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HomeMy WebLinkAbout07539ORDINANCE NO. 7539 AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF COLORADO SPRINGS ACTING BY AND THROUGH ITS ENTERPRISE COLORADO SPRINGS UTILITIES AND THE CITY OF PUEBLO ACTING BY AND THROUGH ITS STORMWATER UTILITY ENTERPRISE RELATING TO SUPPLEMENTAL ENVIRONMENTAL PROJECT AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE SAME AND APPROPRIATING FUNDS IN THE AMOUNT OF $91,445 THERFOR BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement dated November 13, 2006 between the City of Colorado Springs acting by and through its Enterprise Colorado Springs Utilities and the City of Pueblo acting by and through its Stormwater Utility Enterprise relating to Supplemental Environmental Project, 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 authorized to execute the Agreement in the name of the City. SECTION 2. $91,445, to be received by the City Stormwater Utility Enterprise under the Agreement is hereby budgeted and appropriated for the Supplemental Environmental Projects described in the Agreement. INTRODUCED November 13, 2006 BY Randy Thurston Councilperson APPROVED: President of City Council ATTESTED BY: CITY CLERK PASSED AND APPROVED: November 27, 2006 0,W. --# � WNIE=wi Background Paper for Proposed ORDINANCE DATE: November 13, 2006 AGENDA ITEM # 221 DEPARTMENT: STORMWATER UTILITY, Dennis Maroney, P.E. TITLE AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF COLORADO SPRINGS ACTING BY AND THROUGH ITS ENTERPRISE COLORADO SPRINGS UTILITIES AND THE CITY OF PUEBLO ACTING BY AND THROUGH ITS STORMWATER UTILITY ENTERPRISE RELATING TO SUPPLEMENTAL ENVIRONMENTAL PROJECT AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE SAME AND APPROPRIATING FUNDS IN THE AMOUNT OF $91,445 THERFOR ISSUE Should City Council approve an agreement between the City of Colorado Springs, acting by and through its enterprise Colorado Springs Utilities, and the City of Pueblo, acting by and through its Stormwater Utility Enterprise authorizing the expenditure of Supplemental Environmental Project (SEP) Funding in the amount of $91,445 RECOMMENDATION Approval of this Ordinance. Colorado Springs was fined for sewage spills that occurred from January 2004 to December 2005. SEP funding in the amount of $91,445 is to be used for projects that protect or improve water quality in the segment of Fountain Creek between the City of Colorado Springs and the City of Pueblo. Two SEP projects are proposed for funding: (1) City freeboard levee height extension and (2) Pueblo City /County Health Department Education Programs (1) FEMA Certification Criteria requires a minimum of 3 feet freeboard on Riverine levees with an additional foot within 100 feet on either side of structures where flows are restricted (railroad, highway, bridges, etc.). Currently, FEMA certification requirements are not met in the lower reaches of the existing eastside levee system. The City of Pueblo is in the process of remapping the Fountain Creek Flood Plain. If FEMA Certification requirements cannot be met, the flood plain mapping would require that the levee be ignored and the flood plain would then encompass many residential and commercial entities not currently within the 100 -year flood plain. Flood insurance would be required by all lending institutions financing properties within the newly designated flood plain (estimated average annual flood insurance premium of $350 /yr. involving 430 commercial and residential structures). Heavy sediment aggradation has taken place on the lower reaches of Fountain Creek and the Arkansas River. Increased base flows and greater storm peaks will continue to further exacerbate sedimentation issues on Fountain Creek unless watershed development practices are improved and water quality issues are addressed. The City of Pueblo is proposing a 1 %2 -foot height extension to an existing earthen levee along the Fountain Creek. The project will be located in the south - central area of Pueblo along the east bank of the Fountain Creek extending from the existing abandoned railroad crossing to 360 feet above the existing active railroad crossing. The total length of the project is approximately 1080 If. Requested funding for the project is $67,267. The project will increase the freeboard of the levee system in areas of freeboard deficiency and will meet FEMA levee certification requirements. The project has been submitted to the Corp of Engineers in Albuquerque, NM and received a letter of no objection from the COE. (2) The Pueblo City- County Health Department (PCCHD) requests funding to address contamination issues in Fountain Creek and other surface waters in Pueblo County. For the past 20 years there have been numerous sewage spills into Fountain Creek from the Colorado Springs area. These spills have been caused by various reasons, such as manhole overflows due to vandalism, construction mishaps, and broken pipes due to crossings affected by storm water force. The wastewater treatment plant in Colorado Springs releases approximately 50 million gallons of treated affluent into Fountain Creek daily. Surface waters such as storm water and urban runoff water has also impacted the quality of the water that flows throughout the city and county of Pueblo by increasing the Escherichia coli (E. coli) counts. The Pueblo community is highly concerned about the fluctuating high levels of bacteria in the waterways and the public health implications of raw sewage releases. The Colorado Department of Public Health and Environment (CDPHE) is also considering Wildhorse Creek, another surface waterway in Pueblo County running through Hyde Park neighborhood, on the west side of Pueblo, for impaired water classification due to E. coli levels. The request of $24,178 for Pueblo City /County Health Department would provide needed funds to enhance public education outreach. City and County funds will be used toward personnel and outreach and education programs. The requested SEP funding will support surface water education activities through March 2007. FINANCIAL IMPACT Funding for SEP projects authorized by this agreement shall come from a separate sub - account of the Stormwater Enterprise Utility fund established by this agreement. AGREEMENT THIS AGREEMENT ( "Agreement ") entered into as of November 13, 2006 by and between the City of Colorado Springs, acting by and through its enterprise Colorado Springs Utilities ( "Utilities "), and the City of Pueblo, acting by and through its Stormwater Utility Enterprise ( "Enterprise ") (collectively, the "Parties ") agree as follows: A. Utilities and the Colorado Department of Health and Environment through the Water Control Division ( "Division ") entered into Amendment Number One to Compliance Order on Consent Number: MC- 031211 -1 ( "Amendment "). Enterprise acknowledges receipt of a copy of the Amendment. B. The Amendment sets forth matters relating to the Supplemental Environment Project in paragraphs 23 through 33 of the Amendment ( "SEP "). C. Utilities, with the cooperation of Enterprise, submitted a SEP proposal relating to construction of levee freeboard on portions of the Fountain Creek described in attached Exhibit A ( "Enterprise SEP "). D. Utilities also submitted, with the cooperation of Enterprise and the Pueblo City - County Health Department ( "PCCHD "), a SEP proposal for educational purposes relating to the Fountain Creek described in attached Exhibit B ( "PCCHD SEP "). E. The Enterprise SEP and PCCHD SEP, collectively, are referred to as "SEPs." F. Division has approved the SEPs and authorized Utilities to implement the SEPs in accordance with the terms and conditions outlined in the Amendment. G. The Parties intend by this Agreement to implement the SEPs approved by the Division for their mutual benefit. H. Utilities desires to contract with Enterprise to implement the SEPs and Enterprise is willing to undertake the implementation of both SEPs described herein, according to the terms and conditions set forth in the Amendment and in this Agreement. I. This Agreement is made under authority of Article XX, Section 6 and Article XIV, Section 18 of the Colorado Constitution and Section 29 -1 -203, C.R.S., and such delegations of authority as may exist pursuant thereto. NOW. THEREFORE, in consideration of the foregoing recitals and mutual covenants contained herein, Utilities and Enterprise agree as follows: 1. Utilities shall, upon approval and execution of this Agreement by both parties, pay and entrust to Enterprise the sum of $91,440.00 ( "SEP Funds ") for deposit in a separate sub - account of Enterprise's Stormwater Utility Fund. Enterprise shall use the SEP Funds solely for payment of costs and expenses incurred in the implementation of the SEPs. It is anticipated that the SEP Funds will be allocated by Enterprise to implement the SEPs as follows: Enterprise SEP — $67,267 and PCCHD SEP — $24,178. As stated herein and to the extent necessary to implement the PCCHD SEP, the Parties agree that PCCHD is a third -party beneficiary of this Agreement with respect to funds to be allocated to the PCCHD SEP to the extent they remain available upon completion of the Enterprise SEP, and Enterprise undertakes responsibility for accounting to PCCHD and turning over funds to PCCHD for this purpose. The PCCHD SEP shall be deemed completed upon timely receipt by Utilities of a report describing and attesting to the expenditure of funds in accordance with the approved SEP proposal for PPCHD. 2. Utilities and Enterprise agree that the purpose of the Agreement is to jointly accomplish pursuant to Section 29 -1 -203, C.R.S. activities which could be performed separately by each party. Therefore, it is agreed and understood for purposes of Article X, Section 20 of the Colorado Constitution that the SEP Funds paid by Utilities to Enterprise are and remain an expenditure of Utilities, and are not revenue or expenditures of Enterprise. 3. Enterprise, subject to causes or occurrences beyond Enterprise's reasonable control, commits that the SEP Projects will be fully implemented and completed by March 30, 2007, or such later date as may be approved by Division. Enterprise shall promptly and continuously communicate and cooperate with Utilities concerning any necessary extensions of time to complete the SEPs so that appropriate approvals may reasonably be obtained from the Division. 4. Enterprise shall submit or cause to be submitted to Utilities the information described in paragraph 29 a. through e. of the Amendment (except quantification of the benefits and pollution reduction) and reasonably required by Utilities to submit a SEP Completion Report within fifteen (15) calendar days of March 30, 2007, or within fifteen (15) calendar days of any such later date as may be approved by Division. 5. All notices required or permitted to be given or delivered under this Agreement shall be given by personal delivery, or by registered or certified mail, postage prepaid, addressed as follows: (a) If to Utilities, Chief Executive Officer, Colorado Springs Utilities, 121 South Tejon Street, Fifth Floor, P.O. Box 1103, Colorado Springs, Colorado, 80947 -0946 and to Colorado Springs Utilities, Attention: Keith Riley, 121 South Tejon Street, Fourth Floor, P.O. Box 1103, Mail Code 940, Colorado Springs, Colorado 80947 -0946; (b) If to Enterprise, Director of Stormwater, Stormwater Utility Enterprise, 211 E. "D" Street, Pueblo, Colorado, 81003; or to such other address or person as either party may from time to time specify in a writing delivered to the other party in the manner provided in this paragraph. Notices given hereunder shall be deemed given, in the case of personal delivery, on the date delivered, in the case of delivery by mail, on the second business day after delivery to the United States Postal Service. This Agreement shall not be assignable by either party, except that Enterprise 2 may delegate the implementation of the PCCHD SEP to the PCCHD. 6. Neither -his Agreement nor any provision hereof shall be construed or interpreted as a waiver, express or implied, by either party of the impunities and protections of the Colorado Goverunental Immunity Act or any other law granting to the parties immunities and protections. I This Agreement constitutes the entire contract and agreement between the parties relating to the subject matter hereof, and any prior statements, representations or agreements pertaining thereto, whether oral or written, have been merged and integrated into this Agreement, 8. If any provision of this Agreement shall be held to be invalid or unenforceable, such provision shall be deemed severed and the same shall not affect in any respect the validity or enforceability of the remainder of this Agreement. 9. This Agreement will be construed and enforced in accordance with the laws of the State of Colorado (without giving effect to its choice of law principles), the City Charter, City Code, Ordinances and Utilities Regulations of the City of Colorado Springs. Exclusive court venue and jurisdiction shall be in the Colorado District Court for El Paso County, Colorado. The City of Pueblo for its Stormw Utility Enterprise expressly waive the provisions of Colorado Rule of Civil Procedure 98(B)(2) and consent to the venue stated in this Agreement. 10. This Agreement may be executed in one or more counterparts. each of which shall be deemed an original, but all of which- when taken together, shall constitute one fully executed agreement. 11. Except as otherwise agreed and expressly stated herein, Utilities and Enterprise are the only parties to this Agreement and are the only parties entitled to enforce this .Agreement. Nothing contained in this Agreement nor any provision hereof is intended to give or shall be construed to give or confer, directly or indirectly, or otherwise, upon any third part any right, remedy or benefit. In witness whereof, the Parties have signed this Agreement on the above - stated date. STORMWATER UTILITY ENTERPRISE, an Enterprise of the City of Pueblo B [Printed Name: Michael A. Occhiato] Title: President of Pueblo City Council COLORADO SPRINGS UTILITIES. an Enterprise of the City of Colorado Spring By [Pri ed Nalllie: o,., 41v✓