City Council - Regular Meeting

Hi everybody and welcome to our work session for Tuesday, February 17th. Uh first item on our agenda is the CERSA elected official training and I'll turn it over to staff. Good evening, mayor and council. We have a kind of a busy work session for you here tonight. Um two items on the work session agenda. First, we're going to have a quick well 60minute training session from Cersea and then we're going to jump into some east side storm sewer discussions. Uh before we get into the east side, I'm going to turn it over to our safety and risk manager Kurt Bodet to introduce Sam Light from CERSA and we'll go from there.

All right. Good evening. I'd like to introduce Sam Light, who's the deputy executive director and general counsel for CERSA. Um he's going to be providing the elected official training which coincided with our loss control standards this evening. um training is intended to provide resources, tips, and tools for new and experienced elected officials to function effectively with uh fellow council and board members uh to achieve the best result for the community of Evans. So, I'll turn it over to Sam right now. So, thank you for Thank you, Cody. Good evening.

You all inviting me up. It's a pleasure to to be here and visit with you all. So, as mentioned, I'm Sam Light and I'm the deputy executive director and general counsel for CERSA. CERSA is an acronym for the Colorado Intergovernmental Risk Sharing Agency, which is a mouthful, which is why we call it CERSA. So, we're your insurance provider for property and casualty coverage. So, the breadandbut work that we do, of course, at sources, we get the coverages in place for everything from your buildings to your vehicles to your equipment. Uh and then on the liability side, of course, we provide coverage for the various liability risks that you face as a municipality. Everything from uh we got law enforcement liability coverage for the police officers. We have general um liability coverage for the the basic tort liability. You know, someone slips and falls in front of city hall and thinks it's your negligence that led to them falling, then we cover those kinds of claims. So, all sorts of um coverages that we provide to you all at CERSA. So, but just a little bit more about CERSA. We're not a commercial insurance company. We're what's called a public entity self- insurance pool and we were organized under Colorado statutes back in 1982. We are ourselves a quasi public entity and uh we're not a commercial insurance carrier. Our only book of business, our only insured is insuring Colorado cities and towns and affiliated entities, things like how regional authorities, those types of things. Just to give you a sense of our size, we have 295 members in the pool. Um, we ensure about 90% of the cities and towns in the state of Colorado. So that's almost all the small, almost all the small to mid and almost all the mid to large, but not the really, really large. So for example, the Denver or the Colorado Springs of the world are not a member of the CERSA organization. You can learn more about CERSA at www.saea.org, but I brought a couple of handouts with me. One of them is Cersei the glance

which is the first handout in the materials that I put at your places that tells you a little bit more um about CERSA. So we are a pool. We are a memberowned organization. We thank you for your membership in CERS. You've been a member participate in our property and casualty insurance program since 2020 and we value your membership as a publiclyowned organization. Um, it makes our philosophy around risk management, I think, different than the commercial carriers. And to kind of illustrate that point, just as you all as the governing body, right, are doing what you do locally to protect the interest and assets of the city as an organization, we aggregate that up on behalf of our members. And our only two interests at CERSA are the interests of the member as a member and of the pool as a whole. Right? And since we're owned by our members, controlled by our members, we share, I think, a common philosophy around risk management. That proactive risk management, right, is helpful to protect public assets. And so among the resources that we provide that are different than commercial carriers, we provide training at all levels of the organization. I and our executive director and my associate counsel just happen to do trainings for elected and appointed officials, but we have training opportunities at all levels of the organization through our risk control department. So those resources are there for uh you as a member uh to use as much or as little as desired, but we encourage our members to use those. Many of our services are free to our member organizations. Um so but tonight it's an opportunity to talk about liability and governance best practices at the governing body level of the organization. So and I'm going to need a little bit of it help because my slide is not advancing that.

Yeah. Thank you. There we go. Okay. Thank you so much. All right. Sometimes it takes someone other than me to wake the thing up. All right. So, um, what we're going to talk about is what I've organized my presentation around what I call suggestions for success or successions for risk management at the elected official level. I'm going to touch on liability principles, but I've really organized it around suggested best practices for you all as council members and as a council, right? To help you succeed individually and collectively as council and additionally help you reduce risk for yourselves and for the organization. So the topics that I'll touch on, we're going to talk about fiduciary responsibility a little bit. We'll talk about transparency requirements and some risk issues we're seeing there at CERSA. mostly a little bit about open meetings, law and open records issues as they affect you all as elected officials. We'll talk about organizational structure and liability briefly about ethics and personal conduct. And then finally, just given the time we have, I just want to get quasi judicial decision-making on your radar. We do a separate training on that. I'm happy to come back and do that. I want to explain some of the unique dynamics of that. So, I do have to make one or two disclaimers for my presentation. First is though I am an attorney. This of course is not an attorney client discussion. This is a training exercise only. Uh and then second I want to make our time together as useful to you all as possible. So if you have questions as I go through my material please feel free to ask questions. But my second disclaimer is that I do have a really good radar for what I call the live one. So again feel free to ask me questions. But um sometimes you know the dynamic will be Sam I've got a question. What if another member of the town board does this and everyone's eyes open wide. So that's my radar going off telling me that's your live question of the day for which you need support from your legal counsel and

you're in great hands uh with Scotty and his team. Right. And I'll still give you know your question depending on what it is. I may still give you some suggestions from Cers's risk management perspective. But if it's a situation or my radar is telling me it's one for which you need legal advice in the here and now, I'll probably deflect that to Scotty and his team. And that's the same thing if your question if my radar is telling me it's in the wheelhouse of your city manager. I don't know all the issues that you've got going on. Right? So, same thing. I may offer some comments, but I'll probably deflect those. Which leads me before I dive into the material to my first and one of the overarching risk management themes that I have for you all because you all are essentially the citizen part-time elected more or less volunteer legislators on behalf of this corporate organization the city of Evans right and that the job asked that you embrace that leadership role on behalf of the organization there's so many other functions within the organization that are the responsibility of others. From a risk management perspective, one of my overarching suggestions is to use particularly your direct reports, your city manager and your city attorney, right? To help you do great things, get them done effectively and help you reduce your own risk because as we'll talk about, there are many, many things that municipal corporations do that aren't really within the council's wheelhouse, right? But your staff is there to support you and help you and get things done on behalf of the organization and also right to help you unbburden yourself of certain things where there may be some tug and pull where a citizen or developer or business interest really thinks it is part of your role but it's it's not right and that's where your city manager city attorney are there to help you resource your whole team is there to resource you as elected officials uh to help do great things on behalf of the city. Okay. So, as I mentioned, I I've styled things in

terms of suggestions. This first one may not sound like much of a riskmanagement suggestion, but do you all agree we've had a recent election? I think I'm I'm a little late to you had your election in November. Had a little bit of change on the council. Is that right? November 24 was our last election.

24. Oh, so we're coming up on one. Okay. So, who's in the one to uh fouryear range right now? And who's in their second term? Anybody? Okay. Well, I hope no matter whether you're someone newer or a couple terms under, I I hope you find this helpful. But do you agree now that you got some time under your belt, do you agree with this notion that being right once you become an elected official, your role in relationship to the community changes pretty dramatically. Right. Right. You're no longer just a citizen. Right. And I can tell you from a certain perspective, it's a 247 job. Right. In the eyes of your constituents, the citizens, the people you take your council from, they will always 247 perceive you to be an elected official, right? A representative of the city council, a representative of the city of Evans. And that's true, you know, whatever we think of it individually, fair or unfair, right or wrong, that's just the reality uh of it. So recognize that aspect of it because you know as they should as elected officials you know your words your deeds your conduct matters leaves an impression has an impact when you're making decisions here at the dis that affect people's property goodhood and livelihood right that's definitely going to leave an impact and impression so from that perspective you know that hat is always on that you're an elected official um recognize also of course you're no long you're not outsiders to local government you're the ultimate insiders has this important risk dynamic. As the insiders, the rules stick to us. We have hundreds of pages of ordinances and you may have city account city council adopted rules or guidelines, right? We may not particularly like the rule. We may not have had a hand in crafting the rule, but as the council, we're bound by, right, the rules that govern the work of the city council both substantively and procedurally. We don't have the luxury either individually or collectively of

saying well I I never like that ethics rule that's in the code in this right we if it's a legislative rule within your power to change we can change it but only through the proper process. So we have to be cognizant of the fact that the rules do stick to us. We have to recognize that in a legal sense we're fiduciaries of the organization. Right? The way the attorney in me would define that is the fiduciary responsibility under law is the legal obligation to put the interests of the organization that we serve as a fiduciary the city and the public interest above all other interests above our own personal interest right above you ever have this dynamic mayor do you ever have some meetings where you got a pretty high-profile issue on the agenda and the meeting room's pretty much full

a couple times that happens Yeah. And what's our population up to at this point? 24,000ish

thousand. Right. So, we have to recognize sometimes that even when that that meeting room is full, right? Um we've got a very small minority of the constituents that we represent from our ward and from the city as a whole. So, sometimes the fiduciary responsibility is going to test our our metal in that regard, right? Maybe in one of those tough high-profile emotional passionate issues is public comment going on and first person stands up and says counselor you got to do this and you got to do it now. The next person stands up and says no no no don't do that do exactly the opposite right in that situation particularly right that interest of the small but vocal minority we have to remember our fiduciary responsibility right is to make good decisions on behalf of the entire organization. The way it translates into risk management is particularly in those difficult situations when you're making a tough decision that's not going to make a 100% of the people happy 100% of the time. Um part of the coverage that we provide is public officials liability coverage. It's there to provide it triggers coverage. It'll is used to defend decisions made by the council. Right? And sometimes in some of those claims, it's not true for a lot of them, but sometimes it becomes clear that the decision being challenged in retrospect is one that was made in haste or was made on less than good information. Right? But as the governing body, if you find yourself in that situation, a tough decision, one of your risk management tools and prerogatives is to take the time that you need and get the information that you need as a council that will help you make good and defensible decisions. Right? It might be frustrating to that citizen who is passionately telling you to do this tonight, right? But if you're feeling like we as a council have not had a chance yet in a public meeting to deliberate on that issue, we have some questions for which we need help from our city manager or maybe it's a question for our city attorney of do we

even have authority to get involved in this issue. Use that tool to your advantage. Right? And uh it's absolutely your prerogative. if we need to have some more questions answered to get more information before we decide on a course of action that will help you and in certain situations helps protect you against against risk. Right. Um last thing on the fiduciary responsibility of course is the um necessity of considering matters on their merits merits alone. They're certainly going to happen sometimes um situations where people are tugging at you either individually or in a public hearing and trying to you to to to lead you astray from the relevant standards or criteria or rules that apply to your decision- making. So you want to commit right to consider issues on their merits alone according to the procedures and rules that that apply. So, okay, unless there are any thoughts, questions on that, let's pivot and talk a little bit about transparency requirements, transparency related risks. Uh, I'm sure through your city attorney's office, manager's office, and others, you've gotten your training on the open meetings law, right? We all know the basic openness rule. Whenever three or more members meet to discuss public business, it has to be an open meeting. Okay? Recognize also of course that council can only take action at a duly called public meeting for which an agenda has been posted in advance. Um keep in mind in our world at CERSA um it truly is a rule of three. Three or more council members want to have a discussion of public business that has to be open to the public. A one-on-one meeting is okay. And it's part of the job really and like two council members meet, have a coffee, and just get to understand each other, build a relationship. That's fine, right? So, three or more openness rule, one-on-one's okay, but what do you think about one-on-one on one-on-one meetings, right? That's a hot topic in our claims and litigation world. They

call that a serial meeting or daisy chain meeting. In Texas, they call it a walking quorum. This is a great visual image getting you. So, but just recognize there is that risk there, right? And the the real liability is this. If the evidence suggests that what's really happening at your meeting is a rubber stamping of a decision that was arrived at by some parallel process of individual serial meetings, right, or something like that, then you're going to be running a foul of the open meetings law, right? So, we just need to make sure that it's it's in our control as the council to um manage that to manage that risk and we have to as council recognize that um we have to self-regulate and say no that's an issue that needs to be taken up at the agenda in terms of the actual claims world that we deal with there is in this world um whether it's governmental watchd dogss or attorneys that live on the other side of the state or what have you. They appreciate and everyone appreciates that you're so transparent. That's the way it should be. But it also means in the claims world that people can listen to your meeting videos, look at your agendas, right? And police your compliance with the open meetings law, right? Um and that's that really is a cottage industry in my in my world. Um because among other things, if you're successful in an open meetings challenge, well then yes, if the there was action taken, it can be invalidated, right? Judge can say don't violate the law again. But what a claimant might really want is the attorney's fee award that goes with it. Right? Successful plaintiff is entitled their attorney's fees. We always thought it was unfair in defending these that we weren't necessarily awarded our attorney's fees in defending against um an unsuccessful claim, but that's the world we live in, right? So, we need to be cognizant of that as well. Okay. Executive sessions, you're all in a good spot there. Use a script. Make sure you check all the boxes. where you can help manage that risk is um you have to make that announcement in

the public and the motion and there's a lot of boxes to check. The way we can all collectively please that risk is if if something doesn't sound right to us then just make sure we slow it down. Hey, did we check all those boxes before we went into executive session? Because once you go into executive session, if the announcement was incomplete or improper, then there's no doover. The technical violation will have occurred. I'm sure you lean on staff to help you with that and you have a script and all those things. Um, one uh issue to police on behalf of yourselves is when you go into executive session, we all know that we have to stay on topic and can only discuss the topic that was announced, right? Uh so we help to self police in that and any one of us should feel comfortable if we're staying off topic to say no no no that's not part of our discussion. We need to save that for another time. And then as fiduciaries recognize that it's our responsibility to protect the confidential information of the city as determined on this issue by the city council. Right? So if we vote to go into executive session and you know even if you voted against going into executive session and even if you can't stand the item that's being discussed in executive session have to recognize that as fiduciaries it's our obligation to protect the confidentiality of those discussions right and I think a good tool around that is maybe ask yourself before you break from executive session maybe it's the mayor or someone else leading the discussion we say okay before we leave executive session of all the confidential information that was discussed during this executive session. Which information, if any, leaves the room and who's our spokesperson? And then we as the counselor are all on the same page about our what our commitment is, the confidentiality because nothing can take the wind out of your sales quicker internally among the seven of you if one of us disagrees and is sharing that confidential information, right? Contrary to what the others

thought, right? Um, so that's an important dynamic of managing confidential uh information. Okay. Um, do you all have city assigned email addresses? You probably do, right? Okay. So, you want to use those. We all recognize that uh under the Colorado open records law, right? Well, backing up just a second, we all know that a meeting for purposes of a meeting statute can be a meeting whether it's convened in person, electronically, right, or by telephone. So that's why staff has trained you on the fact that in using email it's a great tool but you don't want to use email right for discussions among three or more members of the council of the merits or substance of pending public business because that's how you can inadvertently walk into an open meetings problem is when you're using email to have a meeting right so that's why staff will say please don't hit reply all or if you have any questions direct them to me the manager and I'll help keep an eye on this to make sure we're not having any open meetings problems, right? Um but apart from the open meetings issue, make sure we understand that the the beginning point under the Colorado open records law is that the correspondence of elected officials is by and large public record. Not all not all not your private correspondence view, right? the correspondence that relates to the discharge of your duties as a public official or that concerns public funds can be made subject to disclosure under the open records law. Right? Um so keep keep that in mind. There are certain exceptions uh but just recognize that when the clerk contacts you and says, "Hey, we got an open records request and among the things being requested are the open meetings uh excuse me, the emails of the council members, right? Then if it's within the scope of the request and it's not some information that's subject to non-disclosure, then it's our obligation to provide that information. That's why using your city assigned

email address is helpful. It helps staff do all Do you ever get core requests for council emails?

Okay, you may get them. Staff can help you manage that, right? Uh so be careful of that. Now, beyond uh the open records issue, recognize that in my world, our source of claims world, that the scope of civil discovery is an even broader net than the Colorado open records law. So, an email that may not even be subject to disclosure under the open meetings law could be subject to disclosure in discovery and litigation for a claim, right? And um having lived through some of those moments, it all leads me to this that as public officials, you want to be circumspect and cautious in your use of any kind of electronic communications. Um because sometimes the risk exposure around a claim or the value or just the the view of a claim can rise or fall on sometimes even just a few ill-advised electronic communications, right? Um, so we need to be careful of that as well. My takeaway, I guess, is don't say in an email as a public official anything you wouldn't want to say in a public meeting or or reading the newspaper or in my world have read back to you in a deposition. So, email is a great tool, but not for everything. Um, my second handout to you all explains a little bit more of the risk uh and the rules around the open meetings law and the open records law around use of email together with I take full ownership for my suggested dos and don'ts. You have any other questions about appropriate use of email, check with your manager and your and your legal team and they'll give you some support and advice on that. Okay, let's pivot and talk about organizational structure and liability. Um, it's true within every municipal organization, no matter how large or how small, everyone within the organization has a job description, whether you're elected official, appointed official, full-time employee, part-time employee, or even a volunteer, right? And it's important that everyone honor their job description and stay within their lane,

right? To help the organization function efficiently, fire on all cylinders. It's not that we're silos. Everybody's contributing their part to the organization getting the work done on behalf of the community. But that idea of the job description is pretty important from a risk standpoint. Okay. And let me unpackage it this way. I'll start with uh this which is I think is a fair question for Scott and his team, but I hope it's not like a burning question. It's always causing you to lose sleep. The question is, can I get sued and be held individually and personally liable as an elected official for something that I do or don't do as an elected official? And the good news, well, the answer is it's possible, right? Right. It is possible. But the good news is we have strong protections for elected officials in Colorado. Like all states, we have a I'm not going to unpackage all of this, but the primary protection you have is under the Colorado Governmental Immunity Act, which basically says you're immune from suit except in areas where immunity is waved, right? And it also says under the Colorado Governmental Media Act that the city and by extension the city's insurer, Cersea, will defend and pay judgments entered against you as elected officials or acts or omissions as a public official. Good news, right? I'm protected. So, but like so many things in life, there's a catch, right? Those protections are in place so long as we are acting within the scope of our employment and not acting in a willful one manner. Those are the two conditions on that. So, they both sound a little like somewhat ominous phrases. The first one's a little weird. Scope of employment sounds a little odd to you all as the citizen legislators, right? because you're thinking I'm not a full-time employee like the manager or the clerk. Right? The takeaway is simply scope of employment is the phrase used in the liability statute and it really means

job description or authority. Scope of authority and it requires an appreciation of understanding what is my scope of authority, what is my job description and as importantly which authority has been delegated or given away to others in the organization. So real quick examples of that uh within your own organizational structure. You all have a building code, right? You have a chief building official, I believe, right, who enforces that for you. So, within whose job description, within whose scope of employment within the city of Evans is it to decide whether or not someone gets their building project red tagged because they're violating the building code. Whose scope of employment is that?

That's your chief building official, right? So within whose scope of employment ain't it? Not only us but everybody else, right? It's a function that you you do have a role in relationship to the building code, but it's the legislative role.

You're the ones that adopted the policy, the piece of legislation that said we're going to have a building code. Oh, and by the way, under that piece of policy legislation that we want as a city council, we're going to delegate, give away, assign to the chief building official all the responsibility for enforcement. So it's no longer my job as an elected official. Phew, it unburdens you from that. Another example, within the city of Evans, within whose job description, within whose scope of employment is it to decide whether or not someone gets a ticket into municipal court? Officers,

the peace officers, police officers, right? So within whose scope of employment ain't it? Everybody else. Right? So this whole idea and it it comes from every direction and it permeates every municipal organization. On the other hand, you know, within whose scope of employment is it to decide what version of the building code we want to adopt, you and only you. Or whether we want to adopt an animal control ordinance. You and only you. Right? But once you enact that legislation, right, the scope of employment pieces that I'm pretty sure you will have given away a lot of administrative pieces to administrative staff. And this idea of allocation of responsibility permeates municipal organizations, whether it's by your charter or state statute or local ordinance. Okay. Now, the other risk piece is you're protected as long as you're not engaging in willful and wanting conduct. Um, that sounds kind of ominous, right? So that's that's conduct that is intentionally or purposely undertaken that's designed to injure someone's legal rights and taken with reckless disregard for what their rights are. And I've got an even simpler way of describing it. I just call it bad stuff. And it really is bad stuff. We know what it is. We're going to stay far away from it. Right? But um it's kind of a double whammy because your public officials liability insurance coverage follows the same concepts. It says, "We protect you as public officials in your capacity as such that there are exclusions for coverage for things like malicious acts, willful and want conduct, criminal acts, and it really would be bad stuff." And we would intuitively know what it is, and we're not going to go down that path. But knock on wood, every year we get just a small handful of claims where some claim it is alleging that an elected or appointed official or public employee injured them and was engaging in willful and wanting conduct for which the claimant is attempting to hold them individually and personally liable. The fact pattern around those is almost

always this. It's almost always an individual elected or appointed official acting individually, misperceiving that they have some governmental authority that they actually don't have, throwing on the purported cloak of governmental authority and doing bad things to people for the wrong reasons. Right? So to spin out my earlier thread, you know, the example might be uh appointed official who's not thinking of things right, tries to conscript the chief building official into going on a campaign to make sure that their business competitor never gets a building permit for no good reason. Bad stuff, right? Or intentionally defaming someone, right? Or engaging in all sorts of other bad behavior. So we know what it is. I just wanted to sort of point out what the guard rails were on those protections. So that's state law. At the federal level, oh boy, isn't it wonderful being an elected official because you face liability both under state law and federal law. The good news is under federal law, there's also a similar concept of immunity, but it's called qualified immunity. We hear a lot about it in the policing world these days, but it applies to all governmental actors, and you are governmental actors. The concept of qualified immunity basically says that we are immune or protected from individual liability under federal law right by qualified immunity so long as right or in so far as our conduct does not violate clearly established con statutory or constitutional rights of which a reasonable person would have known. I always thought from your perspective as the citizen part-time legislators the most interesting part of that phrase is would have known and you're like how do I know right you got somebody standing up during public comment maybe you got a quasi judicial hearing and it's a land development and it's clear this application doesn't meet the criteria and ought to be turned down but in a lastditch effort to save their

application the applicant representative said stands up and says if you turn down my application I'm going to sue each and every one of you for federal civil rights violation. You're like, how do I know whether this has any, you know? So, that's going back to my earlier that's take the time if you know you need a little pause there and talk to Scott or manager. Are we on thin ice? Is this are we in a good spot here, right? Because you were never asked, right, to know all the ins and outs. Civil rights liability is so complex and nuanced, right? But if you ever find yourself in that situation where it feels like this is getting a little risky, right, then take that time to understand your options, pros and cons of certain courses of conduct, and that'll help you make great defensible decisions. So, that's my um um a little bit of that was kind of grim reaper. I'm sorry about the concepts of being individually and personally liable, but here's the silver lining. Don't let the fear of liability drive decision- making. If we know as a council that we're making the right decision through a fair and defensible process, applying the appropriate standards, right, then you're going to be just fine and don't stray the course just because someone's threatening suit. That's what these protections are about.

A question. Yes. Is qualified immunity. It's an umbrella that protects as you because when we think of that, we do think police. Is it a umbrella that has all government entities under it as um under its protection or does it um end up kind of siloing per specific department?

It applies just to keep it simple, it applies broadly to any governmental actor as a potential defense against civil rights liability. Okay? Okay. So, it's not available for sort of federal regulatory risks if you got, you know, clean air act or ADA issues or something like that. But these risks that you face around discretionary decisions that lend themselves to some type of constitutional claim like violation of due process, violation of equal protection or first amendment rights, right? Um there has to be wellestablished law that suggest that what you're doing is contrary to someone's rights. And that's where your legal department comes in and they're going to have either a yellow or red flag at the ready, right? If we're going down the road of something where look, it's clear that if we go down this path, I'll borrow um I'm going to borrow an example. I'm going to borrow I love this because it didn't involve a Colorado entity or a Cersa member. It's our good friends in New Mexico. And I'll give you an example of qualified immunity. So, city council, they had a contankerous public citizen who would show up during public comment and after a certain point in time, they got tired of listening to this person. They didn't like what the person was saying, so they threw him out of the public meeting. What do you think? First amendment liability.

It would come as Yeah. Yeah. The question becomes, do I have qualified immunity? like could I be held personally liable for that or did we individually and collectively as a council violate that civil person's civil rights by throwing them out of a public meeting just because we didn't like the viewpoint of they were expressing right so in a qualified immunity defense we might assert that but the courts look at that and would say well isn't there already wellestablished law within the 10th circuit or at the US Supreme Court level that already says you can't throw someone out of a public meeting right solely because of the viewpoint of what they're expressing and the answer is Yes. So on summary judgement in that type of claim, we'd most likely not be able to get out of the claim on qualified immunity.

I guess where I'm coming, the lens I'm coming um my lens is from if it if qualified immunity were to be um I'm trying to find the word um challenged. Yeah. In in for whatever reason. Does that affect all like departments it it protects is what I'm getting at. You see you you see what I'm saying? Not just individually, but is I guess that's why I I mentioned is it an umbrella that protects like government um all government and then if it were to be um challenged. Yeah. It can in essence affect also the government component.

It's it's a defense that can be interposed in a legal proceeding against whatever action or decision is challenged. So it arises solely within the context of that particular claim, right? And so if you lose on qualified immunity, you're losing for purposes of that particular claim. Now the presidential effect might be well now we know that if we lose on that then as an organization we can't do that again. There won't be qualified immunity, right, for that kind of situation. I'm not sure I'm still hitting. I'll I'll ask Scott later. I don't think you're understanding what I'm saying. Are you trying to say like if does it protect the other decision?

No. So what I'm saying is I'm trying to use specific words. Um so what I'm stating because before it was being challenged because of police. So if we were to be challenged and and if it was successful and stating we want to strip it. If it gets stripped from one entity,

does it get for everyone? That's what it becomes. Okay. So it becomes precedent and it depends um our our this is a little bit in flux but the law around qualified immunity used to be that there's got to be clearly established law at the Supreme Court level and if there is right and you violate that right then you're not going to be able to defend and get out of the claim based on qualified immunity. It's been broadened to be US Supreme Court or controlling law within the 10th circuit. Okay. So, when we analyze these situations, um it doesn't have to be just the city of Evans. When Scotty's researching an issue and says, "Do we have qualified immunity?" He's going to look at 10 circuit cases, whether they're out of Colorado or some other state that's in the 10th circuit. And for purposes of litigation, sometimes we look to other district courts to see how they've decided similar fact patterns. Okay? So, it all adds to the body of precedent, right? So yeah once we get in the policing world it's very granular or very fact specific right and the litigants litigators in that will look in making the arguments on one side or the other to the court they'll even though it may not be controlling president they'll try to look for a similar fact pattern anywhere in the country to help try and sway the judge one way or the other although technically it's got to be within our circuit is is a better argument. Okay. Was that helpful?

Yes. Thank you.

Thank you. All right. So again on the civil rights liability risk, it's just the idea of getting the resources you need, knowing being a good issue spotter when we're getting into a risky situation. Okay. Um on organizational structure and liability, I want to pivot in terms of role disciplin and and just recognize that a big aspect of risk management and organizational structure. Key component of that scope of employment is just understanding and appreciating the legislative administrative distinction that exists within your organizational structure. Right? The city under its charter operates as a council manager form of government. That's the most common form of organizational structure for those municipal corporations that have the resources for that. It really is the gold standard because to borrow the private sector analogy, what it allows you to do is you serve essentially as the board of directors of the corporation and your city manager serves as your CEO. We just have different titles um for it. That's the most common form of municipal structure. It's set out right there in your home rule of charter that we have a council manager form of government. And that means that the council just directly out of your charter, you are the legislative and governing body of the of the organization. The mayor is the presiding officer and the head of city government for ceremonial purposes. Your manager is your chief administrative officer. sets up that distinction where you as the council, as the governing body, as the board of directors have a just like a private corporation have a single point of accountability and contact for the administrative side of the organization, right? And then throughout your code, whether it's by your code or your charter or statute, certain things are done by staff, certain things are done by the council. that not only allocates authority and responsibility and accountability throughout the organization for risk purposes, it also defines scope of employment for everyone, right? And so some tips um on this issue, right, to avoid concerns around role, discipline, scope of

employment is just to understand and appreciate what's the council's job, right? The council is the legislative and governing body. Probably among other things is the part of the organization that has the longest time horizon. Right? Your job is at a large level is helping determine the needs and wants of the community and determining at the highest level how we put governmental resources on those needs and wants. Important documents from a council's perspective are things like let's say annual budget, master planning, long-term utilities planning, right? Probably even in the the personnel realm, you probably have some role like an overall structure, maybe the overall organizational structure, the overall budget for personnel. But you can see in that legislative administrative distinction distinction, the annual budget is completely different than the individual payroll of an individual employee. Right? So some tips around where you sit as the governing body, right, is to remember that elected and appointed officials primarily act as a body. The governing body has seven members but it's one body and we exercise our yes we have ambassadorship roles for the community but in terms of taking action and making decisions right it's but one body with seven members and we primarily exercise our responsibilities by getting together as a council and making decisions as a group in a public meeting setting right um I'm pretty sure among the hundreds of pages in your ordinances is there's no ordinances that say the power of the council may be exercised by one council member. Right now, it's true that each member holds 17th of the power, but it doesn't mean I've got oneth of the power and darn it, I'm going to go out and use it. Right? It's we the council. And I'm sure Scotty I won't hopefully I'm not speaking out of term for Scotty. You have the most protections when you're doing your work collectively in this room. there's

additional privileges that attach legislative privilege, quasi judicial privilege when you're doing your work collectively. So, you want to approach your role, your job description in terms of we, not I, right? It's a it's a red flag. If if the view is you as council do what you want, I as an elected official, I'm going to do this. That's a risk red flag. Um, the last thing I put on this slide may not be much of a risk for thirdparty liability, but it's an important piece of governance best practices. Mayor, do you on your agenda have an opportunity for each council member to give a report? Council reports. We do a council discussion.

Yeah. So, sometimes the mayor will say, "Okay, we had a great meeting. Does anyone have anything to report?" And I say, "Mayor, I've got something to report. Since our last council meeting, I did this." And everyone's eyes open wide. may never be a third party liability risk, but it's a wise council that's attuned to that question about, you know, what are our norms of conduct. What are our understandings about how we individually purport to act on behalf of council in between meetings? And the reason I mentioned is because I've actually had claims around this and I feel it's much better for you to all as best you can be on the same page and supporting one another around because you're already busy enough and then when you raise your hand to do something extra in between meetings. You want people to be supported and not have it devolve into a dispute or at worst a potential claim situation uh regarding those kinds of activities. Okay. Adherence to organizational structure is particularly important in the area of employee relations. So, um I'm not sure how many how many total FTEEs do we have in the city now? How many? 125.

And how many uh employees are directly supervised by the city council? Three. Three direct reports of city manager. City manager, city attorney,

city attorney judge. I will tell you from a riskmanagement perspective, what a great place to be from where you sit as a part-time citizen, policy maker, legislator, right? Because that's what it said in the ballot box. It said legislator, right? Council member, visionary, leader. Didn't say HR manager, right? And it's tough enough for the professional full-time HR folks to keep up with all the liability risk because employment practices liability is as pervasive as the air we breathe. So you want to embrace that idea that you have unloaded through your charter all responsibility for supervision of employees to the city manager and supervisors below the level of city manager. It's even uh embraced in your charter. There's a section there about the relationship of the council to the administrative service. Right. that says you deal with the administrative side of the organization through the city manager and council members do not give orders uh to employees, right? Um, so it's not that, you know, it administrative matters are completely handsoff, but want to make sure, you know, as elected official, yes, if you have a question about an administrative issue or need to get information, you can do that, but you want to make sure you do it through the proper channels to avoid potential disempowerment of your supervisors or entanglements or worse yet, right, exposing yourself to some liability uh situation. Okay? So be careful of that. Um whether it's a and I'm not naive around these issues. Before I joined CERN, I did what Scotty did for about 25 years. And I know that there can be pressures around these issues. Sometimes a citizen maybe is frustrated or angry with an interaction they had with an employee at city hall. And who do they want to call and complain to? Their elected official, right? But if some citizen comes to you and said, "That employee you have, that's Sam Light. He's a terrible employee. You need to get rid of that person. What do you want to do with

that? Go over here and say, "I just want to pass on what I heard from a citizen and the city manager is going to say you're going to give him some grace when he says, "I got it." Because he's got it. It's his responsibility, right? And u going more to the claims risk, so much of the employment practices claim risk can be around who knew what when, right? So, you really want to embrace the idea that it's not my job as the elected official, right? Or if it comes from inside, you know, maybe Hey, can I talk to you about my boss? Right. What's our response to that? No.

Hey, we love and appreciate our employees here at the city of Evans, but I as a council member and we as a council member, we do not get involved in personnel matters at that level. I would encourage you to talk to your supervisor or HR or the city manager and they'll take care of it for you, right? And then you go to the city manager again and say, "Hey, this I'm going to unbburden myself with this because you got it and they're responsible." You might have some involvement again at the high level like the personnel overall personnel budget. Do you review and approve personnel policies? Yeah. But in my claims world, once in a while there had been a situation, some employment claim where the claimant, to everyone's surprise, had some allegations or some allegations that certain facts related to the claim were actually within the knowledge of an elected or appointed official, which caused us to have to interview that elected official or worse yet, depose them because they were a material witness in the employment practices claim. I've never had an elected official who gotten snarred in a personnel matter that was in litigation ever come back to me at Cersei and say, "Hey, after we took their deposition and said, "Hey, that was a lot of fun. Let's do it again." So, you want to unburn yourself in that. Same thing with administrative stuff as well, right? So, with regard to administrative stuff, make sure you establish a collaboration with your manager, your management team, a process. We want to as the ambassadors, you want to be eyes and ears, but you have to be careful. make sure that we recognize that if it's an administrative matter, it goes to our city manager and your city manager can be uh your point of contact for helping get accurate information, helping you get things done. You have to be careful uh as council, you want to embrace embrace what I call processes in place. It's absolutely true that some of the work you do is in setting policy and passing ordinances ends up creating baskets where there's winners and losers, where some people will not like the process you adopted, will not like the rules adopted. But the solution for that is not to allow yourself to be conscripted into an attempted end run around a process or policy that you just worked

so hard to put in place. Right? So be supportive of processes in place and use your manager and team, right, to help you run interference if there's some administrative issue that needs a little bit more care and feeding but really isn't part of your scope of employment, right? So, okay. Um, last thing is sometimes citizens will come to you and they have this understandable but mistaken view that individual council members, right, have the power to override administrative decisions that a citizen might be frustrated with. Yes, we can be ears and hear their concern, but it doesn't become a council issue again unless and until perhaps maybe it's one of those issues where there's been administrative hiccups and it's occurring enough that it's like, well, maybe we should come back to council and talk about whether we need to change the overall policy or the ordinance or whatever it is and give staff more guidance on what maybe it's not working out exactly how we intended. That's where you step back in. Okay. All right. Uh let's pivot and talk about ethics real quick. We do separate trainings on ethics, but just remember that as elected officials, you're subject to uh the codes of ethics that govern your conduct. As you're a as you're a home rural municipality, you're fortunate enough to be able to have a a local code of ethics, which is in chapter 2.05 of the city code. So, um you don't have to show your hands. Who would say they have a good working familiarity with the code of ethics? Awesome. Yeah, because that's your best preparation is having a good working understanding so that you're prepared to spot issues become before they become problems and you're also then prepared. Do you agree with this notion? Sometimes elected officials can be on the receiving end of a allegation uh of an ethics ethical impropriy that's like way off the dart board. Oh, you you can't vote on the water rates because you live in the city. That's that's probably not true, right? But if we know what an

interest is and we know what the expanse or scope of that rule is, then we're prepared, right, to deal with those issues. So just a main couple of main things around code of ethics, make sure we have a good working familiarity with what the conflict of interest rule is. Make sure we always honor our obligation when we have a conflict of interest, right? If council is going to take some action that affects our own financial interest, we have to make a disclosure. We don't vote on the matter. We're not allowed to participate in the discussion, right? Do you all leave the room as well when you have a conflict? For what? Do do you leave the room? Leave council chambers for executive session. Yeah. For executive session. Yes. Oh, for conflicts for a conflict of interest. Oh, we recuse ourselves.

Recuse yourself. Okay. All right. Be be careful. Um if you state law, if you were subject to the state code of ethics, it's silent on this issue. It doesn't say one way or the other whether you have to leave the room. But you want to be careful because there's I think an unsuttle question. Uh my best advice is if you don't leave the room, that's fine. But make sure you don't stay in the room and try to influence the other decision makers, right? You got to I would suggest find someone else to do your speaking for you if it's your interest at stake, right? Because there's a potential risk of being alleged to have attempted to improperly influence the decision of the other decision makers. Okay. um your your local rules say as a elected official don't have or acquire an interest in any city contract that's subject to city action unless all the proper bidding procedures have been followed. Okay? So be careful of that. And the other thing on contracts is if you're ever going to hold an interest in contract, I you should be bending over backwards to be completely transparent about that issue to protect yourself, right? Even if another vendor might have the luxury of calling the department that's supervising the contract, right, you might be better served that if I actually hold an interest in this contract, I'm going to do everything in writing. So, it's completely transparent. No one can ever question or suggest that I engage in some improper phone call or what have you because everything I did related to my interest was in writing. Confidential information. We talked about gifts. You have a gift rule. I can boil it down. Well, we even have a constitutional amendment on gifts, but you have a local rule, and I think your gift limit is $20.

Yes. Right. So, abide by the gift limit, know what the exceptions are, decline any gift. The most practical advice on gifts is if it doesn't look or feel right or smell right in the context, just don't accept the gift. And can I can we elaborate on that? Yeah. Um just because like for example like define gift you know granted it's obvious I give you something. Yeah. But it can also elude like for examp as as you know uh public officials sometimes we're like hey you can come and sit at our table. Right. Right. Um granted you know there's no interest there whatsoever. It's just maybe it's an award thing of some sort.

Um granted there is a value to the tickets. Would that also fall under the gift component?

It would for analysis purposes. Yeah. I'll have to rely on Scotty because I didn't have a chance to study whether your gift rules follow the state constitutional amendment or not or whether you've got something close to it. Like I'll give you an example. If it were the state constitution that applied, um a token of appreciation is fine, right? um renumeration if you're presenting at a conference or attending a conference on behalf of the municipality can be okay. Um obviously unsolicited gifts that aren't related to public service are okay, but there's a list of about 12 or 13 things. I don't know how your charter treats all those. So I'd get together with staff and ask them about those kinds of things. Yeah.

Um and so much about gifts is the timing, the context, right? Uh last thing on ethics is um do you agree with this notion that sometimes in matters of ethics perception equals reality and reality equals perception. So whatever your individual analysis is around an ethics issue I just commend you to look at that as well because you may go through the analysis and check all the boxes and come to the conclusion okay under our code of ethics I have no actual conflict of interest. I have no obligation to recuse myself and I'm going to stay in there and participate. But nonetheless, you get to the meeting room and still feels like there's a little cloud in the room, right? Or maybe even it's the person sitting back there. Why is she participating in this? I thought she had a conflict of interest. There's this little vibe, right? So, in regard to that, I I would commend to you there is something above my pay grade. That's the perception issue. But one of the best practices you can use around that is also to be transparent. Even if a disclosure is not required, consider the value of a disclosure. Right? If you've done all the analysis, but nobody here knows you've done all the analysis. Hey, mayor, before we open the hearing on this proceeding, I just wanted to make a comment because I've heard some rumor or gossip or some suggestion that I have a conflict of interest because of X. I just wanted to assure everyone that actually I don't have that relationship. I have no financial relationship to the applicant or the matter or whatever it is. And I want to assure everyone that I'm going to make this decision, right, based solely on my responsibilities as a council member applying the appropriate standards, right, on behalf of the council. And that reassures then everyone knows you had already done your homework. Sometimes people just don't know you've done your homework, right? Uh, last thing on doing your homework and again I'm going to speak out of turn for Scotty and for um your city manager and that is uh they can't serve as your individual ethics advisor but uh give

them a call early if you're struggling with a ethics issue. I'm sure they'd love to hear earlier than later. Very awkward to try and tackle an ethics matter that's unfolding at the dis in the moment. Right? So if it's on your mind before the meeting you give them a call and say I'm struggling to figure out where this sits within our code. They can give you some thoughts. They can't be your individual advisor, but they can tell you how the code works and maybe give suggestions from the city's perspective of what the expectations are around that. Okay. All right. Beyond the code of ethics, just wrapping up, I got just a few more things for you. Um, beyond compliance with the code of ethics, commit yourself to personal conduct that strengthens the council as an institution. Um, and in unpackaging this, I just want to suggest that one of my own personal views that your tenure as elected officials being in public service is a little bit like being on a train. The the train and the track being our community wherever we want our community to go. And during our tenure in elected office, we're on that train in the engine room stoking that engine to get us wherever we want to go, whatever it looks like policy wise, legislative wise. And part of that I think then is to make that engine stronger that the when we leave council the engine of the institution of the city council is stronger than when we found it. So in terms of best practices I think sometimes that's going to ask of us that we commit to personal conduct that we don't have to do it. Maybe we prefer not to but maybe it's better in terms of making the institution stronger. So, for example, um setting aside a personal interest or agenda when there's lack of support, right? We may individually as a council member say, you know, the only reason I ran for office is the only thing I want to get done this year is I want an ordinance that does this. But if I can't find three council members to come along with me, I have to be willing, right, to put that on the back burner in service of

the work plan and the agenda of the council as defined by the council, right? Do you ever have split votes, Mayor? I haven't had a split vote. No,

that's good. That means you're creating that time and space where everyone's diverse viewpoint gets heard and we're working through. We should always embrace that, right? No matter how difficult the issue, our council deliberations are always space where everyone feels like they're heard and appreciated, no matter how much we may disagree on the policy issues, right? And if we ever have um an outcome that we voted against or didn't prefer, we have to be willing to accept the fact that the council has spoken. It can give real rise to risk issues. I've had claim situations where somebody on the losing side of a vote, couldn't let the issue go and was attempting to relitigate or worse yet they were attempting to interfere with realization of the decision. And that created particularly if it involved third parties, that's a real problem, right? Um, so respecting your code of conduct, your norms of conduct, you have a nice uh code of conduct document uh that you as a council adopted. You know, take the time, find be selfish about finding time collectively as the group to look at it, say, does it still work for us? Do we still agree on its values? You know, that that that kind of thing. Um, and accepting in line with my administrative comments, accepting that at a certain point the council's work is is done and it's given over to to staff. Right. Okay. Let's see. Um, I'm over time, so I just want to real quickly point out this last topic here. Again, we do separate um trainings on this issue and it's it's covered by the last handout, but you all, it's fascinating being elected officials because you have different jobs. A lot of the time you're just you're doing legislative work, adopting policy or dealing with corporate matters, but you also make land use decisions in the city and you do licensing decisions, right? And in that context, you're making decisions that affect the individually individual constitutionally protected property rights of particular

applicants, right? And in that role, you're not legislators, you're judges standing in judgment of a specific application. And there are whole different rules of engagement apply to that. Right? Quasi judicial process is the one where we have additional public notice. We have an evidentiary hearing in front of city council. Right? The decision has to be made by the council according to pre-existing legal standards and criteria. Right? whatever it may be, the liquor licensing code or the land use and development code, we're applying those pre-existing standards and the decision has to be made by a fair and impartial decision maker. It's so much different than the legislative job because if it's a piece of legislation, whatever it may be, some nuisance ordinance, you can vote yes or no because you love or hate the issue. You can do all your own research. You can lobby each other consistent with the open meetings law, right? And you can speak your own personal preferences and bias, but for quasi judicial matters where you're a judge, all those behaviors, right, are not allowed. Sounds weird, right? That people get it intuitively when they go back to where does all this come from, right? Of all the millions of pages, it comes back to one sentence. No person shall be deprived of life, liberty, or property without due process of law. So awesome and great thing in Colorado that we have local control that allows us to make liquor licensing decisions. Do you have marijuana?

No. Liquor licensing, land use decisions. You get to make those locally, but the flip side of that coin, the grand bargain is that we have to make sure that we're honoring people's due process rights by following the due process rules of engagement. I've listed a couple of the main rules of engagement there. Things that you've probably already been coached on, things like avoiding outside the caring communications, make sure we're impartial. The only one I want to emphasize before wrapping up is uh from Cersei's perspective that discussion by the council, your deliberation just before you make a decision. Very important magical piece of the hearing, right? You want to make sure you have a good deliberation focused on the standards and rules that apply, right? And you'll and that's how you get the good defensible decisions, right? You might have a decision. Uh, do you have conditional use or special use permits or something like that? You decide those every once in a while.

Is one of the criteria something like compatibility with the neighborhood or something? Yeah. So, you know, you're going to be in one of those hearings and that's a kind of a fuzzy criteria,

but it's constitutionally defensible. Yeah. But sometimes it starts a little rocky. We have the hearing and mayor says, "Great hearing everyone. Let's bring it back and decide how we're going to vote on this." And I say, "Mayor, I'll start our discussion. I'm just going to vote no because I don't like it. That's a bit rocky, but we'll get there through our deliberations. Just using what I call on the slide Sam's rule of why. Just test each other as the decision makers. Why is that? Sam, why don't you like it? I'm going to vote no because I don't like it because it doesn't meet our standards. Now, we're getting somewhere. Are we done? Why doesn't it meet our standards? I'm going to vote no because I don't like it because it doesn't meet our standards. because our rules require that this application be compatible with the neighborhood and I don't think it's compatible. Are we done? One more layer. What factbased reason is there that it's not compatible with the neighborhood? Well, maybe the staff report and the testimony was well the development standards required that everything in that area be of a certain height and this applicant's requesting a variance to double the height. That's not compatible with the neighborhood. That's why I'm going to vote no. The magical thing that's happened is just through that discussion, you've made a defensible rules-based, right, set of findings for your impending decision. And that's wonderful to have when your decision gets challenged. Okay, so there's more on quasi judicial at that link and on the handout. Last thing, just some key takeaways to aggregate some things up. Um, best practices at the governing body level for managing and mitigating risk, right? Just embrace that policy administrative distinction. Take the time. Get the information you need to help you make defensible decisions. Have focused on point deliberations. Stay within the scope of employment. Embrace process. Do you like process?

Process is a product in and of itself. That all organizations provide process, but particularly at the governing body level. So much of what you do is deliver that product. process providing a forum for citizens to come and talk to you about needs and wants and irrespective of outcome embrace process you want people to walk away from even if it's a tough decision you say well I disagree with what council decided but you know what I felt like it was a good process I felt like I was heard I felt like I was respected I feel like council had a good deliberation around the issue and that's what builds faith and trust in you all individually as council and in council Of course, follow your transparency rules and work to both individually and collectively embrace your fiduciary responsibility. So, with that, I'll open it up to any questions. The remaining slides are just some more resources uh from Cersea, but Mayor Council, thank you very much for the opportunity to come visit with you all. It's great to see you and appreciate it on behalf of Thank you very very much for being a CERSA member. We honor and appreciate you all.

Thanks. Great. Thank you. Appreciate your time. Appreciate you coming up and get us an update and a little refresher on this. Thank you. Anybody have anything? All right. Sounds good. Thank you. Thank you. Appreciate it.

All right. Our next item will be the east side storm sewer project and storm water master plan modeling updates or as I like to call it the train to nowhere. That's what I phrase for that is the train to nowhere. Yes, mayor and council. This uh second item is coming to you. Uh if you go way back to August 20 20th of 2024, the city council discussed the east side storm sewer uh that was awarded to BT Construction at the time and there was a discussion about um at that same meeting there was a discussion about the state street sanitary sewer and so a lot has transpired since then and so what I have asked staff to do is to look into uh the state Street sanitary sewer and the east side storm sewer and see where is the value truly at for the community. Now, as of today, as I'll talk about in my city manager update tonight, but as of today, bids were due back for the State Street Sanitary Sewer. Uh so we can continue to move the design of that project forward that will ultimately lead here after design is complete to um advertising for construction. Okay. And so that part of the project will upsize an 8 inch main to a 12-in main. We've talked about that. However, this issue is the east side storm sewer. And if you recall, there was a conflict between the two. So, what I've asked staff to do is evaluate the uh feasibility, if you will, of the East

Side storm sewer to determine is that the best use of public funds because essentially, as Shantanu will discuss here in a minute, what that project is doing is building a pipe under the UP railroad, capping on both ends, and burying it until some point in the future were able to connect that pipe and extend it out to the South Plat River. What Shanteneu will show you is that one portion of that extension is $20.6 million. Yes, that is correct.

So $20.6 million after the portion is constructed under the UP Railroad. So I've had staff do an evaluation of is this the best use of public funds. We've done a many uh uh storm water model to determine where outfalls are needed, what the cost of those outfalls are, and really what this looks like. Does it make sense to pay an annual debt service payment on a project that is built under the railroad capped buried for some unknown time in the future when we may be able to extend off of it? Or are there tangible product or tangible projects throughout the community right now that make more sense as we're paying debt service on the state revolving fund loan? So with that, I'm going to go ahead and turn it over to our director of engineering, uh, Shantonutari, and he is going to guide us through this conversation, through this presentation. Uh, and then certainly staff will be happy to answer any questions that you may have. So Shant,

thank you, Cody. Um, honorable council members, mayor, city staff, thank you very much for having me here. My name is Shantari. I'm the engineering director. Uh so today we'll be talking about the east side storm swore and the storm water project prioritization along with my colleague Ty Berski who's the public works and utilities director. Uh so for today's agenda we're going to give you some project background. Uh we're going to talk about finances project timeline uh the latest modeling that Wilson and company did in 2025 and then um the prioritization list and the recommendation from the engineering staff. So, as as Cody already laid out, um the East Side storm sewer project was conveying storm water underneath the Union Pacific Railroad uh by uh 35th Street. However, this project did not provide any immediate benefit to the city. What was happening is we were conveying the storm water from uh a certain point to another point underneath the railroad and capping the pipe. Essentially, the storm water didn't go all the way to South Plat River. Um, and the additional downstream infrastructure that was needed was not planned yet. And the reason because we have so many different maintenance items that we need to focus our attention on. We didn't know when we will have this infrastructure in place. So state street sanitary sewer project was identified at that time as a project that would provide some benefit to the city immediately instead of the east side storm sewer project. Uh the differentiation between these two projects are uh for the east side project we were using the SRF funds. However for the state street sanitary sewer project we were using the wastewater funds. So I want to I want to identify the key differentiation between those two fund finances.

Um, moving on to finances, uh, the SRF fund loan that we received back in 2021, we received $8.6 million from the state originally earmarked for the 31st Street outfall project and the East Side project. Uh, we have uh used approximately $3.75 million for the 31st Street outfall project and we are left with approximately $4.8 million. And I say approximately because there's there's a little caveat there. Um so we do have some minor costs associated with uh closing of the east side project and there those are mostly material storage and administrative cost um in regards to our contractor BD construction and and with with state approvals these leftover funds and the SRF fund could be used for other uh projects that could benefit the city and the residents. Moving on I just want to provide you some uh timeline of the project. So back in August 2024, the east side and the state side uh both projects were awarded to BT Construction. The construction was delayed because there were multiple factors. We had permitting issues, we had design issues and we had a couple of other uh logistical issues. Um so in October 2024, we started having discussions with BT constructors to pursue that. we will not move forward with the east side project and then state sites um state street center project became our main focus um in December 2024 upon directions uh from from the city manager we finalized that we're not going to go with the east side and we completely going to focus on the state uh street sanitary project in May of 2025 before May of 2025 what we realized that the way the contract was awarded to BT constru construction for the state senator project uh proper procurement protocol were not followed. So we we we

went back to uh bidding process and then we awarded the contract to Colorado civil. Um what happened that after awarding that contract to Colorado civil is that we realized that we only had 60% design set. We did not have 100% design set. So again we put the project on hold to pursue 100% design set for the state street senatory project. uh come September 2025, engineering staff contracted Wilson & Company to update the strong water master plan and then come up with a priority list of of uh for the city. Um Wilson and Company took a couple of months. They came back to us in January 2026 and they completed the master plan update and modeling and then provided us with a storm water cip ranking. And then that brings us to today, February 2026. Uh we're having this work session and then upon direction from the city council, we'll engage with the SRF staff to relocate funds that we have available to us. Uh so Wilson Company storm water modeling September 2025 to January 2026. So what Wilson and company reviewed? They reviewed the 2016 storm water master plan that was conducted by Miller back in 2016. They gathered information from staff and public. They looked at urban low spots. They also looked at flood plane storage. So the question is why did we do it? We did it because we wanted to see the flood. We wanted to reduce the flood risk. We wanted to look at the infrastructure sizing. Uh we want to be compliant and then also to add immediate value to the city. And then at the end we also wanted to have a CIP list that we can focus our attention on. So based on that the Wil Wilson and company came up with this list. So as you see uh on the left hand side I have the table representing the the projects the respective ranking and their respective 2025 construction cost and on the right hand side I have the map

showing the locations of those respective projects. So if you look at 37th Street outfall it's more than $25 million. 23rd Avenue outfall close to 5 million Liberty uh and Liberty draw and 35th Avenue outfall more more than uh five close to $5.5 million 17th Avenue outfall a little more than 6 million and then 35th uh a little more than 13 million. So based on this disc based on this memo from Wilson and company and further discussions with with the engineering staff and and uh with public works uh staff, we focus our attention on the 23rd Avenue storm uh storm outfall system. So what we have here is is is few faces of the 23rd Avenue storm water outfall system. So if you look at uh the left hand side we have the map of the project site and on the right hand side we have the table uh displaying the different phases of of of the project. Um so if you if you look at the bottom left and bottom side phase one is 49th street crossing channel or pipe and a roadside ditch. Um so this phase alone is divided into two subfases. Phase 1 A that consists of a grass channel or a rip wrap channel and then phase B phase 1B consists of having a 120in diameter pipe that takes the storm water from the intersection of 49th Street and 23rd all the way to South Plat River. So for for do those two subfases we have two different costs because you know material costs u for phase 1 a that is a grass channel that'll convey storm uh water uh from 49th street to south flat is u at 0.9 million uh approximately a million dollars if you round it up but if you look at phase 1b uh the cost uh

associated with the 120 inch di diameter uh diameter pipe is 2 approximately $2.5 million. Um if you look at phase two uh phase two of this project is pre-rier rich pond repairs uh that includes clearing grubbing and drainage pans drainage pans and that cost is approximately $2.2 million and I'm saying approximately in front of every cost because these are predominantly cost uh estimations done by Wilson company for for our our study. uh final phase of this project is the overflow channel that will connect the prayer rich pond B to the intersection of uh 49th and 23rd and the cost associated with that phase is uh approximately $300,000. So if you look at two different costs, what I want to display is if we were to go with a channel uh from 49th Street all the way to South Plat River, if you add all those construction cost, at the end of the day, that cost be close to $3.5 million versus if you have a 120 inch diameter pipe from 49th Street all the way to South Plat River, that cost is $4.9 million. So we have as we have seen in the past in in previous slides the SRF funds that are available to us at this point are $4.8 million. So if we were go with a with a a channel from 49th Street to South Plat River, it gives us a cushion of approximately $1.5 million that could be used for construction management, that could be used for uh additional easement acquisition uh or contingency purposes in construction costs because as we know construction costs go uh you know up year by year. Um the the the other main point that I also want to emphasize if you look at the picture on the left hand side is either we go with a channel or a 120 inch diameter pipe that would also

al alleviate uh the flood risk on the west side of 49th because that cost also includes uh cost of roadside ditch that will convey storm water from the west side to the intersection of 49th and 23rd. So I just wanted to bring that to your attention. Is everybody following what he's what he's saying there? There's two separate projects, but there's three phases each. Okay. Thank you. Sure. Well, let's wait for the questions to the end. Let let them continue with this for time constraints.

Um, moving on with engineering staff recommendations. So entering staff recommends that we move proceed with the 49th street intersection with a grass or river prep channel to the sl south plat river and again I want to break down the cost associated with these different phases. So phase 1 a again I want to remind that phase 1 a is a channel uh that will convey storm water from the intersection to the south plat river. Uh phase two is repairs to the prayer range pond and phase three is pond to 49 street overflow channel that would connect the intersection to the pond. Uh that brings us the total construction cost approximately $3.4 million. Uh we assumed a 10% contingency of approximately $340,000. Construction management and easement again we made some liberal assumptions on these half a million and brings the grant total to $4.2 million. The available SR funds we have is 4.8 and the difference is $600,000.

Awesome. Great. Thank you. Great presentation. Thank you for all the information, everything like that. I really appreciate it. Um I'm I'm definitely in favor of going in this your using your recommendations and going that I I believe uh building a pipe to nowhere is not beneficial. It's not good use of taxpayer money. We have a lot of infrastructure repair and needs that we need especially in Prairie View in that pond area. I know you've had a lot of people in your area that has been totally has been complaining about it. We do need to address flooding and everything in throughout the community everything. And I I'm I'm for your recommendations in going that route.

Council member Neil, I know he was asking question. Yes. If we've proceed with a grass. That's the one that you would have to uh dredge every five years. Is that correct?

Yes. So, we we we do have two options. So, I do not have costs associated with the the the rip wrap channel, but we do have cost for grass channel. So, if we were to go with the rip wrap channel, that would uh reduce the um estimated maintenance cost and also dredging every five years. But if we have a grass channel in place that will require approximately 40 hours of maintenance per year and then also dredging every five years for for m for maintaining the capacity. Thank you. Uh I just had one quick question. Sure.

You talked about the 120 inch pipe versus um the channel and the reason the channel is suggested is cost savings. Right. Exactly. So, um, if we do have, you know, a crazy rain, flood event, whatever we have, um, you know, would that channel be able to handle the volume of water that gets down there? And would this this would also address I just want to uh put this out there. This would address that big pipe going down to the little bitty pipe. So, uh, because we saw that when we did the tour, and I just wanted to,

uh, make sure that it's addressing that. But again, uh, you know, I want to make sure pipe versus channel. I I don't mind. I'm going with what you guys tell me. Um, I just want to make sure that it can handle the volume. You don't want hydrostatic pressure and blowing. No, I'll hold on that on 23rd Street. I'll take the latter question first. So the answer uh you know reducing the pressure on the pipe that's yes and and for both channel and for the 120inch diameter pipe the the capacity in both are the same. Okay thank you for that clarification. Anyone else?

I just want to clarify too that if we did go with a pipe that would also require additional maintenance in the future right as far as like Yes. Yeah. So, it's not it's not that the pipe is maintenance-free and the channel will require maintenance, but maybe a little bit less. Okay. Exactly. The pipe, you're absolutely right. The pipe would would require some sort of clean out from anything that's coming into the the pond or out of the pond that could possibly get hung up. Council member Johnson, you said you had something.

I was going to ask that as well, but um I just wanted to say yes, I am for um doing this instead. and it's also ranked too like the second highest. So I think it's appropriate with the amount of money that we have to go that direction. Um I think this will definitely help especially because we've had in the past um weather that has flooded our area especially Evans and so if we can um mitigate those things and be proactive let's do it.

So I believe I just want to grab your attention just quickly. So the yellow arrow that's been showed here, this is the location of the the roadside ditch along 49th Street. that will capture all the storm water here and then convey it towards the intersection and then ultimately that will uh get to SL south plat river that's part of the project. Yes,

it is. Yes. And and this cost is is here both in phase 1 A and then phase 1B. Awesome. Great presentation again. I think you got C uh staff has its direction from council and comment your question. Um do we currently own most of the easement to this? We we council member we do have a 50t wide easement on the property. Yeah, I was about to ask that. Good. Thank you for asking that. Yeah. Well, thank you. Appreciate it.

So, I will proceed with council's direction uh to to pivot. We'll have we'll start having we'll continue having conversations with SRF. Uh and then we will I'll bring back a resolution for uh the city council to formally terminate the BTC uh contract that was approved in in 2024. And we'll just keep keep this project moving that way. I will have an update in the city manager update that talks about another east side project that we're that we've been awarded uh federal funds for here recently. So we can uh and that will that will produce um you know if we're able to get that one done that will produce tangible results immediately rather than burying a pipe and capping the end. So that'll be a better project uh to mitigate localized flooding on that side. So

perfect. All right, sounds good. If there's nothing else, we'll take a break and we'll start immediately at 7. Thanks. Appreciate it.