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HomeMy WebLinkAbout08829ORDINANCE NO. 8829 AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND THE PUEBLO WEST METROPOLITAN DISTRICT, A COLORADO SPECIAL DISTRICT RELATING TO THE CONSTRUCTION AND OPERATION OF THE WILDHORSE REUSE PIPELINE PROJECT BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Intergovernmental Agreement between the City of Pueblo, a municipal corporation and the Pueblo West Metropolitan District, a Colorado special district, dated January 13, 2015, attached hereto, is hereby approved. SECTION 2. The President of the City Council is hereby authorized and directed to execute said Intergovernmental Agreement for and on behalf of the City, and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Ordinance and the attached Intergovernmental Agreement, to effectuate the policies and procedures described therein. SECTION 4. This Ordinance shall become effective immediately upon passage. INTRODUCED: _ January 12, 2015 BY: Ami Nawrocki PASSED AND APPROVED: January 26, 2015 City Clerk’s Office Item # R-2 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: January 12, 2015 TO: President Stephen G. Nawrocki and Members of City Council CC: Sam Azad, City Manager VIA: Gina Dutcher, City Clerk FROM: Daniel C. Kogovsek, City Attorney SUBJECT: AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND THE PUEBLO WEST METROPOLITAN DISTRICT, A COLORADO SPECIAL DISTRICT RELATING TO THE CONSTRUCTION AND OPERATION OF THE WILDHORSE REUSE PIPELINE PROJECT SUMMARY: This Ordinance approves an Intergovernmental Agreement with the Pueblo West Metropolitan District (“District”) which settles an ongoing dispute between the District and the City regarding the construction of the Wildhorse Reuse Pipeline Project. PREVIOUS COUNCIL ACTION: Not applicable. BACKGROUND: Despite many meetings over several months, the City Manager and District Manager and the respective staffs of the City and District were unable to reach agreement regarding the construction, reclamation and water quality standards for the District’s proposed pipeline project. On December 6, 2013, the District filed an Eminent Domain lawsuit against the City captioned Pueblo West Metropolitan District v. City of Pueblo, Pueblo County District Court, Case No. 13CV30989 to condemn right-of-way easements across land owned by the City deemed by the District to be necessary for the construction and operation of the pipeline. On March 27, 2014, the City filed a declaratory and injunctive relief lawsuit against the District captioned City of Pueblo v. Pueblo West Metropolitan District, Pueblo County District Court, Case No. 14CV30322 which sought to require the District to obtain from the City a “1041 Permit” prior to construction and operation of the pipeline. The attached IGA settles the pending litigation on the following terms and conditions: 1. The City will grant the District temporary and permanent easements to construct and operate the pipeline in exchange for payment in the amount of $13,983; 2. The construction and reclamation of the pipeline shall be conducted in accordance with the City’s standards applicable to construction excavations within public rights-of-way within the City. 3. Water quality issues will be governed and resolved by a water quality outline agreed to by the parties; 4. It will not be necessary for the District to apply for nor obtain a “1041 Permit” in connection with Phase One of the pipeline project. 5. The City will review the District’s construction plans for the pipeline and require the District to obtain additional City permits, as necessary. FINANCIAL IMPLICATIONS: The City will receive $13,983 as compensation from the District for the temporary and permanent easements. BOARD/COMMISSION RECOMMENDATION: Not applicable. STAKEHOLDER PROCESS: Not applicable. ALTERNATIVES: Continuation of the two lawsuits now pending in the Pueblo County District Court. RECOMMENDATION: Approval of the Ordinance. Attachments: Copy of the Intergovernmental Agreement INTERGOVERNMENTAL AGREEMENT THIS AGREEMENT is entered into this 260tlay of January 2015 by and between the City of Pueblo, a municipal corporation (the "City") and the Pueblo West Metropolitan District, a Colorado special district (the "District"). Recitals WHEREAS, the District has determined that it is necessary and in the public interest to construct the Wildhorse Reuse Pipeline Project(the "Project") on real property located in Pueblo County, to allow the District to exchange return flows downstream of the Pueblo Dam for water located in the Pueblo Reservoir in accordance with the District's decrees in Water Division No. 2, Case Nos. 85CW134(A) and 85CW134(b); and WHEREAS, on December 6, 2013, the District filed an eminent domain action captioned Pueblo West Metropolitan District v. City of Pueblo, Pueblo County District Court, Case No. 13CV30989 ("Case No. 13CV30989")to condemn right-of-way easements across land owned by the City deemed by the District to be necessary for the construction and operation of the Project which was amended in accordance with an Order of June 20, 2014; and WHEREAS, the effect of this Amended Petition was to eliminate Phase 3 of the Project through the City's Wildhorse Creek Park and the District accepted the compensation valuations of the City's appraiser; and WHEREAS, on March 27, 2014, the City filed a declaratory and injunctive relief action against the District captioned City of Pueblo v. Pueblo West Metropolitan District, Pueblo County District Court, Case No. 14CV30322 ("Case No. 14CV30322") which sought to require the District to obtain from the City a"1041 Permit"prior to construction and operation of the Project; and WHEREAS, the City and the District wish to resolve and settle the pending litigation in Case No. 13CV30989 and Case No.14CV30322 on the terms and conditions set forth in this agreement; and WHEREAS pursuant to C.R.S. §29-1-203 local governments may cooperate or contract with one another, for their mutual benefit, subject to the approval of the legislative body of each governmental entity; NOW THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, the City and the District agree as follows: A. PENDING LITIGATION 1. Within ten(10) days following final approval of this Intergovernmental Agreement, the parties shall file an appropriate stipulation in Case No. 14CV30322 whereby the 1 City's claims against the District and the District's counterclaim against the City shall be dismissed with prejudice, with each party to pay its own costs and attorney fees. 2. With respect to the pending eminent domain lawsuit(Case No. 13CV30989) the City agrees that the District is entitled to the temporary and permanent easements described in the condemnation petition and attached hereto as Exhibit A as well as easements across any intervening public right-of-way between the described parcels. District agrees to pay City compensation for the temporary and permanent easements in the amounts set forth in the applicable valuation reports prepared by the City's valuation expert. Pursuant to C.R.S. §38-1- 101.5(1)(b), District further agrees to post a reasonable bond equal to twice the amount of the anticipated reclamation costs following installation of the Pipeline and that the bond will be in the amount of$13,983. District and City shall request a Final Rule and Order to enter in Condemnation based on the above. City will stipulate to entry of such Order. B. WATER QUALITY 1. The Water Quality Outline, dated 08-12-14, prepared by the technical staff of the City and the District is attached hereto as Exhibit B and is incorporated herein by reference. 2. The Water Quality Outline (Exhibit B) having been made a part of this Agreement, is fully enforceable by the parties according to its terms and conditions. C. CONSTRUCTION STANDARDS AND PLANS 1. District agrees that the construction and reclamation of the entire Project shall be conducted in accordance with the standards normally applicable to only construction excavations within a public right-of-way within the City. A copy of said standards, marked as Exhibit C, is attached hereto and is incorporated herein by reference. 2. The District has provided the City with Project plans, which are attached hereto as Exhibit D and incorporated herein by this reference. City agrees the plans in Exhibit D are in sufficient detail and specificity to allow the City to determine which additional permits, if any, shall be necessary for the District to obtain from the City to construct and operate the Project. District agrees to provide City with the final plans and specifications for the Project, which will be reviewed and approved by the City. 3. The parties hereto specifically agree that it will not be necessary for the District to obtain a"1041 Permit" from the City in connection with Phase 1 of the Project. The City reserves the right to assert 1041 jurisdiction over Phase 2 or later phases of the Project. The District reserves the right to oppose such 1041 jurisdiction in the future. 4. District agrees that it will diligently pursue the necessary permit approvals from other governmental entities, applicable to the Project, and will diligently proceed with construction of the Project. The District further agrees that it will proceed in a diligent manner to acquire right-of-way easements across land which is owned by third parties which are necessary for the Project. 2 D. EASEMENTS AND USE OF PUBLIC ROADWAYS 1. During construction of the Project and thereafter for maintenance of the Pipeline, District agrees to use improved public roadways, unimproved public rights-of-way, and easements, all as shown on the District's construction plans. 2. City will grant access to the District along currently existing unimproved public roadways to the District's pump station as shown on the District's construction plans. 3. The City agrees to issue easements for access and maintenance near the District's Wastewater Treatment Plant between the discharge point and collection point number MP-4. The legal description for said access and maintenance easement is marked as Exhibit E which is attached hereto and is incorporated herein by reference. E. ENFORCEMENT OF THIS AGREEMENT 1. In the event of a dispute between the City and the District regarding compliance with this Agreement, said dispute, excluding disputes under Section B Water Quality, shall be resolved under this section of the Agreement. Disputes under Section B Water Quality shall be resolved pursuant to Exhibit B attached to this Agreement. 2. In the event of a claimed nonperformance under this Agreement, the non- defaulting party shall give written notice to the defaulting party who shall then have thirty (30) days to cure the alleged nonperformance. Such notice shall include sufficient information to reasonably enable the nondefaulting party to understand what is required to cure the alleged default. 3. In the event that the cure is unsatisfactory to the non-defaulting party, the non- defaulting party may pursue any legal remedies for breach of this Agreement. Therefore, in the event of a breach of this Agreement the parties agree that in addition to any other legal remedy, either party may seek an action for specific performance or may seek temporary or permanent injunctive relief as is appropriate. F. MISCELLANEOUS. 1. Notice. Any notice, demand or request provided in this Agreement shall be in writing and sent by certified mail, return receipt requested to the other Party at the addresses listed below or at such other address as each party may provide the other by notice as provided in this section. Such notice shall be deemed to have been given when deposited in the regular United States mail: If to City: City Manager City of Pueblo 3 200 S. Main Street Pueblo, CO 81003 With an additional copy to: City Attorney City of Pueblo 1 City Hall Place, Third Floor Pueblo, CO 81003 If to District: District Manager Pueblo West Metropolitan District 109 E. Industrial Blvd. Pueblo West, CO 81007 With an additional copy to: Timothy J. Flanagan Fowler, Schimberg & Flanagan, P.C. 1640 Grant Street, Suite 150 Denver, Colorado 80203 Thomas J. Mullans Mullans, Piersel & Reed, P.C. 1311 N. Greenwood Pueblo, CO 81003 Harley Gifford, General Counsel Pueblo West Metropolitan District 109 E. Industrial Blvd Pueblo West, CO 81007 2. Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the Parties, their respective legal representatives, successors, and assigns; provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. 4 3. Section Captions. The captions of the paragraphs are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. 4. Integrations, Severability, Amendment, and Counterparts. This Agreement represents the entire agreement between the parties and supersedes all prior discussions and written agreements or understandings. This Agreement may be amended only by an instrument in writing signed by the parties. If any provision of this Agreement is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Agreement shall continue in full force and effect. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together constitute one and the same agreement. 5. No Third Party Beneficiaries; No Waiver of Immunities. Nothing in this Agreement is intended, nor should it be construed, to create any rights, claims, or benefits or assume any liability for or on behalf of any third party, or to waive any immunities or limitations conferred under federal or state law, including but not limited to the Colorado Governmental Immunity Act, § 24-10-101 et seq., C.R.S. 6. Waiver of Breach. A waiver by any party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party. 7. Authority of Signers. Each person signing this Agreement on behalf of a party represents and warrants that he or she has the requisite power and authority to enter into, execute, and deliver this Agreement on behalf of such party and that this Agreement is a valid and legally binding obligation of such party enforceable against it in accordance with its terms. 8. Time. Time is of the essence hereof. 9. Enforcement. In the event of any litigation arising under this Agreement, the court shall award to the prevailing party its costs and reasonable attorney fees. Exclusive venue for any such litigation shall be Pueblo County, Colorado. All such litigation shall be filed in the District Court in and for the County of Pueblo, State of Colorado and each party submits to the jurisdiction of such District Court. To the extent allowed by law, each party waives its right to a jury trial. 10. Contractual Interpretation. The parties acknowledge that they have read and fully understand the terms of this Agreement, have consulted with such attorneys or other professionals as they have deemed appropriate prior to executing this Agreement with adequate 5 opportunity and time for review thereof, and are fully aware of its contents and of its legal effect. Accordingly, neither this Agreement nor any ambiguity herein shall be construed against any party on the grounds that such party drafted this Agreement and instead, this Agreement shall be interpreted as though drafted equally by all parties. 11. Governing Law. This Agreement shall be construed in accordance with and be governed by the laws of the State of Colorado without regard to conflict of law principles. Executed the day and year first written above. PUEBLO WEST METROPOLITAN DISTRICT ATTEST: By Secretary President of the District PUEBL•, A MU► 1 A CO '.'ORATIO ATTEST: �• e y mr — - City rk "fie -ity Council [ SEAL ] Attachments: Exhibit A: The Permanent and Temporary Easements for the Pipeline Exhibit B: 8/12/14 Water Quality Outline Exhibit C: City's Construction Standard Exhibit D: District's Project Plans Exhibit E: Aerial Photo of Access to WWTP 6 opportunity and time for review thereof, and are fully aware of its contents and of its legal effect. Accordingly,neither this Agreement nor any ambiguity herein shall be construed against any party on the grounds that such party drafted this Agreement and instead,this Agreement shall be interpreted as though drafted equally by all parties. 11. Governing Law. This Agreement shall be construed in accordance with and be governed by the laws of the State of Colorado without regard to conflict of law principles. Executed the day and year first written above. PUEBLO WEST METROPOLITAN DISTRICT ATTEST: • .�l dt�Qi4p ' By 1!x(.0,, ` President of the District PUEBLO,A MUNICIPAL CORPORATION ATTEST: By City Clerk President of the City Council [ SEAL ] Attachments: Exhibit A: The Permanent and Temporary Easements for the Pipeline Exhibit B: 8/12/14 Water Quality Outline Exhibit C: City's Construction Standard [City to provide] Exhibit D: District's Project Plans [Alan to provide] Exhibit E: Aerial Photo of Access to WWTP (to be replaced by a Construction Drawing) 6