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10249
ORDINANCE NO. 10249 AN ORDINANCE APPROVING AND AUTHRIZING THE MAYOR TO EXECUTE AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THE FOUNTAIN CREEK WATERSHED, FLOOD CONTROL AND GREENWAY DISTRICT, A POLITICAL SUBDIVISION OF THE STATE OF COLORADO AND THE FOUNTAIN CREEK WATERSHED WATER ACTIVITY ENTERPRISE RELATING TO THE PUEBLO LEVEE SYSTEM FLOODPLAIN RESTORATION PROJECT BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO that: SECTION 1. The Intergovernmental Agreement, dated August 8, 2022, between the City of Pueblo, a Colorado municipal corporation and the Fountain Creek Watershed, Flood Control and Greenway District, a political subdivision of the State of Colorado, and the Fountain Creek Watershed Water Activity Enterprise, a copy of which Agreement is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The Mayor is hereby authorized to execute said Intergovernmental Agreement for and on behalf of the City and the City Clerk is authorized to affix the seal of the City thereto and attest same. SECTION 3. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance and the attached Intergovernmental Agreement to implement the policies and procedures described herein. SECTION 4. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on July 25, 2022 . Final adoption of Ordinance by City Council on August 8, 2022 . President of City Council Action by the Mayor: ☒ Approved on August 9, 2022 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-16 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: July 25, 2022 TO: President Heather Graham and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Marisa Stoller, City Clerk FROM: Daniel C. Kogovsek, City Attorney SUBJECT: AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THE FOUNTAIN CREEK WATERSHED, FLOOD CONTROL AND GREENWAY DISTRICT, A POLITICAL SUBDIVISION OF THE STATE OF COLORADO AND THE FOUNTAIN CREEK WATERSHED WATER ACTIVITY ENTERPRISE RELATING TO THE PUEBLO LEVEE SYSTEM FLOODPLAIN RESTORATION PROJECT SUMMARY: This Ordinance approves and authorizes the Mayor to sign an Intergovernmental Agreement with the Fountain Creek Watershed, Flood Control and Greenway District (“District”) and the Fountain Creek Watershed Water Activity Enterprise (“Enterprise”) relating to the Pueblo Levee System Floodplain Restoration Project (“PLSFRP”). PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. BACKGROUND Pursuant to C.R.S. § 32-11.5-201, the District was created and established as a political subdivision of the State of Colorado with the stated purpose of providing management, administration and to fund capital improvements necessary in the Fountain Creek watershed to prevent and mitigate flooding, sedimentation, and erosion; improve water quality and otherwise address water quantity issues; improve drainage; fund the acquisition and protection of open space; develop public recreational opportunities, including parks, trails, and open space; and improve wildlife and aquatic habitat and restore, enhance, establish, and preserve wetlands. The District established the Enterprise to hold, manage and expend funds made available to the District for flood control projects on Fountain Creek in El Paso and Pueblo Counties. The Enterprise is a separate legal entity but is controlled by and works on projects approved by the District. The District and the Enterprise have approved and authorized the PLSFRP. The Enterprise has engaged Matrix Design Group, Inc. (“Matrix”) to provide planning and design services for the construction, administration, implementation and observation of the PLSFRP. The goals of the PLSFRP are (1) to improve flood conveyance capacity by the removal of relic railroad infrastructure; (2) the grading of overbank areas; (3) to encourage natural "flow-through" wetland function; and (4) to remove noxious vegetation and establish native vegetation. FINANCIAL IMPLICATIONS All costs of the PLSFRP will be paid by the Enterprise. BOARD/COMMISSION RECOMMENDATION: Not applicable to this ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: A no-action alternative would prevent the PLSFRP from going forward. RECOMMENDATION Approval of the Ordinance Attachments: Proposed Ordinance Proposed Intergovernmental Agreement INTERGOVERNMENTAL AGREEMENT THIS AGREEMENT is made and entered into this 8th day of August, 2022, ("Effective Date") by and between the Fountain Creek Watershed, Flood Control and Greenway District, hereinafter referred to as ("District"), Fountain Creek Watershed Water Activity Enterprise (Enterprise), and the City of Pueblo, a Colorado municipal corporation, hereinafter referred to as ("City"). District, Enterprise, and City are collectively referred to herein as the "Parties". RECITALS: 1. Pursuant to C.R.S. § 32-11.5-201, the Fountain Creek Watershed, Flood Control and Greenway District(District)was created and established as a body politic and corporate and a political subdivision of the State of Colorado with the stated purpose of providing management, administration and to fund capital improvements necessary in the Fountain Creek watershed to prevent and mitigate flooding, sedimentation, and erosion; improve water quality and otherwise address water quality and water quantity issues; improve drainage; fund the acquisition and protection of open space; develop public recreational opportunities, including parks, trails, and open space; and improve wildlife and aquatic habitat and restore, enhance, establish, and preserve wetlands. 2. The District established Enterprise to hold, manage and expend funds made available to District for flood control projects on Fountain Creek in El Paso and Pueblo Counties. Enterprise is a separate legal entity but is controlled by and works on projects approved by District. 3. The District, Enterprise, and the City 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 another to provide goods and services as permitted by law. 4. The District and Enterprise have approved and authorized the Pueblo Levee System Floodplain Restoration Project (PLSFRP). Pursuant to the approvals, Enterprise has engaged Matrix Design Group, Inc., 'to provide planning and design services for the construction, administration, implementation and observation of the PLSFRP. A description of the PLSFRP is attached hereto and made a part hereof by reference labeled Exhibit A. 5. City has agreed to purchase a certain parcel of property owned by the Union Pacific Railroad which leads into and crosses Fountain Creek at the request of District and Enterprise to facilitate the commencement and completion of Phase II of the PLSFRP. A description of the property to be purchased by City is attached hereto and made a part hereof by reference labeled Exhibit B. 6. District and Enterprise agree as a condition of the City's purchase of the property from Union Pacific Railroad that the work described as Phase 11 of the PRSFLP concerning the removal of the remnants and materials of the former railroad crossing will be completed in a timely fashion. 1 7. The Parties have an interest in protecting the health of the Fountain Creek watershed within both El Paso County and Pueblo County. 8. In consideration of the purchase of the property as described in Exhibit B by the City,the District and Enterprise hereby agrees to complete Phase II of the PLSFRP as described in Exhibit A and now desire to enter into an Intergovernmental Agreement to bind the Parties as outlined above and as is more particularly set forth herein. NOW, THEREFORE, FOR AND IN CONSIDERATION, of the foregoing and the mutual promises, covenants, terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency is hereby acknowledged, District, Enterprise, and City agrees as follows: I. OBLIGATIONS OF CITY: 1. As consideration for the performance of the District and of Enterprise hereunder, the City agrees to purchase the property from Union Pacific Railroad as described in Exhibit B, hereafter "Property", in order to facilitate the commencement and completion of Phase II of the PLSFRP. City agrees that upon closing of the purchase of the Property that District and Enterprise shall have full use of the Property in order to commence and complete the PLSFRP. 2. City accepts District's Survey of the Property and District's completion of requirements specified in Article 1 of the Purchase Agreement. 3. City accepts District's completion of matters specified in Article 3. A. of the Purchase Agreement and deems the property suitable for Buyer's purposes. City accepts District's Material Management Plan and acknowledges approval of same by Union Pacific Railroad. 4. City accepts District's inspection of the Property and accepts same "as is". 5. City accepts District's efforts to obtain review of the status of the title to the Property and will cooperate with Capstone and Gary Raso to complete this review as soon as possible. 6. City acknowledges that time is of the essence regarding the District's completion of Phase II and agrees to use its best efforts to complete the Closing as soon as possible. II. OBLIGATIONS OF DISTRICT: In consideration of the City's agreement to purchase the property which is needed for the successful completion of the PLSFRP, District and Enterprise, jointly and severally, make the following representations and warranties to the City: 1. District and Enterprise acknowledge and understand that Pueblo City is acting in reliance upon the representations and warranties made herein in entering into the purchase agreement with Union Pacific and that but for these representations and warranties, City would not enter into the purchase agreement. 2. District and Enterprise will commence and fully complete to conclusion at their sole and separate expense, pursuant to the approved Project Budget or, if necessary, pursuant to an 2 amended Project Budget approved by the District, the PLSFRP to include, but not be limited to: a. The removal of the remnants of the railroad crossing, a portion of which has been partially removed,the restoration of the disturbed area,and the appropriate disposal in accordance with all laws and regulations of the removed remnants and materials. b. The removal of the remaining railroad crossing includes removal of 4 concrete piers, the westerly bridge abutment, a railroad bridge segment, and the earth embankment that provides the westerly approach to the bridge crossing. c. Due to residual contaminates that have been found in the earth embankment material, most or all of the material shall be disposed of in a landfill in accordance with law and regulation. d. Upon removal of the railroad crossing remnants and materials, the disturbed area shall be revegetated with native seed and plantings, including deciduous trees and shrubs, and cottonwood poles. e. Areas to be revegetated shall be treated with a soil amendment and covered with an erosion control fabric to support seed growth. f. The removal, disposal, and revegetation shall be conducted in accordance with the Materials Management Plan as approved by Pueblo City and Union Pacific Railroad. 3. Enterprise has entered into contracts with Matrix and Total Terrain to complete the work of the PLRP and Enterprise shall manage the project to its conclusion such that it satisfies all requirements of the purchase agreement between the City and Union Pacific Railroad. 4. If Matrix and Total Terrain are unable to complete the project, Enterprise and/or District shall engage alternative contractors to complete the project. 5. The Project shall be completed in accordance with the provisions of the Purchase Agreement and any Amendments thereto by and between Pueblo City and the Union Pacific Railroad if any such Amendments are also approved by District and Enterprise. III. OTHER PROVISIONS: The Parties agree that their performance under this Agreement shall be subject to the following provisions: 1. Term/Termination. The term of this Agreement shall commence on the date first set forth herein and will terminate upon completion of the PLSFRP. 3 2. Liability Exposure. Notwithstanding any other provision of this Agreement, no term or condition of this Agreement shall be construed or interpreted as a waiver by any Party of any provision of the Colorado Governmental Immunity Act, C.R.S. §24-10-101, et seq. 3. 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. 4. Governing Law. This Agreement and the rights and duties of the parties shall be construed and interpreted and enforced in accordance with the laws of the State of Colorado. 5. Modifications. This Agreement may not be modified or amended in any manner by any Party or 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 Mayor and the Chair of the Fountain Creek Watershed, Flood Control and Greenway District. 6. 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 of any of the obligations set forth herein by any Party without the prior written consent of the other Parties shall be void and of no force and effect. 7. Severable. If any provision of this Agreement shall be determined to be 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. 8. Waiver. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder, or effect in any way any rights arising by virtue of any subsequent occurrence. 9. Notices. Any notice required or permitted to be given or delivered under this Agreement shall be in writing and shall be given by personal delivery, or by the United States Postal Service, by registered or certified mail, postage prepaid, or reputable national overnight courier service: (a) If to City, addressed to: Mayor City of Pueblo 1 City Hall Place, 2nd Floor Pueblo, CO 81003 with a copy to: City Attorney 4 l City Hall Place, 3rd Floor Pueblo,CO 81003 (b) If to District or Enterprise, addressed to: Fountain Creek Watershed, Flood Control and Greenway District Fountain Creek Watershed Water Activity Enterprise Attn:Allison Schuch, Interim District Manager 2635 Christopher Terrace Colorado Springs, CO 80907 or to such other address or person as any Party may from time to time specify in a writing delivered to the other Party in the manner provided in this paragraph. Any notice shall be deemed delivered on the day on which personal delivery is made or three(3)days after deposit in the mail in the case of registered or certified mail, and one (I) business day after deposit in the case of overnight courier. 10. 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. 11. No Third-Party Beneficiary. Enforcement of the terms and conditions of this Agreement shall be strictly reserved to the District, Enterprise, and City and nothing contained in this Agreement shall give or allow any claim or right of action by any other party or third person. 12. Default. In the event of a default in the terms and provisions of this Agreement by any Party or Parties, the other Party or Parties shall be entitled to seek all legal and equitable remedies, including specific performance as may be available or permitted under the laws of the State of Colorado. In the event of litigation under this Agreement, the prevailing Party shall be entitled to an award of costs and reasonable attorney's fees. IN WI [NESS WHEREOF,the parties have executed this Agreement effective the date first above written. ATTEST: FOUNTAIN CREEK WATERSHED, FLOOD CONTROL AND GREENWAY DISTRICT By: = .,iat. By: <CIPANGV1.Ct. S etary Chairperson, Board of Directors • ATTEST: FOUNTAIN CREEK WATERSHED WATER ACTIVITY ENTERPRISE 5 /#7.. . Secr ar. ( hairpersi III, Hoard or I)irectors A II I.S I : CI I N' OF PI 101 () ie9-7 11% . . 2(14i2git. 4111‘141 .._. its ( lerk Nicholas A (iradisar. Maor () Matrix Desrgn 3r:.3ap Inc 2435 Pesearcr n3,6,,"37 S J is 3 a �� { o ';r3,71( S-.)e4gs 8d92IJ **11 i Matrix EXHIBIT A LEGAL DESCRIPTION A PARCEL OF LAND BEING A PORTION OF THE 100.00 WIDE UNION PACIFIC RAILROAD RIGHT-OF-WAY LOCATED IN THE NORTHEAST ONE-QUARTER OF SECTION 6,TOWNSHIP 21 SOUTH,RANGE 64 WEST OF THE SIXTH PRINCIPAL MERIDIAN, CITY OF PUEBLO,COUNTY OF PUEBLO,STATE OF COLORADO; MORE PARTICULARLY DESCRIBED AS FOLLOWS WITH BEARINGS REFERENCED TO A LINE CONNECTING THE NORTHWEST CORNER OF SAID SECTION 6 MONUMENTED BY A FOUND 3-1/4"BRASS CAP STAMPED"LS 29034"AND THE NORTHEAST CORNER OF SAID SECTION 6 MONUMENTED BY A FOUND LEAD PLUG IN STONE IN RANGE BOX,ASSUMED TO BEAR NORTH 89°37'46"WEST A DISTANCE OF 5,308.33 FEET: COMMENCE AT THE NORTHEAST CORNER OF SAID SECTION 6;THENCE SOUTH 76°29'01"WEST,A DISTANCE OF 1859.55 FEET TO THE INTERSECTION OF THE SOUTHERLY LINE OF SAID UNION PACIFIC RAILROAD RIGHT-OF-WAY, BEING 50.00 FEET SOUTHERLY OF AND PARALLEL WITH THE REMNANTS OF THE CENTERLINE OF THE EXISTING TRACKS OF SAID UNION PACIFIC RAILROAD,WITH A LINE BEING 50.00 FEET EASTERLY OF AND PARALLEL WITH THE CENTERLINE OF THE BURLINGTON,NORTHERN AND SANTA FE RAILROAD TRACKS; THENCE NORTH 26°44'48"WEST,ON SAID PARALLEL LINE,A DISTANCE OF 100.55 FEET TO THE NORTHERLY LINE OF THE OF SAID UNION PACIFIC RAILROAD RIGHT-OF-WAY BEING 50.00 FEET NORTHERLY OF AND PARALLEL WITH THE REMNANTS OF THE CENTERLINE OF THE EXISTING TRACKS OF SAID UNION PACIFIC RAILROAD TRACKS; THENCE NORTH 69°13'44"EAST,ON SAID RIGHT-OF-WAY LINE,A DISTANCE OF 691.36 FEET TO A TANGENT 1443.79 FOOT RADIUS CURVE WHOSE CENTERS BEARS SOUTHEASTERLY; THENCE NORTHEASTERLY,ON SAID CURVE,THROUGH A CENTRAL ANGLE OF 8°33'27"AN ARC LENGTH OF 215.64 FEET; THENCE SOUTH 12°12'49" EAST,A DISTANCE OF 100.00 FEET TO THE PREVIOUSLY CITED SOUTHERLY LINE OF UNION PACIFIC RAILROAD RIGHT-OF-WAY,ALSO BEING A POINT ON A NON-TANGENT,1343.79 FOOT RADIUS CURVE WHOSE CENTER BEARS SOUTH 12°12'49"EAST; THENCE SOUTHWESTERLY,ON SAID RIGHT-OF-WAY LINE AND CURVE,THROUGH A CENTRAL ANGLE OF 8°33'27"AN ARC LENGTH OF 200.70 FEET; THENCE SOUTH 69°13'44"WEST,ON SAID SOUTHERLY UNION PACIFIC RIGHT-OF-WAY LINE,A DISTANCE OF 680.89 FEET TO THE POINT OF BEGINNING. THE ABOVE DESCRIPTION YIELDS A CALCULATED AREA OF 89,429 SQUARE FEET(2.053 ACRES),MORE OR LESS AND IS DEPICTED ON THE ATTACHED GRAPHICAL EXHIBIT FOR REFERENCE. oPp,OO IIc °W N� o 34977 . 1* °;`t 2/22/22 6;;;,. ROBERT L.MEADOWS,PLS COLORADO LICENSED PROFESSIONAL LAND SURVEYOR NO.34977 PREPARED FOR AND ON BEHALF OF MATRIX DESIGN GROUP Excellence by Design SHEET 1 OF 2 Anniston,AL I Atlanta, GA ( Colorado Springs, CO I Denver, CO ( Niceville. FL I Parsons. KS Phoenix. AZ Sacramento,CA I Tamuning. GUAM I Texarkana TX I Washington. DC \\STYX\PROJECTS\20.526.029.000 PUEBLO LEVEE SYSTEM FLOODPLAIN REST\700 SURVEY\PUEBLO LEVEE\LEGAL DESCRIPTION\RR ROW DESCRIPTION RLM2.DOCX POINT OF COMMENCEMENT N.W. CORNER SECTION 6-21-64 N.E. CORNER SECTION 6-21-64 FOUND 3-1/4" BRASS CAP "LS 29034" FOUND LEAD PLUG IN STONE IN RANGE BOX BASIS OF BEARINGS N89°37'46"W 5308.33' MATHEMATICAL TIE LINE ONLY BETWEEN N.W. COR. SEC. 6 AND N.E. COR. SEC6 C1 n o- -ul I CENTERLINE OF TRACKS _ N o•— UNION PACIFIC RAILROAD /'% °cv 0 to 50 31��,' 69136 G2 N69 21 / , Ngo \ o – �6a0.0 S76°29'01"W N ( z • 2�'� S69°13.p,4"� 1859.55'(TIE) w w CO 0o �c3=��' o _--�'� � -POINT OF BEGINNING - I w O CENTERLINE OF TRACKS I- 5 \ BURLINGTON NORTHERN &SANTA FE RAILROAD S.E. CORNER SECTION 6-21-64 FOUND 3-1/4"ALUMINUM CAP "LS 11550"-\ CURVE TABLE CURVE# ARC LENGTH RADIUS DELTA ANGLE CHORD BEARING CHORD LENGTH Cl 215.64 1443.79 8°33'27" N73°30'27"E 215.44 C2 200.70 1343.79 8°33'27" S73°30'27"W 200.52 100' 0 200' 611. SCALE: 1"= 200' AREA 89,429 SQ.FT. (2.05302 ACRES) LAND DESCRIPTION • \ Matrix 2435 Research Parkway, Suite 300 NORTHEAST ONE-QUARTER SECTION 6,T21 S,R64 W I% Colorado Springs,CO. 80920 CITY OF PUEBLO,COUNTY OF PUEBLO,COLORADO Phone 719-575-0100 EXHIBIT Excellence by Design Fax 719-575-0208 DATE:FEB.22,2022 CHECKED BY: RLM JN:20.526.029 2 OF 2 S:120.526.029.000 Pueblo Levee System Floodplain Rest\700 Survey\Pueblo Levee\Legal Description\RR ROW RLM Ground.dwg iAs i �^ ix; 011 V a. LNV Y- � � +' .. HtCK©kI LF f _____ v,..\ 1 4 4..5 \ V \ > ,, ,,, ,...4,. _,_� *ter :" ,� ''� `ILEX T. �, �? tw it.s'�,• \ 59.fie, \- :4N• ..v A_ rdN. �b off' /�♦. 4 "D�. o r°* 1 : r te4, '" ' ‘ ''`,0 ''' ., .0GG � ,< �,; r .;� 44 7;9 t00,14* . i. /'fin 3, e �., A ��W{l4,µa"tS ,e� ,1. . '�.... ' f 4 ► -"r •,530' +/— OF RAIL r', %'�..�`' .a ���.� y ` � d _ y i e ,a. rk , ilifr e. c�"''.�' $ . iOr* i"' 4 IN. fii 11444:9, .„,.,, . .1 4 4‘,49.4** 4:111/ii;i:tp *' ; \ , \ 4 *o. , \ 4 )'"c\l..\ \ 1\111: / 11 Ilk la IIAl. t s,,,,,,,,e 3c ' , ''.-1(. :....k* N, ./ . . . v „, , . , , . \ , , , .‘, 011, i, 4 ' 44 ' \ ' ' \ r . ' 'h Ike' \itt.,. LEGEND. NOTE: BEFORE YOU BEGIN ANY WORK. SEE AGREEMENT FOR FIBER OPTIC PROVISIONS. SALE AREA EXHIBIT "A" UPRRCO.R/W OUTLINED ---------- UNION PACIFIC RAILROAD COMPANY PUEBLO. PUEBLO COUNTY. COLORADO SALE AREA L. 2.05 ACRES +/— M.P. 622 — ABANDONED HOISINGTON SUB. MAP MP V-1 / S-38A 8 S-38B SCALE: 1 " = 200' ADD 0245276 OFFICE OF REAL ESTATE FILENAME OMAHA. NEBRASKA DATE: 1 -11-2022 SCAN X FILENAME PJB FILE: 0245276 RIVERS RUN` a _A ..-„,,, E Q 'v- �' V .. 4( V F- Ot r ',f .} arai ` a I L 3AV-Jssoe 3.b1.s 8 o cu c_ v m 0 cu E. co ‘z � J - 3 Ce -0 Q $ o o Li Qv I- ', IMMI Z x W , . 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