HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 242 - Open's Opposition To City's Motion In Limine
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 21-cv-02063-CNS-SBP
CITY OF FORT COLLINS,
Plaintiff/Counterclaim Defendant,
v.
OPEN INTERNATIONAL, LLC and OPEN INVESTMENTS, LLC
Defendants/Counterclaim Plaintiff.
OPEN’S OPPOSITION TO THE CITY’S MOTION IN LIMINE
The City seeks to exclude relevant evidence that Open will offer to rebut claims that it was
not ready for the U.S. market, that its signature product was “vaporware,” and that the City was
justified in withholding payments to Open due to a lack of appropriations. The City also moves
to strike rebuttal testimony from undeposed witness Jeff Valadez, even though the City decided
not to subpoena him during discovery, and Open has agreed to condition his trial testimony on a
deposition about rebuttal matters beforehand. The City may not hamstring Open’s defenses with
these exclusionary rulings and thereby deprive the factfinder of important, relevant information.
The Court should deny the City’s Motion.
I. MR. HICKMANN’S TESTIMONY REFUTES KEY CITY CLAIMS AND
ILLUSTRATES HOW THE CITY’S BREACHES SCUTTLED THIS PROJECT.
The City does not seek to prove that Open made discrete misrepresentations about
particular product features or breached specific provisions of the contract. The City’s claims are
much broader: that Open pitched a product that was not “ready for the US market,” Dkt. 192 (Am.
Compl.) ¶ 45; that its proposal “amounted to grading ‘vaporware,’” Dkt. 156 (City summary
Case No. 1:21-cv-02063-CNS-SBP Document 242 filed 09/15/23 USDC Colorado pg 1 of
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judgment brief) ¶ 90; and that cure was futile because the defects in Open’s system were so
pervasive as to render completion of the project impossible, id. at 27. In short, the City claims
Open could not deliver because its software was a sham. Mr. Hickmann will refute that theory of
the case.
Specifically, Mr. Hickmann will testify that TVWD began assessing potential CIS
replacements for its multiple utilities in 2019, and he “was very impressed” by Open’s SmartFlex
version 8 product (“OSF”)—the same product Open had recently delivered to the City and that the
City praised to Mr. Hickmann—and he concluded it had “the best technological offerings and
configurability of the proposals” he reviewed. Mot. Ex. 1 (Dkt. 241-1, the “Hickmann Decl.”)
¶¶ 2, 7-15. He will testify that, during about 18 months between 2020 and 2022 (much of that time
overlapping with the City’s implementation), Open successfully implemented OSF to support
multiple utilities for TVWD’s 250,000 residents and at least as many more customers of TVWD’s
partner Clean Water Services (“CWS”)—in all, hundreds of thousands more users than the City’s
utilities serve. Id. ¶¶ 3, 5, 18, 31, 36.
Mr. Hickmann also will identify key project requirements that TVWD and CWS delivered
that he deemed critical to the success of their project but that, in contrast, Open will show the City
did not deliver in its project. For example, TVWD and CWS hired an experienced project manager
to meet their obligations for project management and governance, id. ¶¶ 19, 24-28, and they
assigned ample dedicated staffing resources so those individuals could carry out project
responsibilities without the distraction of day-to-do responsibilities for the utilities, id. ¶¶ 18, 20-
23. Mr. Hickmann also will explain why TVWD and CWS stayed with Open even after learning
the City had terminated its project with Open and asserted fraud claims:
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I was deeply concerned when I learned that summer about the problems the City of
Fort Collins claims it experienced, and I carefully considered whether Fort Collins’s
alleged problems with Open reflected risks to TVWD and CWS’s project with Open.
But as part of assessing the situation, I also learned that Fort Collins had lost
multiple, significant leaders for their project and a lot of support staff . . . [which]
can easily lead to failure. For this reason, I believed the Fort Collins situation was
not comparable to TVWD’s and retained confidence in Open.
Id. ¶¶ 40-43.
In short, Mr. Hickmann will testify that, from 2019 through 2022, he observed that Open
and OSF were ready for the project with TVWD/CWS; Open delivered to them the same high-
quality software it delivered to the City; and Open successfully launched that software for a larger
population than Fort Collins’s and within the anticipated timeframe, thanks in large part to TVWD
and CWS investing in project management, governance, and staffing, as required. In other words,
contrary to the City’s theory, Open was ready for the U.S. market, OSF was not vaporware, and it
would have been eminently possible to cure any problems with OSF and launch the system, if only
the City had complied with its contractual obligations.
The City points to authority eschewing a party’s use of expert testimony that relies on a
party’s “past implementation successes or failures” to rebut alleged misrepresentations. Mot. at 3
(citing Corizon Health, Inc. v. CorrecTek, Inc., 2018 U.S. Dist. LEXIS 97083, at *57, *68 (W.D.
Ky. 2018)). That is not what Open is offering through Mr. Hickmann, though. As described, he
will provide fact testimony about a roughly contemporaneous project that—in combination with
Open’s own testimony that the City and TVWD/CWS received the same version of OSF—tends
to disprove as a matter of logic the City’s assertion that Open and OSF were unready and defective
for U.S. customers and incapable of a successful launch. Mr. Hickmann’s anticipated testimony
also gives the factfinder information to compare the City’s unsuccessful project with a successful
Case No. 1:21-cv-02063-CNS-SBP Document 242 filed 09/15/23 USDC Colorado pg 3 of
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one to assess why the one failed and the other succeeded. See Agri-Systems v. Structural Techs.,
LLC, 2023 U.S. Dist. LEXIS 85559, at *24-31 (D. Colo. 2023) (Arguello, J.); id. at *27, *29
(permitting testimony to help factfinder “compare[] unimpacted” project with subject project that
“has been disrupted,” despite differing project locations (Colorado versus Oklahoma), size (six
parts versus two), workforce, and key materials).
A principal issue the factfinder must decide is the material reason for the project’s failure—
was it misrepresentations by the vendor, a shoddy software system, or a customer that did not live
up to its contractual obligations? Testimony about Open’s two overlapping implementations of
the same software for TVWD/CWS and the City, and about Open’s successful launch for the
former only a year after the latter terminated its project claiming that a successful launch was
impossible: that is a relevant and helpful comparison for the factfinder in deciding why the City’s
project failed. The Court should deny the City’s request to limit Mr. Hickmann’s testimony.1
II. OPEN MAY PROPERLY REFUTE INNACURATE TESTIMONY THAT THE
CITY WITHHELD PAYMENTS BASED ON A LACK OF APPROPRIATIONS.
Even though the City’s affirmative defense based on appropriations may “not be presented
to the jury,” Dkt. 231 at 16:7-9 (July 10, 2023 hearing transcript), the City intends to justify its
failure to pay Open’s invoices with trial testimony that “[t]here were no funds appropriated to pay”
Open, id. at 17:20-18:1. In the instant Motion, the City also seeks to block Open from rebutting
1 The City cites a string of non-binding cases to argue that Mr. Hickmann must not testify about Rule 404 character
evidence. As described above, Mr. Hickmann will not testify about Open’s character. Separately, if the City attacks
the truthfulness of Open witnesses by offering testimony that they misrepresented facts (even though the jury should
not hear and may not resolve misrepresentation claims, see Dkt. 232 at 4-5 & Dkt. 236 at 4-6), Open reserves the right
to rehabilitate their reputation for truthfulness under Rule 608. See Augé v. Stryker Corp., 2021 U.S. Dist. LEXIS
144442, at *4-5 (D.N.M. 2021) (“axiomatic” that evidence of misrepresentations is “probative of . . . character for
truthfulness”); Hickmann Decl. ¶¶ 32, 44-45 (describing Open and its owners’ reputation as “forthcoming,” “honest
and transparent” in their dealings with the TVWD community).
Case No. 1:21-cv-02063-CNS-SBP Document 242 filed 09/15/23 USDC Colorado pg 4 of
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this testimony by showing the City’s misconduct with respect to appropriations, which the City
characterizes as “not relevant,” “rank speculation.” Mot. at 5. This is wrong. Admissible evidence
readily demonstrates the City’s appropriations misconduct, and this evidence is relevant to rebut
the City’s anticipated testimony about unpaid invoices and to impeach the City’s credibility.
The City predicates its justification for non-payment on City and state appropriations laws.
See Dkt. 230 (final pretrial order) at ECF page 5. Under the City Charter, it is “unlawful for any
. . . officer or agent of the city to incur or contract any expense or liability or make any expenditure
. . . unless an appropriation therefor shall have been made by the Council.” Art. V, Sec. 8(b). State
statute follows suit: “no officer, employee, or other spending agency shall expend or contract to
expend any money, or incur any liability, or enter into any contract which, by its terms, involves
the expenditures of money in excess of the amounts appropriated.” C.R.S. § 29-1-110(1).2
But these statutes do not justify nonpayment to Open because the City Council appropriated
funds to cover the full contract with Open. See, e.g., Ex. A at ECF pages 27-29 (June 2020
Ordinance. 076, 2020, appropriating $1.9 million based on “City and Open agree[ment] to divide
the CIS/OSF project costs described in the Change Order, totaling $3,300,000, 55% and 45%,
respectively”). Once appropriated, those funds were then encumbered by City officials “to make
sure [they didn’t] spend the same dollar twice—or . . . ‘pledge’ the same dollar twice to different
contracts . . . [which] would violate the City’s appropriations laws.” Ex. B (July 17, 2023 City
Rule 30(b)(6) Deposition) at 37:12-39:9. Thus, according to the City, by June 2021, the full value
2 A knowing violation of appropriations laws constitutes “malfeasance,” C.R.S. § 29-1-115, which the criminal code
treats as “official misconduct” subject to criminal penalties. See C.R.S. §§ 18-8-404, -405; see also C.R.S. §§ 18-1.3-
501, -503 (penalties); Losavio v. Gentry, 606 P.2d 57, 63-64 (Colo. 1980) (explaining proper scope of investigation
into “budgetary irregularities” included government entities “overspen[ding] their allocated budget” in “apparent
contravention of” Sections 8-404 or -405 of the criminal code and the precursor to C.R.S. § 29-1-115); see also Dkt.
224 at 14:21-23 (Hegarty, J.: “If you allocate money that hasn’t been appropriated, it actually can be a crime.”).
Case No. 1:21-cv-02063-CNS-SBP Document 242 filed 09/15/23 USDC Colorado pg 5 of
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of Open’s contract—roughly $12 million—“had been appropriated” by the City Council “and then
either spent or encumbered for the project with Open.” Id. 134:25-135:6; see also id. at 130:11-
135:6 (providing detail). And since the City had paid Open about $8.7 million by then, there was
at least “$3 million remaining,” “[e]ncumbered to Open, appropriated for the project.” Id. at
136:10-16. From that roughly $3 million remaining in June 2021, the City has made no payments
to Open. Dkt. 150-4 at ECF pages 39-41 (City records reflecting final payment in April 2021).
“After June of 2021,” however, once the City filed this lawsuit and halted the project, it
“spent some measure of funds that had been appropriated and encumbered for Open on other
purposes besides paying Open,” despite “kn[owing] that there was a dispute with Open over the
contract” and payments due to Open. Ex. B at 137:21-138:18. Indeed, in October 2022, the City
alerted Open that it had dissipated the $3 million of remaining appropriations down to, at that time,
$148,517.32. Ex. A at ECF pages 2-3 (Oct. 3, 2022 Collard letter). The City then told the Court
that, as a result, “Open’s damages, if any, are limited to $148,517.32.” Dkt. 124 at ECF page 23.
These facts dispel the notion that the City lacked appropriated funds to pay Open during
the course of the project, and they show the City’s misconduct afterward. Apparently, City officials
“expend[ed] money” or “incur[red] liability” for other obligations “in excess of the amounts
appropriated,” and to pay them, officials diverted funds appropriated and encumbered for Open,
even while the City’s contractual obligations to Open were outstanding. C.R.S. § 29-1-110(1).3
3 The City’s argument that experts alone may parse appropriations laws contradicts the City’s position that it may
invoke those same laws to explain nonpayment, and the City’s cited cases are inapposite. James River stands for the
black-letter proposition that only qualified experts may offer technical or other specialized opinion testimony, and
Beltran v. InterExchange, Inc. held that a witness’s lay testimony implicated an expert’s “specialized knowledge of
the statutes and regulations he had by virtue of his long tenure” at federal agencies and his “extensive knowledge of
the regulatory and statutory history” at issue. 2018 U.S. Dist. LEXIS 80378, at *16 (D. Colo. 2018). In contrast, here,
the factfinder is capable of reading and understanding the plain language of the few, clear statutes. No expert or expert
qualification is needed.
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After Open raised these concerns and won a ruling to block the City’s use of an
appropriations affirmative defense, Dkt. 225 (summary judgment) at 22-23, the City changed its
story. In a letter addressing unanswered questions posed during a deposition into the City’s
suspected appropriations misconduct,4 the City picked a new number: now, the City says, about
$2 million remains. See Ex. C (July 24, 2023 Collard Letter).
This still would leave unaccounted-for roughly $1 million appropriated by the City Council
and encumbered for Open’s contract, but in all events, the City’s shifting efforts to shirk
contractual obligations impugns its credibility. See, e.g., Wharton v. State Farm & Cas. Ins. Co.,
1995 U.S. App. LEXIS 14586, at *8-9 (6th Cir. 1995) (affirming admission of evidence of party’s
attempt to illegally or dishonestly hide assets subject to potential judgment “on the grounds that it
was relevant to [party’s] credibility and honesty”). Either City officials failed to competently track
millions of dollars at issue in this dispute, or they purposefully misrepresented the amount of
remaining funds in a vain attempt to insulate the City from judgment. Either way, disorganization
and duplicity are relevant to the factfinder’s assessment of the City’s credibility and good faith
compliance with the parties’ contract and, if the City elects an equitable remedy, to the defense of
unclean hands.
Open should be permitted to rebut the City’s flatly inaccurate contention that it withheld
contract payments due to an appropriations shortfall, and be allowed to impeach the credibility of
the City and its witnesses by showing their admitted misallocation of, and inconsistent accounting
4 The City’s contention that the absence of investigation somehow absolves the City is incorrect for two reasons. Mot.
at 5. First, Open has investigated the City’s appropriations misconduct through document discovery and deposition.
Second, because the district attorney must investigate reported malfeasance, see C.R.S. § 29-1-115, the absence of
that investigation is likely a function of Open’s choice to focus on its case rather than pursue an investigation by the
district attorney.
Case No. 1:21-cv-02063-CNS-SBP Document 242 filed 09/15/23 USDC Colorado pg 7 of
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for, project funds. The Court should deny the City’s request to exclude evidence of the City’s
appropriations misconduct.
III. IF CITY TESTIMONY PUTS INACCURATE STATEMENTS IN THE MOUTH OF
MR. VALADEZ, HE MUST BE ALLOWED TO CORRECT THE RECORD.
When the City served an untimely deposition notice for Mr. Valadez—a former Open
contractor whom Open does not control—he declined to appear without service of a subpoena. So
Judge Hegarty presented the City with a choice: either serve him with a deposition subpoena or,
if not, and if Open calls him at trial, “we’ll deal with it then.” Dkt. 239 at 44:6-18, 45:24-25.
Judge Hegarty observed that he had conducted depositions “in the middle of trial,” and that, if
Open called Mr. Valadez at trial and the City hadn’t already deposed him, Judge Hegarty’s view
was that the City “would get a remote deposition ahead of time.” Id. at 45:25-46:1, 46:12-18.
The City does not purport to have attempted to subpoena Mr. Valadez after Judge Hegarty
permitted the City to do so, thus it has waived the right to a wide-ranging discovery deposition.
Nevertheless, and even though Open lists Mr. Valadez only as a may-call rebuttal witness, Open
has offered to make Mr. Valadez available for a remote deposition if his rebuttal testimony is
needed at trial. Open will not know till hearing the City’s case whether it will call Mr. Valadez,
and Open cannot compel him to testify. But if the City offers testimony that seeks to put words in
Mr. Valadez’s mouth, Open reserves the right to inform Mr. Valadez about it and try to obtain his
testimony to correct the record. Whether that will be necessary is entirely within the City’s
control—Open would call him only to rebut inaccurate testimony about him from City witnesses.
If Open does so and Mr. Valadez agrees to appear, Open will ensure the City can depose
him, beforehand, on the rebuttal matters about which he would testify at trial. That is all fairness
requires and all Judge Hegarty suggested. The City’s Motion should be denied.
Case No. 1:21-cv-02063-CNS-SBP Document 242 filed 09/15/23 USDC Colorado pg 8 of
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Dated: September 15, 2023 Respectfully submitted,
s/ Paul D. Swanson
Paul D. Swanson, pdswanson@hollandhart.com
Kevin C. McAdam, kcmcadam@hollandhart.com
Alexander D. White, adwhite@hollandhart.com
Alexandria E. Pierce, aepierce@hollandhart.com
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, Colorado 80202
Telephone: 303-295-8000
Attorneys for Open International, LLC and Open
Investments, LLC
Case No. 1:21-cv-02063-CNS-SBP Document 242 filed 09/15/23 USDC Colorado pg 9 of
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CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of September, 2023, the foregoing was electronically
filed with the Clerk of Court using the Court’s electronic filing system and that a copy of the
foregoing was sent to all counsel of record via same in compliance with the Federal Rules of
Civil Procedure and the Local Rules of this Court.
s/ Paul D. Swanson
30459864
Case No. 1:21-cv-02063-CNS-SBP Document 242 filed 09/15/23 USDC Colorado pg 10 of
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EXHIBIT A
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 1
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/
(i DDRSEY
always ahead
CASE L. COLLARD
(303) 352-1116
coIIard.casecdorsey.com
October 3, 2022
VIA E-MAIL
Paul D. Swanson
Holland & Hart
555 17th Street, Suite 3200
Denver, CO 80202
(303) 295-8578
Email: pdswanson@hollandhart.com
Re: City of Fort Collins v. Open International, et al.
Dear Paul,
I am writing regarding Open's claimed damages and the City's appropriated funds.
In its response to the City's Interrogatory No. 8, Open has claimed to be entitled to over
$6 million dollars in damages. Open has not served any discovery requests regarding the City's
defenses or objections to Open's claimed damages, however, Open has identified it as a topic as
part of the City's upcoming corporate deposition (see topic no. 64: "The City's basis or bases for
disputing Open's claimed damages). As part of the City's preparations for this topic, the City has
been reviewing the amount of funds the appropriated for the project.
Per Section 13.4 of the MPSA, and as mentioned in the City's response to Open's
Interrogatory No. 9, payments required under the MPSA were subject to annual appropriation by
the Fort Collins City Council. Similarly, payment milestones no. 2 (Appropriation) and no. 3
(Utilities Test Complete) under the First Amendment were explicitly subject to appropriation of
funds by the City Council. Open cannot recover money that was not appropriated, regardless of
the MPSA and/or First Amendment. See Town of Alma v. Azco Constr. Inc., 985 P.2d 56, 58
(Cob. App. 1999) ("Section 29-1-110(1), C.R.S. 1998, prohibits municipalities from spending any
funds in excess of amounts appropriated in the adopted budget, and renders any contract entered
in violation of this section void.").
As part of the City's preparations, we have determined that the City appropriated
$12,859,893 for the ClS/OSS billing system project and $12,711,375.68 has already been spent
or encumbered from appropriated funds. Relevant provisions of the City Charter, appropriation
information, and a summary spreadsheet are attached hereto as Exhibits A-G. Mr. Paul, on
behalf of the City, will be prepared to testify regarding the appropriation and spending of funds
related to the project on October 5, 2022 during the City's corporate deposition. However, should
you need more time to consider this information, please let me know and we discuss a different
day/time for Mr. Paul's deposition that works for all parties. Additionally, we expect that Open will
update its response to Interrogatory No. 8 to remove any damages claims for unappropriated
funds. Please confirm Open's position on its damages claim by October 14, 2022.
1400 Wewatta Street I Suite 4001 Denver, CO 80202-5549 lT3o3.62 9.3400 I F3o3.629.3450 I dorsey.com
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 2
of 32
Paul Swanson
October 3, 2022
Page 2
If you would like to discuss these issues further, please let me know
Sincerely,
Case L. Collard
Enclosure(s)
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 3
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Exhibit A
CFC_220752
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 4
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CFC_220753
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 5
of 32
Exhibit B
CFC_220754
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 6
of 32
ORDINANCE NO. 154, 2017
OF THE COUNCIL OF THE CITY OF FORT COLLINS
BEING THE ANNUAL APPROPRIATION ORDINANCE RELATING TO THE ANNUAL
APPROPRIATIONS FOR THE FISCAL YEAR 2018; AMENDING THE BUDGET FOR THE
FISCAL YEAR BEGINNING JANUARY 1,- 2018, AND ENDING DECEMBER 31, 2018;
AND FIXING THE MILL LEVY FOR PROPERTY TAXES PAYABLE IN 2018
WHEREAS, on November 15, 2016, the City Council adopted on second reading
Ordinance No. 126, 2016, approving the binniaI budget for the years beginning on January 1,
2017, and January 1, 2018; and
WHEREAS, the City Manager has submitted to the City Council proposed amendments to
the 2018 budget adopted by the City Council in Ordinance No. 126, 2016; and
WHEREAS, Article V, Section 4 of the City Charter requires that, before the last day of
November of each fiscal year, the City Council shall appropriate, on a fund basis and by individual
project for capital projects and federal or state grant projects, such sums of money as it deems
necessary to defray all expenditures of the City during the ensuing fiscal year, based upon the
budget as approved by the City Council; and
/
WHEREAS, Article V, Section 5 of the City Charter provides that the annual appropriation
ordinance shall also fixthe tax levy in mills upon each dollar of the assessed valuation of all taxable
real property within the City, such levy representing the amount of taxes for City purposes
necessary to provide- for payment during the ensuing fiscal year for all properly authorized
expenditures-to be incurred by the City, including interest and principal of general obligation
bonds; and
WHEREAS, Article V, Section 10 of the City Charter authorizes the City Council, upon
the City Manager's recommendation, to transfer by ordinance any unexpended and unencumbered
appropriated amount or portion thereof from one fund or capital project to another fund or capital
project, provided that the purpose for which the transferred funds are to be expended remains
unchanged; the purpose for which the funds were initially appropriated no longer exists; or the
proposed transfer is from a fund or capital project in which the amount appropriated exceeds the
amount needed to accomplish the purpose specifid in the appropriation ordinance, and the
transfers in this Ordinance are being made upon the City Manager's recommendation for one or
more of these purposes.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
-1-
U
CFC_220755
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 7
of 32
Section 2. That the City Council, having reviewed the City Manager's recommended
changes to the 2018 Proposed Appropriations section of the Fort Collins 2017 and 2018 Biennial
Budget (the "Biennial Budget"), as shown on pages 44 through 47 thereof, a copy of which is on
file with the office of the City Clerk, and as shown in the 2018 Budget Revisions also on file
with the City Clerk, hereby amends the Biennial Budget to reflect the following changes and
adopts said Biennial Budget as amended:
Existing Additions Reductions As Amended
GENERAL FUND $149,315,113 $1 ,757,000 ($2,189,290) $148,882,823
ENTERPRISE FUNDS
Golf $3,586,000 SO $0 $3,586,000
Light & Power
Operating Total $134,224,558 $0 $0 '$134,224,558
Capital Projects:
Art in Public Places 43,124 0 0 43,124
CIS Upgrade/Replacement - L&P 810,840 0 0 810,840
Dist, System Impr. & Replacement 1,810,000 0 0 1,810,000
Distribution Conversions 800,000 0 0 800,000
New Capacity - Circuits 1,287,440 0 0 1,287,440
Operational Technology 90,000 0 0 90,000
Substation Cap Project 590,000 0 0 590,000
System Purchases 15,000 0 0 15,000
Capital Projects Total 5,446,404 0 0 5,446,404
Total Light & Power $139,670,962 $0 $0 $139,670,962
Storm Drainage
Operating Total $10,942,334 $0 $0 $10,942,334
Capital Projects: 0
Art in Public Places 57,000 0 0 57,000
2013 Stream Restoration Proj 1,400,000 0 0 1,400,000
Boxelder Authority 350,000 0 0 350,000
CIS Upgrade/Replacement - Stormwater 345,499 0 0 345,499
CMMS - Maintenance Management 160,000t 0 0 160,000
Magnolia St. Outfall Phase I 1,200,000 0 0 1,200,000
NECCO Phase 3: Lemay to Redwood 1,700,000 0 0 1,700,000
Remington St. Storm Sewer 800,000 0 0 800,000
Stormwater Basin Improvements 1,500,000 0 0 1,500,000
Capital Projects Total 7,512,499 0 0 7,5 12,499
Total Storm Drainage $18,454,833 $0 $0 $18,454,833
Wastewater
Operating Total $19,016,663 $0 $0 $19,016,663
Capital Projects:
Art in Public Places 114,650 0 0 114,650
2017- Dewaterin g Improvements 2,135,000 0 0 2,135,000
201.7 - Sludge Strain Press 800,000 0 0 800,000
CIS Upgrade/Replacement - Wastewater 507,023 0 0 507,023
CMMS - Maintenance Management 160,000 0 0 160,000
Collection System Replacement 350,000 0 0 350,000
-2-
CFC_220756
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 8
of 32
Collection System Small Projects 743,000 0 0 743,000
Cured in Place Pipe 450,000 0 0 450,000
DWRF Improvement CIP 4,360,000 0 0 4,300,000
Polution Control Cap Replacement 30,000 0 0 30,000
Water Reclamation Replacement Program 3,100,000 0 0 3,100,000
Capital Projects Total 12,689,673 0. 0 12,689,673
Total Wastewater $31,706,336 $0 $0 $31,706,336
Water
Operating Total $26,317,387 $0 $0 $26,317,387
Capital Projects:
Art in Public Places 42,300 0 0 42,300
2017 - Underground Elec Power Supply 650,000 0 0 650,000
2017- Water Qualtiy Lab Rehab 1,300,000 0 0 1,300,000
CIS Upgrade/Replacement - Water 636,638 0 0 636,638
CMMS - Maintenance Management 160,000 0 0 160,000
Cathodic Protection 2,280,000 0 0 2,280,000
Distribution System Replacement 1,350,000 0 0 1,350,000
Distribution System Repi Small Projects 1,110,000 0 0 1,110,000
Microhydro Power Generator at the Water Treatment 0 434,300 0 434,300
Facility
Water Production Replacement Program 1,000,000 0 0 1,000,000
Water Quality Cap Replacement 50,000 0 0 50,000
Watershed Protection 80,000 0 0 80,000
Water Meter Replacement 800,000 0 0 800,000
Capital Projects Total 9,458,938 434,300 0 9,893,238
Total Water $35,776,325 $434,300 $0 $36,210,625
TOTAL ENTERPRISE FUNDS $229,194,456 $434,300 $0 $229,628,756
INTERNAL SERVICE FUNDS
Benefits $32,403,330 $0 $0 $32,403,330
Data & Communications 10,245,596 0 (41,000) 10,204,596
Equipment 14,077,252 140,000 (50,000) 14,167,252
Sellinsurance 4,918,900 129,000 0 5,047,900
Utility Customer Service & Administration 18,031,671 110,000 0 18,141,671
TOTAL INTERNAL SERVICE FUNDS $79,676,749 $379,000 ($91,000) $79,964,749
SPECIAL REVENUE & DEBT SERVICE FUNDS
Capital Improvement Expansion $693,827 $0 $0 $693,827
Capital Leasing corporation 5,509,829 0 0 5,509,829
Cemeteries 1,065,890 0 (1,171) 1,064,719
Conservation Trust
Operating Total - Admin & Parks Maint $231,149 $0 $0 $231,149
Capital Projects:
Trail Acquisition/Development 1,069,000 0 0 1,069,000
Capital Projects Total 1,069,000 0 0 1,069,000
Total Conservation Trust $1,300,149 $0 $0 S1,300,149
-3-
CFC_220757
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 9
of 32
Cultural Services & Facilities
Operating Total $4,220,169 0 (23,400) $4,196,769
Capital Projects - Art in Public Places 93,381 0 0 93,381
Cultural Plan Update 75,000 .0 0. 75,000
Total Cultural Services & Facilities $4,388,550 $0 ($23,400) $4,365,150
General Employees' Retirement $5,647,750 $0 . $0 5,647,750
Keep Fort Collins Great
Operating Total . $27,724,030 $0 (S453,525) $27,270,505
Capital Projects:
City Bridge Program 3,797,641 0 0 3,797,641
FC Bikes Program . 250,000 0 0 250,000
Capital Projects Total 4,047,641 0 . 0 4,047,641
Total Keep Fort Collins Great $31,771,671 $0 ($453,525) $31,318,146
Museum $1,061,555 0 (5,000) $1,056,555
Natural Areas 12,802,420 104,000 0 12,906,420
Neighborhood Parkland Fund
Operating Total - Administration $612,686 $0 $0 $612 ,686
Capital Projects:
Trailhead Park 343,000 0 0 343,000
Neighborhood Park Development 0. 1,200,000 0 1,200,000
Capital Projects Total 343,000 1,200,000 0 1,543,000
Total Neighborhood Park-land $955,686 $1,200,000 $0 $2,155,686
Parking $2,844,048 $750,000 $0 $3,594,048
Perpetual Care 28,211 0 0 28,211
Recreation . 7,474,792 0 0 7,474,792
Sales & Use Tax 8,456,128 0 0 8,456,128
Transportation CEF 6,245,891 0 0' 6,245,891
Transit Services 20,335,268 81,000 (184,144) 20,232,124
.Transportation Services 27,465,921 0 (691,782) 26,774,139
SPECIAL REVENUE & DEBT $138,047,586
SERVICE FUNDS
CAPITAL PROJECTS FUNDS
Capital Projects Fund
Operating Total
Genera! City Capital Projects:
Arterial Intersection lmprvmnt - CCIP
Bicycle Infrastructure Im - CCIP
Bus Stop Improvements - CCIP
City Bridge Program
Expansion of Shop
Gardens Visitor Cii Expansion - CCIP
Grandview Mausoleum Section.2
Horsetooth/College Intstn Inipv
Nature in the City - CCIP
Pedestrian Sidewalk - ADA - CCIP
Railroad Crossing Replacmenl
$2,135,000 ($1,359,022) $138,823,564
$131,000. $0 $0 $131,000
400,000 0 0 400.000
350,000 0 0 350,000
100,000 0 0 100,000
309,075 0 0 309,075
0 1.250,000 0 1,250,000
2,185,000 0 0 2,185,000
450,000 0 0 450,000
500,000 0 0 500,000
189,865 0 0 189,865
1,100,000 0 0 . 1,100,000
150,000 0 (150,000) 0
-4-
C..
CFC_220758
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 10
of 32
Suniga Impvmts-ColtegefBlondel 1,500,000 0 0 1,500,000'
Transfort Bus Replacements - CCIP 500,000 0 0 500,000
Willow Street Improvements - CCIP 765,000 0 0 765,000
Total General City Capital Projects $8,498,940 $1,250,000 ($150,000) $9,598,940
Total Capital Projects Fund 0 $8,629,940 $1,250,000 ($150,000) $9,729,940
Community Capital Improvement Fund
General City Capital Projects:
Affordable Housing Fund 250,000 . 0 0 250,000
Arterial Intersection Imprvmnt - CCIP 400,000 0 0 400,000
Bicycle Infrastructure Em - CCIP 350,000 0 0 350,000
Bus Stop Improvements - CCIP 100,000 0 0 100,000
Gardens Visitor Os Expansion - CCIP 2,185,000 0 0 2,185,000
Lincoln Avenue Bridge 36,000 0 0 36,000
Nature in the City - CCIP 200,000 0 0 200,000
Pedestrian Sidewalk - ADA - CCIP 1,100,000 0 0 1,100,000
Poudre River Project 50,000 0 0 50,000
Transfort Bus Replacements - CCIP 500,000 0 0 500,000
Willow Street Improvements - CCIP 765,000 0 0 765,000
Total Community Capital Improvement Fund $5,936,000 $0 $0 $5,936,000
TOTAL CAPITAL PROJECTS FUNDS
TOTAL CITY FUNDS
$14,565,940 $1,250,000 ($150,000) $15,665,940
$610,799,844 $5,955,300 ($3,789,312) $612,965,832
Section 3. That there is hereby appropriated out of the revenues of the City, for the fiscal
year beginning January 1, 2018, and ending December 31, 2018, the sum of SIX HUNDRED
TWELVE MILLION NINE HUNDRED SIXTY-FIVE THOUSAND EIGHT HUNDRED
THIRTY-TWO DOLLARS ($612,965,832) to be raised by taxation and otherwise, which sum is
deemed by the City Council to be necessary to defray all expenditures of the City during said
budget year, to be divided and appropriated for the purposes shown in Section 2 above.
Section 4. Mill Levy.
a. That the mill levy rate for the taxation upon each dollar of the assessed valuation of
all the taxable real property within the City of Fort Collins shall be 9.797 mills to be imposed on
the assessed value of such property as set by state law for property taxes payable in 2018, which
levy represents the amount of taxes for City purposes is necessary to provide for payment during
the 2018 budget year of all properly authorized expônditures to be incurred by the City, including
interest and princi pal of general obligation bonds.
b. That the City Clerk shall certify this levy of 9.797 mills to the County Assessor and
the Board of Commissioners of Larimer County, Colorado, in accordance with the applicable
provisions of law, as required by Article V, Section 5 of the City Charter and no later than
December 15, 2017.
-5-
CFC_220759
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 11
of 32
Introduced, considered favorably on first'reading, and ordered published this 7th day of
November, A.D. 2017, and to be presented for final passage on the 21st day of November, A.D.,
2017.
ATTEST:
Mayor
Passed and adopted on final reading on the 21st day of November, A.D. 2017.
ATTEST:
-6
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 12
of 32
Exhibit C
CFC_220761
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 13
of 32
High Performing Government
Offer 7.24: ENHANCEMENT Capital - Utilities: Customer Information Billing
System
2017: $0 and 0.00 FTE
2018: $2,300,000 and 0.00 FTE
OfferSummary
Funding this offer will allow the extensive replacement of the Customer Information System (CIS) to
achieve increased functionality for enhanced service offerings, and optimal performance for detailed
usage billing accuracy. CIS is the critical billing system used to manage the customers' usage and
financial transactions. CIS generates monthly utility bills and service requests for approximately
80,000 residential and commercial electric, water, wastewater and stormwater customers. Because
the system is the crucial accounting ledger through which utility revenues flow, it is critical to daily
operations and the financial health of the utility, as well as timely information when working with
customers to manage their utility usage with staff. The current version of CIS was implemented in
2000, with a minor upgrade in 2009. The system is dated in both functionality and technology, and a
major upgrade or replacement of the system is necessary to compliment smart meter technology.
Total revenue generated through CIS exceeds $185 million annually.
In 2015, Utilities contracted with AAC Utility Partners to evaluate whether to upgrade the existing
system or purchase a new billing system. The review included assessing the functionality, resources,
costs, risks and value of upgrading or replacing, as well as the Utilities' business needs, technical
requirements and organizational readiness. The assessment also evaluated the capability of systems
to bill broadband services. Ultimately, the project will be a multi million dollar project, and current
estimates based on completion of an extensive requirements process estimates costs between $6 to
$8 million. Implementation is expected to be a multi year effort beginning in 2018 with finalizing the
scope and schedule, and phased launching, with extensive testing, between 2019 2020.
Offer Highlights
- The CIS project is a significant undertaking and necessary to support the billing service
enhancements for smart meter technology and enhanced program services. A project of this
magnitude, involving a core business system, requires an especially focused effort throughout all
phases, along with continuous, clear communication with project stakeholders and customer
feedback on bill presentment.
- The statistically valid customer satisfaction survey recognized a key expectation of customers
related to billing is "information and tools provided to help you manage your use and costs." The
satisfaction ratings for residents was 76% and commercial was 64%. The target for customer
satisfaction is 80%.
- The CIS project will achieve an advanced system with more robust customer focused and customer
self service functionality that will continue to be the Utility's "cash register" for over $185 million in
annual revenue.
Data As Of: 317/18 at 1:24:20PM 2.2.03 Package and Offer Detail Page 325 of 426
CFC_220762
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 14
of 32
High Performing Government
Offer 7.24: ENHANCEMENT Capita! - Utilities: Customer Information Billing
System
- Optimal integration with the 32 other systems and applications, including the recently deployed
Smart Grid technologies, such as Meter Data Management, and the Siemens system that manages
"Monitor-my-Use", as well as capability of integrating with lVR phone systems, electronic billing
systems, and other systems. This includes ability to pay through the phone and/or on-line.
- The statistically valid customer satisfaction survey recognized a key expectation of customers
related to billing is "technology tools, similar to those used by banks, cell phone or cable
companies." The satisfaction ratings for residents were 63% and commercial were 59%. The target
for customer satisfaction is 80%.
Scalability and explanation
Staff could pursue a version upgrade of the existing system with the existing vendor, this would
substantially decrease costs to about $2 million or less. Staff could maintain the existing CIS system,
as managed with customized fixes with existing IT resources, with O&M at $50,000 per year. Staff
could propose the offer as part of the 2017 mid-cycle Budget for Outcomes process.
dditional information can be found at:
- fcgov.com/utilities
- https://secure.fcgov.com/utilities-service-request/
- https://secure8.i-doxs.net/CityOfFortCollins/
- http://www.fcgov.com/utilities/sustainability-Ieadership/advanced-meter-fort-collins/monitor-my-use
Linkage to Strategic Objectives
- ECON 3.4 - Provide transparent, predictable and efficient processes for citizens and businesses
interacting with the City: The statistically valid customer satisfaction survey recognized a key
expectation of customers related to billing is "convenience of bill payment options, including
in-person locations and online." The satisfaction ratings for residents was 84% and commercial was
81%. The target for customer satisfaction is 80%.
ENV 4.3 - Engage citizens in ways to educate and encourage behaviors toward more sustainable
living practices: The statistically valid customer satisfaction survey recognized a key expectation of
customers related to billing is "information and tools provided to help you manage your use and
costs." The satisfaction ratings for residents was 76% and commercial was 64%. The target for
customer satisfaction is 80%.
- HPG 7.1 - Provide world-class services that meet the needs of the community: The statistically
valid customer satisfaction survey recognized a key expectation of customers related to billing is
"technology tools, similar to those used by banks, cell phone or cable companies." The satisfaction
ratings for residents was 63% and commercial was 59%. The target for customer satisfaction is
80%.
Performance Metrics
- HPG 49. Utilities Customer Satisfaction - Customer Needs
Data As Of: 3/7/18 at 1:24:20PM 2.2.03 Package and Offer Detail Page 326 of 426
CFC_220763
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 15
of 32
High Performing Government
Offer 7.24: ENHANCEMENT Capital - Utilities: Customer Information Billing
System
https://www.clearpointstrategy.com/publishJdirect.cfm?IinkI D=BFO&view=drill&scorecardl D=6347&oble
ct=measure&objecttD=91501
- HPG 51. Utilities Customer Satisfaction - Providing Good Value
https://www.clearpointstrategy.com/publish/direct.cfm?linklD=BFO&view=drill&scorecard I D=6347&obje
ct=measure&objectlD=91503
Personnel Changes
Differences from Prior Budget Cycles
- Not applicable
Explanation of Any Adjustments to Personnel Costs using object 519999
- Not applicable.
Summary of Changes Requested by BFO Teams or the Budget Lead Team
Updates made to Offer Narrative due to shift project start to 2018.
Other Information
Offer Owner: Irosintoski
Offer Type: Enhancement to Programs and Services
Original Offer Number: 7.24
Lead Department: Utility Tech. & Cust. Service
Data As Of: 3/7118 at 1:24:20PM 2.2.03 Package and Offer Detail Page 327 01426
CFC_220764
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 16
of 32
High Performing Government
7.24: ENHANCEMENT Capital - Utilities: Customer Information Billing System
Enhancement to Programs and Services
2017 Projected 2018 Projected 2017 to 2018
Budget Budget Change
Full Time Equivalent (FTE) Staffing
Expenses
579000 - Other
570000 - Other
Total Expenses
2,300,000
2,300,000
2,300,000
Funding Sources
501-Light & Power Fund: Ongoing R
502-Water Fund: Ongoing Revenue
502-Water Fund: Reserves
503-Wastewater Fund: Ongoing Re
503-Wastewater Fund: Reserves
504-Stormwater Fund: Reserves
Data As Of: 3/7/18 at 1:24:20PM
Ongoing Restricted
Ongoing Restricted
Reserve
Ongoing Restricted
Reserve
Reserve
Funding Source Total
810,840
335,204
301,434
298,116
208,907
345,499
2,300,000 -%
2.2.03 Package and Offer Detail Page 328 of 426
CFC_220765
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 17
of 32
Exhibit D
CFC_220766
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 18
of 32
ORDINANCE NO. 056,2018 -
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROPRIATING PROCEEDS FROM THE ISSUANCE OF 2018 ELECTRIC UTILITY
ENTERPRISE REVENUE BONDS FOR CAPITAL, OPERATING, DEBT SERVICE AND
• ART IN PUBLIC PLACES EXPENDITURES ASSOCIATED WITH THE CONSTRUCTION
OF A BROADBAND SYSTEM TO PROVIDE TELECOMMUNICATION FACILITIES AND
SERVICES TO CUSTOMERS WITHIN FORT COLLINS IN THE LIGHT AND POWER
FUND AND TRANSFERRING APPROPRIATIONS FROM THE LIGHT AND POWER,
FUND TO THE CULTURAL SERVICES AND FACILITIES FUND FOR THE ART IN
PUBLIC PLACES PROGRAM
WHEREAS, after final passage of Ordinanée No. 003 of the Board of the City of Fort
Collins, Colorado, Electric Utility Enterprise (the "Enterprise Ordinance"), the Electric Utility
Enterprise (the "Enterprise") intends to issue its "City of Fort Collins, Colorado, Electric Utility
Enterprise, Tax-Exempt Revenue Bonds, Series 20l8A" (the "2018A Bonds") and its "City of Fort
Collins, Colorado, Electric Utility Enterprise, Taxable Revenue Bonds, Series 2018B" (the "2018B
Bonds" and, together with the 2018A Bonds, the "Bonds")
WHEREAS, as described in the Enterprise Ordinance, the Bonds are being issued and sold
to fund the construction of a municipal broadband system by the City's Electric Utility (the
"Electric Utility") to provide telecommunication facilities and services, including the transmission
of voice, data, graphics and video, to customers within the City, which facilities and services the
Electric Utility has not previously provided but is now authorized to provide pursuant to City
Charter Article XII, Section 7 and City Code Section 26-398 (the "Broadband System"); and
WHEREAS, the net proceeds from the sale of the Bonds are anticipated to be
$142,815,541, and of this amount, City staff is requesting that only $115,356,991 be appropriated
now from the Light and Power Fund to be used to fund the construction of the Broadband System,
including for all related capital, operating and debt service expenditures, leaving an unappropriated
balance of $27,458,550 to be appropriated for future operation and expansion costs relating to the
Broadband System and capitalized interest to bondholders; and
WHEREAS, in 1995, the City Council adopted Article XII of City Code Chapter 23 to
establish a program to acquire, exhibit and maintain art in public places to be funded by including
in the Council's appropriations for certain capital projects, including those of its utilities, an
amount equal to 1% of the construction costs for those projects, but this contribution amount for
the City's utilities is limited to a total annual contribution amount of .5% of each utility's
"budgeted operating revenue" (the "APP Ordinance"); and
WHEREAS, contributions to art in public places for each utility will be kept and spent in
such Utility's own fund, with the exception of maintenance, administration, repair and display
costs pursuant to City Code Section 23-303; and
This unofficial copy was downloaded on Sep-29-2022 from the City of Fort Collins Pub lic Records Website: httpi/citydocs.fcgov.coxn
For additional infoxnsation or an official copy, please contact City Clerk's Office City Hall West 300 LaPorte Avenue Foil Collins, CO 80521 USA
CFC_220767
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 19
of 32
WHEREAS, the Electric Utility's budgeted operating revenue for 2018 is $130.53 million,
but this amount does not include any budgeted revenues generated from the Broadband System
since the System will not be in operation in 2018, so this amount only includes revenues to be
generated from electric services provided in 2018 by the Electric Utility; and
WHEREAS, as currently written, the APP Ordinance therefore requires that this
appropriation include a 1% contribution for art in public places capped at the Electric Utility's
Light and Power Fund's annual limit of .5% of the $130.53 million budgeted operating revenues,
which is $652,650, and the Light and Power Fund has so far contributed $43,124 of this cap in
2018, so this leaves $609,526 available to be contributed for the Broadband System project under
the APP Ordinance; and
WHEREAS, Article V, Section 9 of the City Charter pen-nits the City Council, upon
recommendation of the City Manager, to make supplemental appropriat.ions by ordinance at any
time during the fiscal year, provided that the total amount of such supplemental appropriations, in
combination with all previous appropriations for that fiscal year, do not exceed the current estimate
of actual and anticipated revenues to be received during the fiscal year; and
WHEREAS, the City Manager has recommended the appropriation described herein and
determined that this appropriation is available and previously unappropriated from the Light and
Power Fund and will not cause the total amount appropriated in the Light and Power Fund to
exceed the currelit estimate of actual and anticipated revenues to be received in this Fund during
the fiscal year; and
WHEREAS, the City Council finds and determines that the adoption of this Ordinance is
necessary for the public's health, safety and welfare and that it is in the best interests of the City,
the Electric Utility and the Electric Utility's ratepayer.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That there is hereby appropriated from the Light and Power Fund
proceeds from the Bonds in the total amount of ONE HUNDRED FIFTEEN
MILLION THREE HUNDRED FIFTY-SIX THOUSAND NINE HUNDRED
NINETY-ONE DOLLARS ($115,356,991) to be used to fund the construction of
the Broadband System, including for all related capital, operating, debt service and art-in-public-
places expenditures as follows;
Cost of Issuance
Interest on loan from General Fund
Backfill of forfeited subsidy to Light & Power
2018 Operating Expenses
2018 Capitalized Interest
-2-
$822,100
15,000
373,000
1,800,000
3,129,117
This unofficial copy was downloaded on Sep-29-2022 from the City of Foil Collins Public Records Website: httpJ/citydocs.fcgov corn
For additional information or an official copy, please contact City Clerk's Office City Hall West 300 LaPorte Avenue Foil Collins, CO 80521 USA
CFC_220768
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 20
of 32
Capital Projects 108,608,249
Art in Public Places (Artwork) 479,430
Art in Public Places (transfer to Cultural Services for Maintenance & 130,096
Operations)
$115,356,991
Section 3. That the unexpended appropriated amount of ONE HUNDRED THIRTY
THOUSAND NINETY-SIX DOLLARS ($130,096) in the Light and Power Fund is authorized
for transfer to the Cultural Services and Facilities Fund. Appropriation of said funds in the
Cultural Services and Facilities Fund shall be contingent upon the completion of the review
process described in Section 4. Such funds shall be appropriated in the Cultural Services and
Facilities Fund for the Art in Public Places Program Maintenance and Operations.
Section 4. That the City Manager is directed to study whether the APP Ordinance
needs to be amended to address future Broadband System projects, and to present any
recommended amendments to Council before the end of 2018. This should include
consideration of a contribution amount capped at .5% of the Broadband System's anticipated
annual operating revenues once the system is in full operation, which capped amount is
estimated to be from $125,000 to $150,000. The City Manager should also evaluate and
recommend to Council how to fund art-in-public places contributions for Broadband System
appropriations. It is Council's intent that some or all of the funds transferred by this Ordinance
to the Cultural Services and Facilities Fund shall be transferred to the Light and Power Fund as
appropriate and in accordance with the program amendments adopted by Council in follow up
to this review process.
Introduced, considered favorably on first reading, and ordered published this 24th day
of April, A.D. 2018, and to be presented for final passage on the 1st day of May, A.D. 2018.
ATTEST:
C yCler
Passed and adopted on-final reading on the 1st day of M;, .. 018.
Mayor
This unofficial copy was downloaded on Sep-29-2022 from the City of Fort Collins Public Records Website: http://citydocs.fcgov,cozn
For additional information or an official copy, please contact City Clerks Office City Hall West 300 LaPorte Avenue Fort Collins, CO 80521 USA
CFC_220769
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 21
of 32
Exhibit E
CFC_220770
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 22
of 32
ORDINANCE NO. 093, 2018
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROPRIATING PRIOR YEAR RESERVES IN THE LIGHT AND
POWER FUND, THE WATER FUNDS, THE WASTEWATER FUND
AND THE STORM DRAINAGE FUND FOR THE UTILITIES
CUSTOMER INFORMATION BILLING SYSTEM PROJECT
WHEREAS, the purpose of this item is to appropriate $6,297,001 to purchase a Customer
Information System with an Operational Support System for electric, water, wastewater,
stormwater and broadband billing services to replace the current 18-year old billing system
("Customer Information Billing System Project"); and
WHEREAS, the Customer Information Billing System Project will allow the efficient
collection of revenues for all utility and broadband services, serving as the accounting ledger for
the revenue of these utilities, which currently generate over $200 million in total annual revenue
through an average of 80,000 monthly utility bills and service requests for residential and
commercial customers; and
WHEREAS, the initial cost of the Customer Information Billing System Project being
appropriated in this Ordinance is being shared by the funds of the City's existing utilities (Electric,
Water, Wastewater and Stormwater) and by the City's future broadband system to be operated
within the Electric Utility; and
WHEREAS, these shares have been determined based on the current customer counts of
the existing utilities and an estimate of the expected number of broadband customers at build-out,
and to this has been applied an allocation factor based on the complexity of the billing, with billings
for the Electric Utility being the most complex and the billings for the Stormwater Utility and
future broadband customers being the least complex; and
WHEREAS, Article V, Section 9 of the City Charter permits the City Council, upon the
City Manager's recommendation, to appropriate by ordinance at any time during the fiscal year
such funds for expenditure as may be available from reserves accumulated in prior years,
notwithstanding that such reserves were not previously appropriated; and
WHEREAS, the City Manager has recommended the appropriation described herein and
determined that these appropriations are available and previously unappropriated from the Light
and Power Fund, the Water Fund, the Wastewater Fund and the Storm Drainage Fund, as
applicable, and will not cause the total amount appropriated in Light and Power Fund, the Water
Fund, the Wastewater Fund and the Storm Drainage Fund, as applicable, to exceed the current
estimate of actual and anticipated revenues to be received in these funds during the fiscal year; and
WHEREAS, these project funds are ineligible for a contribution to art in public places as
provided in Article XII of City Code Chapter 23 because this is not an appropriation for a
"construction project" as defined in Article XII; and
-1-
CFC_220771
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 23
of 32
WHEREAS, this appropriation benefits the health, safety and welfare of the public and the
ratepayers of Fort Collins and serves the utility purposes of improving water and electric service
reliability and controlling cost of service increases.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That there is hereby appropriated from prior year reserves in the Light and
Power Fund the sum of TWO MILLION FIVE HUNDRED THREE THOUSAND SIX
HUNDRED SIXTY-SIX DOLLARS ($2,503,666) for the Utilities Customer Information Billing
System Project.
Section 3. That there is hereby appropriated from prior year reserves in the Water Fund
the sum of ONE MILLION FIVE HUNDRED NINETY THOUSAND TWO HUNDRED
NINETY-SIX DOLLARS ($1,590,296) for the Utilities Customer Information Billing System
Project.
Section 4. That there is hereby appropriated from prior year reserves in the Wastewater
Fund the sum of ONE MILLION NINETY-EIGHT THOUSAND FOUR HUNDRED FORTY-
ONE DOLLARS ($1,098,441) for the Utilities Customer Information Billing System Project.
Section 5. That there is hereby appropriated from prior year reserves in the Storm
Drainage Fund the sum of ONE MILLION ONE HUNDRED FOUR THOUSAND FIVE
HUNDRED NINETY-EIGHT DOLLARS ($1,104,598) for the Utilities Customer Information
Billing System Project.
Introduced, considered favorably on first reading, and ordered published this 10th day of
July A.D. 2018, and to be presented for final passage on the 17th day of July, A.D. 2018.
ATTEST:
City C1rk
-2-
CFC_220772
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 24
of 32
Passed and adopted on final reading on the 17th day of July, A.D. 2018.
ATTEST:
-3-
CFC_220773
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 25
of 32
Exhibit F
CFC_220774
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 26
of 32
ORDINANCE NO. 076, 2020
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROPRIATING PRIOR YEAR RESERVES IN THE LIGHT AND POWER FUND, THE
WATER FUND, THE WASTEWATER FUND, AND THE STORM WATER FUND, AND
AUTHORIZING THE TRANSFER OF PREVIOUSLY APPROPRIATED FUNDS IN THE
BROADBAND FUND FOR THE UTILITIES CUSTOMER INFORMATION AND
BILLING SYSTEM PROJECT
WHEREAS, in August 2018, the City of Fort Collins signed a Master Professional Services
Agreement (MPSA) and Software License Agreement with Open International LLC ("Open") to
develop and implement the Open SmartFlex (OSF) integrated utility customer billing software
system and web portal ("CIS/OSF project"); and
WHEREAS, contemporaneous with Open's development, the City began building a city-
wide broadband utility system to deliver high-speed data, video, and telecommunication services,
as previously approved by City voters in general elections; and
WHEREAS, in late 2019, the City began offering city-wide broadband utility services,
branded as "Fort Collins Connexion", and agreed with Open to adjust CIS/OSF project delivery
requirements to accommodate the functionality needed for Fort Collins Connexion services and
other unanticipated project requirements; and
WHEREAS, thereafter, the City and Open documented the adjusted CIS/OSF project
requirements and schedule in a change order to the MPSA, including updating contract pricing and
extending the final CIS/OSF project go-live date from June 2020 to October 2020 (the "Change
Order"); and
WHEREAS, the City and Open agreed to divide the CIS/OSF project costs described in
the Change Order, totaling $3,300,000, 55% and 45%, respectively; and
WHEREAS, Utility Services staff recommends allocation of the City's portion of the
Change Order costs among the benefited utility enterprises, including appropriating the amount of
$950,000 from prior year reserves in the Light & Power Fund, Water Fund, Wastewater Fund, and
Stormwater Fund, as applicable, for expenditure from the Utilities Customer Information & Billing
System capital project fund; and
WHEREAS, the City Manager recommends the appropriation described herein and
determines that this appropriation is available and previously unappropriated from the Light &
Power Fund, Water Fund, Wastewater Fund, and Stormwater Fund, as applicable, and will not
cause the total amount appropriated in the Light & Power Fund, Water Fund, Wastewater Fund,
or Stormwater Fund, as applicable, to exceed the current estimate of actual and anticipated
revenues to be received in these funds during this fiscal year; and
WHEREAS, the City Manager further recommends the transfer of $950,000 from the Fort
Collins Connexion Fiber Feeder & Distribution Network capital account to the Utilities Customer
Information & Billing System capital project, with the purpose for which the transferred funds are
to be expended remaining unchanged; and
-1-
CFC_220775
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 27
of 32
WHEREAS, Article V, Section 9 of the City Charter permits the City Council, upon the
recommendation of the City Manager, to appropriate by ordinance at any time during the fiscal
year such funds for expenditure as may be available from reserves accumulated in prior years,
notwithstanding that such reserves were not previously appropriated; and
WHEREAS, Article V, Section 10 of the City Charter authorizes the City Council, upon
recommendation by the City Manager, to transfer by ordinance any unexpended and
unencumbered appropriated amount or portion thereof from one fund or capital project to another
fund or capital project, provided that the purpose for which the transferred funds are to be expended
remains unchanged, the purpose for which the funds were initially appropriated no longer exists,
or the proposed transfer is from a fund or capital project in which the amount appropriated exceeds
the amount needed to accomplish the purpose specified in the appropriation ordinance; and
WHEREAS, the proposed appropriation and transfer benefit the public's health, safety and
welfare and serve utility rate payers by providing funding to timely complete integrated billing
system enhancements designed to automate billing processes, simplify customer bills, and thereby
increase collections and reduce billing operation expenses for all utility rate payers.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That there is hereby appropriated from prior year reserves in the Light &
Power Fund the sum of THREE HUNDRED SIXTY-SIX THOUSAND TWO HUNDRED
SIXTY-FIVE DOLLARS ($366,265) for expenditure from the Light & Power Fund for the
Utilities Customer Information & Billing System project.
Section 3. That there is hereby appropriated from prior year reserves in the Water Fund
the sum of TWO HUNDRED FORTY-SIX THOUSAND EIGHTY-FOUR DOLLARS
($246,084) for expenditure from the Water Fund for the Utilities Customer Information & Billing
System project.
Section 4. That there is hereby appropriated from prior year reserves in the Wastewater
Fund the sum of ONE HUNDRED SEVENTY-SEVEN THOUSAND FOUR HUNDRED TEN
DOLLARS ($177,410) for expenditure from the Wastewater Fund for the Utilities Customer
Information & Billing System project.
Section 5 That there is hereby appropriated from prior year reserves in the Stormwater
Fund the sum of ONE HUNDRED SIXTY THOUSAND TWO HUNDRED FORTY-ONE
DOLLARS ($160,241) for expenditure from the Stormwater Fund for the Utilities Customer
Information & Billing System project.
Section 6. That the unexpended and unencumbered appropriated amount of NINE
HUNDRED FIFTY THOUSAND DOLLARS ($950,000) is hereby authorized for transfer from
the Fiber Feeder & Distribution Network capital account to the Utilities Customer Information &
-2-
CFC_220776
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 28
of 32
Billing System capital project.
Introduced, considered favorably on first reading, and ordered published this 2nd day of
June, A.D. 2020, and to be presented for final passa:e on the 16th da • une, A.D. 2020.
ATTEST:
y
Passed and adopted on final reading on the 16th day of June, A.D. 2020.
ATTEST:
-3-
CFC_220777
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 29
of 32
Exhibit G
CFC_220778
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 30
of 32
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_CFC220779
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 31
of 32
DESCRIPTION $ AMOUNT
AP Accrual P0 Feb 1-9 $ 0.00
Reclass payroll per dept requ $ (1,073.04)
117 Mason CIS-oasis Rent Util $ 11,613.73
117 Mason Dec Rent Nov Utility $ 5,896.98
117 Mason Feb Rent Jan Utility $ 5,927.15
117 Mason Jan Rent Dec Utility $ 5,950.79
117 Mason June Rent $ 5,761.27
117 Mason Mar Rent Feb Utility $ 5,935.89
117 Mason May Rent Apr Utility $ 5,805.45
117 Mason Nov Rent Oct Utility $ 5,827.80
117 Mason St - Rent/Utilities $ 58,269.21
117 N. MASON BROADBAND 5R85029 $ 1,973.50
117 Rent Jun Util May $ 5,847.95
117 Rent-July Util-June $ 5,833.81
ll7Mason Aprl Rent Mrch Utilty $ 5,846.52
2020 Retainage Payable Accrual $ (0.00)
Actual Burden Journal Entries $ 7,175.35
annual Microsoft charges $ 3,827.00
AP Accrual - Retianage $ (0.00)
AP Accrual Feb 8- 14 P0 $ 0.00
AP Accrual Jan 1-10 P0 $ -
AP Accrual Jan 1-10 P0 file $ -
AP Accrual Jan 18-24 P0 $ (0.00)
AP Accrual Jan 25-31 P0 $ (0.00)
AP Accrual P0 Feb 11- Feb 17 $ 0.00
AP Accrual P0 Feb 2- Feb 28 $ (0.00)
AP Accrual P0 Jan 1- Jan 13 $ 0.00
AP Accrual P0 Jan 13- Jan 20 $ 0.00
AP Accrual P0 Jan 1-5 $
Aug hardware&software chrgbcks $ 509.97
CIS-OSS costs - 117 Mason $ 5,843.23
CIS-OSS RCL to BB OpEx $ (3,487.52)
OPEN mv disp corr lnv#1862 $ 5,625.00
Payroll Labor Distribution $ 19,208.50
PETTY CASH 9/21/18 $ 36.05
RCL CCD Exp to CIS-OSS Prjct $ 619.83
RCL Exp to correct BU $ (347.11)
RCL Exp to correct BU 's $ 3,737.50
RCL Personnel Costs to 0&M $ (21,765.14)
Reclass dept charges from 1.99 $ 272.25
Retainage Payable $
Retainage Payable 2021 $ (0.00)
AP Accrual Jan 1-9 P0 $ 0.00
AP Accrual Feb 1-7 P0 $ 0.00
Red. PRPA Inv 7770 $ (13,969.78)
AP Accrual Jan 24-30 P0 $ (0.00)
Reclass PRPA Inv 7389 $ 22,704.57
Grand Total $ 159,406.71
CFC_220780
Case No. 1:21-cv-02063-CNS-SBP Document 242-1 filed 09/15/23 USDC Colorado pg 32
of 32
EXHIBIT B
Case No. 1:21-cv-02063-CNS-SBP Document 242-2 filed 09/15/23 USDC Colorado pg 1
of 8
30(b)(6) City of Fort Collins Travis Storin - July 17, 2023
1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
2
Civil Action No.: 21-cv-02063-CNS-SP
3
CITY OF FORT COLLINS,
4
Plaintiff/Counterclaim Defendant,
5
vs.
6
OPEN INTERNATIONAL, LLC,
7
Defendant/Counterclaim Plaintiff,
8
and
9
OPEN INVESTMENTS, LLC,
10
Defendant.
11 _____________________________________________________
12 VIDEOTAPED RULE 30(b)(6) DEPOSITION OF
CITY OF FORT COLLINS BY TRAVIS STORIN
13
July 17, 2023
14 _____________________________________________________
15
16
17
18
19
20
21
22
23
24
25
Page 1
Veritext Legal Solutions
303-988-8470
Case No. 1:21-cv-02063-CNS-SBP Document 242-2 filed 09/15/23 USDC Colorado pg 2
of 8
30(b)(6) City of Fort Collins Travis Storin - July 17, 2023
Page 2
1 APPEARANCES:
2 ON BEHALF OF THE PLAINTIFF/COUNTERCLAIM DEFENDANT:
CASE COLLARD, ESQ.
3 Dorsey & Whitney, LLP
1400 Wewatta Street
4 Suite 400
Denver, Colorado 80202
5 Phone: 303-629-3400
E-mail: collard.case@dorsey.com
6
ON BEHALF OF THE DEFENDANT/COUNTERCLAIM PLAINTIFF:
7 PAUL D. SWANSON, ESQ.
ALEXANDRIA E. PIERCE, ESQ.
8 Holland & Hart, LLP
555 17th Street
9 Suite 3200
Denver, Colorado 80202
10 Phone: 303-295-8578
E-mail: pdswanson@hollandhart.com
11 aepierce@hollandhart.com
12 Also present: John Duval, Esq.
Dennis Clayton, Videographer
13
14
15
16
17
18
19
20
21
22
23
24
25
Page 3
1 PURSUANT TO WRITTEN NOTICE and the
2 appropriate rules of civil procedure, the Videotaped
3 Rule 30(b)(6) Deposition of City of Fort Collins by
4 TRAVIS STORIN, called for examination by the
5 Defendant/Counterclaim Plaintiff, was taken at 1400
6 Wewatta Street, Suite 400, Denver, Colorado 80202,
7 commencing at 12:27 p.m. on July 17, 2023, before
8 Jennifer Windham, Certified Shorthand Reporter and
9 Notary Public in and for the State of Colorado.
10
11
I N D E X
12 EXAMINATION: PAGE
13 By Mr. Swanson 7
14
EXHIBITS: PAGE
15
Exhibit 700 Notice of Supplemental 8
16 Rule 30(b)(6) Deposition
of City of Fort Collins
17
Exhibit 701 Requisition Form, with 12
18 various attachments
19 Exhibit 702 Letter to Swanson from 19
Collard, Re: City of
20 Fort Collins v. Open
International, et al.,
21 10/3/22, with various
attachments
22
Exhibit 703 E-mail to Paul from 45
23 Clabaugh, Re: Retainage
Review - OPEN/OASIS, 6/17/21,
24 with attachment
25
Page 4
1 Exhibit 704 E-mail to Althoff from Paul, 54
Re: Old PR's, 6/25/21,
2 with various e-mails attached
3 Exhibit 705 E-mail to Rosinstoski from Paul, 58
Re: Action - FW: Second
4 Milestone Amendment, with
various e-mails attached
5
Exhibit 706 Spreadsheet 65
6
Exhibit 707 E-mail to Storin from Smith, 87
7 [No Subject], 12/11/20
8 Exhibit 708 Responses and Objections to 90
Defendants' Fifth Set of
9 Discovery Requests to Plaintiff
10 Exhibit 709 Memorandum - From Paul to 101
Financial Liaisons, 1/7/21
11
Exhibit 710 E-mail to Paul from Hagar, 102
12 Subject: [External] Completed
Please DocuSign: Purchase,
13 Request, Change Control 28,
Broadband Tier 1 Support.pdf,
14 12/29/20, with various e-mails
attached
15
Exhibit 711 E-mail to Storin from Smith, 106
16 Re: OASIS Financial Report @
3/16/21, 3/19/21
17
Exhibit 712 E-mail to Storin from Paul, 116
18 Re: Info Needed for Exec
Session, 5/13/21, with various
19 attachments
20 Exhibit 713 E-mail to Valadez from Johnson, 121
Re: 89697 Purchase Order,
21 8/14/18, with various attachments
22 Exhibit 714 Ordinance No. 036, 2023 139
23 Exhibit 715 E-mail to Finance Liaisons, 143
from Paul, Subject: Year
24 End Carry Forward, 2/19/21,
with various attachments
25
Page 5
1 Exhibit 716 Spreadsheet 146
2 EXHIBITS: (Previously marked)
3 Exhibit 194 11
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2 (Pages 2 - 5)
Veritext Legal Solutions
303-988-8470
Case No. 1:21-cv-02063-CNS-SBP Document 242-2 filed 09/15/23 USDC Colorado pg 3
of 8
30(b)(6) City of Fort Collins Travis Storin - July 17, 2023
Page 6
1 P R O C E E D I N G S
2 THE VIDEOGRAPHER: Good afternoon. 12:27:25
3 Going on the record at 12:27 p.m. Mountain Time on 12:27:26
4 July 17, 2023. Please note that microphones are 12:27:32
5 sensitive and may pick up whispering and private 12:27:36
6 conversations. Please mute your phones at this time. 12:27:40
7 Audio and video recording will continue to take place 12:27:43
8 unless all parties agree to go off the record. 12:27:47
9 This is Media Unit Number 1 of the 12:27:47
10 video recorded 30(b)(6) deposition of the City of 12:27:51
11 Fort Collins with designated representative Travis 12:27:55
12 Storin taken by counsel for the defendant in the 12:27:59
13 matter of the City of Fort Collins v. Open 12:28:02
14 International, LLC, et al., filed in the United 12:28:06
15 States District Court, District of Colorado, Case 12:28:11
16 Number 21-cv-02063-DDD-NYW. The location of this 12:28:12
17 deposition is Dorsey & Whitney LLP, at 1440 Wewatta 12:28:22
18 Street, Suite 400, Denver, Colorado. 12:28:28
19 My name is Dennis Clayton representing 12:28:30
20 Veritext Legal Solutions, and I'm the videographer. 12:28:33
21 The court reporter today is Jennifer Windham from the 12:28:37
22 firm Veritext Legal Solutions. I'm not related to 12:28:41
23 any party in this action, nor am I financially 12:28:42
24 interested in the outcome. 12:28:46
25 If there are any objections to the 12:28:47
Page 7
1 proceedings, please state them at the time of your 12:28:48
2 appearance. Counsel and all present, including 12:28:51
3 remotely, will now state their appearances and 12:28:54
4 affiliations for the record, beginning with the 12:28:55
5 noticing attorney. 12:28:58
6 MR. SWANSON: Paul Swanson and Alex 12:28:59
7 Pierce from Holland & Hart on behalf of the Open 12:29:03
8 defendants. 12:29:06
9 MR. COLLARD: Case Collard and John 12:29:06
10 Duval on behalf of the City. 12:29:07
11 TRAVIS STORIN, 12:29:07
12 having been first duly sworn, was examined and 12:29:07
13 testified as follows: 12:29:07
14 EXAMINATION 12:29:07
15 BY MR. SWANSON: 12:29:16
16 Q. Hi, Mr. Storin. 12:29:16
17 A. Good morning. Or afternoon, I suppose. 12:29:22
18 Q. I'm going to ask the court reporter to 12:29:27
19 hand you a document marked as Exhibit 900. 12:29:28
20 THE REPORTER: Can we go off the
21 record?
22 THE VIDEOGRAPHER: Going off the
23 record. The time is 12:29.
24 (Recess taken, 12:29 p.m. to
25 12:30 p.m.) 12:30:57
Page 8
1 THE VIDEOGRAPHER: Back on the record. 12:30:57
2 The time is 12:30. 12:31:00
3 (Deposition Exhibit 700 was marked.) 12:31:00
4 Q. (BY MR. SWANSON) Do you have a 12:31:05
5 document labeled as Exhibit 700, Mr. Storin? 12:31:06
6 A. I do. 12:31:09
7 Q. Do you recognize this document? 12:31:10
8 A. I do not. 12:31:12
9 Q. I'll ask you to flip to the last page 12:31:12
10 of text for that document that starts as Exhibit 1. 12:31:16
11 Have you seen that before? 12:31:19
12 A. Not in my immediate recollection. 12:31:20
13 Q. And just look through those paragraphs 12:31:27
14 numbered 1 through 7 and let me know when you've had 12:31:30
15 a chance to review them. 12:31:34
16 A. (Deponent complied.) Okay. 12:32:11
17 Q. And you said you have not seen these 12:32:28
18 numbered paragraphs here in Exhibit 1; is that 12:32:30
19 correct? 12:32:34
20 A. I don't recall seeing it in a document 12:32:34
21 like this, but I think these are concepts that I've 12:32:37
22 been familiar with throughout the life of this case. 12:32:39
23 Q. Okay. You're testifying today on 12:32:40
24 behalf of the City of Fort Collins; is that correct? 12:32:43
25 A. I am. 12:32:47
Page 9
1 Q. And are you prepared to testify about 12:32:47
2 the subject matter described in the paragraphs on 12:32:49
3 Exhibit 1? 12:32:53
4 A. Yes. 12:32:53
5 Q. How did you prepare for the deposition 12:32:54
6 today, if at all? 12:32:55
7 A. Consultation with our team of attorneys 12:32:57
8 and review of documents that, I believe, have been 12:33:02
9 provided as part of the case. And some independent 12:33:06
10 review of City code and charter language. 12:33:10
11 Q. Did you meet with anyone from the City 12:33:15
12 to prepare for your deposition today? 12:33:17
13 A. Outside of the meeting with our 12:33:20
14 attorneys? No. 12:33:22
15 Q. Okay. Did you talk with the chief 12:33:24
16 buyer for this project Gerry Paul? 12:33:27
17 A. Yes. Within the aforementioned 12:33:29
18 conversation with the attorneys. 12:33:34
19 Q. Oh, I see. So when you said -- let me 12:33:35
20 ask it again. 12:33:38
21 In preparing with your counsel, did you 12:33:39
22 also meet with or talk with City employees? 12:33:41
23 A. Yes. 12:33:45
24 Q. Mr. Paul is one of those? 12:33:46
25 A. Uh-huh. 12:33:48
3 (Pages 6 - 9)
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1 Q. I want to look at the second -- 15:55:56
2 actually first, do you recognize this document? 15:56:00
3 A. Not offhand. But it looks to be Gerry 15:56:03
4 satisfying the request I gave to him in May of '21. 15:56:08
5 Q. Okay. And this was -- this document 15:56:13
6 was titled "Executive Session Input." Is it, like, 15:56:13
7 an outline of key points for the executive session 15:56:17
8 with the City Council? 15:56:20
9 A. Yes. It was just sort of me trying to 15:56:22
10 anticipate the kinds of questions that we would get. 15:56:24
11 Q. I want to look at the table of figures 15:56:26
12 that occupies the bottom half of this page. Starting 15:56:29
13 right towards the middle with the heading "Originally 15:56:34
14 executed amount." 15:56:37
15 Do you see that? 15:56:38
16 A. Yes. 15:56:39
17 Q. All right. So that $7.3 million 15:56:39
18 amount, that's the amount we said was originally 15:56:43
19 appropriated and encumbered for the MPSA, correct? 15:56:46
20 A. Yes. 15:56:51
21 Q. And then Amendment 1, the $1.886 15:56:51
22 million figure, is that the amount appropriated and 15:56:59
23 encumbered for the First Amendment? 15:57:02
24 A. Yes. Although I thought that was an 15:57:03
25 even 1.9 million when we looked at it earlier. 15:57:05
Page 131
1 Q. Okay. But it's -- that is what -- is 15:57:10
2 that what that figure is? 15:57:12
3 A. That's what the line represents, yes. 15:57:13
4 Q. Then the line item for work order PCR 15:57:16
5 totals 2.798 million. Is that for the other project 15:57:20
6 change orders aside from the First Amendment? 15:57:27
7 A. The other PCRs, yes. 15:57:27
8 Q. And so then we get to that total figure 15:57:29
9 of 12,031,864. 15:57:31
10 Is that the contracted amount the City 15:57:35
11 would pay Open if Open fully performed? 15:57:37
12 A. Yes, it is. 15:57:40
13 Q. So then I want to go down to the next 15:57:41
14 heading, "Gross PO amount in JDE." 15:57:44
15 Do you see that? 15:57:48
16 A. I do. 15:57:49
17 Q. Does that list the amounts encumbered 15:57:50
18 in JDE for each of the three purchase orders for this 15:57:52
19 project? 15:57:56
20 A. Encumbered or spent. 15:57:57
21 Q. Encumbered or spent. Thank you. 15:57:59
22 MR. COLLARD: I'm sorry. I wanted to 15:57:59
23 object to the form of that question. So object to 15:58:03
24 the form of the last question. 15:58:06
25 Go ahead. 15:58:08
Page 132
1 Q. (BY MR. SWANSON) The total there is 15:58:08
2 $10,901,061.34; is that right? 15:58:12
3 A. It is. 15:58:13
4 Q. Okay. What is the additional line item 15:58:14
5 under that heading of PO 9201970 contingency carried 15:58:18
6 forward. What does that $87,000 figure represent? 15:58:25
7 A. Kind of a concept from earlier. It 15:58:28
8 means that there was a lapsing budget that had 15:58:31
9 available funds that could go towards the effort, and 15:58:34
10 what I don't know is, is that a current balance of 15:58:40
11 what was carried forward or was that the original 15:58:44
12 amount carried forward. 15:58:47
13 Q. If we added that $87,000 figure to the 15:58:48
14 $901,000 figure that's also associated with PO 15:58:53
15 9201970, we would get to the total $988,000 that we 15:58:58
16 previously saw associated with that PO, correct? 15:59:06
17 A. I -- 15:59:10
18 MR. COLLARD: Object to form. 15:59:14
19 Q. (BY MR. SWANSON) Withdrawn. It's fine. 15:59:16
20 Now, going down to the next heading 15:59:18
21 "Correction to PO Required-Not Yet Done." 15:59:21
22 Can you tell what the four line items 15:59:27
23 under that heading are showing? 15:59:30
24 A. It looks like it's acknowledging that 15:59:32
25 the orders weren't created under Ordinance 76. 15:59:37
Page 133
1 Q. So this is the portion of First 15:59:43
2 Amendment Milestone payments that had not been 15:59:47
3 encumbered or shown to be paid in J.D. Edwards; is 15:59:50
4 that right? 15:59:55
5 A. Correct. 15:59:55
6 Q. And that total is $1,043,182? 15:59:56
7 A. Yes. 16:00:01
8 Q. I'm going to ask you to pull up 16:00:02
9 Exhibit 704, which had the purchase order from June 16:00:05
10 of 2021 that covered the second and third Milestones. 16:00:09
11 A. I want to keep them in order. 704. 16:00:31
12 And this purchase order here? Last page of 704? 16:00:37
13 Q. That's right. As you look at this 16:00:45
14 purchase order, next to the description of the 16:00:48
15 "Correction to the PO Required-Not Yet Done" in the 16:00:53
16 last attachment to Exhibit 712, do you see whether 16:00:57
17 and if so how these two documents interact on that 16:01:03
18 point about the Amendment 1 Milestone payments? 16:01:08
19 MR. COLLARD: Object to form. 16:01:13
20 A. It would appear that the purchase order 16:01:15
21 simply omits the travel allowance from Amendment 1 at 16:01:20
22 $200,000. 16:01:25
23 Q. (BY MR. SWANSON) Did the City decide to 16:01:26
24 encumber the Milestone payments due under the First 16:01:27
25 Amendment but to omit the travel expenses 16:01:36
34 (Pages 130 - 133)
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1 contemplated by the First Amendment? 16:01:39
2 MR. COLLARD: Objection to form. 16:01:43
3 A. I -- I can't -- I can't make that 16:01:45
4 presumption. As we discussed earlier, you know, I'd 16:01:51
5 like to know a little bit more about this purchase 16:01:55
6 order and its timing and, you know, why wasn't it 16:01:58
7 created right after the appropriation. Although, 16:02:01
8 generally speaking, it's not the end of the world. 16:02:05
9 There's not a law broken but there's a little bit of 16:02:08
10 a financial practice question I've got there. 16:02:12
11 But I do -- but more to the point of 16:02:14
12 your question, I don't know why the travel allowance 16:02:16
13 would or would not have been included on this PO. 16:02:19
14 Q. (BY MR. SWANSON) But the two Milestone 16:02:24
15 payments covered on the last attachment to 16:02:26
16 Exhibit 12, those correspond within a dollar of the 16:02:29
17 June 2021 purchase order for Amendment 1 16:02:35
18 encumbrances, correct? 16:02:39
19 A. That's correct. 16:02:40
20 Q. Okay. So is it fair to infer that the 16:02:41
21 purchase order from June 2021 was meant to cover 16:02:45
22 those two Milestones listed in Exhibit 12 -- 16:02:49
23 A. Oh, yes, that's fair. 16:02:53
24 Q. -- of the last attachment? 16:02:55
25 Okay. That being the case, once the 16:03:06
Page 135
1 purchase order from June 2021 was issued for $200,000 16:03:09
2 less than what was fully contemplated here, does that 16:03:20
3 mean that by June 17th of 2021, $11,831,863.34 had 16:03:24
4 been appropriated and then either spent or encumbered 16:03:38
5 for the project with Open? 16:03:43
6 A. Yes. That would be the case. 16:03:45
7 Q. So I'll just refer to that as 16:03:47
8 $11.8 million for the benefit of the court reporter. 16:03:56
9 To date, do you recall how much the 16:04:09
10 City has paid to Open? 16:04:11
11 A. Well, I mean, it's on this attachment 16:04:13
12 through the date of the document of $8.595 million. 16:04:18
13 I think it was on one of the earlier exhibits as 16:04:27
14 well. 16:04:31
15 Q. That's right. Let's look at 16:04:32
16 Exhibit 706. This document -- the summary on the 16:04:35
17 first page says 8.75 million, roughly, has been paid 16:04:50
18 to Open. 16:04:56
19 Do you know whether one or the other of 16:04:57
20 those numbers is correct? 16:05:00
21 A. I would tend to go with this 16:05:01
22 8.756 million because the detail behind it adds up. 16:05:05
23 Q. So if we had about $11.8 million that 16:05:11
24 had been appropriated and encumbered to pay Open as 16:05:17
25 of June 2021, but only about $8.8 million has been 16:05:21
Page 136
1 paid to Open, that leaves about $3 million 16:05:27
2 appropriated and encumbered for Open that has not 16:05:32
3 been paid to Open; is that right? 16:05:35
4 MR. COLLARD: Object to form. 16:05:39
5 Go ahead. 16:05:41
6 A. Well, I think that that's not the case 16:05:42
7 today. But if you go on the -- as of these dates, 16:05:49
8 that was the amounts remaining from the 16:05:54
9 appropriations. 16:05:57
10 Q. (BY MR. SWANSON) So as of June 17, 16:05:58
11 2021, there was $3 million remaining that had been 16:06:02
12 appropriated and encumbered to pay Open under its 16:06:06
13 contracts that never was paid to Open; is that 16:06:11
14 correct? 16:06:14
15 A. Encumbered to Open, appropriated for 16:06:15
16 the project. 16:06:17
17 Q. Okay. And I think you testified 16:06:18
18 earlier that none or almost none of the retainage 16:06:35
19 amount for Open is still being held by the City; is 16:06:42
20 that correct? 16:06:45
21 MR. COLLARD: Object to form. 16:06:45
22 A. I don't believe so. I'd like to 16:06:47
23 confirm. 16:06:49
24 Q. (BY MR. SWANSON) And that there is a 16:06:50
25 small amount still in the capital project fund that 16:06:52
Page 137
1 could be made available to pay Open; is that correct? 16:06:57
2 A. If there's -- 16:07:00
3 MR. COLLARD: Object to form. 16:07:02
4 Go ahead. 16:07:03
5 A. If there are available appropriations 16:07:04
6 in the project and the project hasn't been closed 16:07:08
7 out -- and I don't believe it has been -- then yes, 16:07:08
8 it would be available. 16:07:11
9 Q. (BY MR. SWANSON) But you have no idea 16:07:12
10 of the amount that is left in that fund? 16:07:15
11 A. I really don't. 16:07:17
12 Q. Less than a million dollars? 16:07:18
13 A. As I testified earlier, I don't even 16:07:20
14 want to hazard an appropriation. Probably -- and I 16:07:22
15 certainly hope so. Things are already running pretty 16:07:26
16 tight on this project. So almost certainly less than 16:07:30
17 that amount, but I don't really know. 16:07:31
18 Q. Certainly less than $3 million, 16:07:33
19 correct? 16:07:36
20 A. Oh, yes. 16:07:36
21 Q. So after June of 2021, the City spent 16:07:37
22 some measure of funds that had been appropriated and 16:07:41
23 encumbered for Open on other purposes besides paying 16:07:45
24 Open, correct? 16:07:50
25 A. Yes. So long as it's compatible with 16:07:51
35 (Pages 134 - 137)
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Page 138
1 the original authorizing language of the council. 16:07:54
2 But yes. 16:08:06
3 Q. And as of June 2021 the City knew that 16:08:07
4 there was a dispute with Open over the contract, 16:08:11
5 correct? 16:08:14
6 A. Yes. 16:08:14
7 Q. And Open had told the City -- 16:08:15
8 withdrawn. 16:08:19
9 And the City knew that Open claimed 16:08:20
10 that it was entitled to several million dollars of 16:08:23
11 payment under the contract, correct? 16:08:26
12 MR. COLLARD: Object to form. 16:08:29
13 A. We were aware of Open's positions in 16:08:30
14 this case. 16:08:33
15 Q. (BY MR. SWANSON) Which included a claim 16:08:33
16 to several million dollars under the contract, 16:08:35
17 correct? 16:08:38
18 A. Yes. 16:08:38
19 Q. You approved the termination of the 16:08:39
20 purchase orders that had encumbered funds for Open; 16:09:17
21 is that right? 16:09:22
22 A. I'm fairly certain that was me, yes. 16:09:22
23 Q. Did you have it in mind that doing that 16:09:25
24 would present an obstacle to Open collecting payment 16:09:28
25 from the City through litigation? 16:09:32
Page 139
1 A. No. 16:09:34
2 MR. COLLARD: Object to form. 16:09:34
3 Q. (BY MR. SWANSON) Did you have it in 16:09:36
4 mind that doing so would create any obstacle for 16:09:37
5 Open? 16:09:40
6 A. No. 16:09:41
7 MR. COLLARD: Object to form. 16:09:41
8 A. I did it for the sole purpose of 16:09:42
9 allowing the funds to be used to deliver an updated 16:09:48
10 billing system for the Connexion utility. 16:09:53
11 Q. (BY MR. SWANSON) You said the 16:10:02
12 "Connexion utility," and you mean the Broadband 16:10:03
13 Connexion with an X utility, correct? 16:10:07
14 A. I did. 16:10:12
15 (Deposition Exhibit 714 was marked.) 16:10:12
16 Q. (BY MR. SWANSON) The court reporter has 16:10:12
17 handed you Exhibit 714. This is a recent ordinance 16:10:47
18 from the City titled Number 36, 2023. 16:10:49
19 Are you familiar with this document, 16:10:54
20 Mr. Storin? 16:10:56
21 A. I am. 16:10:57
22 Q. And is this a recent appropriation for 16:10:58
23 an upgrade to the utilities customer information and 16:11:02
24 billing system? 16:11:08
25 A. It is. 16:11:09
Page 140
1 Q. If you can pull up the First Amendment, 16:11:10
2 which should be attached to -- what is it, 16:11:23
3 Exhibit 704? 16:11:27
4 A. 704. 16:11:32
5 Q. Yeah. The appropriation for the First 16:11:49
6 Amendment with Open was for a utilities customer 16:11:59
7 information and billing system project, correct? 16:12:05
8 A. That's correct. 16:12:07
9 Q. That's the same description used for 16:12:08
10 both appropriations from 2023 and for 2020, correct? 16:12:14
11 A. Same description, yes. 16:12:19
12 Q. And you testified that the City used 16:12:20
13 some of the 2020 appropriation for the utilities 16:12:35
14 customer information and billing system to pay 16:12:41
15 obligations to different CIS vendors and platforms 16:12:44
16 than the City had originally contemplated, right? 16:12:50
17 A. In that case, I don't know that I would 16:12:54
18 limit it to Ordinance 76. 16:12:57
19 Q. There was about $500,000 that had been 16:12:59
20 appropriated by Ordinance 76 that never got paid to 16:13:02
21 Open, right? 16:13:07
22 MR. COLLARD: Object to form. 16:13:09
23 A. Are you referring specifically to the 16:13:10
24 Amendment 1 payments? 16:13:14
25 Q. (BY MR. SWANSON) Right. That second 16:13:16
Page 141
1 Milestone payment and the retainage amounts. 16:13:18
2 Those were never paid to Open, correct? 16:13:20
3 A. They were not paid to Open, no. 16:13:20
4 Q. And I think you testified that those 16:13:21
5 amounts were paid to GLDS and to TMG supporting GLDS, 16:13:24
6 correct? 16:13:33
7 MR. COLLARD: Object to form. 16:13:33
8 A. Well, here again, I don't know that 16:13:34
9 that was my testimony. I think when referring to the 16:13:36
10 payments made to other vendors, that's in general 16:13:40
11 terms across all of the appropriation ordinances. 16:13:43
12 When a new ordinance gets passed, it generally is 16:13:47
13 kind of added to the project pot rather than treated 16:13:51
14 as its own distinct amount of money that we need to 16:13:56
15 track sources and uses on. 16:13:56
16 Q. (BY MR. SWANSON) So did the 2023 16:13:58
17 appropriation ordinance add to the project pot? 16:14:00
18 A. New project. 16:14:05
19 Q. With the same description as the prior 16:14:06
20 project? 16:14:09
21 A. Well, as I testified earlier, the way 16:14:10
22 that our charter and code language reads on capital 16:14:12
23 projects is that it's time bound. Start and end. 16:14:22
24 And so it would be the City's position that the 16:14:26
25 previous project is over and that this is a new 16:14:30
36 (Pages 138 - 141)
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1 REPORTER'S CERTIFICATE
2
3 I, Jennifer Windham, a Certified Shorthand
4 Reporter and Notary Public within and for the State of
5 Colorado, commissioned to administer oaths, do hereby
6 certify that previous to the commencement of the
7 examination, the witness was duly sworn by me to
8 testify the truth in relation to matters in controversy
9 between the said parties; that the said deposition was
10 taken in stenotype by me at the time and place
11 aforesaid and was thereafter reduced to typewritten
12 form by me; and that the foregoing is a true and
13 correct transcript of my stenotype notes thereof.
14 I further certify that I am not an attorney
15 nor counsel nor in any way connected with any
16 attorney or counsel for any of the parties to said
17 action nor otherwise interested in the outcome of
18 this action.
19 My commission expires: December 3, 2026.
20
21 <%22403,Signature%>
22 JENNIFER WINDHAM
Certified Shorthand Reporter
23 and Notary Public
24
25
40 (Page 154)
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EXHIBIT C
Case No. 1:21-cv-02063-CNS-SBP Document 242-3 filed 09/15/23 USDC Colorado pg 1
of 2
1400 Wewatta Street | Suite 400 | Denver, CO | 80202-5549 | T 303.629.3400 | F 303.629.3450 | dorsey.com
CASE L. COLLARD
(303) 352-1116
collard.case@dorsey.com
July 24, 2023
VIA E -MAIL
Alexandria E. Pierce
Holland & Hart
555 17th Street, Suite 3200
Denver, CO 80202
(303)295-8063
Email: aepierce@hollandhart.com
Re: City of Fort Collins v. Open International, et al.
Dear Alex,
I am writing in response to your July 18, 2023 letter regarding Open’s request during the
City’s 30(b)(6) appropriations deposition for the total amount of remaining appropriated funds for
the CIS/OSS billing system project. As of July 14, 2023, there are $2,329,013 of appropriated
funds in the City’s accounts related to the CIS/OSS billing system project. Please note that
$239,457 of that amount is from an account for remediation work on the project that was funded
after Open’s termination.
Sincerely,
Case L. Collard
Case No. 1:21-cv-02063-CNS-SBP Document 242-3 filed 09/15/23 USDC Colorado pg 2
of 2