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HomeMy WebLinkAbout08112ORDINANCE NO. 8112 AN ORDINANCE ESTABLISHING THE WATERSHED INVASIVE PLANTS PROJECT, TRANSFERRING $18,912 FROM MISCELLANEOUS EROSION CONTROL PROJECTS, APPROVING A GRANT MANAGEMENT AND COST SHARING AGREEMENT RELATING TO SAID PROJECT AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME, AND BUDGETING AND APPROPRIATING $56,412 FOR SAID PROJECT WHEREAS, the Colorado Water Conservation Board has awarded a grant in the amount of $150,000 for four projects collectively submitted as the Watershed Invasive Plants Project ( "Project "), and WHEREAS, the Pueblo Project relating to Tamarisk and Russian Olive control along Fountain Creek and at Lake Minnequa received funding in the amount of $37,500 as one of the four projects funded a part of said Project, and WHEREAS, the parties who collectively submitted the Watershed Invasive Plants Project desire to enter into a grant management and cost sharing agreement to clarify each parties responsibilities required for said Project; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO. that: SECTION 1. Project No. SW0905, the Watershed Invasive Plants Project, is hereby established and $18,912 is hereby transferred from Miscellaneous Erosion Control Projects, SW0603 to the Watershed Invasive Plants Project, SW0905. SFrTinN 9 A Management and Cost Sharing Agreement ( "Agreement') between the City of Pueblo, a Municipal Corporation, North La Junta Conservancy District, Arkansas River Conservancy District, Natural Resource Conservation Service and the Southeastern Colorado Water Conservancy District providing $37,500 in funds for the project, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. Funds received for the Project under the Agreement shall be deposited to the Watershed Invasive Plants Project, SW0905. SECTION 3. The President of City Council is hereby authorized to execute and deliver said Agreement in the name of and on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. SFrTinN 4 $56,412 is budgeted and appropriated from the Watershed Invasive Plants Project, SW0905 for expenditure in accordance with the terms of the Agreement. SECTION 5. In -kind contributions in the amount of $25,000 identified in the Agreement will be provided by City. A77TSTFD SY: MY CLERK PASSED AND APPROVED: November INTRODUCED: November 9, 2009 BY: Judy Weaver COUNCIL PERSON APPR D' } �. PRESIDENTaf Cfty Council /88• D D D D Background Paper for Proposed ORDINANCE AGENDA ITEM # R -10 DATE: NOVEMBER 9, 2009 DEPARTMENT: STORMWATER UTILITY DIRECTOR — DENNIS MARONEY PLANNING AND COMMUNITY DEVELOPMENT DIRECTOR —JERRY M. PACHECO TITLE AN ORDINANCE ESTABLISHING THE WATERSHED INVASIVE PLANTS PROJECT, TRANSFERRING $18,912 FROM MISCELLANEOUS EROSION CONTROL PROJECTS, APPROVING A GRANT MANAGEMENT AND COST SHARING AGREEMENT RELATING TO SAID PROJECT AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME, AND BUDGETING AND APPROPRIATING $56,412 FOR SAID PROJECT ISSUE Should the City Council establish the Watershed Invasive Plants Project, transfer $18,912 from Miscellaneous Erosion Control Projects, and approve a grant management and cost sharing agreement for said Project? Approve the Ordinance. BACKGROUND This Ordinance establishes the Watershed Invasive Plants Project and budgets and appropriates $62,500 for Tamarisk and Russian Olive control along Fountain Creek and at Lake Minnequa. The Colorado Water Conservation Board awarded a grant in the amount of $150,000 to the Southeastern Colorado Water Conservancy District for four projects collectively submitted, which includes $37,500 for the City of Pueblo project. The City's cash match for completion of the project is $18,912, which will be provided from Miscellaneous Erosion Control Projects (SW0603). The City also commits to provide $25,000 of in -kind services involving mechanical removal of invasive plants within Fountain Creek as part of the project. The parties included in the grant application desire to enter into a grant management and cost sharing agreement to clarify each party's responsibilities. FINANCIAL IMPACT The budget for the Watershed Invasive Plants Project is as follows: REVENUES Cash CWCB Grant to SE Water Conservancy District $ 37,500 City — Miscellaneous Erosion Control Projects (SW0603) $ 18,912 Total Cash $ 56,412 In -Kind Stormwater Dept.— Removal of Invasive Plants $ 25,000 Sub -total In -Kind $ 25,000 Total Cash & In -Kind $ 81,412 Mechanical Plant Removal — Fountain Creek $ 22,269 Herbicide Treatment — Fountain Creek $ 6,630 Biological Treatment Monitoring $ 27,513 Total Contracted Expenses $ 56,412 In -Kind City Stormwater Department - Mechanical Plant Removal $ 25,000 Total In -Kind $ 25,000 Total Expenses & In -Kind $ 81,412 SECWCD OFFICIAL j RECEIVED ORIGINAL COLORADO WATER CONSERVATIO1 BOARD GRANT A AGEM&1 0 2009 AND COST SHARING AiGREEM€NT i Southeastern Colorado C OP!ED Ta Water Conservancy District This Colorado Water Conservation Board Grant Managiem'1ii• Cost Agreement ("Agreement ") is made and entered into as of September _10' 2009, by and between the following entities: The City of Pueblo ( "Pueblo "), whose address is 211 East D Street, Pueblo, Colorado 81003, North La Junta Conservancy District ( "North La Junta "), whose address is 320 McCreery Ave., La Junta, Colorado 81050; Arkansas River Conservancy District ("ARCD "), whose address is 11100 County Road GG .5, Las Animas, Colorado 81054, Natural Resource Conservation Service ( "NRCS ") — Holly Office, whose address is 209 S. Main St., Holly, Colorado 81047, and The Southeastern Colorado Water Conservancy District ( "Southeastern"), whose address is 31717 United Avenue, Pueblo, Colorado 81001 The foregoing entities are sometimes referred to herein individually as a Party and collectively as the Parties. RECITALS A. On September 330% 2009, the State of Colorado Water Conservation Board and Southeastern entered into a Grant Agreement ( "Grant ") for the purpose of completion of the Arkansas River Watershed Invasive Plants Plan Riparian Restoration Project ( "Project "). A copy of the executed Grant is attached hereto as Exhibit 1 B. Southeastern has only financial obligations under the Grant and will serve only as the Project Administrator As such, Southeastern is not responsible for any stage of the Project, including but not limited to funding and continued monitoring requirements. C The Parties desire to work cooperatively to collectively complete all Grant and Project requirements, and in furtherance of that goal, each Party is responsible for its share of Grant requirements, including: i. Completion of the Party s applicable portion of the Grant as established in the Grant and its Exhibits; ii. Continued monitonng of the Party's applicable portion of the Grant, including submission of monitoring reports, as set forth in the Grant and its exhibits; and Page 1 of 9 Funding the Party's applicable portion of the Project as required by the Grant. AGREEMENT NOW, THEREFORE, and in consideration of the mutual agreements herein contained, the Parties agree as follows. Arkansas River Watershed Invasive Plants Plan Riparian Restoration Project 1 The Parties acknowledge that each is individually liable for completion of its individual Grant component, as set forth below, and fully defined in the Grant and its exhibits. 2. The Parties acknowledge that the Grant expires on or before June 30, 2011, but that some Project components have monitoring requirements extending for a period of 12 years, and all Project components require submission of annual momtonng reports through 2015 The Parties agree that each is individually liable for funding and completion of its individual Grant and Project component through Project completion. Specifically. a. Pueblo's Project requires continued monitoring for five years from the date of Pueblo's Project completion in accordance with the Colorado State University ( "CSU ") monitoring project: Determining the Impact and Spread of Diorhabda carinulata Following Release onto Tamarix in Pueblo, Colorado ( "CSU Monitoring Project "). Pueblo s Project requires the submission of annual monitoring reports through 2015 b. North La Junta's Project requires continued monitoring for five years from the date of North La Junta s Project completion in accordance with the CSU Monitoring Project. North La Junta's Project requires the submission of annual monitoring reports through 2015 c. ARCD's Project requires continued monitoring for five years from the date of ARCD's Project completion in accordance with the CSU Monitoring Project. ARCD's Project also requires monitoring of project effectiveness for a period of twelve years on the existing monitoring schedule used by ARCD s Board of Directors for levee and levee interior inspections This additional 12 -year monitoring requirement is cost neutral. ARCD's Project requires the submission of annual monitoring reports through 2015 d. NRCS's Project requires continued monitoring for five years from the date of NRCS's Project completion in accordance with the CSU Monitoring Project. NRCS's Project requires the submission of annual monitoring reports through 2015 Page 2 of 9 3 Implementation of the Project. a. Pueblo's Project. Pueblo will complete two demonstration projects for Tamarisk and Russian Olive ( "TRO ") control at. 1) Fountain Creek, and 2) Lake Minnequa. At Fountain Creek, Pueblo will use mechanical cutting and stump herbicide treatment of 39 acres of TRO and engage in monitoring of biological treatment within 90 acres of riparian environments. In addition, 39 acres of TRO infested shoreline at Lake Minnequa will be monitored for biological treatment. Upon completion, Pueblo will monitor these demonstration projects for a five -year period to evaluate the effectiveness of biological controls under the following conditions. 1) Within uncut existing stands of Tamarisk; 2) Within a 39 -acre area that was cut and stem herbicide was applied, 3) Within areas that have been cut and mowed and no herbicide was applied, and 4) Control areas where non - biological controls have been employed. Pueblo will conduct continued monitoring regarding this Project for five years. Pueblo will submit annual monitoring reports through 2015 b. North La Junta's Project. North La Junta will clear the main water channel of approximately 120 acres of TRO North La Junta will immediately clear 90 acres of TRO and brush to increase the carrying capacity of the river through the area. The area of focus is adjacent to the populated areas of La Junta and North La Junta. This project is necessary because North La Junta has experienced numerous floods due to the narrowing of the nver channel by TRO and North La Junta is extremely concerned about a potential flood during any high water event on the nver Heavy equipment will be used to cut and remove overgrowth and to destroy major root structures. Subsequent aspects of the North La Junta Project will include chemical control of regrowth and establishing desirable plantings to stabilize flood control structures and appropriate areas of river bottom. Native trees will be left in areas as seed source for the benefit of wildlife. Appropriate chemicals will be used to control regrowth for the duration of the Grant. North La Junta will conduct continued monitonng regarding this Project for five years. North La Junta will submit annual monitoring reports through 2015 c. ARCD's Las Animas Levee Project. ARCD is responsible for the levee operation and safety, and the ARCD Las Animas Levee Project is located within the confines of the levee system adjacent to Las Animas. Tamarisk has occluded the area near the bridge reducing the capacity of the levee to protect the City of Las Animas from a 100 -year flood. In March 2009, ARCD cut and mulched 50 -acres east of the bridge. This area will be sprayed by helicopter in the fall of 2009 and in subsequent years spot sprayed as needed. ARCD intends to begin work on the west side of the bridge on another 50 acres, which will extend the ARCD Project 1/2 mile west. ARCD intends to cut and mulch this area to remove the biomass and utilize a helicopter to spray regrowth. In subsequent years, as native species are reestablished, spot spraying is planned. In 2006, approximately 50 -acres on the west side of the bridge were cut and new growth will be sprayed by helicopter in the fall of 2009 ARCD will also excavate approximately 11 acres of TRO that has grown around the levee jetty jacks. ARCD has the obligation to monitor Las Animas Levee Project s effectiveness for five years. ARCD's Project also requires monitoring of project effectiveness for a period of twelve years on the existing monitoring schedule used by ARCD's Board of Directors for levee and levee interior inspections. This additional, 12 -year monitonng requirement is cost neutral. ARCD will submit Page 3 of 9 1 annual monitoring reports through 2015 d. NRCS's Prowers County Protect. The NRCS Project will be located along the Arkansas River near the Kansas and Colorado State line, to allow for increased interstate cooperation and on Wild Horse Creek tributary The NRCS Project is in a high priority area because of the need to restore npanan health to benefit the threatened Arkansas Darter Approximately 455 -acres will be sprayed by fixed wing or helicopter and restoration will be passive. NRCS s Project goals are 1) Restore riparian areas through removal of TRO; 2) Improve habitat for aquatic and terrestrial species, 3) Reduction of flood hazards; 4) Improve water quality; and 5) Create a diverse network of watershed improvement partners. NRCS will conduct continued monitoring regarding this Project for five years. NRCS will submit annual monitoring reports through 2015 4 Protect Monitoring. The Parties will comply with all applicable Project monitonng requirements as contained in the Grant and its Exhibits. Specifically, the Parties will develop a monitoring plan, including a budget item for monitoring, and deliver such plan to Southeastern prior to final Grant payment. Southeastern will provide an annual monitoring letter report to CWCB each year for the first five years after Project completion. 5 Protect Maintenance. The Parties will comply with all applicable Project maintenance requirements as contained in the Grant and its Exhibits. Specifically, the Parties will develop a maintenance plan and maintenance of restored areas shall continue for a minimum of five years beyond Project completion. 6. Project Cost Reimbursement, CWCB will make monthly payments based on invoices for work completed and including an accounting of the required matching funds applied during the invoice period. The Parties will make a reasonable effort to keep matching funds and claims for reimbursement in an approximate 50 -50 ratio CWCB will retain 10% of Grant funds until final payment and will not release these funds until full completion and inspection of the Project areas and submission and approval of the Final Project Report. 7 Final Project Report. The Parties must prepare and submit a final Project report, summarizing all accomplishments and costs, including a "before and after" photographic record. 8. Billing Requirements. The Parties will submit to Southeastern invoices for work completed, including an accounting of the required funds applied during the invoice period. Invoices must be accompanied by monthly progress reports and a one page narrative statement describing the work accomplished during the period, any unforeseen problems and their resolution, and demonstrating the Party's continuing ability to complete the Project on schedule and within budget. Eligible reimbursable expenses are limited to those items and rates in the approved budget, Exhibit B to the Grant. 9 Good Faith Negotiations. The Parties will negotiate in good faith to amend this Agreement to seek authorization of additional expenditures if necessary to complete the work under the Grant and /or Project. Page 4 of 9 10 Administration. Southeastern agrees to enter into the Grant on behalf of the Parties and administer in good faith so long as the Grant and the Parties provide adequate funding for the Project. Southeastern shall have sole discretion regarding management of and actions under the Grant, with the advice of the Parties. The Parties recognize and agree that Southeastem will not enter into any agreement that creates a financial obligation in excess of the Grant requirements. 11 Administrative Fees and Costs. Southeastern shall not be obligated to pay administrative fees and costs under the Grant on behalf of the Parties in any calendar year in an amount that exceeds the sum total of the funds available from all of the Parties in that calendar year In addition, Southeastern shall have the right to terminate any portion of the Project in the event that one or more Parties do not have sufficient funds available to fund that Party's Project during a calendar year 12. Matching Funds. The Parties acknowledge that they will provide funding for the Project as set forth in the Grant and its exhibits. 13 Default. Upon default by any Party, any other non - defaulting Party shall have the right to seek specific performance. No other provision of this Agreement is intended to constitute a limitation on the right of the Parties to seek such relief. 14 Termination. This Agreement shall automatically terminate upon termination of the Parties Grant obligations, including the monitoring and maintenance obligations, as set forth in the Grant and its Exhibits. Failure by any Party to meet its Grant requirements, including providing monitonng reports and adequately maintaining Project areas, may jeopardize the Party's ability to participate in future Colorado Water Conservation Board, Southeastern and/or Arkansas River Watershed Invasive Plant Project grant programs. 15 Governing Law This Agreement shall be governed by and construed according to the law of the State of Colorado 16 Litigation Costs. In the event of any litigation or other dispute resolution process ansing out of this Agreement, the Parties agree that each shall be responsible for its own costs and attorneys' or other fees associated with any such action. 17 Assignment. This Agreement may not be assigned by any Party without the prior written consent of each of the other Parties. Any attempted assignment in violation of this provision shall be void. 18. Entire Agreement. The Parties recognize and acknowledge that there are numerous other agreements between and among them addressing certain issues that are also addressed in this Agreement. This Agreement constitutes the entire agreement between all the Parties relating to the subject matter hereof. All prior or contemporaneous oral agreements and discussions among all of the Parties or their respective agents or representatives relating to the subject hereof are merged into this Agreement. This Agreement may be altered, amended, or Page 5 of 9 revoked only by an instrument in wnting signed by all of the Parties. Email and all other electronic (including voice) communications from any Party in connection with this Agreement are for informational purposes only No such communication is intended by any Party to constitute either an electronic record or an electronic signature, or to constitute any agreement by any Party to conduct a transaction by electronic means. Any such intention or agreement is hereby expressly disclaimed. 19 Notices. All notices and other communications that are required or permitted to be given to the Parties under this Agreement shall be sufficient in all respects if given in wnting and delivered in person, by express courier, or by First Class U.S. Mail, postage prepaid. Notice delivered in person or by courier shall be effective upon such delivery; notice provided through U.S Mail shall be effective three days after deposit in the U.S Mail. Notice shall be given to the receiving party at the following addresses. If to Pueblo Scott Hobson Assistant City Manager 211 East D Street Pueblo, CO 81003 shobson @pueblo us If to ARCD Randy Freed President, Arkansas River Conservancy Distnct 11100 County Rd. GG .5 Las Animas, CO 81054 randy @bentcounty.net If to North La Junta. Darrel Nimmo President, North La Junta Conservancy District 320 McCreery Ave. La Junta, CO 81050 Nimmo31@hotmail.com If to NRCS — Holly Office: Michael Daskam District Conservationist Natural Resource Conservation District 209 S Main St. Holly, CO 81047 Michael.Daskam@co.usda.gov If to Southeastern. Jean Van Pelt Southeastern Colorado Water Conservancy Distnct Conservation Outreach Coordinator 31717 United Avenue Pueblo, CO 81001 Jean@secwed.com Page 6 of 9 and also to Lee E. Miller Burns, Figa & Will, P C 6400 S Fiddlers Green Circle Suite 1000 Greenwood Village, CO 80111 lmiller @bfw -law com or to such other address as such party may have given to the other by notice pursuant to this Paragraph. 20 Waiver The failure of one of the Parties to insist upon the stnct performance of any provision of this Agreement or to exercise any right, power, or remedy upon a breach thereof shall not constitute a waiver of that or any other provision of this Agreement or limit that Party's, or any other Party's, right thereafter to enforce any provision or exercise any right. 21 Captions All captions contained in this Agreement are for convenience only and shall not be deemed to be part of this Agreement. 22. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. 23 Inurement. This Agreement is binding upon the Parties hereto and upon their respective legal representatives and successors. 24 Authority The governing bodies of each of the Parties have authonzed by resolution the execution of this Agreement. 25 No Other Parties. This Agreement is intended to describe the rights and responsibilities of and between the Parties and is not intended to, and shall not be deemed to confer any nghts upon any persons or entities not named as parties, nor to limit in any way the powers and responsibilities of the Parties or any other entity not a party hereto 26 Force Majeure. Subject to the terms and conditions in this paragraph, no party to this Agreement shall be liable for any delay or failure to perform under this Agreement due solely to conditions or events of Force Majeure, specifically a) acts of God, b) sudden actions of the elements such as floods, earthquakes, hurricanes, or tornadoes, c) sabotage, d) vandalism beyond that which can be reasonably prevented, e) terrorism, f) war, and g) riots provided that: i) the non performing Party gives the other Parties prompt wntten notice describing the particulars of the occurrence of the Force Majeure; ii) the suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure event or condition, and iii) the non - performing Party proceeds with reasonable diligence to remedy its inability to perform and provides weekly progress reports to the other Parties describing the actions taken to remedy the consequences of the Force Majeure event or condition. In the event of a change in municipal (or other local governmental entity), state or federal law or practice that prohibits or delays performance, the obligation to seek a remedy shall extend to making reasonable efforts to reform the Agreement in a manner consistent with the change that provides the Parties Page 7 of 9 substantially the same benefits as this Agreement, provided, however, that no such reformation shall increase the obligations of any of the Parties. In the event any delay or failure of performance on the part of the party claiming Force Majeure continues for an uninterrupted period of more than three hundred sixty -five (365) days from its occurrence or inception as noticed pursuant to this Agreement, all of the Parties not claiming Force Majeure may, at any time following the end of such one year period, terminate this Agreement upon written notice to the Party claiming Force Majeure, without further obligation by any of the Parties; provided, however, that any such decision to terminate this Agreement shall not be effective unless agreed to by all of the Parties not claiming Force Majeure. 27 Severability Each paragraph of this Agreement is intertwined with the others and is not severable unless by mutual consent of the Parties. 28 Survivability If any portion of this Agreement is held invalid or unenforceable for any reason by a court of competent jurisdiction as to any Party or as to all Parties, the Parties will immediately negotiate valid alternative portion(s) that as nearly as possible give effect to any stncken portion(s). 29 No Multi -Year Fiscal Obligation. Nothing herein shall constitute, nor be deemed to constitute, the creation of a debt or multi -year fiscal obligation of ARCD, North La Junta, Pueblo or Southeastern, or an obligation of future appropriations by the City Council of Pueblo or the Board of Directors of Southeastern, ARCD, or North La Junta, contrary to Article X, § 20 of the Colorado Constitution or any other constitutional, statutory or charter debt limitation. Page 8 of 9 THE CITY OF PUEBLO By .-- 2 /// ,,e--t.1.-. Z Title: President of City Council NORTH LA JUNTA CONSERVANCY DISTRICT By. Title: ARKANSAS RIVER CONSERVANCY DISTRICT B Title: NATURAL RESOURCE CONSERVATION SERVICE — HOLLY OFFICE By Title. SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT By Title: Page 9 of 9 THE CITY OF PUEBLO RECEIVED By NOV 0 6 2009 Title: Southeastern Colorado Water Conservancy district NORTH LA JUNTA CONSERVANCY DISTRICT By. 222 /1 - G3 - Title: .%;tir.�,• ARKANSAS RIVER CONSERVANCY DISTRICT By Title: NATURAL RESOURCE CONSERVATION SERVICE — HOLLY OFFICE By Title: SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT By Title: Page 9 of 9 THE CITY OF PUEBLO By Title. NORTH LA JUNTA CONSERVANCY DISTRICT By Title: ARKANSAS RIVER CONSERVANCY DISTRICT Title: NATURAL RESOURCE CONSERVATION SERVICE — HOLLY OFFICE By Title: SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT By Title: Page 9 of 9 1 THE CITY OF PUEBLO By Title: NORTH LA JUNTA CONSERVANCY DISTRICT B y Title: ARKANSAS RIVER CONSERVANCY DISTRICT By Title: NATURAL RESOURCE COjA/7:4/ BT SERVICE — HOLLY OFFICE Title. .'c r SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT By Title: Page 9 of 9 THE CITY OF PUEBLO B Title: NORTH LA JUNTA CONSERVANCY DISTRICT By Title: ARKANSAS RIVER CONSERVANCY DISTRICT By Title: NATURAL RESOURCE CONSERVATION SERVICE — HOLLY OFFICE By Title: SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT By Th cQ L n � Title: Fxec« 4 - b:r<< 4Gr Page 9 of 9