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Home My WebLink About08385ORDINANCE NO. 8385 AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO COUNTY RELATING TO THE FOUNTAIN BEDLOAD SEDIMENT REMOVAL PROJECT, AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME, AND BUDGETING AND APPROPRIATING AN INCREASE OF $352,000 FOR THE FOUNTAIN CREEK WATER QUALITY PROJECT, PROJECT NO. SW1003 BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1: The Intergovernmental Agreement between the City of Pueblo, a Municipal Corporation, and Pueblo County relating to the Fountain Creek Bedload Sediment Removal Project, a copy of which is attached hereto and incorporated herein, having been approved as to form by the City Attorney, is hereby approved. SECTION 2: Capital Improvement Project No. SW1003, Fountain Creek Water Quality Project, is hereby budgeted and appropriated an increase of $352,000 to the 2011 Capital Budget. SECTION 3: The President of the City Council is hereby authorized to execute and deliver the Intergovernmental Agreement in the name of and on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest same . INTRODUCED August 22, 2011 BY: Vera Ortegon COUNCILPERSON PASSED AND APPROVED: September 12, 2011 Background Paper for Proposed ORDINANCE DATE: AUGUST 22, 2011 AGENDA ITEM # R-2 DEPARTMENT: STORMWATER DEPARTMENT DIRECTOR – EARL WILKINSON, P.E TITLE AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO COUNTY RELATING TO THE FOUNTAIN BEDLOAD SEDIMENT REMOVAL PROJECT, AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME, AND BUDGETING AND APPROPRIATING AN INCREASE OF $352,000 FOR THE FOUNTAIN CREEK WATER QUALITY PROJECT, PROJECT NO. SW1003 ISSUE Should the City Council approve an Intergovernmental Agreement (“IGA”) between the City and the County relating to the Fountain Creek Bedload Sediment Removal Project and budget and appropriate an increase of $352,000 for the Fountain Creek Water Quality Project, Project No. SW1003? RECOMMENDATION Approve the Ordinance. BACKGROUND The IGA allows for mitigation funds provided to Pueblo County under Pueblo County 1041 Permit No. 2008-02 (the “1041 Permit”) approved on April 21, 2009 to be transferred to the City for site improvements and removal of sediment collected from Fountain Creek. The IGA will obligate County funds for the implementation of the Fountain Creek Sediment Removal Demonstration Project (“Project”), and ensures that the Project complies with the intended expenditure of funds under the 1041 Permit. FINANCIAL IMPACT Pueblo County will pay the City the sum of $352,000 from the 1041 Funds to be deposited into City capital project SW1003, Fountain Creek Water Quality Project. The amount of $100,000 of 1041 Funds shall be used for site work related to the installation of the bedload collector and the balance of $252,000 shall be used for the removal of sediment material collected during the Project. INTERGOVERNMENTAL AGREEMENT THIS AGREEMENT ( "Agreement ") is made and entered into effective this 14 day of June, 2011, by and between Pueblo County, Colorado, a body corporate and politic, hereinafter referred to as "County ") and the City of Pueblo, a Municipal Corporation, hereinafter referred to as "City" both of which may hereinafter be referred to as the "Parties" and each of which may be referred to as a "Party" RECITALS A. The City and County are political subdivisions as defined in C.R.S 29 -1 -201 et seq which expressly authorizes and encourages political subdivisions to cooperate and contract with one another to provide facilities and services as permitted by law B County has determined and represented to City that the site improvements and removal of sediment collected from Fountain Creek is an eligible use of the mitigation funds provided to County under Pueblo County 1041 Permit No 2008 -02 (the "1041 Permit ") approved on April 21, 2009 C. The City and County, along with the Fountain Creek Watershed, Flood Control and Greenway District ( "District ") and the Lower Arkansas Valley Water Conservancy District are parties to the Memorandum of Understanding ( "MOU ") for the Management of Grants and Project Activity on Fountain Creek entered into on March 26, 2010 The MOU establishes the desire to have the District manage, administer, and fund the capital improvements and maintenance projects funded with grants to mitigate flooding, sedimentation and erosion, address water quality issues, improve drainage and, in addition, to obtain or accept funding for protection of open space plus provide for the development of public recreational opportunities, including parks and trails, within the Fountain Creek Watershed. D The City and the County wish to cooperate and enter into an Intergovernmental Agreement to timely obligate County funds for the implementation of Fountain Creek Sediment Removal Demonstration Project ( "Project "), while ensuring that the Project complies with the intended expenditure of funds under the 1041 Permit through Pueblo County Board of Commissioners Resolution P &D 09 -22 ( "1041 Funds ") NOW, THEREFORE, FOR AND IN CONSIDERATION, of the foregoing and the mutual promises, covenants, terms and conditions contained herein, City and County agree as follows. DESCRIPTION OF THE PROJECT 1. Scope of Project. The Project for purposes of this Agreement shall mean the City's project to utilize a bedload sediment collector system to collect and remove sediment within Fountain Creek at a location approximately 2,200 feet north of the confluence of the Arkansas River and Fountain Creek. 2. Fund Transfers. Within 10 days of execution of this Agreement, County shall pay to City the sum of $352,000 from the 1041 Funds to be deposited to City capital project SW1003, Fountain Creek Water Quality Project. The amount of $100,000 of 1041 Funds shall be used for site work related to the installation of the bedload collector and the balance of $252,000 shall be used for the removal of sediment material collected during the Project. The 1041 Funds shall not be used by City for any other use or project. 3. Project. (a) The design of the Project shall be solely within the control of the City, and the City shall manage the Project subject to the provisions of the MOU The construction and operation thereof shall be the sole responsibility of City without further assistance from County (b) In the event the cost of the site work, installation and removal of sediment materials collected from Fountain Creek, including the 1041 Funds, exceeds the available funds budget and appropriated within City capital project SW1003, the excess shall be the sole fiscal responsibility of the City and shall be paid by City from other funds In furtherance of the foregoing, City agrees to I. Cause the implementation of the Project in accordance with the MOU for the Management of Grants and Project Activity on Fountain Creek. II. Manage the construction of the Project including contract administration, payments and inspections as required by law III. Maintain and make available to the County upon request detailed financial records including work performed, invoices and approved pay requests and payments made for the Project. IV Make available to the County sediment collected by the Project for selected County projects agreed upon by the City and County (c) The Project site is owned by the City The Parties agree that, as between City and County, maintenance of the Project shall remain the sole responsibility of the City during the installation, operation and after completion of the Project. (d) To the extend authorized by law, City shall indemnify and hold harmless the County, its officers, directors, agents and employees, as officials and individuals, from and against any and all claims, demands, actions, and suits of any kind or nature whatsoever arising under any application worker's compensation laws or other public liability law made as a result of the Project including, but not limited to, defects in any items purchased with the 1041 Funds and any component parts thereof for which claims, demands or suits may be brought against the County, its officers, directors, agents and employees or costs or fees incurred in defending any such claim, demand or suit, including, but not limited to, reasonable attorney's fees, except to the extent that such liability is adjudicated to be the result of negligent or intentional actions of the County, its officers, directors, agents and employees. 4. Term. The term of this Agreement shall commence on the date first set forth herein and shall end on completion of the Project. 5. Liability Exposure. Notwithstanding any other provision of this Agreement, no term or condition of this Agreement shall be construed or interpreted as a waiver of any provision of the Colorado Governmental Immunity Act, C.R.S 24 -10 -101, et seq , by City or County 6. Complete Agreement. This Agreement constitutes the complete Agreement on the subject hereof and supersedes and replaces all prior oral and written understandings and /or agreements of the Parties on the subject hereof. 7 Governing Law This Agreement and rights and duties of the parties shall be construed and interpreted and enforced in accordance within the laws of the State of Colorado 8. Modifications. This Agreement may not be modified or amended in any manner by either or both of the parties unless the same is set forth in a written agreement making reference to this Agreement and signed by the parties hereto No waiver of any of this Agreement's provisions or conditions shall be binding unless made in writing and signed by the Chair of the Board of County Commissioners and the President of City Council. 9 Binding Agreement. When executed by the parties, this Agreement shall constitute a binding Agreement and shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns Any delegation or assignment of this Agreement or any of the obligations set forth herein by either party without the prior written consent of the other party shall be void and of no force and effect. 10. Severable. If any provision of this Agreement shall be determined invalid, illegal or without force by a Court of Law or rendered so by legislative act, the remaining provisions shall remain in full force and effect. 11 Waiver Failure to exercise any remedy which either party may have under this Agreement or any other acquiescence by one party, shall not constitute a waiver of any obligation of the defaulting party hereunder 12. Notices. All notices required under this Agreement shall be sent in writing by certified or registered mail, return receipt requested, to the Parties at the following addresses. (a) If to City City of Pueblo Attn. City Manager 200 S Main Street Pueblo, CO 81003 With a copy to City Attorney 503 No Main Street, Ste. 203 Pueblo, CO 81003 (b) If to County. Chairman, Board of County Commissioners 215 W 10 St. Pueblo, CO 81003 With a copy to Pueblo County Attorney 215 W 10 St., Rm. 312 Pueblo, CO 81003 13 Captions. Captions and headings used in this Agreement are for identification only and shall be disregarded in any construction or interpretation of the provisions of this Agreement. 14 No Third Party Beneficiary Enforcement of the terms and conditions of this Agreement shall be strictly reserved to the City and County and nothing contained in this Agreement shall give or allow any claim or right of actions by any other party or third person. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties have executed this Agreement effective the date first above written. ATTEST CITY OF PUEBLO a By By. �� City %-r-k Presiden of Aity Council ATTEST PUEBLO COUNTY, COLORADO Ar 4.7° By 14. &diva_ i• lerk of the Boar. r Chai : oard of County Commissioners