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HomeMy WebLinkAbout10526RESOLUTION NO. 10526 A RESOLUTION APPROVING A CONSENT TO ENTRY BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND 7- ELEVEN, INC. AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Consent to Entry between the City of Pueblo, a municipal corporation and 7- Eleven, Inc. dated September 26, 2005 relating to the installation of temporary monitoring wells upon City -owned property on Orman Avenue, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute and deliver the Consent to Entry in the name of the City. SECTION 2 This Resolution shall become effective upon final passage and approval. INTRODUCED October 11, 2005 BY Michael Occhiato Councilperson APPROVED: PRES1DENT 9F CITY CPWCIL ATTESTED BY: CITY CLERK E 'E 0 0 Background Paper for Proposed RESOLUTION AGENDA ITEM # I DATE: October 11, 2005 DEPARTMENT: Law Department TITLE A RESOLUTION APPROVING A CONSENT TO ENTRY BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND 7- ELEVEN, INC. ANDAUTHORIZ- ING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should the City grant to 7- Eleven, Inc. through a "Consent to Entry" agreement, permission to install temporary monitoring wells at the City -owned parking lot on Orman Avenue? RECOMMENDATION It is recommended that Council adopt the Resolution approving the Consent to Entry. BACKGROUND The background is set forth on the first page of the Consent to Entry. Succinctly stated, 7- Eleven needs to evaluate the extent of underground gasoline contamination which may have emanated from a gas station it has operated at Northern and Orman. To do so, it has requested permission to place two groundwater monitoring wells in the City -owned parking lot adjacent thereto. The form of consent to entry places conditions on the installation of the wells designed to reasonably protect the City's interests. FINANCIAL IMPACT None anticipated. 7- Eleven Store No. 17127 Pueblo, Colorado CONSENT TO ENTRY THIS INSTRUMENT is made and entered into this 2(� day of 5ep64 5 e , 2005 by and between the City of Pueblo, a Municipal Corporation (hereinafter referred to as "City ") and 7- Eleven, Inc., a Texas Corporation (hereinafter referred to as "Permittee "). WHEREAS, City owns certain real property located within Pueblo County, Colorado more particularly described as: Lots 28 through 31 and the South 1/2 of Lot 32, Block 11, College Hill Subdivision, Second Filing, also known as 1231 and 1237 E. Orman Avenue, Pueblo, Colorado, 81004, hereinafter referred to as the "Property'; and, WHEREAS, Permittee is the lessee in possession of certain real property located within Pueblo County, Colorado, which is nearby the Property; and WHEREAS, Permittee has operated a convenience store on Permittee's nearby property which has been used for the retail sale of gasoline; and WHEREAS, there may exist certain petroleum and petroleum hydrocarbon environmental contamination and other conditions upon Property emanating from Permittee's nearby property as a result of Permittee's possession and use of underground storage tanks on the Permittee's nearby property; and WHEREAS, Permittee has been required by the Colorado Department of Labor, Division of Oil and Public Safety and/or the Colorado Department of Public Health and Environment (hereinafter collectively referred to as "State Authority ") to monitor and investigate such contamination and conditions; and WHEREAS, it is necessary for Permittee and Permittee's consultant, Secor International, Inc. ( "Consultant ") to enter upon the Property in order to conduct said monitoring and investigation; and WHEREAS, City is willing to give conditional consent, in accordance with the terms and conditions of this Instrument, to entry upon the Property by Permittee and Consultant in order that Permittee may monitor and investigate such contamination and conditions, in accordance with state law and all municipal ordinances and regulations; and 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. 7- Eleven Store No. 17127 Pueblo, Colorado NOW, THEREFORE, in consideration of the foregoing recitals and the terms and conditions set forth herein, the parties agree as follows: 1. Conditional Consent 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, Permittee, Consultant and the employees of each may enter upon the Property upon advance notice to City at reasonable hours in order to perform those activities authorized below in compliance with all of the terms, conditions and restrictions set forth in this Instrument. 2. Authorized Activities Permittee and Consultant are authorized only to conduct the following activities upon the Property in compliance with the terms of this Agreement: (a) Installation of two groundwater monitoring wells approximately located as shown in Attachment "A" hereto, labeled "Site Map" and dated 4/4/05. During the installation of said wells, Permittee is allowed to have reasonable access to City's Property for drilling vehicles, equipment and personnel, but shall use its best efforts to not obstruct public access to parking spaces on the Property. The well shall be placed in accordance with the protocol attached as Attachment "C" to this Instrument, and the completed well shall be flush with the existing surface of the parking lot located upon City's Property as shown in Attachment `B" to this Instrument. (b) Permittee shall complete and construct, and repair all surfaces damaged during, well installation in accordance with the latest version of the "Standard Construction and Specifications and Standard Details for the City of Pueblo, Colorado" prepared by the Department of Public Works and approved by the City Council. If any portion of the work is performed in public right -of -way, an excavation permit shall also be obtained by Permittee or Consultant. (c) If any partially completed drilling or excavation is left unattended for any length of time, it shall be cordoned off and marked with flashing barricades until completed. (d) After well completion, and during the terms of this Instrument, Permittee or Consultant shall be authorized to collect groundwater samples from each well in the manner required by the State Authority. Upon request of City, Permittee shall, directly or through Consultant, without cost or expense by City, provide to City at a location within Pueblo, Colorado split - samples of all soil, groundwater or other matrix samples it collects from the Property for analysis. Penmittee and Consultant shall not be responsible for the cost of delivery of any split samples outside of Pueblo, Colorado, nor for any cost associated with analysis of any such split samples. Such split - samples shall be promptly labeled as to location, date, monitoring depths, and identification of any preservative or solution added, in accordance with standard methods and chain of custody recordation, and shall be delivered 7- Eleven Store No. 17127 Pueblo, Colorado to the lab specified by City or in the absence of such direction, delivered to the City's Wastewater Laboratory located at 1300 S. Queens, Pueblo, Colorado. 3. Coordination Permittee and Consultant shall be required to coordinate their activities with City and with any lessees, occupants under management agreements and tenants (collectively referred to as "Occupant" or "Occupants ") which may at any time 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) Permittee (or Consultant) shall provide to City at least 72 hours advance written notice of its intent to enter upon the Property. Permittee (or Consultant) 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 Permittee and Consultant 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 Daniel E. Centa, Director of Public Works, 211 E. "D" Street, Pueblo, Colorado, 81003, (719) 553 -2295, as City's Contact Person with respect to the Property. Contact Person may, at any time, designate a member of his staff as an alternate Contact Person. Consultant shall not perform any drilling 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 Pennittee and Consultant shall be scheduled during the period between 7:00 o'clock a.m. and 4:30 o'clock p.m., according to the prevailing time then in effect, Monday through Friday except during national or state holidays. (e) With respect to each area under the control of an Occupant of City, Permittee or Consultant shall also make arrangements with such Occupant to schedule 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 Permittee or Consultant, and shall be permitted to observe Permittee's and Consultant's activities thereon. (g) All entries upon the Property and all authorized inspections, tests, sampling, procedures or other investigations performed upon the Propertyby Permittee and Consultant shall be 7- Eleven Store No. 17127 Pueblo, Colorado made and performed in a manner calculated to minimize damage to the Property therefrom. Permittee and Consultant shall promptly repair in a good and workmanlike manner any damage to the Property arising or resulting from their 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, Permittee (or Consultant) shall remove or plug any monitoring wells installed by Permittee and Consultant 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, Permittee and Consultant shall require same to be bound by all the terms and conditions applicable to Consultant which are set forth in this Agreement. Notwithstanding compliance with this paragraph, as to the City, Permittee and Consultant shall remain fully responsible for the acts and omissions of any such subconsultants and subcontractors. 4. Entry at Permittee's Risk Permittee is fully responsible for performance of all obligations of Consultant hereunder. Any drilling, well placement, testing, excavation, sampling or other activities which are authorized under paragraph 2 of this Instrument and which are undertaken by Permittee or by Consultant upon or with respect to the Property, shall be performed in a workmanlike and safe manner and in accordance with law and approved methods. Permittee and Consultant shall each be responsible for the safety of its employees and agents while on the Property, including the provision of any protective gear or equipment, and Consultant and Permittee each agree to indemnify, defend and hold harmless City, and its officers, agents and employees, from all claims, demands, suits, actions and proceedings of any kind or nature concerning or involving property damage or personal injury, including death, of any employee, agent, or subcontractor of Permittee and Consultant, occurring upon or arising from the condition of the Property, whether latent or patent, or from any activities conducted upon the Property. 5. Insurance (a) Prior to any entry upon the Property, Permittee and Consultant shall procure, at Permittee's or Consultant's expense, such insurance as will protect each from claims under workers' compensation acts, claims for damages because of personal injury including bodily injury, sickness, disease or death of any of their respective employees or of any person other than their employees engaged in performance of work for Permittee or Consultant as subcontractor or independent contractor, and from claims or damages because of personal injury and injury to or destruction of property including loss of use resulting therefrom; and such insurance will provide for coverage in such amounts as set forth in subparagraph (b) of this paragraph. (b) The minimum insurance coverage which Permittee and Consultant shall obtain and keep in force is as follows: 7- Eleven Store No. 17127 Pueblo, Colorado (i) Workers' Compensation Insurance complying with statutory requirements in Colorado. (ii) Commercial General and Automobile Liability Insurance with limits not less than Six Hundred Thousand and No /100 Dollars ($600,000.00) per person and occurrence for personal injury, including but not limited to death and bodily injury, Six Hundred Thousand and No /100 Dollars ($600,000.00) per occurrence for property damage, and One Million and No /100 Dollars ($1,000,000.00) for excess umbrella liability. (iii) For Consultant, Professional Liability Insurance with limits of not less than Five Million Dollars ($5,000,000.00) and with a deductible of not more than Two Hundred Fifty Thousand Dollars ($250,000.00). (c) Permittee agrees to hold harmless, defend and indemnify City from and against any liability to third parties, arising out of negligent acts, errors or omissions of Permittee, Consultant, its employees, subcontractors and subconsultants, if any. 6. Term The term of this Instrument shall commence on the date first above written and shall expire exactly three hundred sixty -five (365) 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, Permittee and Consultant shall immediately remove their equipment, remove or plug all wells, repair all damage to the Property, and fill or repair any areas disturbed by them unless and to the extent otherwise directed by City. Permittee's and Consultant's obligations under this Instrument to maintain insurance, to indemnify City from various costs and liabilities, to provide copies of data and reports, to repair damage to the Property, and to clear and satisfy lien claims, shall all survive termination of the grant of access. City shall have no liability whatsoever to Permittee or Consultant on account of any such termination. 7. Data Sharing All data obtained by Permittee or Consultant as a result of or derived from its inspection, collection, testing, sampling or analysis of the Property and groundwater taken therefrom, and all written reports, evaluations, test results, and environmental assessment or characterization reports, whether in draft, interim or final form, produced by or on behalf of Permittee or Consultant and which relate to the Property, shall be submitted to City not less than twenty days prior to the submission of same to the State Authority or to any other regulatory agency in order to allow City an opportunity to provide comments thereon; provided, however, that submission of same to City less than twenty days prior to submission to the State Authority will be allowed when extraordinary circumstances are present. Nothing in this section shall be construed to require Permittee or Consultant to incorporate the comments from City in any report subsequently filed with the State Authority. 7- Eleven Store No. 17127 Pueblo, Colorado 8. Compliance with Laws: Indemnity Liens (a) Permittee and Consultant shall comply with all federal, state and local laws and regulations that are applicable to their activities upon the Property, including but not limited to environmental laws and regulations. No action or activity shall be undertaken by Permittee or Consultant, or 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 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 USC §7401, et seq. (b) Permittee agrees to indemnify and forever hold harmless City, Occupants, and the agents, successors and assigns of City and Occupants, from all claims, losses, damages, expenses and costs, including but not limited to attorney fees, and remedial and cleanup costs, incurred by reason of the use, storage, generation, release, discharge, maintenance, disposal or removal of hazardous materials in, on, under, about or from the Property, or any part thereof, by Permittee or Consultant, or their respective employees, agents, contractors and subcontractors. The provisions of this paragraph 8 shall survive the expiration of the term of this Instrument and shall survive termination of the conditional grant of access under this Instrument. (c) City shall not be liable for any costs, fees or expenses incurred by virtue of Permittee's and Consultant's activities upon the Property. Permittee shall require that Consultant expressly waive and agree that it shall have no right to avail itself of any remedies under any mechanic lien law or public project or "little Miller Act" statutes, or similar laws, and that it shall not file any statement or affidavit of lien or verified claim with respect to the Property. In the event of the recordation of any statement, claim or affidavit asserting any claim of lien upon the Property arising from or relating to the actions or activities of Consultant authorized by this hnstrument, or arising from or relating to the actions or activities of Consultant's employees, agents or subcontractors, Permittee and Consultant shall promptly satisfy and discharge the same at Permittee's and Consultant's sole cost and expense. (d) In the event Permittee and Consultant fail to promptly make any repair required by this Instrument, or to satisfy and discharge any claim of lien upon the Property as required by this Instrument, upon fourteen (14) days written notice to Permittee, City may effect the repair or cause the claim of lien to be extinguished or satisfied, and all sums expended by City in 7- Eleven Store No. 17127 Pueblo, Colorado doing so (including, without limitation, attorney fees), plus interest thereon at the rate of twelve percent (12 %) per annum from the date such sums were expended by City until the date of repayment by Consultant and Permittee, shall be due and payable to City upon demand. 9. Complete Aereement This Instrument sets forth the complete agreement and understanding of the parties with respect to access to the Property necessary for Permittee and Consultant to conduct the monitoring and investigation necessary to ascertain the nature and extent of the contamination and conditions and supersedes any prior or contemporaneous oral or written agreements or understandings between the parties with respect to such access. 10. Amendment 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. 11. Governing Law This Instrument shall be governed and interpreted in accordance with the laws of the State of Colorado. 12. Disputes Any dispute or disagreement between the parties arising from or related to this Instrument shall be determined and decided by City's City Manager whose written decision thereon shall be final and binding unless judicial review is sought therefrom in a Colorado court of competent jurisdiction pursuant to Rule 106, C.R.C.P. Any party may seek to enforce the City Manager's decisions by judicial action for injunctive relief or damages or both. 13. All notices, requests, demands and other communication hereunder shall be in writing and shall be deemed to have been given if delivered by hand or sent by national overnight delivery services, or first class United States mail, postage prepaid, in each case address as follows: City: Daniel E. Centa Director of Public Works 211 E. "D" Street Pueblo, CO 81003 With a copy to: Thomas E. Jagger City Attorney 503 N. Main Street, Suite 127 Pueblo, CO 81003 Grantee: 7- Eleven, Inc. 2711 N. Haskell Avenue Dallas, TX 75204 7- Eleven Store No. 17127 Pueblo, Colorado Attention: Ken Hilliard With a copy to: Strasburger & Price, LLP 901 Main Street, Suite 4300 Dallas, TX 75202 Attention: Kirk F. Sniff, Attorney -in -Fact 14. Authorized Signers The persons executing this Instrument on behalf of Permittee and Consultant 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. ATTEST: CITY OF PUEBLO, ICIPAL CORPORATION By y Clerk APPROVED AS TO FORM: City Attorney —� esident of thefity Counc PERMITTEE: 7- ELEVEN, INC. By Name: F. SM." Title: A4or neI - i h — �&_C_ —