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HomeMy WebLinkAbout10734ORDINANCE NO. 10734 AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION, AND THE STATE OF COLORADO BY AND THROUGH THE COLORADO DEPARTMENT OF TRANSPORTATION, RELATING TO THE OPERATION AND MAINTENANCE OF CERTAIN STATE- OWNED DRAINAGE, IRRIGATION, AND LANDSCAPING IMPROVEMENTS LOCATED ON THE EAST SIDE OF I-25 GENERALLY BETWEEN E. 22ND STREET AND E. 26TH STREET, AND APPROVING THE MAYOR TO EXECUTE THE INTERGOVERNMENTAL AGREEMENT ON BEHALF OF THE CITY BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. Colorado Municipal Corporation, and the State of Colorado, by and through the Colorado Department of Transportation, relating to the operation and maintenance of certain drainage, landscaping, irrigation, and associated improvements, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The Mayor is authorized to execute and deliver the Agreement in the name of the City of Pueblo and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3. The officers of the City of Pueblo are authorized to perform any and all acts consistent with this Ordinance and the 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 June 24, 2024. Final adoption of Ordinance by City Council on July 8, 2024. ____________________________ President of City Council Action by the Mayor: Approved on _______________. 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 _____________ ____________________________ President of City Council ATTEST ________________________________ City Clerk City Clerk's Office Item # R2 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: July 8, 2024 TO: President Mark Aliff and Members of City Council CC: Mayor Heather Graham VIA: Marisa Stoller, City Clerk FROM: Andrew Hayes, Public Works Director SUBJECT: AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION, AND THE STATE OF COLORADO BY AND THROUGH THE COLORADO DEPARTMENT OF TRANSPORTATION, RELATING TO THE OPERATION AND MAINTENANCE OF CERTAIN STATE-OWNED DRAINAGE, IRRIGATION, AND LANDSCAPING IMPROVEMENTS LOCATED ON THE EAST SIDE OF I-25 GENERALLY BETWEEN E. 22ND STREET AND E. 26TH STREET, AND APPROVING THE MAYOR TO EXECUTE THE INTERGOVERNMENTAL AGREEMENT ON BEHALF OF THE CITY SUMMARY: This Ordinance approves an Intergovernmental Agreement between the City of Pueblo, a Colorado Municipal Corporation, and the State of Colorado by and through the Colorado Department of Transportation, relating to the operation and maintenance of certain state-owned drainage, irrigation, and landscaping improvements located on the east side of I-25 generally between E. 22nd Street and E. 26th Street, and approving the Mayor to execute the Intergovernmental Agreement on behalf of the City. PREVIOUS COUNCIL ACTION: None. BACKGROUND: As part of its upcoming project to reconstruct the interchange at I-25 and US-50B, CDOT will be installing new landscaping, irrigation, and drainage improvements in several areas that serve as drainage ponds to retain stormwater runoff from I-25. At the City's request, CDOT has agreed to install turf grass and irrigation systems within those areas that have historically been used as green space by community members that live near the ponds. The ponds will be separated from I-25 by a sound wall and, under the terms of the proposed Intergovernmental Agreement, the City will be responsible for maintaining all of the turf areas, the riprap, drainage channels, City- owned utilities, and other improvements in the drainage pond areas. The City's Parks and Recreation Department has maintained the turf grass and irrigation systems in these areas in the past. This agreement will formalize that arrangement incident to CDOT's upcoming construction project. FINANCIAL IMPLICATIONS: Minimal additional costs are anticipated above those which the City has historically incurred for maintenance of the turf grass and irrigation systems in the area. BOARD/COMMISSION RECOMMENDATION: None. STAKEHOLDER PROCESS: Not applicable to this ordinance. ALTERNATIVES: Failure to approve this Ordinance will preclude the City from entering into the Intergovernmental Agreement with CDOT and community members in the vicinity of these drainage ponds will lose the use of the green space amenity that they have historically enjoyed. RECOMMENDATION: Approve the Ordinance. ATTACHMENTS: 1. Complete Draft MTCE Pueblo (23535) 331003316 May 02 2024 (City edits 240610) Routing #: 24-HA2-XC-00034 OLA #: 331003316 STATE OF COLORADO INTERGOVERNMENTAL AGREEMENT Signature and Cover Page State Agency Agreement Routing Number Department of Transportation24-HA2-XC-00034 Local Agency Agreement Effective Date City of PuebloThe later of the effective date or March 4, 2024 Agreement Description Agreement End Date I-25 at US50B ReconstructionUseful Life of the Improvements Project # Region # Contract Writer Agreement Maximum Amount BR 025A- 2 CM $0.00 049 (23535) THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT Each person signing this Agreement represents and warrants that he or she is duly authorized to execute this Agreement and to bind the Party authorizing his or her signature. STATE OF COLORADO Jared S. Polis, Governor Department of Transportation Shoshana M. Lew, Executive Director ______________________________________ Keith Stefanik, P.E., Chief Engineer Date: _________________________ LEGAL REVIEW Philip J. Weiser, Attorney General ______________________________________ Assistant Attorney General ______________________________________ By: (Print Name and Title) Date: _________________________ LA.MT.PWQ_4.11.23 Page 1 of 9 Routing #: 24-HA2-XC-00034 OLA #: 331003316 AGREEMENT This Agreement, is entered into by and between the State of Colorado for the use and “State” or “CDOT”), and the CITY OF PUEBLO (the “Local Agency”); CDOT the Local Agency individually shall be referred to as a “Party”, and together shall referred to as the “Parties.” This Agreement shall not be valid or enforceable until the Effective Date as shown on the Signature and Cover Page of this Agreement. RECITALS CDOT has designed and improvements for I-25 at US50B Reconstruction Project located in , Colorado, ("Project”) and; The Parties recognize the importance and benefit to their respective systemsby the LocalAgencies’operation and maintenance of a portion of the Projectand; ThePartiesdesiretoagreeuponthedivisionofresponsibilityfortheir respective maintenance and operation obligations (the “Work”) on the Project as shown in Exhibit A and; The Local Agency is adequately staffed and suitably equipped to undertake and satisfactorily carry out its operations and maintenance responsibilities under this Agreement; and Required approval, clearance and coordination has been accomplished from and with appropriate agencies; and This Agreement is executed by the State under authority of §§43-1-106, 43-1-110, 43-1-201, et seq., 43-2-102, and 43-2-144, C.R.S., as amended; and The Local Agency agrees by its execution hereof that it is duly authorized to enter into this Agreement. Authorization may be evidenced by an appropriate ordinance/ resolutionorauthorityletter.Acopyofanysuchordinance/resolutionorauthority letter may be attached as Exhibit B. The provision by the Local Agency to CDOT of such ordinance/resolution or authority letter is at the Local Agency’s discretion; and These recitals are hereby incorporated into the terms of this Agreement. NOW, THEREFORE, it is hereby agreed that: The Work under this Agreement shall consist of the inspection, operations, maintenance, and repair responsibilities of the Project as set forth and depicted in Exhibit A. LA.MT.PWQ_4.11.23 Page 2 of 9 Routing #: 24-HA2-XC-00034 OLA #: 331003316 Exhibits The Exhibits attached to this Agreement are: Exhibit A- Scope of Work of the Project E xhibit B- Local Agency Resolution Exhibit C-PII Certification Order of Precedence In the event of conflicts or inconsistencies between this Agreement and its exhibits, such conflictsor inconsistencies shall be resolved by reference to the documents in the following order of priority: Special Provisions contained in Section IX of this Agreement This Agreement Exhibit A- Scope of Work of the Project Exhibit B- Local Agency Resolution Exhibit C- PII Certification Term This Agreement shall begin the date approved by all Parties and shall extend for the useful life of the improvements, unless earlier modified or terminated by written agreement of the Parties. CDOT Commitments CDOT shall accept inspection, operation, maintenance, and repair responsibilities for the portions of the Work identified as CDOT’s area of responsibility shown in Exhibit A. CDOT shall, at its own cost and expense, inspect, operate, maintain, repair, and make ample provision each year for said activities for those portions of the Work identified as CDOT’s area of responsibility in Exhibit A . CDOT grants the Local Agency access to enter CDOT Right of Way (“ROW”) to perform inspection and maintenance duties. Though a separate access permit will not be required, notification to CDOT of a Local Agency approved and CDOT accepted Method of Handling Traffic shall be required for any work impacting traffic. CDOT (and FHWA, if applicable) may make periodic inspections of the Project to verify that they are being adequately operated, maintained, and repaired. IfCDOT inspections indicate the Project are not functioning as designed, CDOTmay issue a written notice to the Local Agency to cure deficiencies. In the eventthe deficiencies are not remedied within the Project timeline after written noticefrom CDOT to the Local Agency, CDOT may take whatever steps CDOT deemsnecessary to maintain the Project. The Local Agency shall reimburse CDOT itsactual and documented costs for such maintenance and repair work includinglabor, equipment, supplies, and materials. If CDOT repairs any deficiencies, itis under no obligation to maintain or repair in the future. Local Agency Commitments Page 3 of 9 LA.MT.PWQ_4.11.23 Routing #: 24-HA2-XC-00034 OLA #: 331003316 A.The Local Agency shall accept inspection, operation, maintenance, and repair responsibilities for the portions of the Work identified as the Local Agency’s area of responsibility for the Work shown in Exhibit A. B.The Local Agency shall, at its own cost and expense, inspect, operate, maintain, repair, and make ample provision each year for those portions of the Work identified as the Local Agency’s area of responsibility, as shown in Exhibit A. Work by the Local Agency must be performed bya person experienced in C.All the inspection, operation, and maintenance of the Project. This is to ensure that the Project are operating as designed. Any inspection form may be used if it is acceptable by agreement of the Parties. D.The Local Agency grants CDOT access to enter Local Agency ROW to perform CDOT’s inspection, operation, maintenance, and repair dutiesof the Work. E.If after inspection of the Project, CDOT may issue a written notice to cure deficiencies if the Local Agency fails to inspect, report, or properly maintain the Project identified in Exhibit A. In the event the deficiencies are not remedied within the Project timeline after written notice from CDOT to the Local Agency, CDOT may take whatever steps CDOT deems necessary to maintain the Project. The Local Agency shall reimburse CDOT its actual and documented costs for such maintenance and repair work including labor, equipment, supplies, and materials. If CDOT repairs any deficiencies, it is under no obligation to maintain or repair in the future. Joint Commitments CDOT and the Local Agency will provide liaison through the representatives listed below. If the representatives or contact information changes the Party is to give written notice regarding the substitution of representatives or contact information to the other Party’s Liaisons. CDOT Project Liaison CDOT Region 2 5615 Wills Blvd. Pueblo, CO 81008 Phone:719-2 Email: @state.co.us LA.MT.PWQ_4.11.23 Page 4 of 9 Routing #: 24-HA2-XC-00034 OLA #: 331003316 Local Agency Project Liaison Andrew Hayes, Public Works Director City of Pueblo 211 E. D Street Pueblo, CO 81003 Phone: 719-553-2267 Email: ahayes@pueblo.us B.If safety concerns are identified relating to the Project, the Parties willpartner with each other and any other affected local jurisdictions to identify the appropriate response to maintain safe and functional Project. C.Prior to commencing any activities, the Parties shall coordinate with each other to minimize impacts to landscaping and/or enhancements that were installed by the Local Agency. CDOT will not be responsible for replacing any enhanced landscaping or irrigation installed by the Local Agency. D.In the event the Project fails due to surpassing their useful life cycle, the Parties will be responsible for improvements that are not covered by maintenance responsibilities of the Local Agency pursuant to Exhibit A. E.Any fines levied against CDOT, or the Local Agency shall be the responsibility of the Party whose action or inaction is the cause of the fine, regardless of which Party the fine is levied against. F.The Parties shall make, keep, maintain, and allow inspection and monitoring by CDOT, of a complete file of all records, documents, communications, notes, and other written materials, electronic media files, and communications pertaining in any manner to the Work. The Parties shall maintain such records for the useful life of the Project, following federal, State, and Local Agency record retention policies in either paper or electronic form. VIII.General Provisions A.Assignment Local Agency’s rights and obligations under this Agreement are personal and may not be transferred or assigned without the prior, written consent of the State. Any attempt at assignment or transfer without such consent shall be void. Any assignment or transfer of Local Agency’s rights and obligations approved by the State shall be subject to the provisions of this Agreement. B.Captions and References The captions and headings in this Agreement are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. All references in this Agreement to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, LA.MT.PWQ_4.11.23 Page 5 of 9 Routing #: 24-HA2-XC-00034 OLA #: 331003316 subsections, exhibits, or other attachments contained herein or incorporated as a part hereof, unless otherwise noted. C.Entire Understanding This Agreement represents the complete integration of all understandings between the Parties related to the Work, and all prior representations and understandings related to the Work, oral or written, are merged into this Agreement. D.Modification The State may modify the terms and conditions of this Agreement by issuance of an updated Agreement, which shall be effective if Local Agency accepts Agreement Funds following receipt of the updated letter. The Parties may also agree to modification of the terms and conditions of the Agreement in a formal amendment to this Agreement, properly executed and approved in accordance with applicable Colorado State law and State Fiscal Rules. E.Statutes, Regulations, Fiscal Rules, and Other Authority Any reference in this Agreement to a statute, regulation, State Fiscal Rule, fiscal policy, or other authority shall be interpreted to refer to such authority then current, as may have been changed or amended since the Agreement Issuance Date. Local Agencyshall strictly comply with all applicable Federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F.Digital Signatures If any signatory signs this Agreement using a digital signature in accordance with the Colorado State Controller Contract, Agreement and Purchase Order Policies regarding the use of digital signatures issued under the State Fiscal Rules, then any agreement or consent to use digital signatures within the electronic system through which that signatory signed shall be incorporated into this Agreement by reference. G.Severability The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect, provided that the Parties can continue to perform their obligations under the Agreement in accordance with the intent of the Agreement. H.Survival of Certain Agreement Terms Any provision of this Agreement that imposes an obligation on a Party after termination or expiration of the Agreement shall survive the termination or expiration of the Agreement and shall be enforceable by the other Party. I.Third Party Beneficiaries Except for the Parties’ respective successors and assigns described above, this Agreement does not and is not intended to confer any rights or remedies LA.MT.PWQ_4.11.23 Page 6 of 9 Routing #: 24-HA2-XC-00034 OLA #: 331003316 upon any person or entity other than the Parties. Any services or benefits which third parties receive as a result of this Agreement are incidental to the Agreement, and do not create any rights for such third parties. J.Waiver A Party’s failure or delay in exercising any right, power, or privilege under this Agreement, whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise of such right, power, or privilege. K.Accessibility i.Local Agency shall comply with and the work provided under this Agreement shall be in compliance with all applicable provisions of §§24-85-101, et seq., C.R.S., and the Accessibility Standards for Individuals with a Disability, as established by OIT pursuant to Section §24-85-103 (2.5), C.R.S. Local Agency shall also comply with all State of Colorado technology standards related to technology accessibility and with Level AA of the most current version of the Web Content Accessibility Guidelines (WCAG), incorporated in the State of Colorado technology standards. ii.The State may require Local Agency’s compliance to the State’s Accessibility Standards to be determined by a third party selected by the State to attest to Local Agency’s work and software is in compliance with §§24-85-101, et seq., C.R.S., and the Accessibility Standards for Individuals with a Disability as established by OIT pursuant to Section §24-85-103 (2.5), C.R.S. IX.COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) These Special Provisions apply to all contracts (agreements). Contractor refers to Local Agency and Contract refers to Agreement. A.Statutory Approval §24-30-202(1), C.R.S. This Contract shall not be valid until it has been approved by the Colorado State Controller or designee. If this Contract is for a Major Information Technology Project, as defined in §24-37.5-102(19), then this Contract shall not be valid until it has been approved by the State’s Chief Information Officer or designee. B.Fund Availability §24-30-202(5.5), C.R.S., applicable Local Agency law, rule or regulation Financial obligations of the Partiespayable after the current State Fiscal Year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. C.Governmental Immunity Liability for claims for injuries to persons or property arising from the negligence of the Parties, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S.; the LA.MT.PWQ_4.11.23 Page 7 of 9 Routing #: 24-HA2-XC-00034 OLA #: 331003316 Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq. C.R.S. No term or condition of this Contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes. D.Independent Contractor Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Contract. Contractor shall (i) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible for its acts and those of its employees and agents. E.Compliance with Law Contractor shall comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F.Choice of Law, Jurisdiction, and Venue Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Contract. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this Contract shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. G.Prohibited Terms Any term included in this Contract that requires the State to indemnify or hold Contractor harmless; requires the State to agree to binding arbitration; limits Contractor’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with this provision in any way shall be void ab initio. Nothing in this Contract shall be construed as a waiver of any provision of §24-106-109 C.R.S. Any term included in this Contract that limits Contractor’s liability that is not void under this section shall apply only in excess of any insurance to be maintained under this Contract, and no insurance policy shall be interpreted as being subject to any limitations of liability of this Contract. H.Software Piracy Prohibition LA.MT.PWQ_4.11.23 Page 8 of 9 Routing #: 24-HA2-XC-00034 OLA #: 331003316 State or other public funds payable under this Contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this Contract and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Contractor is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Contract, including, without limitation, immediate termination of this Contract and any remedy consistent with federal copyright laws or applicable licensing restrictions. I.Employee Financial Interest/Conflict of Interest §§24-18-201 and 24-50-507, C.R.S. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Contract. Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Contractor’s services and Contractor shall not employ any person having such known interests. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK LA.MT.PWQ_4.11.23 Page 9 of 9 Exhibit A-Scope of Work th I-25 @ US50B Areas West of Noise Wall 28 to Maintenance IGA The “Work” under this contract shall consist of maintenance responsibilities between CDOT and the City of Pueblo thrd (City), for areas west of the proposed I25 noise wall from 28 St to 23 St that is a part of the I-25 @ US50B Project in the City of Pueblo as further described below and as shown in following map exhibits. This is only related to the triangular areas and doesn’t apply to anything on US50B. All physical features constructed with the I25 @ US50B project, and the maintenance of those features, are covered by the Division of Authority statute and existing or future overall City-wide IGAs. LANDSCAPING CDOT RESPONSIBILITIES: Locating of any CDOT Utilities that are underground in the triangular landscaped areas. CITY of Pueblo RESPONSIBILITIES: All concrete trickle channels in the triangular landscaping areas and other drainage features (ie pipes,inlets, etc)connecting the areas. Using the noise wall as a physical dividing line – City maintains from the noise wall west to the city streets. Irrigation system(s) including water and electric services. Maintain all trees and any other planting materials (irrigated or non-irrigated). Sidewalk and accessible ramps on the west side of the triangular landscaping areas adjacent to the city streets. Locating of irrigation system water and electric facilities. Locating of any City of Pueblo Utilities that are underground in the triangular landscaping areas. Trash collection from the noise wall west to the city streets. Attachment – Two (2) plan view sheets with shaded area of the triangular landscaped areas. Exhibit B: Exhibit B: Page 1 of 1 EXHIBIT PII Certification STATE OF COLORADO LOCAL AGENCY CERTIFICATION FOR ACCESS TO PII THROUGH A DATABASE OR AUTOMATED NETWORK Pursuant to § 24-74-105, C.R.S., I, _________________, on behalf of __________________________ (legal name of Local Agency) (the “Local Agency”), hereby certify under the penalty of perjury that the Local Agency has not and will not use or disclose any Personal Identifying Information, as defined by § 24-74-102(1), C.R.S., for the purpose of investigating for, participating in, cooperating with, or assisting Federal Immigration Enforcement, including the enforcement of civil immigration laws, and the Illegal Immigration and Immigrant Responsibility Act, which is codified at 8 U.S.C. §§ 1325 and 1326, unless required to do so to comply with Federal or State law, or to comply with a court-issued subpoena, warrant or order. I hereby represent and certify that I have full legal authority to execute this certification on behalf of the Local Agency. Signature: __________________________ Printed Name: __________________________ Title: __________________________ Date: ___________ Exhibit Page 1 of 1