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HomeMy WebLinkAbout09046 ORDINANCE NO. 9046 AN ORDINANCE APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, THE PUEBLO STORMWATER UTILITY ENTERPRISE AND PUEBLO COUNTY, COLORADO FOR THE PUEBLO LEVEE DREDGING PROJECT AND AUTHORIZING THE PRESIDENT OF THE PUEBLO CITY COUNCIL TO EXECUTE SAID AGREEMENT BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement between the City of Pueblo, the Pueblo Stormwater Utility Enterprise (“Stormwater Enterprise”) and Pueblo County, Colorado dated September 26, 2016 (“Agreement”) 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 hereby authorized and directed to execute said Agreement for and on behalf of the City of Pueblo and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 2. 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 Agreement to effectuate the purposes of same. SECTION 3. This Ordinance shall become effective immediately upon final passage. INTRODUCED: September 12, 2016 BY: Ed Brown PASSED AND APPROVED: September 26, 2016 City Clerk’s Office Item # R-8 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: September 12, 2016 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 AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, THE PUEBLO STORMWATER UTILITY ENTERPRISE AND PUEBLO COUNTY, COLORADO FOR THE PUEBLO LEVEE DREDGING PROJECT AND AUTHORIZING THE PRESIDENT OF THE PUEBLO CITY COUNCIL TO EXECUTE SAID AGREEMENT SUMMARY: Attached is a proposed Ordinance approving and authorizing the President of the City Council to sign an Agreement between the City of Pueblo, the Pueblo Stormwater Utility Enterprise (“Stormwater Enterprise”) and Pueblo County for the Pueblo Levee Dredging Project. PREVIOUS COUNCIL ACTION: By Ordinance No. 6914, dated November 25, 2002, the City of Pueblo established the Stormwater Enterprise. BACKGROUND: Pueblo County issued a 1041 Permit for the Southern Delivery System, by Resolution No. P&D 09-22 dated and recorded on April 21, 2009. Pursuant to Condition No. 8 of said 1041 Permit Colorado Springs Utilities transferred $2.2 million (“Condition No. 8 Enterprise Funds”) for the purpose of reducing the sediment load in the lower Fountain Creek through vegetation and debris removal and dredging. Approximately $1,644,537 of said funds remain available to be spent for additional debris, vegetation and sediment removal activities. FINANCIAL IMPLICATIONS: Pursuant to the attached Ordinance and Agreement, Pueblo County will pay the City of Pueblo’s Stormwater Enterprise $1,644,537 thirty (30) days after the attached Agreement is signed by Pueblo County. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: If this Ordinance is not approved, the City’s Stormwater Enterprise will not receive $1,644,537 from Pueblo County. RECOMMENDATION: Approve the Ordinance. Attachments: Proposed Ordinance and Enterprise Funds Agreement AGREEMENT (Funds for Pueblo Levee Systems on Fountain Creek) This Agreement ("Agreement") is hereby entered into this 26th day of September, 2016 by and between Pueblo County,Colorado, a political subdivision of the State of Colorado("County")and the City of Pueblo, Colorado("City"), and its Stormwater Utility Enterprise ("Stormwater Enterprise"), a business unit of the City. The County,the City and the Stormwater Enterprise may be referred to herein individually as"Party"and collectively as "Parties." Recitals A. The United States Department of the Army and the City entered into a Local Cooperation Agreement("LCA")on August 14, 1987"for Construction of the Fountain Creek, Pueblo, Colorado Project." The purpose of the LCA is to provide flood control and recreation features, including channel improvements, a levee system and flood walls, "which will provide one half of one percent chance flood protection to the downtown area of Pueblo to the west and to the adjacent east side residential area between 15th Street and the confluence of Fountain Creek with the Arkansas River." The levee system was constructed by the Department of the Army pursuant to Article II.a of the LCA. Pursuant to Articles II.b and VIII.a of the LCA, the City is responsible for operating, maintaining and rehabilitating the levee system. B. Pueblo County issued a 1041 Permit No. 2008-002 with Terms and Conditions for Construction and Use of a Municipal Water Project Known as the Southern Delivery System ("SDS 1041 Permit"), by Resolution No. P&D 09-22 of the Board of County Commissioners of Pueblo County, Colorado, dated and recorded on April 21, 2009, at Reception No. 1802587 of the records of the Clerk and Recorder of Pueblo County, Colorado. C. Pursuant to Condition No. 8 of said 1041 Permit, Colorado Springs Utilities transferred approximately $2.2 million("Condition No. 8 Funds")to the County as mitigation to assist the City of Pueblo in preserving the flood protection of the levee systems through the City on lower Fountain Creek; approximately $1.6 million of said funds remain available to be spent for such activities. By letter dated February 10, 2015 from Jacklynn L. Gould, Area Manager, Bureau of Reclamation, U.S. Dept. of Interior ("Reclamation") to Joan Armstrong, Director of Pueblo County Planning and Development, Reclamation confirmed to the County that it was not necessary for Reclamation to approve the use of such Condition No. 8 Funds. D. The Stormwater Enterprise desires to utilize the services of the Fountain Creek Watershed Water Activity Enterprise ("Watershed Enterprise"), a government water activity business of the Fountain Creek Watershed, Flood Control and Greenway District, to perform additional water activities generally described as flood control maintenance and rehabilitation of the levee system. E. The scope of the water activity services to be provided by the Watershed Enterprise will consist of a flood control levee system maintenance and rehabilitation project to remove vegetation from the Fountain Creek and dredge Fountain Creek between 8th Street in the City of Pueblo and the Confluence of Fountain Creek with the Arkansas River (1.6 miles) an average depth of three (3) feet; remove two (2) in-stream columns to the riverbed level (left from the removal of the old railroad trestle); and dispose of removed vegetation and sediment from dredging("the Project"). F. The Stormwater Enterprise and the Watershed Enterprise have entered into a Water Activity Services Agreement for the Project dated September 26, 2016 pursuant to the water activity enterprise statute, C.R.S. 37-45.1-101 et seq. G. The Water Activity Services Agreement provides that the Stormwater Enterprise shall pay five million two hundred fifty thousand dollars ($5,250,000) to the Watershed Enterprise, for water activity services of a flood control project as follows: two million dollars ($2,000,000.00) to the Watershed Enterprise within thirty (30) days of execution of the Water Activity Services Agreement; an additional two million dollars ($2,000,000.00) by January 15, 2017; and a final payment of one million two hundred fifty thousand dollars ($1,250,000.00) by January 15, 2018. H. In accordance with the Intergovernmental Agreement between Pueblo County and the City of Colorado Springs and its Utility Enterprise, executed May 2, 2016 ("IGA"), Colorado Springs Utilities shall contribute to the City of Pueblo or its Stormwater Enterprise funds not to exceed$1 million a year for 3 years($3 million total).The IGA provides that these funds from Colorado Springs Utilities are to be used and expended by December 31, 2019 "for the purpose of funding repairs or improvements to the levee system on Fountain Creek within the City of Pueblo,including such sediment removal as may be necessary to maintain the integrity of the levee structures, or the removal of debris along Fountain Creek in or near the City of Pueblo that may adversely impact operation of such levee system." IGA,pp. 15-16, Sec. III.E(1). The IGA provides for a matching component by the City of Pueblo or its Stormwater Enterprise, which can include Condition No. 8 Funds held by Pueblo County. IGA, p. 16, Sec. III. III.E(2). I. The County, the Fountain Creek Watershed, Flood Control and Greenway District, the Lower Arkansas Valley Water Conservancy District and the Colorado Water Conservation Board jointly funded prior debris removal and habitat restoration activities in the Fountain Creek channel. The County contributed $100,000 of the Condition 8 Funds toward completion of the activities. The County determined that the activities qualified as a project contemplated under Section DIE(1) of the IGA and Colorado Springs Utilities concurred. J. The County has determined that the Project described in recital E above qualifies for funding as an activity contemplated under Condition 8 of the SDS 1041 Permit and Section III.E(1) of the IGA. Agreement NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants contained herein, the sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Release of Condition No. 8 Funds and IGA Match. a. Within thirty (30) days of the date on which County executes this Agreement, and contingent upon execution of the Water Activity Services Agreement by the Stormwater Enterprise and the Watershed Enterprise as referenced in Recital F above, County will release to the Stormwater Enterprise the remaining balance of the Condition No. 8 Funds previously received from Utilities (approximately$1.6 million). b. The Stormwater Enterprise will contribute the remaining approximately $1.3 million toward the $3.0 million matching component referenced in recital H above. The Stormwater Enterprise shall fully comply with the conditions of Section III.E. of the IGA to ensure payment of the matching$3 million in payments from Colorado Springs Utilities. c. Such funds shall be deposited into a Stormwater Enterprise account and expended by the Stormwater Enterprise for the purposes of, and in accordance with, Condition 8 of the SDS 1041 Permit and Section E of the IGA. The Stormwater Enterprise shall maintain and make available to the County upon request detailed financial records including work performed, invoices and approved pay requests and payments. 2. No Additional Funding or Responsibility. The Stormwater Enterprise and the Watershed Enterprise have identified and chosen the Project to be performed and funded as described herein. The County shall have no obligation to provide additional funds required for the Project that may arise for any reason. The County assumes no responsibility for the effectiveness of the Project, or performance of any contracts issued by, and assumes no liability for actions by, the Stormwater Enterprise, the Watershed Enterprise, and their employees, contractors and agents. The County shall have no responsibility for any current or future obligation or requirement to be undertaken by the City pursuant to the LCA, including but not limited to flood control and recreation features, channel improvements, the levee system, flood walls or any other component completed or contemplated under the LCA. 3. Notice. Any notices or correspondence associated with this Agreement shall be directed to: For the Stormwater Enterprise: Jeff Bailey,P.E. Assistant City Manager for Stormwater 211 East D Street Pueblo, CO 81003 City Attorney 1 City Hall Place,3rd Floor Pueblo,CO 81003 For Pueblo County: Chair Board of County Commissioners of Pueblo County 215 West 10th Street Pueblo,CO 81003 Pueblo County Attorney 215 West 10th Street Pueblo,CO 81003 4. No Third Party Beneficiaries. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to enforcement,shall be strictly reserved to the Parties,and nothing contained in this Agreement shall give or allow any claims or right of action by any other or third person or entity on the Agreement. It is the express intention of the Parties that any person or entity, other than the Parties to this Agreement, receiving services or benefits under this Agreement shall be deemed to be incidental beneficiaries only. None of the Parties waives its immunities at law or equity, including any immunity that may be applicable under the Colorado Governmental Immunity Act("CGIA"), §§ 24-10-101, et seq., C.R.S. 5. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado.Venue for any civil action relating to this Agreement shall be in Pueblo County, Colorado. 6. Remedies. The Parties shall have such remedies as provided by law or equity for breach of this Agreement, including the right to seek specific performance of any provision hereof. 7. Amendments. Should changes become necessary, they will be accomplished by written amendment to this Agreement. No modification or amendment of this Agreement or the terms herein shall be effective unless reduced to writing and approved by each of the Parties. The Parties will cooperate with each other in the performance of additional actions and the execution of additional documents that are reasonably necessary to effect the purposes of this Agreement. 8. Severability. It is understood and agreed by the Parties that if any part, term or provision of this Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any federal laws, or any law of the State of Colorado, the validity of the remaining portions or provisions shall not be affected and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular part,term, or provision determined by the court to be invalid. 9. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which,when taken together, shall constitute one and the same Agreement. 10. Entire Agreement. This Agreement is intended as the complete integration of the understanding between the Parties and constitutes the entire Agreement between the Parties. All other representations or statements previously made, whether verbal or written, are merged herein. This Agreement and any amendments to it shall be binding upon the Parties, their successors and assigns. Any amendments to this Agreement shall be in writing entered into between the Parties. The Board of County Commissioners Of Pueblo County Attest: 4116 I,Pyr By — —wow By Gilbert Ortiz Liane"Buffie"McFayden County Clerk Chair Approved as to form: ; Date signed: 9 ®4".' M Gregory Styduhar, Esq. County Attorney City of Pueblo Stormwater Utility Enterprise Attest: Gina .1tcher Stephen G.Nawrocki 10 City erk President of the City of Pueblo Stormwater Utility Enterprise [ SEAL] Pueblo,A Municipal Corporation Attest: By: kt B . Gina tcher Stephen G.Nawrocki City Clerk President of the City Council Approved as to form: Date signed: 9 -021.-/c, Daniel C.Kogovsek,Esq. City Attorney