudden increased spending that can be caused by seasonal, emergency or other unexpected occurrences. This universal credit line then applies to all applicable accounts under the State Agency’s hierarchy, allowing them to set up accounts without needing to seek a new credit line for each new card set-up. B. For new accounts under a State Agency hierarchy, an electronic template is completed and tax exemption information is collected, either through a blanket tax exemption for the State Agency, or individually by agency depending on how the State Agency is set up with tax identification numbers. C. The information required for a new account set-up includes account name, DBA account name, account level with the existing State Agency’s hierarchy, shipping address, and if there are any other further requirements specific to a State Agency. Once in the information is captured and processed by Contractor, an account number is generated and provided to the State Agency to complete the proper tax exemption paperwork for enrollment in the Contractor tax program. Fleet Card Enrollment Process: Existing Paticipating Entity Accounts: Program administrators can add cards and drivers via the Fleet Manager module of WEXOnline®, WEX's web-based account management and reporting tool, or through WEX customer service or the Participating Entity's Premium Fleet Services Account Manager. The Premium Fleet Services Account Manager is a one-to-one point of contact assigned to the Participating Entity for day-to-day operational support and account needs. The Fleet Manager module allows the fleet manager to add, edit, suspend, reactivate, and terminate cards and drivers, to add and manage card controls, and to view and download invoice details. Purchasing Entities can also: • Assign card to driver, vehicle or location • Transfer cards from one account to another • Group cards into authorization profiles to enforce their purchasing policies • Create organizational units or departments to better organize cards, vehicles and drivers for reporting and management purposes (initially added during the implementation phase) • Edit account information Card orders: Contractor will process requests for replacement cards for lost, damaged, or stolen cards within DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B CMS # 163711 Exhibit E Page 2 of 6 one business day. If notification is received by 3:30 p.m. Eastern Time, Purchasing Entities can have cards sent that day. Purchasing Entities can use their own shipping account number or be changed a fee as listed in Exhibit C. If a Cardholder’s card is lost or stolen, it should be reported immediately to Contractor’s Customer service. New Account & Card Set-Up Political Subdivision Accounts: Political Subdivisions will need to complete a Credit Application that references Master Agreement Number 00819 and Participating Addendum Number 163711. WEX Forms and Specific Terms & Conditions – see attached Exhibit E DocuSign Envelope ID: 86EC8C28-51C6-479F-869B-981240D2DB8B ADDENDUM TO THE FUEL CARD SERVICES AGREEMENT BETWEEN WEX BANK AND THE STATE OF COLORADO (the “STATE”) ADDENDUM (CREDIT APPLICATION) FOR COLORADO UNDER NASPO MASTER AGREEMENT NO. 00819 – FLEET CARD SERVICES REV JUL 29 2022 Complete and sign addendum. Email to: governmentmailbox@wexinc.com OR Fax to 1-866-527-8873. FOR OFFICE USE ONLY Oppty Number Sales Code Plastic Type Coupon Code Account Number ATTACHMENT 2 CREDIT INFORMATION Purchasing Entity has requested a credit account pursuant to the State of Colorado Contract #163711 under NASPO Master Agreement No. 00819 (“Agreement”) entered into between WEX Bank (“WEX”) and the State of Colorado, State Purchasing and Contracts Office (the “State”) and thereby creating the program (“Program”) by which to enroll participants (“Purchasing Entity”). By enrolling in this Program, the Purchasing Entity named below agrees that in the event their account is not paid as agreed, WEX may report the undersigned’s liability for and the status of the account to credit bureaus and others who may lawfully receive such information. Purchasing Entity Name City of Wheat Ridge, Colorado Phone # (303) 705-2601 Fax# Physical Address (Do not include PO Box) Mailing Address (if different from physical address) Colorado Member ID Number (if applicable) Purchasing Entity’s Taxpayer ID # (TIN, FEIN or SSN) Non-Profit Only: SIC/Industry Code (e.g. 8399 Social Services; 6732 Education, Religious, Charitable Trusts; Other) If Purchasing Entity is a Non-Profit provide Gross Annual Revenue In Business Since (yyyy) Year of Incorporation (yyyy) Number of Vehicles Avg Monthly Fuel Expenditures Avg Monthly Service Expenditures 1969 1969 150 $6,500 $0 (n/a) ACCOUNT SETUP INFORMATION Write Purchasing Entity name as it should appear on cards. Limit of 20 characters & spaces. Unless specified, no Purchasing Entity name will appear on cards. City of Wheat Ridge, CO Billing Contact Name Bill Tocco Billing Address Designate the Purchasing Entity Fleet Contact authorized to receive all charge cards, reports, and other such information WEX provides from time to time and to take actions with respect to your account and account access. This is also the person designated by the Purchasing Entity to provide all fleet vehicles, driver and other information WEX may request Purchasing Entity Authorized Fleet Contact Name Maria D’Andrea Title Director Phone # Fax # Email address (required to take advantage of product type card controls) mdandrea@ci.wheatridge.co.us Card Controls: To help WEX estimate the Purchasing Entity’s credit needs, indicate the types of cards they anticipate using. If the Purchasing Entity provides a valid email address above, they can select from these product type options: ☐ All Products ☐ Fuel & Service ☐ Fuel & Fluids with Roadside Assistance X Fuel with Roadside Assistance ☐ Mix of card types X Check here if business is exempt from motor fuels tax TERMS DEFINITIONS: “Agreement” means: the State of Colorado Contract #163711 under NASPO Master Agreement No.00819 effective April 6, 2021 for Fleet Card Services (the “Agreement”) between the State of Colorado and WEX Bank. “Purchasing Entity” shall mean the Purchasing Entity as defined in the Agreement permitted to purchase services under the Agreement, as specified in the Credit Information above. All other capitalized terms used in this Addendum without definition have the meanings set forth in the Agreement. AGREEMENTS OF WEX BANK AND PURCHASING ENTITY: 1. This Addendum is to allow the Purchasing Entity to participate under the Agreement between WEX BANK and the State. It does not modify, amend or change the Agreement in any way. The parties agree to comply with the terms and conditions of State of Colorado Contract #163711 under NASPO Master Agreement No.00819, which is referenced and made a part of this transaction. 2. Purchasing Entity represents that it is authorized or allowed by the laws of its home state to enter into this Addendum and to participate under the Agreement. 3. Purchasing Entity hereby requests the services of WEX BANK described in the Agreement and agrees to perform all duties of a Purchasing Entity under the Agreement, including, without limitation, payment of all charges on its account(s) within the time periods provided under the Agreement, payment of any fees provided in the Agreement, and cooperation with respect to providing all necessary information for the administration of the Agreement. Purchasing Entity agrees to be bound by the terms and conditions of the Agreement, including, without limitation, rules for authorized and unauthorized use of cards, disputes of charges, reporting lost and stolen cards, and all other rules and provisions relating to use of Purchasing Entity’s account. 4. Purchasing Entity acknowledges that its failure to make timely payment in accordance with the terms of the Agreement and/or the Addendum may result in suspension or cancellation of the account(s). The undersigned represents and warrants that he/she is duly authorized to execute this Addendum on behalf of the Purchasing Entity and this Addendum is the valid and binding obligation of the Purchasing Entity, enforceable in accordance with its terms. INFORMATION SHARING DISCLOSURE: Information regarding Purchasing Entity’s transactions may be provided to accepting merchants or their service providers to facilitate discounts or other promotional campaigns of interest to them. COMPLIANCE WITH FEDERAL LAW: WEX Bank complies with federal law which requires all financial institutions to obtain, verify, and record information that identifies each company or person who opens an account. Issuer may ask for name, address, date of birth, and other applicable information to identify the Company and/or Account Users. DISCLAIMER: THIS IS AN APPLICATION FOR SERVICES AND SHALL NOT BE BINDING UPON WEX BANK UNTIL FINAL CREDIT APPROVAL HAS BEEN GRANTED BY WEX BANK. CONTRACTING AGENCY AUTHORIZED SIGNATURE REQUIRED Any person signing on behalf of the Purchasing Entity has been duly authorized by all necessary action of Purchasing Entity’s governing body, and that the undersigned is authorized to make this application on behalf of the Purchasing Entity. Signature : ___________________________________________ Printed Name: Maria D’Andrea________ Title: Director of Public Works Date: August 14, 2023 ,