HomeMy Public PortalAboutPKT-CC-2021-06-30217 East Center Street
Moab, Utah 84532-2534
Main Number (435) 259-5121
Fax Number (435) 259-4135
CITY OF
M
Memorandum
To: Councilmembers and Media
From: Mayor Emily S. Niehaus
Date: 6/24/2021
Re: Special City Council Meeting
AB
UTAH
Mayor: Emily S. Niehaus
Council: Tawny Knuteson-Boyd
Rani Derasary
Mike Duncan
Karen Guzman -
Newton
Kalen Jones
The City of Moab will hold a Special Moab City Council Meeting on Wednesday, June 30,
2021, at 4:00 p.m. at City Hall Council Chambers, 217 E. Center St., Moab, Utah. The
purpose of this meeting will be:
1. Walnut Lane Update
2. Proposed Ordinance 2021-13: An Ordinance Amending the Text of the Moab
Municipal Code (MMC) to Add Regulation for Outdoor Dining by Amending
Sections 17.21 C-2 Commercial Residential Zone, 17.24 C-3 Central Commercial
Zone, 17.27 C-4 General Commercial Zone and 17.31 RC Resort Commercial Zone
and by allowing consideration of parklets in the City Right -of -Way (ROW) by
amending Section17.24 C-3 Central Commercial Zone. Associated definitions will
be added to MMC Section 17.06 Definitions.
Briefing and possible action.
Mayor Emily S. Niehaus
In compliance with the Americans with Disabilities Act, individuals needing special accommodations during this meeting should
notify the Recorder's Office at 217 East Center Street, Moab, Utah 84532; or phone (435) 259-5121 at least three (3) working days
prior to the meeting.
Moab City Council Agenda Item Meeting Date: June 30, 2021
Title: Walnut Lane & Employee Housing Discussion
Disposition: Discussion and possible action
Staff Presenter: Kaitlin Myers, Senior Project Manager
Attachments:
- Walnut Lane Summary
- IndieDwell Contract
- IndieDwell shuts down Caldwell factory for revamp, lays off 61 employees; Expands
elsewhere (Boise Dev, May 19, 2021)
- Employee Housing Letter of Support from Chief Edge
Background/Summary: Staff wishes to provide an update to Council on the status of the Walnut Lane project to facilitate a conversation about moving it forward. Additionally, staff would like to initiate a conversation with the Council to start exploring employee housing solutions.
indieDwell Updates On June 16, indieDwell notified Kaitlin Myers and Carly Castle they are unable to meet the performance bond requirements outlined in the contract. Staff has included a longer narrative outlining the timeline leading up to this conversation, other minor issues with indieDwell since signing the contract, and alternatives to move forward. Staff presents three questions for the Council to consider for this conversation:
• Does the Council wish to terminate the contract with indieDwell?
• Does the Council wish to keep moving forward as quickly as possible and find additional funding to cover the cost of price surges or delay by 6-12 months until construction prices go down?
• Does the Council wish to proceed with 4 duplexes or evaluate other alternatives for phase 1?
Employee Housing Staff has begun evaluating options to provide housing to City employees. The Police Department is facing a severe shortage of officers, and while they have received numerous applications from qualified applicants, they have lost several potential officers due to lack of housing in the community. Other new City employees have experienced similar challenges finding housing, which has caused them to turn down the job or find temporary living alternatives (like trailers) for several months before finding permanent housing.
Like many employers in the community, the City is facing an employment challenge due to housing. Staff will provide a presentation on options the Council can consider, including but not limited to the following:
• Dedicate units at Walnut Lane
• Develop housing on other city-owned properties
• Consider public-private partnerships with local developers and businesses to develop employee housing
• Purchase and deed restrict existing units
• Provide monthly housing stipend
• Provide assistance with down payment or security deposit
indieDwell Updates – June 30, 2021
Bonding Issues
indieDwell (ID) has tried numerous avenues to meet the performance bond/irrevocable letter of credit
requirements outlined in the contract.
During contract negotiations in December 2020, ID requested submitting an irrevocable letter of credit
rather than a performance bond because they were concerned about their bonding ability but believed
they could get an ILOC to cover the project. The City signed a contract with ID on December 22, 2020,
with the following performance bond clause:
5.4 Performance Bond
Concurrently with execution of this Agreement the Contractor shall deliver to the City an
Irrevocable Standby Letter of Credit in the amount of One Million Dollars ($1,000,000)
covering the full and faithful performance of the Contract, the payment of all obligations arising
thereunder, and the timely completion of the Work free and clear of any and all liens ("Letter of
Credit"). The City will be the named beneficiaries on the Letter of Credit. Such Letter of Credit
will provide, "Any alterations which may be made in the terms of the Contract Documents or in
the Work to be done thereunder, or the giving of any extension of time for the performance of
the Contract Documents, or any other forbearance, will not in any way release the Letter of
Credit." The letter of credit shall remain in force from the period of the Materials Payment
through to the Final Acceptance by the City. The City shall bear any cost to provide the Letter
of Credit which shall not exceed 1% of the total amount of the Contract Sum.
On January 6, 2021, ID submitted an invoice for $216,060 for Task A per Exhibit C of the contract. On
January 14, Sommar told ID via email that the City could not pay the invoice until we received the
performance bond and insurance information, as required by the contract. On January 15, ID submitted
their insurance information. To date, ID has not met the performance bond requirement, so the City has
not fulfilled their invoice.
Throughout the spring months, the City and ID had regular check-ins regarding plan updates and the
bonding requirement, but bonding was not heavily discussed again until May, when ID was getting
closer to building plan submission and ordering materials.
On May 6, May 18, and June 10, City and ID met to discuss bonding options, and ID expressed positive
progress at these meetings to meet the contractual requirements.
On June 16, ID officially notified Kaitlin and Carly they could not meet the requirements. They had
exhausted their three potential avenues to do so. Their original ILOC partner decided it did not want to
bond for projects outside of the state of Colorado; the second option seemed to become a dead end
during the due diligence process; and the third option would have required the City to reassign the
contract to a different contractor, ID would be their subcontractor, and this company would require 50%
of the net profits from ID for the project. ID said the third option was not feasible and they would need
$300-400k more due to surges in construction material costs to make a return on this project.
Ron Francis, the General Manager, told us even if the City could somehow waive the bonding
requirements, he would not be able to recommend moving forward with this project to his board
because the cost margin is so large, meaning they would need to renegotiate the price of the contract to
approximately $1.4MM to feel comfortable moving forward.
Further, Ron said he felt it was a 90% chance, if we did renegotiate the contract, that they would be able
to bond. They have told us similar odds for their other avenues they have explored, which have failed.
Other indieDwell Issues
The City has experienced a few minor issues with ID along the way, likely due to internal challenges at
ID. Staff has included a recent news article from Boise Dev, which reported indieDwell is closing its
Caldwell, ID factory and moved all the pending work from this factory to the Pueblo, CO factory, where
Moab’s project is being developed. The article also mentions ID is opening a new factory in Virginia.
These internal challenges have caused Moab’s dedicated ID project team to have to focus on additional
work from the Caldwell factory, which has caused delays on our project.
Conversation with Zions Bank regarding the STRB
After the indieDwell news, Ben Billingsley and Kaitlin Myers spoke to Alex Buxton with Zions Bank about
the City’s options with the STRB for the redevelopment of Walnut Lane.
Note: Staff anticipated an increase in construction prices when running financial pro formas for the STRB
amount. We settled on the $6.5MM bond because we still have funding in the WAHO, and we did not
want to take on additional funding because the rent charges could not cover a higher debt amount.
State of the Market - Other Entities
We asked if other entities are experiencing similar challenges. The only examples he offered were
school districts who don't have the option to put the project on hold, some are expanding the bond to
complete the project as originally planned, others are shrinking the project so it fits within current bond
capacity.
Spend Down Time Frame
As long as we remain in negative arbitrage (the interest we're earning is less than the interest we're
paying), we have a 3 year spend down time frame. Even if we go beyond 3 years, Gilmore Bell would just
write a letter to the IRS indicating the project extended beyond 3 years due to construction costs. In
Alex's time, he's never seen an entity fined for exceeding arbitrage timelines, especially in negative
arbitrage.
We also talked about various options for the next step:
1. Insignificant Change of Scope - Changing the scope of the project as long as it remains on the
Walnut Lane property requires very little effort.
2. Material Change in Scope - If we wanted to spend the money to buy Days Inn, or build Tiny
Homes at Old City Park, this would require approval from Bond Counsel and Zion's Credit, as
the revenue source would change significantly. It may even require the next option.
3. Returning Bond Proceeds - If we wanted to put the project on hold and not make the bond
payments while waiting, or if we wanted to materially change the scope of the project, we
would return the funds. While not desirable, this would have no negative impact on future
lending ability. The downside to this is the legwork already done on the bond, and the $ paid
for Bond Counsel and ZPF. However, these sunk costs are less $ than the interest on our first
bond payment.
4. Defer Payment - This is possible if we simply did not have the $ on hand to make the
payment, pursuing this option is highly discouraged due to impacting future borrowing ability.
The Path Forward…
The following are several alternatives Council could consider to move the Walnut Lane project forward.
1) We find more money to keep going with the project.
a) We find more money to continue with indieDwell.
i) Pros: The City currently has a contract with ID, so it would take less time to continue
forward with them than going out to bid for a different builder, have plans redrawn, etc. We
know approximately how much money ID would need to move forward.
ii) Cons: ID has expressed some uncertainty to be able to find a partner to bond, even if the
City finds additional funding to reevaluate the contract; staff is generally uncertain of ID’s
ability to fulfill the contract as promised.
b) We terminate the contract with indieDwell and find another builder for phase 1. This could
mean finding an architect/designer to redraw the duplex plans so they can be stick built rather
than modular, or the City could consider abandoning the duplexes for a different builder
altogether that meets similar density to the proposed phase 1. We bid out the vertical and
horizontal construction of phase 1 together.
i) Pros: Staff feels uncertain about ID’s ability to complete the terms of the contract.
ii) Cons: Finding a new builder and redesigning building plans will take time and additional
costs. The City does not have a firm estimate for how much phase 1 would cost with another
builder, but it would still be over the proposed budget.
c) General
i) Pros: We save time, even if we take the time to find a new builder.
ii) Cons: We need to find approximately $500k in additional funding. There is some level of
uncertainty with ID or a new builder.
d) Potential funding sources
i) The City could use STRB funding to cover costs now and find this funding later in phase 2,
but the funding will need to be found at some point.
ii) Property tax, ARPA, reintroduce overnight accommodations to generate WAHO funding
2) We press pause until construction prices go down.
a) We continue with indieDwell.
b) We terminate the contract with indieDwell and find another builder.
c) General
i) Pros: We spend less money by waiting for construction costs to go down.
ii) Cons: We delay the project timeline, which increases pressure to spend the STRB within 3
years. We will still need to make STRB payments. We continue to face the same
maintenance concerns with existing trailers at Walnut Lane, which is a health and safety
concern. We disappoint residents who were expecting units by the end of the year. We
must consider the same uncertainty as in #1 regarding ID or soliciting another builder.
3) We abandon the current master plan and find an alternative redevelopment plan (i.e. we
redevelop the trailer park).
a) As has been proposed this time last year, the City could go to the bidder list from the last RFP
and purchase manufactured units from the next highest bidder. It is uncertain how much the
price of these units has changed since we received the bids, but it is safe to assume they have
increased due to general surges in the market right now.
i) Pros: Cheaper and faster overall redevelopment of Walnut Lane. Easier to meet the STRB
spending deadline. Still provides safe, affordable housing to current tenants.
ii) Cons: Does not meet Council’s goal to provide additional housing beyond replacement.
Long-term property value of a manufactured home park is less than that of a multifamily
development, and manufactured units do not hold up as well over time as permanent units.
AGREEMENT FOR SERVICES
by and between
THE CITY OF MOAB,
A MUNICIPAL CORPORATION
and
indieDwell
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THIS AGREEMENT FOR SERVICES (“Agreement”) is entered into this 22 day of December
2020 by and between the City of Moab, a municipal corporation, (“the City”) and indieDwell
(“the Contractor”). The City and the Contractor are sometimes individually referred to as a
“Party” and collectively referred to as “the Parties.”
WHEREAS
A.The City has sought, by issuance of a request for proposal or invitation to bid, the
performance of the services defined and described in Section 1 of this Agreement.
B.The Contractor, following submission of a proposal or bid for the performance of the
services defined and described in Section 1 of this Agreement, was selected by the City to
perform those services.
C.Pursuant to the City’s Municipal Code Section 2.28.130, the City Manager has authority
to execute this Agreement.
D.The Parties desire to formalize the selection of the Contractor for performance of those
services defined and described particularly in Section 1 of this Agreement and desire that the
terms of that performance be as defined and described in this Agreement.
THEREFORE
NOW, THEREFORE, in consideration of the mutual promises and covenants made by
the Parties and contained in this Agreement and other consideration, the value and adequacy of
which are hereby acknowledged, the Parties agree as follows:
1.SERVICES OF CONTRACTOR
1.1 Scope of Services
In compliance with all the terms and conditions of this Agreement, the Contractor shall provide
those services specified in the “Scope of Services” attached to this Agreement as Exhibit A and
incorporated by this reference. These services may be referred to as “services” or “work” in this
Agreement. The Contractor acknowledges that it accepts the risk that the services to be provided
pursuant to the Scope of Services may be more costly or time consuming than the Contractor
anticipates and that the Contractor shall not be entitled to additional compensation should this
occur. As a material inducement to the City entering into this Agreement, the Contractor
represents and warrants that it has the qualifications, experience and facilities necessary to
properly perform the services required under this Agreement in a thorough, competent, and
professional manner and is experienced in performing the work and services contemplated in this
Agreement. The Contractor shall at all times faithfully, competently and to the best of its ability,
experience and talent perform all services described in this Agreement. The Contractor
covenants that it shall follow the highest professional standards in performing the services
required by this Agreement and that all materials will be of good quality and fit for the purpose
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intended. For purposes of this Agreement, the phrase “highest professional standards” shall
mean those standards of practice recognized by one or more first-class firms performing similar
services under similar circumstances.
1.2 Contractor’s Proposal
The services shall include the Contractor’s scope of work, proposal or bid, bid specifications,
official design prints and specifications, change orders, approved written instructions, and
written contract amendments and notice of award, if any, which shall be incorporated into this
Agreement by this reference as though fully set forth in this Agreement. In the event of any
inconsistency between any scope of work, proposal or bid and this Agreement, the terms of this
Agreement shall govern.
1.3 Compliance with Law
The Contractor shall keep itself informed concerning, and shall render all services provided in
accordance with, all ordinances, resolutions, statutes, rules and regulations of the City and any
federal, state or local governmental entity having jurisdiction in effect at the time service is
rendered.
1.4 Licenses, Permits, Fees and Assessments
The Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as
may be required by law for the performance of the services required by this Agreement. The
Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus
applicable penalties and interest, which may be imposed by law and arise from, or are necessary
for, the Contractor’s performance of the services required by this Agreement. The Contractor
shall indemnify, defend and hold harmless the City, its officers, employees or agents against any
such fees, assessments, taxes penalties or interest levied, assessed or imposed against the City as
a result of the Contractor.
1.5 Familiarity with Work
By executing this Agreement, the Contractor warrants that it:
1.5.1.Has thoroughly investigated and has considered the scope of services to
be performed;
1.5.2.Has carefully considered how the services should be performed;
1.5.3.Fully understands the facilities, difficulties and restrictions attending
performance of the services under this Agreement;
1.5.4.Has, or will, investigate the site and is, or will be, fully acquainted with
the existing conditions prior to commencement of any services if the
services involve work upon any site;
1.5.5.Shall immediately inform the City should the Contractor discover any
latent or unknown conditions which will materially affect the performance
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of any services and shall not proceed except at Contractor’s risk until
written instructions are received from an authorized representative of the
City.
1.6 Care of Services
The Contractor shall adopt reasonable methods during the life of this Agreement to furnish
continuous protection of the services, work, and the equipment, materials, papers, documents,
plans, studies and/or other components to prevent losses or damages. The Contractor shall be
responsible for all damages to persons or property until acceptance of the services by the City,
except such losses or damages as may be caused by the City’s own negligence.
1.7 Warranty
The Contractor warrants that all work under this Agreement (which for purposes of this Section
shall be deemed to include unauthorized work which has not been removed and any
non-conforming materials incorporated into the work) to be of good quality and free from any
defective or faulty material or workmanship. The Contractor agrees that for a period of one (1)
year (or the period of time specified elsewhere in this Agreement or in any guarantee or
warranty provided by any manufacturer or supplier of equipment or materials incorporated into
the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10)
working days after being notified in writing by the City of any defect in the work, faulty
material or workmanship or non-conformance of the work with the Scope of Services, scope of
work, proposal or bid, commence and prosecute with due diligence all work necessary to fulfill
the terms of the warranty at the Contractor’s sole cost and expense. The Contractor shall act
sooner as requested by the City in response to an emergency. In addition, the Contractor shall,
at its sole cost and expense, repair and replace any portions of the work (or work of other
contractors) damaged by its defective or faulty material or workmanship or non-conforming
work and any work which becomes damaged in the course of repairing or replacing the defective
or faulty material or workmanship or non-conforming work. The Contractor shall perform such
tests as the City may require to verify that any corrective actions, including, without limitation,
redesign, repairs, and replacements comply with the requirements of this Agreement. All costs
associated with such corrective actions and testing, including the removal, replacement, and
reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility
of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers
with respect to any portion of the work, whether express or implied, are deemed to be obtained
by the Contractor for the benefit of the City, regardless of whether or not such warranties and
guarantees have been transferred or assigned to the City by separate agreement and the
Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City.
In the event that the Contractor fails to perform its obligations under this Section, or under any
other warranty or guaranty under this Agreement, to the reasonable satisfaction of the City, the
City shall have the right to correct and replace any defective or faulty material or workmanship
or non-conforming work and any work damaged by any defective or faulty material or
workmanship or non-conforming work at the Contractor’s sole expense. The Contractor shall be
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obligated to fully reimburse the City for any expenses incurred upon demand. This provision
may be waived in Exhibit B if the services do not include construction of any improvements or
the supplying of equipment or materials.
1.8 Further Responsibilities of Parties
Both Parties agree to use reasonable care and diligence to perform their respective obligations
under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare
all documents and take all actions as may be reasonably necessary to carry out the purposes of
this Agreement. Unless specified in this Agreement, neither Party shall be responsible for the
services or work of the other.
1.9 Additional Services
The City shall have the right at any time during the performance of the services, without
invalidating this Agreement, to order extra services beyond that specified in the Scope of
Services (Exhibit A) or make changes by altering, adding to or deducting from Scope of
Services (Exhibit A). No such extra services may be undertaken unless a written order is first
given by the City Manager to the Contractor. These extra services may include an adjustment in
(i) the Schedule of Compensation (Exhibit C), and/or (ii) Schedule of Performance (Exhibit D),
(if applicable) and these adjustments are subject to the written approval of the Contractor. Any
increases in the Schedule of Compensation (Exhibit C), taken either separately or cumulatively,
must be approved by the City Manager if the total cost of the services does not exceed $50,000.
If the total cost of the services will exceed $50,000, the extra services need to be approved by
the Mayor. It is expressly understood by Contractor that the provisions of this Section shall not
apply to services specifically set forth in the Scope of Services or reasonably contemplated by it.
1.10 Special Requirements
Additional terms and conditions of this Agreement, if any, which are made a part of this
Agreement, are set forth in the “Special Requirements” which are attached as Exhibit B (if
applicable) and are incorporated in this Agreement by this reference. In the event of a conflict
between the provisions of Exhibit B and any other provisions of this Agreement, the provisions
of this Agreement shall govern.
2.COMPENSATION AND METHOD OF PAYMENT
2.1 Agreement Sum
Subject to any limitations set forth in this Agreement, the City agrees to pay the Contractor the
amounts specified in the “Schedule of Compensation” attached as Exhibit C and incorporated in
this Agreement by this reference. The total compensation, including reimbursement for actual
expenses, shall not exceed $1,080,300.00 (“Agreement Sum”), unless additional compensation
is approved pursuant to Section 1.9. The Schedule of Compensation shall include the attendance
(whether in person or virtually) of the Contractor at all project meetings reasonably deemed
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necessary by the City. Coordination of the performance of the services with the City is a critical
component of the services. If the Contractor is required to attend additional meetings to
facilitate such coordination, the Contractor shall not be entitled to any additional compensation
for attending these meetings. The Contractor acknowledges that the City is greatly concerned
about the cost of work and services to be performed pursuant to this Agreement. For this reason,
the Contractor agrees that if the Contractor becomes aware of any facts, circumstances,
techniques or events that may or will materially increase or decrease the cost of the work or
services contemplated in this Agreement and specified in the Schedule of Compensation, the
Contractor shall promptly notify the City Manager of this fact, circumstance, technique or event
and the estimated increased or decreased cost and, if the Contractor is providing design services,
the estimated increased or decreased cost estimate for the project being designed. The
Contractor understands that even if it notifies the City Manager of an increase, the City will not
pay any additional funds to the Contractor for any increase unless the Parties fully execute a
written amendment to this Agreement pursuant to Section 9.4.
2.2 Method of Compensation
The method of compensation may include:
2.2.1.a lump sum payment upon completion;
2.2.2.payment in accordance with specified tasks or the percentage of
completion of the services;
2.2.3.payment for time and materials based upon the Contractor’s rates as
specified in the Schedule of Compensation, provided that time estimates
are provided for the performance of sub tasks, but not exceeding the
Agreement Sum;
2.2.4.such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses
Compensation may include reimbursement for actual and necessary expenditures for
reproduction costs, telephone expenses and travel expenses approved by the City Manager in
advance and only if specified in the Schedule of Compensation.
2.4 Invoices
Each month, the Contractor shall furnish to the City an invoice for all services performed and
expenses incurred during the preceding month in a form approved by City’s Finance Director
and which includes copies of all receipts. The invoice shall detail charges for all necessary and
actual expenses by the following categories: labor (by sub-category), travel, materials,
equipment and supplies.
The City shall independently review each invoice submitted by the Contractor to determine
whether the services performed and expenses incurred are in compliance with the provisions of
this Agreement. Except as to any charges for services performed or expenses incurred by the
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Contractor which are disputed by the City, or as provided in Section 7.3., the City will use its
best efforts to cause the Contractor to be paid for an invoice within forty-five (30) days of
receipt of the Contractor’s correct and undisputed invoice. In the event any charges or expenses
are disputed by the City, the City will notify the Contractor within thirty (10) days of receipt of
the invoice and request that the Contractor correct and resubmit the invoice.
2.5 Waiver
Payment to the Contractor for services performed pursuant to this Agreement shall not be
deemed to waive any defect in the work, faulty material or workmanship or non-conformance of
the services performed by the Contractor.
3.PERFORMANCE SCHEDULE
3.1 Time of Essence
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance
The Contractor shall commence the services pursuant to this Agreement upon full execution of
this Agreement and shall perform all services within the time period(s) established in the
Schedule of Performance attached as Exhibit D and incorporated in this Agreement by this
reference. When requested by the Contractor, extensions to the time period(s) specified in the
Schedule of Performance may be approved in writing by the City Manager.
3.3 Force Majeure
The time period(s) specified in the Schedule of Performance for performance of the services
pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes
beyond the control and without the fault or negligence of the Contractor, including, but not
restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes,
floods, epidemics, pandemic, quarantine restrictions, riots, strikes, freight embargoes, wars,
litigation, and/or acts of any governmental agency, including the City, if the Contractor shall
within ten (10) days of the commencement of such delay notify the City Manager in writing of
the causes of the delay. The City Manager shall ascertain the facts and the extent of the delay
and extend the time for performing the services for the period of the enforced delay when, and if,
in the judgment of the City Manager acting in good faith such delay is justified. The City
Manager’s determination shall be final and conclusive upon the Parties to this Agreement. In no
event shall Contractor be entitled to recover damages against the City for any delay in the
performance of this Agreement, however caused, Contractor’s sole remedy being extension of
the Agreement pursuant to this Section.
3.4 Inspection and Final Acceptance
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The City acting in good faith may inspect and accept or reject any of the Contractor’s work
under this Agreement, either during performance or when the terms of this contract are fully
completed. The City shall reject or finally accept the Contractor’s work within thirty (30) days
after the services being provided to the City are fully completed. The City shall accept work by
a timely written acceptance, otherwise work shall be deemed to have been rejected. The City’s
acceptance shall be conclusive as to such work except with respect to latent defects, fraud and
such gross mistakes as amount to fraud. Acceptance of any work by the City shall not constitute
a waiver of any of the provisions of this Agreement including, but not limited to, Section 5,
pertaining to insurance, indemnification and bonds.
3.5 Term
Unless terminated earlier in accordance with Section 7.8 of this Agreement, the term of this
Agreement shall be for twelve (12) months, beginning on the date of full execution of this
Agreement and extending through and concluding at 11:59 p.m. on the day before the
anniversary date of this Agreement (“Term”). This Agreement shall automatically be extended
for an additional year at the end of any Term unless either Party provides written notice of its
desire not to renew this Agreement to the other Party prior to sixty (60) days of the expiration of
any Term or extension. This Agreement shall continue to automatically renew indefinitely until
terminated by either Party, except as otherwise provided in the Schedule of Performance
(Exhibit D).
4.COORDINATION OF SERVICES
4.1 Representatives and Personnel of Contractor
The following principals of the Contractor (“Principals”) are designated as being the principals
and representatives of Contractor authorized to act in its behalf with respect to the services
specified in this Agreement:
Brad Henderson, Director of Business Development
205 N. Elizabeth St., Pueblo, CO 81003
Email: bhenderson@indiedwell.com
Phone: 720-988-7352
Steve Mazza, Project Superintendent
205 N. Elizabeth St., Pueblo, CO 81003
Email: smazza@indiedwell.com
Phone: 719-716-9119
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The Contractor expressly understands that the experience, knowledge, capability and reputation
of the foregoing Principals were a substantial inducement for the City to enter into this
Agreement. Therefore, the foregoing Principals shall be responsible during the term of this
Agreement for directing all activities of Contractor and devoting sufficient time to personally
supervise the services pursuant to this Agreement. All personnel of Contractor, and any
authorized agents, shall at all times be under the exclusive direction and control of the
Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor
may their responsibilities be substantially reduced by Contractor without the express written
approval of the City. Additionally, the Contractor shall make every reasonable effort to
maintain the stability and continuity of the Contractor’s staff, if any, assigned to perform the
services required under this Agreement. The Contractor shall notify the City of any changes in
the Contractor’s staff assigned to perform the services required under this Agreement, prior to
and during any such performance.
4.2 Status of Contractor
The Contractor shall have no authority to bind the City in any manner, or to incur any
obligation, debt or liability of any kind on behalf of or against the City, whether by contract or
otherwise, unless such authority is expressly conferred under this Agreement or is otherwise
expressly conferred in writing by the City. The Contractor shall not at any time or in any
manner represent that the Contractor or any of the Contractor’s officers, employees, or agents
are in any manner officials, officers, employees or agents of the City. Neither the Contractor,
nor any of the Contractor’s officers, employees or agents, shall obtain any rights to retirement,
health care or any other benefits which may otherwise accrue to the City’s employees. The
Contractor expressly waives any claim the Contractor may have to any such rights.
4.3 Contract Officer
The Contract Officer shall be such person as may be designated by the City Manager of the City.
Should the City Manager appoint a Contract Officer, it shall be the Contractor’s responsibility to
assure that the Contract Officer is kept informed of the progress of the performance of the
services and the Contractor shall refer any decisions which must be made by the City to the
Contract Officer. Unless otherwise specified in this Agreement, any required approval of the
City shall mean the approval of the Contract Officer. The Contract Officer shall have authority,
if specified in writing by the City Manager, to sign all documents on behalf of the City required
to carry out the terms of this Agreement. In the absence of a designated Contract Officer, the
City Manager will serve the duties of the Contract Officer as specified above on behalf of the
City.
4.4 Independent Contractor
Neither the City nor any of its employees shall have any control over the manner, mode or
means by which the Contractor, its agents or employees, perform the services required in this
Agreement, except as otherwise set forth in this Agreement. The City shall have no voice in the
selection, discharge, supervision or control of the Contractor’s employees, representatives or
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agents, or in fixing their number, compensation or hours of service. The Contractor shall
perform all services required by this Agreement as an independent contractor of the City and
shall remain at all times as to the City a wholly independent contractor with only such
obligations as are consistent with that role. The Contractor shall not at any time or in any
manner represent that it or any of its agents or employees are agents or employees of the City.
The City shall not in any way or for any purpose become or be deemed to be a partner of the
Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise
with the Contractor.
4.5 Prohibition Against Subcontracting or Assignment
The experience, knowledge, capability and reputation of the Contractor, its principals and
employees were a substantial inducement for the City to enter into this Agreement. Therefore,
the Contractor shall not contract with any other entity to perform in whole or in part the services
required by this Agreement without the express written approval of the City. The City hereby
acknowledges all trucking, craning, stitching and final connections will be made by
sub-contractors to the Contractor in performance of this agreement. In addition, neither this
Agreement nor any interest in this Agreement may be transferred, assigned, conveyed,
hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of
creditors or otherwise, without the prior written approval of the City. Transfers restricted by this
Agreement shall include the transfer to any person or group of persons acting in concert of more
than twenty five percent (25%) of the present ownership and/or control of the Contractor, taking
all transfers into account on a cumulative basis. In the event of any such unapproved transfer,
including any bankruptcy proceeding, the City, at its sole discretion, may void this Agreement in
whole or in part. No approved transfer shall release the Contractor or any surety of the
Contractor of any liability without the express consent of the City.
5.INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverages
The Contractor shall procure and maintain, at its sole cost and expense, in a form and content
satisfactory to the City, during the entire term of this Agreement including any extension as
specified in Section 3.2, the following policies of insurance which shall cover all elected and
appointed officers, employees and agents of the City:
Comprehensive General Liability Insurance: A policy of comprehensive general liability
insurance written on a per occurrence basis for bodily injury, personal injury and property
damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per
occurrence or if a general aggregate limit is used, either the general aggregate limit shall apply
separately to this contract/location, or the general aggregate limit shall be twice the occurrence
limit.
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Worker’s Compensation Insurance: A policy of worker’s compensation insurance in such
amount as will fully comply with the laws of the State of Utah and which shall indemnify, insure
and provide legal defense for both the Contractor and the City against any loss, claim or damage
arising from any injuries or occupational diseases occurring to any worker employed by or any
persons retained by the Contractor in the course of carrying out the work or services
contemplated in this Agreement.
Automotive Insurance: A policy of comprehensive automobile liability insurance written on a
per occurrence for bodily injury and property damage in an amount not less than $1,000,000.
The policy shall include coverage for owned, non-owned, leased and hired cars.
Additional Insurance: Products and completion insurance..
5.2 General Insurance Requirements
All of the above policies of insurance shall be primary insurance and shall name the City, its
elected and appointed officers, employees and agents as additional insureds and any insurance
maintained by the City or its officers, employees or agents shall apply in excess of, and not
contribute with the Contractor’s insurance. The insurer is deemed to waive all rights of
subrogation and contribution it may have against the City, its officers, employees and agents and
their respective insurers. All of these policies of insurance shall provide that the insurance may
not be amended or cancelled by the insurer or any Party without providing thirty (30) days prior
written notice by certified mail return receipt requested to the City. In the event any of these
policies of insurance are cancelled, the Contractor shall, prior to the cancellation date, submit
new evidence of insurance in conformance with Section 5.1 to the City Manager. No services or
services under this Agreement shall commence until the Contractor has provided the City with
Certificates of Insurance or appropriate evidence of the above insurance coverages and these
Certificates of Insurance or appropriate evidence of the above insurance are accepted by the
City. The City reserves the right to inspect complete, certified copies of all required insurance
policies at any time. Any failure to comply with the reporting or other provisions of the policies
including breaches or warranties shall not affect coverage provided to the City.
All certificates shall name the City as additional insured (providing the appropriate
endorsement) and shall conform to the following “cancellation” notice:
CANCELLATION: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE
CANCELLED BEFORE THE EXPIRATION DATED, THE ISSUING COMPANY SHALL
MAIL THIRTY (30)-DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER
NAMED IN THIS AGREEMENT.
[to be initialed] ______________
Agent Initials
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The City, its respective elected and appointed officers, directors, officials, employees, agents
and volunteers are to be covered as additional insureds with respect to: liability arising out of
activities the Contractor performs; products and completed operations of the Contractor;
premises owned, occupied or used by the Contractor; or automobiles owned, leased, hired or
borrowed by the Contractor. The coverage shall contain no special limitations on the scope of
protection afforded to the City, and its respective elected and appointed officers, officials,
employees or volunteers. The Contractor’s insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the limits of the insurer's
liability.
Any deductibles or self-insured retentions must be declared to and approved by the City. At the
option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured
retentions with respect to the City or its respective elected or appointed officers, officials,
employees and volunteers or the Contractor shall procure a bond guaranteeing payment of losses
and related investigations, claim administration, defense expenses and claims. The Contractor
agrees that the requirement to provide insurance shall not be construed as limiting in any way
the extent to which the Contractor may be held responsible for the payment of damages to any
persons or property resulting from the Contractor’s activities or the activities of any person or
persons for which the Contractor is otherwise responsible nor shall it limit the Contractor’s
indemnification liabilities as provided in Section 5.3.
5.3 Indemnification
5.3.1.To the full extent permitted by law, the Contractor agrees to indemnify, defend
and hold harmless the City, its officers, employees and agents (“Indemnified
Parties”) against, and will hold and save them and each of them harmless from any
and all actions whether judicial, administrative, regulatory or arbitrated (“Actions”)
and any and all claims or damages to persons or property, losses, costs, penalties,
obligations, errors, omissions or liabilities whether actual or threatened that may be
asserted or claimed by any person, firm or entity arising out of or in connection
with the performance of the services, operations or activities provided in this
Agreement of Contractor, its officers, employees, agents, subcontractors, or
invitees, or any individual or entity for which the Contractor is legally liable
(“indemnors”), or arising from the Contractor’s negligent, reckless or willful
misconduct, or arising from the Contractor’s indemnors’ negligent performance of
or failure to perform any term, provision, covenant or condition of this Agreement
(“Claims”). The Contractor will defend any Action filed in connection with any
such Claims and will pay all costs and expenses, including legal costs and
attorneys’ fees incurred in connection with any Claims.
The Contractor will promptly pay any judgment rendered against the City, its
officers, agents or employees for any such Claims arising out of or in connection
with the performance of or failure to perform services, operations or activities of
the Contractor and the Contractor agrees to save and hold the City, its officers,
agents, and employees harmless.
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In the event the City, its officers, agents or employees is made a party to any Action
filed or prosecuted against the Contractor for such Claims arising out of or in
connection with the performance of or failure to perform the services, operation or
activities of the Contractor, the Contractor agrees to pay to the City, its officers,
agents or employees, any and all costs and expenses incurred by the City, its
officers, agents or employees in such action or proceeding, including but not
limited to, legal costs and attorneys’ fees.
Failure of the City to monitor compliance with these provisions shall not be a
waiver of this requirement. The provisions of this Section do not apply to claims or
liabilities occurring as a result of the City’s sole negligence or willful acts or
omissions, but, to the fullest extent permitted by law, shall apply to claims and
liabilities resulting in part from the City’s negligence, except that design
professionals’ indemnity shall be limited to claims and liabilities arising out of the
negligence, recklessness or willful misconduct of the design professional. The
indemnity obligation shall be binding on successors and assigns of the Contractor
and shall survive termination of this Agreement.
5.3.2 To the full extent permitted by law, the City agrees to indemnify, defend and
hold harmless the Contractor, its officers, employees and agents (“Indemnified
Parties”) against, and will hold and save them and each of them harmless from any
and all actions whether judicial, administrative, regulatory or arbitrated (“Actions”)
and any and all claims or damages to persons or property, losses, costs, penalties,
obligations, errors, omissions or liabilities whether actual or threatened that may be
asserted or claimed by any person, firm or entity arising out of or in connection
with the performance of the services, operations or activities provided in this
Agreement of City, its officers, employees, agents, subcontractors, or invitees, or
any individual or entity for which the City is legally liable (“indemnors”), or arising
from the City’s negligent, reckless or willful misconduct, or arising from the City’s
indemnors’ negligent performance of or failure to perform any term, provision,
covenant or condition of this Agreement (“Claims”). The City will defend any
Action filed in connection with any such Claims and will pay all costs and
expenses, including legal costs and attorneys’ fees incurred in connection with any
Claims.
The City will promptly pay any judgment rendered against the Contractor, its
officers, agents or employees for any such Claims arising out of or in connection
with the performance of or failure to perform services, operations or activities of
the City and the City agrees to save and hold the Contractor, its officers, agents,
and employees harmless.
In the event the Contractor, its officers, agents or employees is made a party to any
Action filed or prosecuted against the City for such Claims arising out of or in
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connection with the performance of or failure to perform the services, operation or
activities of the City the City agrees to pay to the Contractor, its officers, agents or
employees, any and all costs and expenses incurred by the Contractor, its officers,
agents or employees in such action or proceeding, including but not limited to,
legal costs and attorneys’ fees.
Failure of the Contractor to monitor compliance with these provisions shall not be a
waiver of this requirement. The provisions of this Section do not apply to claims or
liabilities occurring as a result of the Contractor’s sole negligence or willful acts or
omissions, but, to the fullest extent permitted by law, shall apply to claims and
liabilities resulting in part from the Contractors’s negligence, except that design
professionals’ indemnity shall be limited to claims and liabilities arising out of the
negligence, recklessness or willful misconduct of the design professional. The
indemnity obligation shall be binding on successors and assigns of the City and
shall survive termination of this Agreement.
5.4 Performance Bond
Concurrently with execution of this Agreement the Contractor shall deliver to the City an
Irrevocable Standby Letter of Credit in the amount of One Million Dollars ($1,000,000)
covering the full and faithful performance of the Contract, the payment of all obligations arising
thereunder, and the timely completion of the Work free and clear of any and all liens ("Letter of
Credit"). The City will be the named beneficiaries on the Letter of Credit. Such Letter of Credit
will provide, "Any alterations which may be made in the terms of the Contract Documents or in
the Work to be done thereunder, or the giving of any extension of time for the performance of
the Contract Documents, or any other forbearance, will not in any way release the Letter of
Credit." The letter of credit shall remain in force from the period of the Materials Payment
through to the Final Acceptance by the City. The City shall bear any cost to provide the Letter
of Credit which shall not exceed 1% of the total amount of the Contract Sum.
5.5 Sufficiency of Insurer or Surety
Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies
qualified to do business in Utah, rated “A” or better in the most recent edition of Best Rating
Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial
category Class VII or better, unless such requirements are waived by the City Manager due to
unique circumstances. If this Agreement continues for more than three years duration, or in the
event the City Manager determines that the work or services to be performed under this
Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that
the minimum limits of the insurance policies and the performance bond required by Section 5.4
may be changed accordingly upon receipt of written notice from the City Manager; provided
that the Contractor shall have the right to appeal a determination of increased coverage by the
City Manager to the City Council of City within ten (10) days of receipt of notice from the City
Manager.
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6.RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records
The Contractor shall keep all ledgers, books of accounts, invoices, vouchers, canceled checks,
reports, studies or other documents relating to the disbursements charged to the City and
services performed pursuant to this Agreement (“Records”), as shall be necessary to perform the
services required by this Agreement and enable the City to evaluate the performance of such
services. Any and all such Records shall be maintained in accordance with generally accepted
accounting principles and shall be complete and detailed. The City shall have full and free
access to these Records at all times during normal business hours of the City, including the right
to inspect, copy, audit and make transcripts from such Records. The Contractor shall maintain
such Records for a period of seven (7) years following completion of the services pursuant to
this Agreement, and the City shall have access to such Records in the event any audit is
required. In the event of dissolution of Contractor’s business, custody of the Records shall be
given to the City, and access shall be provided by Contractor’s successor in interest. City
acknowledges and agrees that digital forms of these records are equivalent to paper and
sufficient for record keeping purposes.
6.2 Reports
The Contractor shall periodically prepare and submit to the City Manager (or his or her
designee) such reports concerning the performance of the services required by this Agreement as
the City Manager (or his or her designee) shall require as well as any reporting required in the
Scope of Services.
6.3 Ownership of Documents
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer
files, reports, records, documents and other materials (“Documents”) prepared by the Contractor,
its employees and agents in the performance of this Agreement shall be the property of the
Contractor. However, the City shall retain the perpetual right to use the drawings,
specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports,
records, documents and other materials as required for any purpose within the City of Moab.
6.4 Confidentiality and Release of Information
All information gained, or work product produced, by the Contractor in performance of this
Agreement shall be considered confidential, unless such information is in the public domain or
already known to the Contractor. The Contractor shall not release or disclose any such
information or work product to persons or entities other than the City without prior written
authorization from the City Manager (or his or her designee).
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The Contractor, its officers, employees, agents or subcontractors, shall not, without prior written
authorization from the City Manager or unless requested by the City Attorney, voluntarily
provide documents, declarations, letters of support, testimony at depositions, response to
interrogatories or other information concerning the services performed under this Agreement.
Response to a subpoena or court order shall not be considered “voluntary.”
If the Contractor, or any officer, employee or agent of the Contractor, provides any information
or work product in violation of this Agreement, the City shall have the right to reimbursement
and indemnity from the Contractor for any damages, costs and fees, including attorneys’ fees,
caused by or incurred as a result of the Contractor’s conduct.
The Contractor shall immediately notify the City should the Contractor, its officers, employees,
agents or subcontractors be served with any summons, complaint, subpoena, notice of
deposition, request for documents, interrogatories, request for admissions or other discovery
request, court order or subpoena from any party regarding this Agreement and the services
performed pursuant to this Agreement. The City retains the right, but has no obligation, to
represent the Contractor or be present at any deposition, hearing or similar proceeding. The
Contractor agrees to cooperate fully with the City and to provide the City with the opportunity to
review any response provided by the Contractor. However, this right to review any such
response does not imply or mean the right by City to control, direct or rewrite the response.
7.ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 Utah Law
This Agreement shall be interpreted, construed and governed both as to validity and to
performance of the Parties in accordance with the laws of the State of Utah. Legal actions
concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be
instituted in the Superior Court of the County of Grand, State of Utah, or any other appropriate
court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction
of such court in the event of such action. In the event of litigation in a U.S. District Court, venue
shall lie exclusively in the District of Utah, Tenth Circuit.
7.2 Disputes; Default
In the event that Contractor is in default under the terms of this Agreement, the City shall not
have any obligation or duty to continue compensating the Contractor for any services performed
after the date of default. Instead, the City may give notice to the Contractor of the default and
the reasons for the default. The notice shall include the timeframe in which Contractor may cure
the default. This timeframe is presumptively thirty (30) days, but may be extended, though not
reduced, if circumstances warrant. During the period of time that Contractor is in default, the
City shall hold all invoices and shall, when the default is cured, proceed with payment on the
invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the
outstanding invoices during the period of default. If the Contractor does not cure the default, the
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City may take necessary steps to terminate this Agreement under this Section. Any failure on
the part of the City to give notice of the Contractor’s default shall not be deemed to result in a
waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds
The Contractor hereby authorizes the City to deduct from any amount payable to the Contractor
(whether or not arising out of this Agreement) (i) any amounts the payment of which may be in
dispute or which are necessary to compensate the City for any losses, costs, liabilities or
damages suffered by the City, and (ii) all amounts for which the City may be liable to third
parties, by reason of the Contractor’s acts or omissions in performing or failing to perform the
Contractor’s obligation under this Agreement. Provided that the City has disclosed these losses,
costs liabilities, damages or amounts owed to third parties in writing to the Contractor prior to
the issuance of the invoice and the Contractor has had both the ability to respond and time to
cure. In the event that any claim is made by a third party, the amount or validity of which is
disputed by the Contractor, or any indebtedness shall exist which shall appear to be the basis for
a claim of lien, City may in good faith withhold from any payment due, without liability for
interest because of such withholding, an amount sufficient to cover such claim. The failure of
the City to exercise such right to deduct or to withhold shall not, however, affect the obligations
of the Contractor to insure, indemnify, and protect the City as elsewhere provided in this
Agreement.
7.4 Waiver
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement
shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of
any breach of the provisions of this Agreement shall not constitute a waiver of any other
provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by the City of any work or services by the Contractor shall not constitute a waiver of
any of the provisions of this Agreement. No delay or omission in the exercise of any right or
remedy by a non-defaulting Party on any default shall impair such right or remedy or be
construed as a waiver. Any waiver by either Party of any default must be in writing and shall
not be a waiver of any other default concerning the same or any other provision of this
Agreement.
7.5 Rights and Remedies are Cumulative
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement,
the rights and remedies of the parties are cumulative and the exercise by either Party of one or
more of such rights or remedies shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any other default by the other
Party.
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7.6 Legal Action
In addition to any other rights or remedies, either Party may take legal action, in law or in equity,
to cure, correct or remedy any default, to recover damages for any default, to compel specific
performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other
remedy consistent with the purposes of this Agreement.
7.7 Termination Prior to Expiration of Term
This Section shall govern any termination of this Agreement except as specifically provided in
the following Section for termination for cause. The City reserves the right to terminate this
Agreement at any time, with or without cause, upon sixty (60) days written notice to the
Contractor, except that where termination is due to the fault of the Contractor, the period of
notice may be such shorter time as may be determined by the City Manager. In addition, the
Contractor reserves the right to terminate this Agreement at any time, with or without cause,
upon sixty (60) days written notice to the City, except that where termination is due to the fault
of the City, the period of notice may be such shorter time as the Contractor may determine.
Upon receipt of any notice of termination, Contractor shall immediately cease all services except
those as may be specifically approved by the City Manager. Except where the Contractor has
initiated termination, the Contractor shall be entitled to compensation for all services rendered
and materials purchased prior to the effective date of the notice of termination and for any
services authorized by the City Manager thereafter in accordance with the Schedule of
Compensation or such as may be approved by the City Manager, except as provided in Section
7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to
compensation only for the reasonable value of the work product actually produced and/or
services delivered. Despite the foregoing, the initial payment of 20% of the contract will be
considred non-refundable as the payment is used to secure the production slots required for the
project. In the event of termination without cause pursuant to this Section, the terminating Party
need not provide the non-terminating Party with the opportunity to cure pursuant to Section 7.2.
7.8 Termination for Default of Contractor
If termination is due to the default of the Contractor under this Agreement, the City may, after
compliance with the provisions of Section 7.2, take over the services and see them to completion
by contract or otherwise. Should this occur, the Contractor shall be liable to the extent that the
total cost for completion of the services required exceeds the Schedule of Compensation in this
Agreement (provided that the City shall use reasonable efforts to mitigate such costs), and City
may withhold any payments to the Contractor for the purpose of set-off or partial payment of
amount in excess of the Schedule of Compensation.
7.9 Attorneys’ Fees
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If either Party to this Agreement is required to initiate or defend is made a party to any action or
proceeding in any way connected with this Agreement, the prevailing party in such action or
proceeding, in addition to any other relief which may be granted, whether legal or equitable,
shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorneys’ fees on
any appeal, and in addition, a party entitled to attorneys’ fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and discovery and all other
necessary costs the court allows which are incurred in such litigation.
8.CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-Liability of City Officers and Employees
No officer or employee of the City shall be personally liable to the Contractor, or any successor
in interest, in the event of any default or breach by the City or for any amount which may
become due to the Contractor or to its successor, or for breach of any obligation of the terms of
this Agreement.
8.2 Non-Liability of Contractor and Employees
No officer or employee of the Contractor shall be personally liable to the City, or any successor
in interest, in the event of any default or breach by the Contractor or for any amount which may
become due to the City or to its successor, or for breach of any obligation of the terms of this
Agreement.
8.3 Conflict of Interest
The Contractor covenants that neither it, nor any officer or principal of its firm, has or shall
acquire any interest, directly or indirectly, which would conflict in any manner with the interests
of City or which would in any way hinder the Contractor’s performance of services under this
Agreement. The Contractor further covenants that in the performance of this Agreement, no
person having any such interest shall be employed by it as an officer, employee or agent without
the express written consent of the City Manager. The Contractor agrees to at all times avoid
conflicts of interest or the appearance of any conflicts of interest with the interests of the City in
the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this
Agreement nor shall any such officer or employee participate in any decision relating to the
Agreement which effects his financial interest or the financial interest of any corporation,
partnership or association in which he is, directly or indirectly, interested, in violation of any
state statute or regulation. The Contractor warrants that it has not paid or given and will not pay
or give any third party any money or other consideration for obtaining this Agreement.
8.4 Covenant Against Discrimination
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The City is committed to providing equal employment opportunity for all persons without regard
to race, color, national origin, religion, sex (including conditions of pregnancy), sexual
orientation, gender identity, age, disability, veteran status, genetic information or other group
protected by federal law or applicable state or local law. The Contractor covenants that, by and
for itself, its heirs, executors, assigns and all persons claiming under or through them, that there
shall be no discrimination against any person or group of persons on account of race, color,
national origin, religion, sex (including conditions of pregnancy), sexual orientation, gender
identity, age, disability, veteran status, genetic information or other group protected by federal
law or applicable state or local law in the performance of this Agreement. Contractor shall take
affirmative action to insure that applicants are employed and that employees are treated during
employment without regard to their race, color, national origin, religion, sex (including
conditions of pregnancy), sexual orientation, gender identity, age, disability, veteran status,
genetic information or other group protected by federal law or applicable state or local law.
9.MISCELLANEOUS PROVISIONS
9.1 Notices
Any notice, demand, request, document, consent, approval, or communication either Party
desires or is required to give to the other Party or any other person shall be in writing and either
served personally or sent by prepaid, first-class mail, in the case of the City, to the City
Manager, City of Moab, 217 East Center Street, Moab, UT 84532 and in the case of the
Contractor, to the person at the address designated on the signature page of this Agreement.
Either Party may change its address by notifying the other Party of the change of address in
writing. Notice shall be deemed communicated at the time personally delivered or in
seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation
The terms of this Agreement shall be construed in accordance with the meaning of the language
used and shall not be construed for or against either Party by reason of the authorship of this
Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed to be an
original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment
This Agreement including the attachments is the entire, complete and exclusive expression of
the understanding of the Parties. It is understood that there are no oral agreements between the
Parties concerning this Agreement and this Agreement supersedes and cancels any and all
previous negotiations, arrangements, agreements and understandings, if any, between the Parties,
and none shall be used to interpret this Agreement. No amendment to or modification of this
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DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
Agreement shall be valid unless made in writing and signed by the Contractor and by the City
Manager. The Parties agree that this requirement for written modifications cannot be waived
and that any attempted waiver shall be void.
9.5 Severability
In the event that any one or more of the phrases, sentences, clauses, paragraphs or sections
contained in this Agreement is declared invalid or unenforceable by an order, judgment or
decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect
any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement
which are hereby agreed to be severable and shall be interpreted to carry out the intent of the
Parties unless the invalid provision is so material that its invalidity deprives either Party of the
basic benefit of their bargain or renders this Agreement meaningless.
9.6 Corporate Authority
The persons executing this Agreement on behalf of the Parties warrant that (i) the Party is duly
organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on
behalf of the Party, (iii) by executing this Agreement, the Party is formally bound to the
provisions of this Agreement, and (iv) the entering into this Agreement does not violate any
provision of any other Agreement to which the Party is bound. This Agreement shall be binding
upon the heirs, executors, administrators, successors and assigns of the Parties.
9.7 No Waiver of Immunity
Nothing in this Agreement shall be deemed to abrogate or waive any immunity possessed by the
City, including immunity under the Utah Governmental Immunity Act, U.C.A. § 63G-6-101, et
seq., or other applicable law.
[SIGNATURES ON FOLLOWING PAGE]
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DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
IN WITNESS WHEREOF, the Parties have executed this Agreement as follows:
CITY:
Dated: _______________________________
CITY OF MOAB, a municipal corporation
Emily Niehaus
Mayor, City of Moab
ATTESTED:
By:
____________________________________________
Sommar Johnson
City Recorder
CONTRACTOR:
Dated: _______________________________
By:
Ron Francis
General Manager
Address:
205 N Elizabeth St
Pueblo, CO 81003
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DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
12/22/2020
12/22/2020
EXHIBIT A
SCOPE OF SERVICES
I.Contractor will perform the following services and/or work (“services”):
Manufacturing and Installation Scope of Work
ALTERNATIVE PRODUCTS
indieDwell is committed to using high quality products in every aspect of construction. indieDwell
reserves the right to utilize an equivalent or better product for all items listed below without prior
approval of the Purchaser.
INDIEDWELL MANAGEMENT, SUPERVISION, AND OVERHEAD FOR ALL WORK WHICH INDIEDWELL IS
RESPONSIBLE UNDER THIS SCHEDULE A.
Project manager
Site manager
Project is insured for 100% replacement
Clients are ‘Additionally Insured’ under indieDwell’s insurance policy
indieDwell overhead
Any additional indieDwell fees
PERMITS
Included in contract price: Insignia permit from Governing State Modular Regulator
Not included: Local building permits. Includes, but not limited to, foundation and utility permits
DEMOLITION
Not included: Purchaser to have the lot cleared of all debris and material
EXCAVATION
Not included: Purchaser to deliver Recorded Buildable Lots
Drainage to be a minimum 5% slope away from the dwelling with drainage system per plan
Excavate and backfill for new dwelling foundation, per plan
New sewer line, water line, and 3” electrical conduit and any other required and/or desired utilities
City of Moab – Contract for Services
DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
FOOTINGS AND FOUNDATION
Not included: Purchaser to install footings and foundation and any other foundation related
requirements per plan or local jurisdiction requests
GENERAL
All ground floor units to be ADA visitable.
FRAMING
16 each 12’ x 28’ Cold Formed Steel Framed Modules
Steel studs throughout
SIDING
James Hardie or similar cement fiber siding, smooth finish with Fry Riglet trim
James Hardie or similar window and door trim
Color confirmed via Finishes and Options Selection Sheet attached as Schedule H upon execution
ROOFING
Shed roof with asphalt shingles
Prefinished metal drip edge on eaves
FIRE / LIFE SAFETY
Fire Rated Walls as required
Fire Rated Ceilings as required
No Fire Rated Doors or Windows required
Sprinklers required
INTERIOR DRYWALL
Walls and ceiling 1/2” gypsum board
Finish: tape, float, sand and texture
Square corners
City of Moab – Contract for Services
DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
PAINTING, TRIM & STAINING (all interior paints are NO-VOC)
Exterior:
(1) color for body
(1) color for trim
Interior:
(1) color - walls, ceiling, trim, baseboards and doors
Colors confirmed via Finishes and Options Selection Sheet attached as Schedule H upon execution
INTERIOR TRIM & DOORS
All windows and openings are wrapped MDF
Interior doors: solid core, prefinished, 6’-8” tall
Modern levers
Colors confirmed via Finishes and Options Selection Sheet attached as Schedule H upon execution
HEATING, AIR CONDITIONING AND ERV
(1) HVAC system to comply with Manual J which will be sized for 1 person per bedroom + 1 additional
person. For the avoidance of doubt, the heating and air conditioning system for a three bedroom home
will be designed to provide a comfortable environment for up to 4 people. Any use beyond this capacity
will not be covered by this Warranty.
(1) ERV
Transfer fans as required
INSULATION
Roof Meet or exceed energy code requirements
Walls Meet or exceed energy code requirements
Floor None
Foundation Wall R-16 rigid insulation (NOT INCLUDED)
PLUMBING SPECIFICATIONS
Plumbed per code
(1) Properly sized Energy Star electric water heater
City of Moab – Contract for Services
DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
(1) Washer/dryer hookups
AUDIO/VIDEO
1 cable drop per bedroom
1 cable drop in living space
ELECTRICAL
Wired per code
Decorative switches and receptacles
Permits, labor, and materials to connect power from the underground conduit to the main electrical
panel.
MIRRORS
Bath mirrors (1 Per Bath)
SHOWER DOORS
None
WINDOWS
Vinyl Pella windows, white, with screens, Energy Star Rated or better, per attached plan
CABINETS
Textured melamine per plan
(1) Color and finish confirmed via Finishes and Options Selection Sheet attached as Schedule H upon
execution.
APPLIANCES
(1) Over-The-Range Microwave - 1.5 Cu. Ft. or equivalent
(1) 18 Cu. Ft.Top Freezer Refrigerator - or equivalent
(1) Built-in Dishwasher
(1) Electric Range
(1) Color to be confirmed via Finishes and Options Selection Sheet attached as Schedule H upon
execution
City of Moab – Contract for Services
DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
LIGHTING
LED disc lights throughout
FLOORING
Shaw ‘Concrete & Composed’ engineered flooring
(1) Color to be confirmed via Finishes and Options Selection Sheet attached as Schedule H upon
execution
COUNTERTOPS
Solid surface countertops with matching backsplash
(1) Color to be confirmed via Finishes and Options Selection Sheet attached as Schedule H upon
execution
LANDSCAPING
None
PLUMBING FIXTURES
(1) Disposal in kitchen
(1) Undermount stainless steel kitchen sink
Moen plumbing fixtures in kitchen, baths, and showers
Elongated toilets
Bath sink vanities
Drop in bathroom sink
Finishes to be confirmed via Finishes and Options Selection Sheet attached as Schedule H upon
execution
BATHROOM HARDWARE
Paper holder, towel ring, and towel bar in baths (1 each per Bath)
GUTTERS
Per plan
DELIVERY
Transportation of the units to the Designated Point of Delivery
City of Moab – Contract for Services
DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
INSTALLATION
Crane Units onto foundation
Installation costs include basic craning with a 50 Ton Crane.
Lift of 20’ from road surface to top of foundation wall
Max reach of 35’ from center of crane to middle of container furthest from the crane
No overhead obstructions (power lines / trees etc)
Additional Craning Costs will be based upon site visit by crane company and will be charged as additional
fees to the Purchaser.
Connect Units to foundation
Marry Units
Install Roof
Attach Gutters
ITEMS NOT INCLUDED IN CONTRACT PRICE
Excavation
Foundation
Any other Sitework
Additional Fire/Life Safety Requirements
Additional unforeseen conditions and requirements from the City or any other inspectors or authorities.
Additional engineering requirements
Any work required to be done outside of the property boundary
Furniture or automobiles detailed in the plans
Site specific utility bills
Lot survey
Security system install
Site Security Fencing or any other security features
City of Moab – Contract for Services
DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
Clearing of lot from all debris and material not the result of IndieDwell’s performance
II.As part of the services, Contractor will prepare and deliver the following tangibles
to the City:
A. Permit Design Documents
B. Modular Units as described in Exhibit A Scope of Services
C.
III.In addition to the requirements of Section 6.2, during performance of the services,
Contractor will keep the City appraised of the status of the services by delivering
the following status reports:
A. Weekly email updates noting construction progress
B.
C.
IV.All work product is subject to review and acceptance by the City and must be
revised by the Contractor without additional charge to the City until found
satisfactory and accepted by the City.
V.Contractor will utilize the following personnel to accomplish the services:
A. Trucking contractor TBD
B. Crane contractor TBD
C. Possible local licensed electrician and plumber to make utility connections TBD
City of Moab – Contract for Services
DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
EXHIBIT B
SPECIAL REQUIREMENTS
City of Moab – Contract for Services
DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
EXHIBIT C
SCHEDULE OF COMPENSATION
I.The Contractor shall perform the following services:
II.The City will compensate the Contractor for services performed upon submission of
a valid invoice. Each invoice is to include:
A.Line items describing completed Tasks per the services identified in Section I
A.-D.
B.Line items for all other approved reimbursable expenses claimed, with supporting
documentation.
III.The total compensation for the services shall not exceed $1,080,300, as provided in
Section 2.1 of this Agreement.
City of Moab – Contract for Services
RATE TIME SUB-BUDGET
A. Task A 20% of Contract
Due at Contract
Signing
$216,060.00
B. Task B 30% of Contract
Due 60 days
prior to factory
construction
start
$324,090.00
C. Task C 40% of Contract Due at factory
completion $432,120.00
D. Task D 10% of Contract Due upon Final
Inspection $108,030.00
E. Task E ___________ ___________ ___________
DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
EXHIBIT D
SCHEDULE OF PERFORMANCE
I.Contractor shall perform all services in accordance with the following schedule:
Schematic Design (SD): 3 weeks from contract execution
Design Development (DD): 3 weeks after SD completion
MILESTONE: Owner Approval of designs
City of Moab Building Department Permit Approval: 3 weeks after Owner Approval
Shop Drawing Completion: 2 weeks after Building Dept Approval
Factory Procurement: 4 Weeks after Shop Drawing Completion (barring supply chain issues)
Build Time: 2 Months after Procurement complete
First duplex can be onsite one month after Build begins.
indieDwell will ship four units at a time until production is complete. Anticipate 2 days shipping
from Pueblo to Moab. Set and stitch to take 30 days from delivery of first units. Total anticipated
contract time not to exceed 145 days (<5 months)
II.The City Manager may approve extensions for performance of services in
accordance with Section 3.2.
City of Moab – Contract for Services
DocuSign Envelope ID: 7F974B91-9062-4B48-AFCF-6040AD38F408
May 19, 2021
IndieDwell shuts down Caldwell factory for revamp,
lays off 61 employees; Expands elsewhere
LEAP Housing Solutions will build new development in Boise. Photo via LEAP
By Margaret Carmel - BoiseDev senior reporter
BoiseDev Exclusive
A prominent a ordable housing manufacturer in Caldwell closed its doors earlier this year.
IndieDwell, a company focused on building a ordable housing units made out of recycled
shipping containers, stopped manufacturing, and laid o or furloughed 61 employees. The
company said it hoped to hire some of the back “starting this week.”
The company got glowing coverage in the local and national press in recent years for its
innovative approach to construction, a ordable prices, and partnerships with governments
and local nonpro ts to create low-cost homeownership opportunities. They provided the
homes for several small subdivisions developed alongside Boise-based nonpro t LEAP
Housing Solutions as recently as last summer.
[Company built ‘landmark’ Meridian building for 100s of employees. Now it’s laying them
o and a new co. will take over]
Scott Flynn and Pete Gombert founded IndieDwell in 2016.
Closed ‘for the moment’
In an email to BoiseDev, Gombert said the factory is currently closed “for the moment” and
is in the middle of transitioning to a new product type. He did not respond to a follow up
email or a phone call from BoiseDevabout layo s or provide more details.
“There are a lot of moving parts related to this conversation and the current supply chain
issues surrounding the building industry are making it go a little slower than we expected,”
Gombert said.
The temporary closure and transition to a new product was news to IndieDwell’s former
Marketing and Communications Manager Chris Blanchard, who was let go at the end of
April. He said the company was transitioning to a more complex form of manufacturing and
it came with unexpected expenses.
“It’s both complicated and it’s not,” Blanchard said. “At the end of the day when a business
fails it’s when they ran out of money before they ran out of month. That’s the simple cause
of it.”
After the publication of this story, Gombert challenged Blanchard’s comment.
“The comment about running out of money before running out of month is just wrong,”
Gombert said.
[2020: LEAP and indieDwell to bring new a ordable duplexes to Nampa]
An expensive pivot
IndieDwell’s spring newsletter from April 20th celebrated coming through the pandemic
and shared that the company would press ahead with a new product, instead of shipping
containers. These changes were due to new regulations requiring “single trip” containers
instead of the multi-use ones IndieDwell upcycling into homes
The email said the company’s new focus would be on cold-formed steel to build the entire
module for its homes. But, Blanchard said this brought problems because it requires
signi cantly more equipment.
“In the original model, you’ve got shipping containers,” he said. “You need welding
machines and hand tools. You’re not investing $100 million. It’s just a simple set of tools
and you can get a factory set up pretty quickly, but when you moved to this other model
you’ve got gantry cranes and specialized lifts and now we need wall system racks and
ultimately you need a machine that rolls cold steel that are a quarter of a million dollars. It
got to the point where this is not a low capital model anymore.”
Gombert said Blanchard’s information wasn’t correct and went into a technical explanation
of the new process IndieDwell plans to use. He said the company had to cut sta because
there was no work to do during the transition.
W e c a n t p a y 5 0 o r 7 0 p e o p l e o n t h e p r o d u c t i o n l i n e t o b e s i t t i n g t h e r e d o i n g a b s o l u t e l y
n o t h i n g , G o m b e r t s a i d . W e d o n t h a v e t h e c a s h t o p a y t h a t m a n y p e o p l e a n d h a v e t h e m
d o n o t h i n g .
M a n u f a c t u r i n g c o n t i n u i n g e l s e w h e r e
B l a n c h a r d s a i d t h e c o m p a n y m o v e d t h e r e m a i n i n g c o n t r a c t s I n d i e D w e l l i s f u l l l i n g f o r
d e v e l o p e r s i n C a l i f o r n i a t o i t s m a n u f a c t u r i n g o p e r a t i o n i n P u e b l o , C o l o r a d o t o c o m p l e t e
t h e o r d e r s . T h i s f a c t o r y i s u n d e r d i e r e n t m a n a g e m e n t a n d h a s d i e r e n t f u n d i n g ,
B l a n c h a r d s a i d .
G o m b e r t s a i d t h a t a l l p r o j e c t s s l a t e d f o r C a l d w e l l w e r e c o m p l e t e d a t t h a t f a c i l i t y b e f o r e i t
s h u t d o w n f o r t h e c o n v e r s i o n .
V i r g i n i a G o v e r n o r R a l p h N o r t h a m a n n o u n c e d W e d n e s d a y I n d i e D w e l l w i l l o p e n a n e w
m a n u f a c t u r i n g p l a n t i n N e w p o r t N e w s , i n s o u t h e a s t e r n V i r g i n i a . I t w i l l c r e a t e 2 2 0 j o b s ,
a c c o r d i n g t o a r e l e a s e f r o m t h e g o v e r n o r .
O u r N e w p o r t N e w s f a c i l i t y i s s t r a t e g i c a l l y l o c a t e d i n t h e M i d - A t l a n t i c r e g i o n w i t h a c c e s s t o
t h e i n t e r s t a t e h i g h w a y s y s t e m , a n d , m o s t i m p o r t a n t l y , a s t r o n g w o r k f o r c e , G o m b e r t s a i d i n
a p r e s s r e l e a s e . W o r k f o r c e d e v e l o p m e n t i s o n e o f i n d i e D w e l l s g u i d i n g p r i n c i p l e s , a n d o u r
s i n c e r e d e s i r e t o w o r k w i t h t h e S o u t h e a s t C o m m u n i t y n e i g h b o r h o o d t o c r e a t e n e w j o b s
a n d c o n s t r u c t i o n t r a d e t r a i n i n g w a s a d r i v i n g f o r c e b e h i n d o u r d e c i s i o n t o s e l e c t N e w p o r t
N e w s .
D u e t o t h e l a b o r s h o r t a g e , B l a n c h a r d s a i d t h e m a j o r i t y o f t h e e m p l o y e e s w e r e a b l e t o l a n d
j o b s a t o t h e r n e a r b y f a c t o r i e s . H e h i m s e l f h a s r e c e i v e d s e v e r a l o e r s f o r a n e w j o b i n t h e
a r e a w i t h i n d a y s o f b e i n g l e t g o , s o h e i s n t w o r r i e d .
I m n o t m a d , B l a n c h a r d s a i d . M o s t o f t h e o t h e r p e o p l e t h a t l e f t a r e a l l a t o t h e r p l a c e s
a l r e a d y . I t s p r e t t y e a s y w h e n y o u r e a n e x e c u t i v e t o d o s o m e t h i n g e l s e .
U p d a t e : A d d s a d d i t i o n a l i n f o r m a t i o n f r o m P e t e G o m b e r t , i n c l u d i n g p r e c i s e n u m b e r o f
e m p l o y e e s a e c t e d .
Moab City Police Department
Bret Edge, Chief of Police
14 June 2021
To Whom It May Concern,
The Moab City Police Department has struggled to attract and retain talented employees for several
years, with most citing the area's unaffordable cost of living as a significant contributing factor. This is
not an issue unique to Moab. Many resort communities have faced this issue. Some have addressed it
with various creative strategies while others, including Moab, haven't yet found the right solution(s).
Some strategies being used elsewhere, in places like Jackson, Wyoming and Park City, Utah, have
included the implementation of housing stipends and, importantly, employee housing. Starting a new
job is stressful. Starting a new job in a new town in perhaps a new career field compounds that stress. If
one considers that a new police officer making just under $22 per hour also has to secure housing in a
town where rent often exceeds $1,500/month — if housing is even available at all —this issue becomes
all too apparent.
I firmly believe Moab needs to address this issue soon. Failure to do so will risk the loss of quality
employees citywide — not just at the police department. Housing stipends are a quick fix. While these
stipends won't resolve the issue of housing inventory, they will provide employees with a financial
buffer to offset Moab's high cost of living. Mid to long-term, I believe the city should consider
purchasing or developing employee transitional housing. These units would give new city employees a
set time period during which they are able to move to Moab, establish residency and begin working
while searching for permanent housing.
Best,
• G/C�
Bret Edge
Chief of Police
217 E Center St, Suite 130 1 Moab, UT 84532 1 P: (435) 259-8938 1 F: (435) 259-8915
Memo
To: City Council
From: Nora Shepard, Planning Director
Date: June 30, 2021
Re: Outdoor dining and parklet code amendments
Attached is a new mark-up and clean copy of Ordinance 2021-13 dated 6.28.2021.
Please take a look at the revisions and if there are any edits you want me to add, please
let me know and I can make those changes before the meeting next week.
Revised Draft 6.28.2021, as recommended by Planning Commission and with
modifications requested by the City Council
CITY OF MOAB, UTAH
ORDINANCE NO. 2021-13
An Ordinance Amending the Text of the Moab Municipal Code (MMC) to Add
Regulation for Outdoor Dining by Amending Sections 17.21 C-2 Commercial
Residential Zone, 17.24 C-3 Central Commercial Zone, 17.27 C-4 General
Commercial Zone, 17.30 Neighborhood Commercial Zone, and 17.31 RC Resort
Commercial Zone and 17.36 Industrial Zone and by to allowing consideration of
parklets in the City Right-of-Way (ROW) by amending Section17.24 C-3 Central
Commercial Zone. Associated definitions will be added to MMC Section 17.06
Definitions.
WHEREAS, the City has enacted Title 17 Zoning, of the Moab Municipal Code
(‘MMC”) that governs land use and development within the City Limits.
WHEREAS, from time to time the City undertakes revisions of Title 17.00 to improve
the quality of land development and align the Code with state law and contemporary
planning concepts.
WHEREAS, the City finds that this Ordinance will serve the public health, safety, and
welfare, and that adoption is in the best interests of the Moab community.
WHEREAS, Title 17.00 of the MMC does not address outdoor dining.
WHEREAS, outdoor dining adds activity and pedestrian scale to the City’s
commercial areas.
WHEREAS, the City permitted “parklets” to be constructed in City Right of Way
(ROW) to allow restaurants to be able to operate on-site during COVID-19
restrictions and the City would like to allow parklets, under specific conditions, as
part of Title 17 Zoning.
WHEREAS, the Planning Commission has discussed and reviewed the proposed
ordinance revisions on numerous occasions and has provided valuable input.
WHEREAS, the Planning Commission held a public hearing on May 27, 2021 after
meeting the public hearing notice requirement of the MMC.
WHEREAS, after the public hearing, the Planning Commission considered the
ordinance and public input and forwarded a positive recommendation to the City
Council on May 27, 2021.
NOW, THEREFORE BE IT ORDAINED that the Moab City Council hereby approves
Text Amendments to the MMC as follows:
Section 1: Add definitions to 17.06 to include:
Parklets - Parklets are on-street parking spaces that are temporarily converted to
outdoor seating for to allow temporary, seasonal outdoor dining.
Restaurant with Outdoor Dining, Permanent - Outdoor dining, permanent - Any
restaurant with an outdoor eating and drinking area that is associated with and
incidental and subordinate to a primary use of that parcel or lot. The outdoor dining is
constructed as a part of the primary building, as an addition to the building or a separate
structure that is a permanent structure. The outdoor dining areas may include design
features to allow year-round use
Restaurant, with Outdoor Dining, Seasonal - Any restaurant with an outdoor eating and
drinking area that is associated with and incidental and subordinate to a primary use of
that parcel or lot. This use may include removable tables, chairs, planters, or similar
features and equipment.
Section 2: Modify the C-2 Commercial – Residential Zone to allow Outdoor Dining by
adding Outdoor Dining and associated development standards to 17.21.020 Permitted
Uses and Regulations and renumbering the balance of the section as necessary, as
follows:
Restaurant with Outdoor Dining, Permanent
a. All Outdoor Dining must comply with the applicable Building, Health and Fire
Codes
b. Outdoor Dining must not encroach into the zone required setbacks.
c. Additional parking will be required to include the additional floor area
Parking
d. Noise All operations shall comply with the Noise Provisions of the MMC.
e.d. All additional lighting will have to comply with the Dark SkyOutdoor lighting
(Dark Sky) provisions of the code.
f.e. Landscaping, screening, and fencing shall be installed and maintained to
mitigate impacts on surrounding residential uses.
;
f. Outdoor dining shall not interfere with required Vehicular circulation and
parking.
g. Temporary structures such as umbrellas, planters, tents, or temporary
barriers are allowed. Such items as space heaters are permitted as long as
they are at least 2 feet away from any flammable materials. Tents may be
allowed if approved by the Moab Building Official and by Fire Officials.
Outdoor cooking is not permitted. Coolers or other displays may be allowed
but have to be easily moved and follow health guidelines for distribution.
g.
h. No amplified music will be allowed. All operations shall comply with the Noise
Provisions of the MMC.
i. Hours of operation will not exceed seven a.m. to ten p.m.
j. Individual businesses are responsible for adding any additional space to their
premises for purposes of DABC licensing if they wish.
j.k. Currently, only restaurants with approved proper DABC permits may serve
alcohol outdoors. All restaurants shall be responsible for following DABC
rules and regulations.
Restaurants with Outdoor Dining, Seasonal
a. All Outdoor Dining must comply with the applicable Building, Health and Fire
Codes
b. Outdoor Dining must not encroach into the zone required setbacks.
c. Noise, odor and glare shall be contained on the property.
d.c. All additional lighting will have to comply with the Dark Sky lighting
provisionsMoab City outdoor lighting (Dark Sky) provisions of the code.
e.d. Landscaping, screening, and fencing shall be installed and maintained to
mitigate impacts on surrounding residential uses.
e. Outside storage of equipment, materials, and supplies shall be contained and
located within a building or a sight obscuring fence;
f. Vehicular ingress and egress traffic patterns shall be designed to not impede
existing traffic flows and provide adequate interior circulation. Outdoor dining
shall not interfere with required Vehicular circulation and parking
g. No amplified music will be allowed. All operations shall comply with the Noise
Provisions of the MMC.
h. Hours of operation will not exceed seven a.m. to 10 p.m.
i. Temporary structures such as umbrellas, planters, tents, or temporary barriers
are allowed. Such items as space heaters are permitted as long as they are at
least 2 feet away from any flammable materials. Tents may be allowed if
approved by the Moab Building Official and by Fire Officials. Outdoor cooking is
not permitted. Coolers or other displays may be allowed but have to be easily
moved and follow health guidelines for distribution.
j. Individual businesses are responsible for adding any temporary space to their
premises for purposes of DABC licensing if they wish. Currently, only restaurants
with approved proper DABC permits may serve alcohol outdoors. All restaurants
shall be responsible for following DABC rules and regulations.
Section 3: Modify the C-3 Central Commercial Zone to allow Outdoor Dining:
Add Outdoor Dining and associated development standards to 17.24.020 Permitted
Uses and Regulations with associated standards as shown for Section 2 above.
Section 4: Modify the C-4 General Commercial Zone to allow Outdoor Dining:
Add Outdoor Dining and associated development standards to 17.27.020 Permitted
Uses and Regulations with associated standards as shown for Section 2 above.
Section 5: Modify the C-5 Neighborhood Commercial Zone to allow Outdoor Dining:
Add Outdoor Dining and associated development standards to 17.30.020 Permitted
Uses and Regulations with associated standards as shown for Section 2 above.
Section 6: Modify the I Industrial Zone to Outdoor Dining:
Add Outdoor Dining and associated development standards to 17.36.020 Permitted
Uses and Regulations with associated standards as shown for Section 2 above.
Section 5: Modify the RC Resort Commercial Zone to allow Outdoor Dining: Add
Outdoor Dining and associated development standards to 17.31.020 Permitted Uses
and Regulations as shown for Section 2 above.
Section 6: Modify the C-3 Central Commercial Zone to allow consideration of Parklets:
Add Parklets and associated standards to 17.24.020 as follows:
Parklets
a. Parklets on City Property will only be considered if there is not adequate area on
the property to accommodate outdoor dining. If outdoor dining already exists, the
property is not eligible for a Parklet.
b. Sidewalks and Public Rights of Way must maintain a n adequate pedestrian flow.
The recommended width of the sidewalk is 72 inches. The placement of the
outdoor dining shall maintain access to fire hydrants, crosswalks, public utility
access and building entrances. A 15’ Fire lane must be maintained at all times.
c. Maximum encroachment into street: 12 feet from edge of gutter
No more than width of storefront, if parklet will be in front of the business in the
City ROW
b.d. Entrance to the Parklet must be from the sidewalk and not from the street.
e. Width shall not exceed the frontage of the business property without written
permission from the adjacent property owner. Adjacent properties are strongly
encouraged to coordinate. A 72” pedestrian path (preferred width) should be
maintained at all times. Each business is responsible for ensuring compliance
with fire/emergency access and ADA requirements.
f. Temporary structure such as umbrellas, planters or temporary barriers are
allowed, but shall not be permanently affixed to public property. Such items shall
be properly weighted and cannot be more than 80 inches above the sidewalk.
Space heaters are permitted if they are at least 2 feet away from any flammable
materials. Tents may be allowed if approved by the Moab Building Official and by
Fire Officials. Outdoor cooking is not permitted. Coolers or other displays may be
allowed but must be easily moved and follow health guidelines for distribution.
g. The City has the right to ask that the parklet be removed within 24 hours if
necessary, for public health, safety, or welfare purposes.
h. The applicant will work with the City Engineer, the Public Works Director and
Building Official if they desire to build a more substantial parklet. Any parklet
improvements will be allowed seasonally, requiring removal during the off
season.
c.i. All street furniture shall be secured to withstand high winds, during and after
business hours.
d.j. All businesses are responsible for their own trash, waste, and recycling. The site
must be kept clean. In the event of a strong storm causing minor flooding, the
business owner is responsible for cleaning up any debris, as necessary.
e.k. Individual businesses are responsible for adding any temporary space to
their premises for purposes of DABC licensing if they wish. Currently, only
restaurants with approved proper DABC permits may serve alcohol outdoors. All
restaurants shall be responsible for following DABC rules and regulations.
f.l. Main Street (Hwy 191) is a state highway, and the City does not have the
authority to grant any activities in the State Right of Way.
g.m. All business activities shall be governed by the City’s noise and nuisance
provisions. No amplified music will be allowed.
h.n. Parklets may be used during normal dining hours. Use of the outdoor
dining area must end at 10:00pm.
o. Parklets are allowed seasonally, from April 15th through October 31stMarch 1st
through November 30th
p. .If a property is located on a corner, only one parklet is allowed per restaurant.
The parklet will be located on the street with lower volumes of traffic and where
the parklet will least disrupt the entrances to other businesses.
q. Parklets must follow Southeast Utah Health Department (SEUHD) requirements
r. Safety lighting is required, signage and reflective materials are allowed and
encouraged. All lighting shall meet the City of Moab outdoor lighting standards.
i. Other Design Criteria:
1. Maximum encroachment into street: 12 feet from edge of gutter
2.1. No more than width of storefront, if parklet will be in front of the business
in the City ROW
3. Minimum remaining lane width: 15 ft (Can be reduced on a case -by-case
basis)
Minimum remaining sidewalk width: 72 inches preferred (Can be reduced on
a case-by-case basis)
4. Enter/Exit outdoor dining from sidewalk only, not from street
5. Safety lighting is required, signage and reflective materials are allowed and
encouraged
6. All street furniture must be secure to withstand high winds
7. All street furniture should be secured after closing
8. Must follow Southeast Utah Health Department (SEUHD) requirements
9. Enclosures should be able to be removed within 24 hours, if needed and
required by City
j.s. A License Agreement shall be required as specified in Parklet information
application and packet
k.t. Submittal requirements are stated in the Parklet Information and packet and shall
include:
1. Completed Application Form
2. Site Plan (8.5” by 11” minimum size) showing
i. Parcel boundary lines
ii. Drives, Streets, Rights-of-Way, Existing Buildings, Parking
including widths of pavement, curb and gutter and dimension of the
Right of Way.
iii. Location of proposed outdoor dining area (with dimensions)
3. Plans that indicate the following:
i. Location of tables, general table dimensions, spacing between
tables (feet), spacing between tables and public walkways (feet),
and number of seats per table.
ii. ADA accessible routes between the outdoor dining space and
indoor space, noting location of restrooms.
iii. Occupancy of outdoor dining space meeting applicable public
health guidelines.
iv. Location of any additional outdoor structures such, kiosks, tents or
shade structures.
v. All parklets are required to install barriers on all sides. The only access
to the parklet will be from the sidewalk.
vi. Description of what type of barriers you will use to define the parklet
space. Materials can include Jersey Barriers or similar barriers,
planters, and fences (that can be removed withing 24 hours, if
necessary) Steel tubing or similar materials.
vi. Notification of adjacent property owners: This process requires that the
applicant communicate with all adjoining property owners. The
application shall include evidence of how this outreach was done and
resulting concerns raised by the neighbors
vii.
vii. Signage and Lighting: Lighting Plan Consistent with Moab’s Dark
SkyOutdoor Lighting requirements and sign requirements.. Ordinance.
For safety purposes, it is important that the parklet be lighted and
visible, but the lighting must meet the lighting requirement on our Code
(Dark Sky Compliant Lighting).
l.u. Notification of adjacent property owners: This process requires that the applicant
communicate with all adjoining property owners. The application shall include
evidence of how this outreach was done and resulting concerns raised by the
neighbors.
PASSED by the City Council in a public meeting on _____________ by the following
vote:
MOAB CITY COUNCIL:
Those voting aye:_____________________________________
Those voting nay:____________________________________
Those abstaining: ___________________________________
Those absent:_______________________________________
_________________________
Emily Niehaus, Mayor
ATTEST:
______________________________
Sommar Johnson, Clerk/Recorder
Revised Draft 6.28.2021, as recommended by Planning Commission and with
modifications requested by the City Council
CITY OF MOAB, UTAH
ORDINANCE NO. 2021-13
An Ordinance Amending the Text of the Moab Municipal Code (MMC) to Add
Regulation for Outdoor Dining by Amending Sections 17.21 C-2 Commercial
Residential Zone, 17.24 C-3 Central Commercial Zone, 17.27 C-4 General
Commercial Zone, 17.30 Neighborhood Commercial Zone,17.31 RC Resort
Commercial Zone and 17.36 Industrial Zone to allow consideration of parklets in
the City Right-of-Way (ROW) by amending Section17.24 C-3 Central Commercial
Zone. Associated definitions will be added to MMC Section 17.06 Definitions.
WHEREAS, the City has enacted Title 17 Zoning, of the Moab Municipal Code
(‘MMC”) that governs land use and development within the City Limits.
WHEREAS, from time to time the City undertakes revisions of Title 17.00 to improve
the quality of land development and align the Code with state law and contemporary
planning concepts.
WHEREAS, the City finds that this Ordinance will serve the public health, safety, and
welfare, and that adoption is in the best interests of the Moab community.
WHEREAS, Title 17.00 of the MMC does not address outdoor dining.
WHEREAS, outdoor dining adds activity and pedestrian scale to the City’s
commercial areas.
WHEREAS, the City permitted “parklets” to be constructed in City Right of Way
(ROW) to allow restaurants to be able to operate on-site during COVID-19
restrictions and the City would like to allow parklets, under specific conditions, as
part of Title 17 Zoning.
WHEREAS, the Planning Commission has discussed and reviewed the proposed
ordinance revisions on numerous occasions and has provided valuable input.
WHEREAS, the Planning Commission held a public hearing on May 27, 2021 after
meeting the public hearing notice requirement of the MMC.
WHEREAS, after the public hearing, the Planning Commission considered the
ordinance and public input and forwarded a positive recommendation to the City
Council on May 27, 2021.
NOW, THEREFORE BE IT ORDAINED that the Moab City Council hereby approves
Text Amendments to the MMC as follows:
Section 1: Add definitions to 17.06 to include:
Parklets - Parklets are on-street parking spaces that are temporarily converted to
outdoor seating to allow temporary, seasonal outdoor dining.
Restaurant with Outdoor Dining, Permanent - Outdoor dining, permanent - Any
restaurant with an outdoor eating and drinking area that is associated with and
incidental and subordinate to a primary use of that parcel or lot. The outdoor dining is
constructed as a part of the primary building, as an addition to the building or a separate
structure that is a permanent structure. The outdoor dining areas may include design
features to allow year-round use
Restaurant, with Outdoor Dining, Seasonal - Any restaurant with an outdoor eating and
drinking area that is associated with and incidental and subordinate to a primary use of
that parcel or lot. This use may include removable tables, chairs, planters, or similar
features and equipment.
Section 2: Modify the C-2 Commercial – Residential Zone to allow Outdoor Dining by
adding Outdoor Dining and associated development standards to 17.21.020 Permitted
Uses and Regulations and renumbering the balance of the section as necessary, as
follows:
Restaurant with Outdoor Dining, Permanent
a. All Outdoor Dining must comply with the applicable Building, Health and Fire
Codes
b. Outdoor Dining must not encroach into the zone required setbacks.
c. Additional parking will be required to include the additional floor area
d. All additional lighting will have to comply with the Outdoor lighting (Dark Sky)
provisions of the code.
e. Landscaping, screening, and fencing shall be installed and maintained to
mitigate impacts on surrounding residential uses.
f. Outdoor dining shall not interfere with required Vehicular circulation and
parking.
g. Temporary structures such as umbrellas, planters, tents, or temporary
barriers are allowed. Such items as space heaters are permitted as long as
they are at least 2 feet away from any flammable materials. Tents may be
allowed if approved by the Moab Building Official and by Fire Officials.
Outdoor cooking is not permitted. Coolers or other displays may be allowed
but have to be easily moved and follow health guidelines for distribution.
h. No amplified music will be allowed All operations shall comply with the Noise
Provisions of the MMC.
i. Hours of operation will not exceed seven a.m. to ten p.m.
j. All restaurants shall be responsible for following DABC rules and regulations.
Restaurants with Outdoor Dining, Seasonal
a. All Outdoor Dining must comply with the applicable Building, Health and Fire
Codes
b. Outdoor Dining must not encroach into the zone required setbacks.
c. All additional lighting will have to comply with the Moab City outdoor lighting
(Dark Sky) provisions of the code.
d. Landscaping, screening, and fencing shall be installed and maintained to mitigate
impacts on surrounding residential uses.
e. Outdoor dining shall not interfere with required Vehicular circulation and parking
f. No amplified music will be allowed. All operations shall comply with the Noise
Provisions of the MMC.
g. Hours of operation will not exceed seven a.m. to 10 p.m.
h. Temporary structures such as umbrellas, planters, tents, or temporary barriers
are allowed. Such items as space heaters are permitted as long as they are at
least 2 feet away from any flammable materials. Tents may be allowed if
approved by the Moab Building Official and by Fire Officials. Outdoor cooking is
not permitted. Coolers or other displays may be allowed but have to be easily
moved and follow health guidelines for distribution.
i. All restaurants shall be responsible for following DABC rules and regulations.
Section 3: Modify the C-3 Central Commercial Zone to allow Outdoor Dining:
Add Outdoor Dining and associated development standards to 17.24.020 Permitted
Uses and Regulations with associated standards as shown for Section 2 above.
Section 4: Modify the C-4 General Commercial Zone to allow Outdoor Dining:
Add Outdoor Dining and associated development standards to 17.27.020 Permitted
Uses and Regulations with associated standards as shown for Section 2 above.
Section 5: Modify the C-5 Neighborhood Commercial Zone to allow Outdoor Dining:
Add Outdoor Dining and associated development standards to 17.30.020 Permitted
Uses and Regulations with associated standards as shown for Section 2 above.
Section 6: Modify the I Industrial Zone to Outdoor Dining:
Add Outdoor Dining and associated development standards to 17.36.020 Permitted
Uses and Regulations with associated standards as shown for Section 2 above.
Section 5: Modify the RC Resort Commercial Zone to allow Outdoor Dining: Add
Outdoor Dining and associated development standards to 17.31.020 Permitted Uses
and Regulations as shown for Section 2 above.
Section 6: Modify the C-3 Central Commercial Zone to allow consideration of Parklets:
Add Parklets and associated standards to 17.24.020 as follows:
Parklets
a. Parklets on City Property will only be considered if there is not adequate area on
the property to accommodate outdoor dining. If outdoor dining already exists, the
property is not eligible for a Parklet.
b. Sidewalks and Public Rights of Way must maintain a n adequate pedestrian flow.
The recommended width of the sidewalk is 72 inches. The placement of the
outdoor dining shall maintain access to fire hydrants, crosswalks, public utility
access and building entrances. A 15’ Fire lane must be maintained at all times.
c. Maximum encroachment into street: 12 feet from edge of gutter
d. Entrance to the Parklet must be from the sidewalk and not from the street.
e. Width shall not exceed the frontage of the business property without written
permission from the adjacent property owner. Adjacent properties are strongly
encouraged to coordinate.. Each business is responsible for ensuring compliance
with fire/emergency access and ADA requirements.
f. Temporary structure such as umbrellas, planters or temporary barriers are
allowed, but shall not be permanently affixed to public property. Such items shall
be properly weighted and cannot be more than 80 inches above the sidewalk.
Space heaters are permitted if they are at least 2 feet away from any flammable
materials. Tents may be allowed if approved by the Moab Building Official and by
Fire Officials. Outdoor cooking is not permitted. Coolers or other displays may be
allowed but must be easily moved and follow health guidelines for distribution.
g. The City has the right to ask that the parklet be removed if necessary, for public
health, safety, or welfare purposes.
h. The applicant will work with the City Engineer, the Public Works Director and
Building Official if they desire to build a more substantial parklet. Any parklet
improvements will be allowed seasonally, requiring removal during the off
season.
i. All street furniture shall be secured to withstand high winds, during and after
business hours.
j. All businesses are responsible for their own trash, waste, and recycling. The site
must be kept clean. In the event of a strong storm causing minor flooding, the
business owner is responsible for cleaning up any debris, as necessary.
k. Individual businesses are responsible for following DABC rules and regulations.
l. Main Street (Hwy 191) is a state highway, and the City does not have the
authority to allow parklets in the State Right of Way.
m. All business activities shall be governed by the City’s noise and nuisance
provisions. No amplified music will be allowed.
n. Parklets may be used during normal dining hours. Use of the outdoor dining area
must end at 10:00pm.
o. Parklets are allowed seasonally, from March 1st through November 30th
p. If a property is located on a corner, only one parklet is allowed per restaurant.
The parklet will be located on the street with lower volumes of traffic and where
the parklet will least disrupt the entrances to other businesses.
q. Parklets must follow Southeast Utah Health Department (SEUHD) requirements
r. Safety lighting is required, signage and reflective materials a re allowed and
encouraged. All lighting shall meet the City of Moab outdoor lighting standards.
s. A License Agreement shall be required as specified in Parklet information
application and packet
t. Submittal requirements are stated in the Parklet Information and packet and shall
include:
1. Completed Application Form
2. Notification of adjacent property owners: This process requires that the
applicant communicate with all adjoining property owners. The application
shall include evidence of how this outreach was done and resulting
concerns raised by the neighbors
3. Site Plan (8.5” by 11” minimum size) showing
i. Parcel boundary lines
ii. Drives, Streets, Rights-of-Way, Existing Buildings, Parking
including widths of pavement, curb and gutter and dimension of the
Right of Way.
iii. Location of proposed outdoor dining area (with dimensions)
4. Plans that indicate the following:
i. Location of tables, general table dimensions, spacing between
tables (feet), spacing between tables and public walkways (feet),
and number of seats per table.
ii. ADA accessible routes between the outdoor dining space and
indoor space, noting location of restrooms.
iii. Occupancy of outdoor dining space meeting applicable public
health guidelines.
iv. Location of any additional outdoor structures such, kiosks, tents or
shade structures.
v. All parklets are required to install barriers on all sides. The only access
to the parklet will be from the sidewalk.
Description of what type of barriers you will use to define the parklet
space. Materials can include Jersey Barriers or similar barriers,
planters, and fences (that can be removed withing 24 hours, if
necessary) Steel tubing or similar materials.
vi. Signage and Lighting: Lighting Plan Consistent with Moab’s Outdoor
Lighting requirements and sign requirements. For safety purposes, it is
important that the parklet be lighted and visible.
vii. Notification of adjacent property owners: This process requires that the
applicant communicate with all adjoining property owners. The
application shall include evidence of how this outreach was done and
resulting concerns raised by the neighbors.
PASSED by the City Council in a public meeting on _____________ by the following
vote:
MOAB CITY COUNCIL:
Those voting aye:_____________________________________
Those voting nay:____________________________________
Those abstaining: ___________________________________
Those absent:_______________________________________
_________________________
Emily Niehaus, Mayor
ATTEST:
______________________________
Sommar Johnson, Clerk/Recorder