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HomeMy WebLinkAbout10213RESOLUTION NO. 10213 A RESOLUTION APPROVING A CONSENT TO ENTRY BETWEEN AND AMONG THE CITY OF PUEBLO, AND COLORADO SPRINGS UTILITIES AND THE BUREAU OF RECLAMATION, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME WHEREAS, on September 8, 2003, the United States Department of the Interior, Bureau of Reclamation ( "Reclamation ") published notice in the Federal Register at 68 Fed. Reg. 52953 of its intent to prepare an environmental impact statement ( "EIS ") concerning requests by Colorado Springs Utilities, an enterprise of the City of Colorado Springs ( "Colorado Springs ") for a long term storage contract for use of Pueblo Reservoir for non project water and a long term conveyance contract and authorization to construct the proposed Southern Delivery System pipeline and other facilities ( "SDS "); and WHEREAS, a substantial amount of property (the "Property ") owned and /or managed by the City of Pueblo ( "City ") lies in the path of potential routes for the SDS, and the Property, as well as projects under construction by City in cooperation with other entities, may be affected by the proposed long term storage contract, the conveyance contract, or the SDS, and by any combination of the same; and WHEREAS, Reclamation selected MWH Americas, Inc., a California corporation (hereinafter referred to as "Consultant ") to undertake environmental investigations necessary in connection with preparation of the EIS; and WHEREAS, it is necessary for Colorado Springs and Consultant to enter upon the City's Property in order to conduct said investigations; and WHEREAS, the City and Colorado Springs are parties to an intergovernmental agreement dated March 1, 2004 under which City agreed not to knowingly take actions to impair or impede Colorado Springs' ability to obtain necessary permits, contracts, and /or authorizations from Reclamations; and WHEREAS, under said intergovernmental agreement, Colorado Springs has agreed that any access over lands owned by City will be subject to conditions which will prevent unreasonable interference with the existing and future uses of City's property, including rights and interests held by City's lessees and others; and WHEREAS, in furtherance of its obligations "not to knowingly impair or impede," City is willing to give conditional consent, in accordance with the terms and conditions of the Consent to Entry dated August 23, 2004, a true copy of which is attached hereto, to entry upon the Property by Colorado Springs and Consultant in order that Reclamation may fulfil its statutory obligations under the National Environmental Policy Act of 1969; and WHEREAS, the Consent to Entry is intended to contractually bind Colorado Springs and Reclamation to reasonable terms and conditions for the protection of the City and its lessees. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Consent to Entry dated August 23, 2004 between and among the City, Colorado Springs, and Reclamation, a true copy of which is attached hereto and incorporated herein by reference, is hereby approved. SECTION 2 The President of the City Council is hereby authorized to execute the Consent to Entry, and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED M CITY CLE Auaust 23. 2004 Michael Occhiato Councilperson �J�I :D 0 ED Background Paper for Proposed RESOLUTION 1 &0. :�t )02, l 3 AGENDA ITEM # IS DATE: August 23, 2004 r DEPARTMENT: Law Department TITLE A RESOLUTION APPROVING A CONSENT TO ENTRY BETWEEN AND AMONG THE CITY OF PUEBLO, COLORADO SPRINGS UTILITIES AND THE BUREAU OF RECLAMATION, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should the City allow the Bureau of Reclamation, Colorado Springs and their consultants access to the Honor Farm properly and other City -owned property to conduct limited environmental investigation and surveying in connection with Reclamation's preparation of an Environmental Impact Statement ( "EIS ") for Colorado Springs' Southern Delivery System ( "SDS ")? RECOMMENDATION Approval of the Consent to Entry is necessary to comply with obligations under the March 1, 2004 IGA between Pueblo, Colorado Springs and the Board of Water Works. BACKGROUND Under the March 1, 2004 Intergovernmental Agreement ( "IGA ") between the City, Colorado Springs and the Board of Water Works, the City is required to cooperate and not impede Colorado Springs' efforts to obtain federal authorization forthe SDS pipeline. In order for Reclamation to be able to prepare the EIS for the pipeline as required by law, Reclamation, its consultant and Colorado Springs require access to City owned or controlled property in the vicinity of the proposed pipeline. This Consent allows entry upon the City's property by those entities subject to certain requirements set forth in the instrument. These requirements include (a) reason- able limitations on the activities which may be undertaken on the property, (b) sharing of data with the City, (c) reasonable notice of entry to City, (d) coordination with tenants and lessees, (e) obligations to repair any damage they cause, (f) the obligation to comply with all laws, and (g) maintaining liability and other insurance. These conditions are considered necessaryto protect Pueblo's interests and will not interfere with Reclamation's EIS responsibilities. FINANCIAL IMPACT No financial impact is anticipated. CONSENT TO ENTRY A 4 THIS INSTRUMENT is made and entered into this 2�P day of -rt , 2004 by Colorado Springs Utilities, an enterprise of the City of Colorado Springs, a Colorado home rule city and municipal corporation (hereinafter referred to as "Colorado Springs" or "CSU "), the City of Pueblo, a Municipal Corporation (hereinafter referred to as "City ") and the United States Department of Interior, Bureau of Reclamation (hereinafter referred to as "Reclamation "). WHEREAS, on September 8, 2003, Reclamation published notice in the Federal Register at 68 Fed. Reg. 52953 of its intent to prepare an environmental impact statement ("EIS ") concerning requests by CSU for a long term storage contract for use of Pueblo Reservoir for non project water and a long term conveyance contract and authorization to construct the proposed Southern Delivery System pipeline and other facilities ( "SDS "); and WHEREAS, a substantial amount of property owned and/or managed by City (the "Property ") lies in the path of potential routes for the SDS, and the Property, as well as projects under construction by City in cooperation with other entities, may be affected by the proposed long term storage contract, the conveyance contract, or the SDS, and by any combination of the same; and WHEREAS, Reclamation selected MWH Americas, Inc. a California corporation (hereinafter referred to as "Consultant ") to undertake environmental investigations necessary in connection with preparation of the EIS; and WHEREAS, it is necessary for CSU and Consultant to enter upon the City's Property in order to conduct said investigations; and WHEREAS, the City and CSU are parties to an intergovernmental agreement dated March 1, 2004 under which City agreed not to knowingly take actions to impair or impede Colorado Spring's ability to obtain necessary permits, contracts, and/or authorizations from Reclamation; and WHEREAS, under said intergovernmental agreement, CSU has agreed that any access over lands owned by City will be subject to conditions which will prevent unreasonable interference with the existing and future uses of City's property, including rights and interests held by City's lessees and others; and WHEREAS, in furtherance of its obligations "not to knowingly impair or impede ", City is willing to give conditional consent, in accordance with the terms and conditions of this instrument, to entry upon the Property by CSU and Consultant in order that Reclamation may fulfill its statutory obligations under the National Environmental Policy Act of 1969; and Page 1 of 7 WHEREAS, the parties agree and acknowledge that the terms and conditions of this instrument are intended for the protection of City, are not mere recitals and are contractually binding and enforceable. NOW, THEREFORE, in consideration of the foregoing recitals and the terms and conditions set forth herein, the parties agree as follows: 1. After execution of this instrument by all of the parties hereto and deposit of a fully executed duplicate original of this instrument with the City Clerk of City and until either (a) expiration of the term of this instrument, or (b) earlier termination as provided herein, Consultant, CSU, and the employees of each may enter upon the Property upon advance notice to City at reasonable hours in order to visually inspect the Property and perform those activities authorized below in compliance with all of the terms, conditions and restrictions set forth in this instrument. 2. The Project Team Members, defined as Consultant, Reclamation, and CSU, are authorized only to conduct the following activities upon the Property in compliance with the term of this Agreement: (a) Cultural and Historical Survey: Consultant may conduct a cultural and historical survey which shall be limited to Project Team Members walking the Property to identify the locations of cultural or historic sites. Some sites may require testing to evaluate their significance, and some artifacts may be collected for scientific study and analysis. A written log shall be maintained by Consultant setting forth an identification of all items collected. Testing shall be limited to digging one or two one meter by one meter test pits. If left unattended, the pits will be cordoned off, marked with flashing barricades and will be refilled with clean fill and compacted in 12" lifts after testing and/or examination. If testing is believed to be necessary, Consultant's EIS team shall contact the City and obtain written authorization before initiating any testing. City may authorize or deny any such testing in its sole discretion. No clearing of trees or brush nor any construction work shall be permitted. (b) Biological Survey: Consultant may perform a biological survey limited to Project Team Members walking the Property to identify the locations of sensitive plant and animal species. No wildlife specimens shall be taken, and no Property will be disturbed. Specimens of aquatic invertebrates may be collected; provided that a written log shall be maintained setting forth an identification of all items collected (c) Wetland Survey: Consultant may undertake a wetland survey consisting of Project Team Members walking the Property and inventorying wetland locations. Areas of riparian vegetation may also be identified. The only disturbance to Property allowed shall be the use of a small hand held shovel to identify soil types during wetland boundary delineation. (d) Hazardous Material Survey: Consultant may perform a hazardous material survey limited to record searches, field inventories, and interviews. Project Team Page 2 of 7 Members will walk the Property to inventory potential hazardous material sites. No sampling, excavation, core drilling or monitoring wells shall be allowed. (e) Other Surveys: Pedestrian surveys of the Property to collect notes, photographs, and measurements of site features (e.g., stream channels, land use, visual quality, and recreation) will be permitted. In addition, survey work may be performed to identify property lines and alternative right of way configurations. Project Team Members will walk the Property to collect this data or perform these activities. (f) Copies of the written logs, notes and photographs taken, created or maintained pursuant to this paragraph shall be furnished to City within thirty (30) days after the date any photograph was taken or the date when the information or data was recorded in said logs or notes. This section does not require that interpretations of such data, or conclusions by CSU, MWH or Reclamation based thereon, if any, must be provided to City within said time frame. 3. Consultant shall be required to coordinate its activities with City and any lessees, occupants under management agreements and tenants (collectively referred to as "Occupant" or "Occupants ") which may at anytime occupy the Property pursuant to lease or agreement with City, or authorized sublease thereunder, in order to minimize interference or disturbance with the operations of City, or such Occupants. Such coordination shall require, at a minimum, observance of all of the following conditions: (a) Consultant and/or CSU shall provide to City at least 72 hours advance written notice of its intent to enter upon the Property. Consultant and/or CSU shall also, on each day of entry, provide not less than 2 hours advance telephone notice of the time of arrival to the City's designated Contact Person. (b) All employees of Consultant and/or CSU shall possess credentials verifying their employment and present same to City officers, employees, Occupants, police officers and security personnel upon demand. (c) City has designated City Manager, 719 -553 -2655, as City's Contact Person with respect to the Property. Consultant shall not perform any excavation of test pits at any location upon the Property unless approval from Contact Person for such location is so obtained. (d) All activities performed on the Property by Consultant and/or CSU shall be scheduled during the period between 7:00 o'clock a.m. and 7:00 o'clock p.m., according to the prevailing time then in effect, Monday through Friday except during national or state holidays. Additional times and days may be arranged with the City upon written request and written approval by the Contact Person. (e) With respect to each area under the control of an Occupant of City, Consultant and/or CSU shall also make arrangements with such Occupant to schedule Page 3 of 7 any entry into such area, and shall conduct its activities so as not to interfere with the Occupant's activities or operations conducted anywhere upon the Property. (f) A representative of City or Contact Person, or both, shall be entitled to be present during any entry upon the Property by Consultant and/or CSU, and shall be permitted to observe Consultant's and/or CSU's activities thereon. (g) All entries upon the Property and all authorized inspections, tests, sampling, procedures or other investigations performed upon the Property by Consultant and/or CSU shall be made and performed in a manner calculated to minimize damage to the Property therefrom. Consultant and/or CSU shall promptly repair in a good and workmanlike manner any damage to the Property arising or resulting from its actions or activities and it shall restore the Property to the condition existing prior to the occurrence of such damage. Unless directed otherwise by City, upon termination of access or expiration of the term hereof, Consultant and/or CSU shall fill and revegetate any excavations or disturbed areas in a proper manner and as required by applicable laws, regulations and permits. (h) If any activities are conducted by subconsultants or subcontractors of Consultant and/or CSU, Consultant and/or CSU shall require same to be bound by all the terms and conditions applicable to Consultant and/or CSU which are set forth in this Agreement. Notwithstanding compliance with this paragraph, as to the City, Consultant and/or CSU shall remain fully responsible for the acts and omissions of any such subconsultants and subcontractors. (i) CSU will notify City of any Significant Environmental Issues discovered on the Property as a result of activities authorized under paragraph 2 of this instrument. "Significant Environmental Issues" means threatened or endangered species or plant, an archaeological artifact, or hazardous materials (substances which are listed under 40 CFR 302 and 40 CFR 355, 49 CFR 172 and 29 CFR 1910.120). 0) All data obtained by Consultant and CSU as a result of or derived from the inspection, collection, testing, sampling or analysis of the Property pursuant to section 2 of this instrument, and all written reports, evaluations, test results, and environmental assessment and characterization reports (collectively, "Data ") pertaining to City's Property, whether in draft, interim or final form, shall be submitted to City within ten (10) business days after submission to Reclamation for City's review of same. In recognition that the data concerns City's Property, is derived from inspection of City's Property and that, as the Property owner, City has a legitimate interest in reviewing the Data and may wish to comment upon such data if necessary in order to reasonably protect its interests in and future uses of such Property, CSU agrees to provide timely access to the Data in accordance with the foregoing. CSU and Consultant make no representations concerning the quality or reliability of the data until same is verified through quality assurance mechanisms approved by Reclamation or other applicable standards . After receipt of information, City shall determine whether to hold the information received as confidential or as a public record available for disclosure in accordance with the Page 4 of 7 Colorado Open Records Act and City's policies concerning records. Reclamation and CSU make no warranties or guarantees, either express or implied, as to completeness, accuracy or correctness of the Data, nor accept any liability arising from any incorrect or misleading information contained therein. Nothing herein shall be construed to limit the ability of CSU, Reclamation and Consultant to disclose Data in connection with the EIS process or pursuant to federal, state or local laws. 4. Any testing, excavation, sampling or other activities which are authorized under paragraph 2 of this instrument and which are undertaken by Consultant and/or CSU upon or with respect to the Property, shall be performed in a workmanlike and safe manner and in accordance with law and standard methods. Consultant and/or CSU shall be responsible for the safety of its employees and agents while on the Property, including the provision of any protective gear or equipment. Entry upon the Property by Consultant, Reclamation and CSU, and their respective employees, agents and subconsultants, shall be at the entering parties sole risk. Under no circumstances shall City be responsible or liable for any personal injury, including death, or damage to personal property of any person occupying or visiting the Property. Nothing in this instrument shall be interpreted to limit or waive the protections afforded to City, CSU or the City of Colorado Springs under the Colorado Governmental Immunity Act, C.R.S. § 24 -10 -101, et seq. 5. The term of this instrument shall commence on the date first above written and shall expire exactly three hundred eighty (380) days later, unless extended by subsequent written instrument signed by the parties hereto, or terminated earlier by City. City may, at any time, revoke or terminate the conditional grant of access hereunder without cause. Upon expiration or termination, Consultant and/or CSU shall immediately remove its equipment, repair all damage to the Property, and fill or repair any areas disturbed by Consultant and/or CSU unless and to the extent otherwise directed by City. Consultant's and CSU's obligations under this instrument to furnish copies of logs, Data and photographs relating to the Property accessed prior to termination, repair damage, and revegetate disturbed areas shall survive the expiration of the term, or earlier termination, of this instrument. 6. Consultant shall comply with all federal, state and local laws and regulations that are applicable to Consultant's activities upon the Property, including but not limited to environmental laws and regulations. No action or activity shall be undertaken by the Consultant and/or CSU, their employees, agents, or subcontractors, if any, on any portion of the Property which would cause or permit: (i) the presence, use, generation, release, discharge, storage or disposal of any hazardous material in, on, under, about or from the Property or any part thereof in violation of any environmental law or regulation; (ii) any portion of the Property to become a hazardous waste treatment, storage or disposal facility without receiving authorization from the City, proper governmental authorization, and in compliance with all environmental laws and regulations; or (iii) the discharge of pollutants or effluents into any storm sewer, sanitary sewer, street or roadway, or any water source or system, or the discharge into the air of any emissions without receiving proper governmental authorization, and in compliance Page 5 of 7 with all environmental laws and regulations, including without limitation, the Federal Water Pollution Control Act, 33 USC § 1251, et seq., and the Clean Air Act, 42 US C §7401, et seq. 7. CSU shall require that Consultant and any additional contractors provide and maintain insurance of the type and with limits as set forth below, on all of its operations, and with companies authorized to do business in the State of Colorado and rated by A.M. Best's Rating as A:VIII or better, or with companies reasonably acceptable to CSU, as follows: (i) Workers' Compensation insurance as required by an applicable law or regulation; (ii) Employer's liability insurance in amounts not less than $500,000 each accident for bodily injury by accident, with a $500,000 policy limit for bodily injury by disease, and $500,000 each employee for bodily injury by disease; (iii) Commercial General Liability insurance in amounts not less than $1,000,000 each occurrence (combined single limit for bodily injury and property damage) and $2,000,000 General Aggregate; (iv) Professional Liability insurance including errors and omissions coverage in an amount of not less than $1,000,000 per occurrence (or claims made) and aggregate for licensed professional consultants; and (v) Umbrella/excess liability insurance in an amount of not less than $1,000,000. 8. This instrument sets forth the complete agreement and understanding of the parties with respect to access to the Property necessary for CSU and Consultant to conduct studies and investigations deemed necessary for the SDS and the related EIS and supersedes any prior or contemporaneous oral or written agreements or understandings between the parties with respect to such access. 9. No amendment to this instrument shall be made nor be enforceable unless made by written amendment signed by an authorized representative of each of the parties. This provision may not be waived except by a writing signed by all parties. 10. This instrument shall be governed and interpreted in accordance with the laws of the State of Colorado. 11. Any dispute or disagreement between the parties arising from or related to this instrument shall be determined and decided by a Colorado state court of competent jurisdiction. 12. The persons executing this instrument on behalf of CSU, Reclamation and City each represent and warrant that they have full authority to execute this instrument on behalf of, and to contractually obligate, the party for whom they are signing this instrument. IN WITNESS WHEREOF, the parties have made and executed this instrument the day and year first above written. Page 6 of 7 CITY OF PUEBLO, A MUNICIP L CORPORATION By: Pr esiden of City ouncil ATTEST: �1 rq Cit Clerk APPROVED AS TO FORM: City Attorney COLORADO SPRINGS UTILITIES By: IV Name: /, �lo �7'- 771 -4&-4 Title: C �_ PPRO O• ✓�� /%l�/ BUREAU OF Page 7 of 7