HomeMy WebLinkAbout08137ORDINANCE NO. 8137
AN ORDINANCE APPROVING A CONSENT TO ENTRY
BETWEEN THE CITY OF PUEBLO AND COLORADO
SPRINGS UTILITIES, AN ENTERPRISE OF THE CITY OF
COLORADO SPRINGS, AND AUTHORIZING THE
PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
WHEREAS, Colorado Springs Utilities, an enterprise of the City of Colorado
Springs ( "Colorado Springs ") seeks to construct its proposed Southern Delivery System
pipeline and other facilities ("SIDS"); and
WHEREAS, a substantial amount of property (the "Property ") owned and /or
managed by the City of Pueblo ( "City ") lies in the path of potential routes for the SIDS,
and the Property, as well as projects under construction by City in cooperation with
other entities, may be affected by the proposed alignment and construction of SDS; and
WHEREAS, it is necessary for Colorado Springs to enter upon the City's
Property in order to conduct geotechnical investigations for SIDS design; and
WHEREAS, the City and Colorado Springs are parties to an intergovernmental
agreement dated March 1, 2004 ( "IGA ") under which City agreed not to unreasonably
withhold agreement for rights of way across City property for the SIDS, subject to
payment of compensation by Colorado Springs; and
WHEREAS, under said IGA, Colorado Springs has also agreed that any access
over lands owned by City will be subject to conditions which will prevent unreasonable
interference with the existing and future uses of City's property, including rights and
interests held by City's lessees and others; and
WHEREAS, in furtherance of its IGA obligations, City is willing to give conditional
consent, in accordance with the terms and conditions of the Consent to Entry dated
February 8, 2010, a true copy of which is attached hereto, to entry upon the Property by
Colorado Springs in order that Colorado Springs may undertake investigation of soil
conditions under the SIDS pipeline route; and
WHEREAS, the Consent to Entry is intended to contractually bind Colorado
Springs to reasonable terms and conditions for the protection of the City and its lessees.
NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Consent to Entry dated February 8, 2010 between the City and Colorado
Springs, a true copy of which is attached hereto and incorporated herein by reference,
is hereby approved.
SECTION 2
The President of the City Council is hereby authorized to execute the Consent to
Entry, and the City Clerk is directed to affix the seal of the City thereto and attest same.
INTRODUCED: January 25, 2010
BY: Vera Ortegon
COUNCILPERSON
APPROVED:
RESIDENT CF CITY CC) UNCIL
ATTESTED BY:
GIB' Y CLERK
PASSED AND APPROVED: February 8, 2010
Background Paper for Proposed
ORDINANCE
AGENDA ITEM # R -1
DATE: January 25, 2010
DEPARTMENT: Law Department
TITLE
AN ORDINANCE APPROVING A CONSENT TO ENTRY BETWEEN THE CITY OF
PUEBLO AND COLORADO SPRINGS UTILITIES, AN ENTERPRISE OF THE CITY OF
COLORADO SPRINGS, AND AUTHORIZING THE PRESIDENT OF THE CITY
COUNCIL TO EXECUTE SAME
ISSUE
Should the City allow Colorado Springs and their consultants access to the Honor Farm
property and other City -owned property to conduct geotechnical investigation of the
subsurface in connection with design of Colorado Springs' Southern Delivery System
( "SDS ")?
Approval of the Consent to Entry is necessary to comply with obligations under the
March 1, 2004 IGA between Pueblo, Colorado Springs and the Board of Water Works.
BACKGROUND
Under the March 1, 2004 Intergovernmental Agreement ( "IGA ") between the City,
Colorado Springs and the Board of Water Works, the City is required to not
unreasonably withhold agreement for rights of way across City property necessary for
the SIDS pipeline, subject to payment of compensation by Colorado Springs and
requirements so as not to interfere with use of the property. In order for Colorado
Springs to be able to design and plan for the pipeline, it requires access to City owned
or controlled property in the vicinity of the proposed pipeline to perform geotechnical
investigation. This Consent allows entry upon the City's property subject to certain
requirements set forth in the instrument. These requirements include (a) reasonable
limitations on the activities which may be undertaken on the property, (b) sharing of data
with the City, (c) reasonable notice of entry to City, (d) coordination with tenants and
lessees, (e) obligations to repair any damage they cause, (f) the obligation to comply
with all laws, (g) maintaining liability and other insurance, and (h) indemnifying the City
against foreseeable claims or loss. These conditions are considered necessary to
protect Pueblo's interests and will not interfere with Colorado Springs' project.
FINANCIAL IMPACT
No financial impact is anticipated.
CONSENT TO ENTRY
THIS INSTRUMENT is made and entered into this 8th day of February, 2010 by
Colorado Springs Utilities, an enterprise of the City of Colorado Springs, a Colorado
home rule city and municipal corporation (hereinafter referred to as "Colorado Springs"
or "CSU "), and the City of Pueblo, a Municipal Corporation (hereinafter referred to as
"City").
WHEREAS, the U.S. Department of Interior, Bureau of Reclamation issued a
Record of Decision ( "ROD ") based upon an environmental impact statement ( "EIS ")
concerning requests by CSU for a long term storage contract for use of Pueblo Reservoir
for non project water and a long term conveyance contract and authorization to construct
the proposed Southern Delivery System pipeline and other facilities ( "SDS "); and
WHEREAS, a substantial amount of property owned and /or managed by City (the
"Property ") lies in the path of the route for the SDS identified in the ROD, and the
Property, as well as projects under construction by City in cooperation with other entities,
may be affected by the proposed long term storage contract, the conveyance contract, or
the SDS and by any combination of the same; and
WHEREAS, it is necessary for CSU and its Contractors to enter upon the City's
Property in order to conduct surveys and site characterization work along the SDS route;
and
WHEREAS, the City and CSU are parties to an intergovernmental agreement
dated March 1, 2004 under which City agreed not to knowingly take actions to impair or
impede Colorado Spring's ability to obtain necessary permits, contracts, and/or
authorizations for the permitting and construction of the SDS; and
WHEREAS, under said intergovernmental agreement, CSU has agreed that any
access over lands owned by City will be subject to conditions which will prevent
unreasonable interference with the existing and future uses of City's Property, including
rights and interests held by City's lessees and others; and
WHEREAS, in furtherance of its obligations "not to knowingly impair or
impede ", City is willing to give conditional consent, in accordance with the terms and
conditions of this instrument, to entry upon the Property by CSU and its Contractors to
conduct required surveys and site characterization work; and
WHEREAS, it is acknowledged by CSU that this Consent to Entry does not
extend to Appraisers or to persons engaged in an appraisal process; and
WHEREAS, the parties agree and acknowledge that the terms and conditions of
this instrument are intended for the protection of City, are not mere recitals and are
contractually binding and enforceable.
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NOW, THEREFORE, in consideration of the foregoing recitals and the terms and
conditions set forth herein, the parties agree as follows:
1. After execution of this instrument by the parties hereto and the payment to
the City of a fee of $500.00 and deposit of a fully executed duplicate original of this
instrument with the City Clerk of City and until either (a) expiration of the term of this
instrument, or (b) earlier termination as provided herein, CSU, and its employees and
Contractors may enter upon the Property upon advance notice to City at reasonable hours
in order to visually inspect the Property and perform those activities authorized below in
compliance with all of the terms, conditions and restrictions set forth in this instrument.
2. CSU and its Contractors are authorized to conduct only the following
activities upon the Property in compliance with the term of this Agreement:
(a) Site Characterization: CSU and its Contractors may conduct only
the tests described in this paragraph 2(a) to evaluate subsurface conditions associated
with the construction of the SDS. Authorized testing may include drilling of up to five
6 -inch diameter boreholes, up to 30 -feet deep. During drilling, soil samples will be
continuously collected, stored, and at intervals, selected for the following laboratory
characterization tests: moisture content, Atterberg limits, grainsize, consolidation, and
unconfined compression, per the appropriate ASTM standard. If the borehole cannot be
drilled in one day, the drill augers will remain in the borehole overnight so that there will
. be no open hole, and the area marked with warning flags. At the completion of drilling,
the boreholes shall be backfilled to ground surface with lean cement grout. The disturbed
ground area around the boreholes will be cleaned, graded, and restored to previous
conditions. All removed material and, after testing, any remaining and unused samples,
shall be disposed of by CSU or its Contractors in accordance with law at CSU's expense.
Photo Ionization Detectors (PIDs) may be used on site to monitor the air in the work zone
in order to protect the safety of workers. No samples or material removed from boreholes
shall be otherwise analyzed or tested for the presence of petroleum compounds or
hazardous materials without express written permission from City, which permission may
be granted, withheld, or conditioned as City may determine in its sole and absolute
discretion; provided, however, that City may allow additional testing designed to detect
the presence of petroleum compounds or hazardous materials upon execution of a
separate agreement by CSU under which CSU would agree to pay all costs of
characterization and remediation associated with the presence of petroleum compounds
and hazardous materials within the area investigated by CSU as part of its site
characterization work. No clearing of trees or brush nor any construction work shall be
permitted.
(b) Other Surveys: Pedestrian surveys of the Property to collect notes,
including placing temporary panels for photographs, and measurements of site features
(e.g., stream channels, land use, visual quality, and recreation) will be permitted. In
addition, survey work may be performed to identify property lines and right of way
configurations. CSU and its Contractors may drive vehicles only on established roads or
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walk the Property to collect this data or perform these activities. Panels and other
markers will be fully removed and disposed of following aerial photography activities.
(c) CSU shall promptly provide to City copies of all data, tests,
reports, and drawings resulting from or based upon the authorized activities, including
but not limited to the field boring logs, PID monitoring results (if any), preliminary and
final geotechnical reports and all laboratory test results.
3. CSU and its Contractors shall be required to coordinate its activities with
City and any lessees, occupants under management agreements and tenants (collectively
referred to as "Occupant" or "Occupants ") which may at anytime occupy the Property
pursuant to lease or agreement with City, or authorized sublease thereunder, in order to
minimize interference or disturbance with the operations of City, or such Occupants.
Such coordination shall require, at a minimum, observance of all of the following
conditions:
(a) CSU shall provide to City at least 72 hours advance written notice
of its intent to enter upon the Property. CSU shall also, on each day of entry, provide not
less than 2 hours advance telephone notice of the time of arrival to the City's designated
Contact Person.
(b) All employees of CSU shall possess credentials verifying their
employment and present same to City officers, employees, Occupants, police officers and
security personnel upon demand.
(c) City has designated City Manager, 719 -553 -2655, as City's
Contact Person with respect to the Property. CSU and its contractors shall not perform
any excavation of test pits at any location upon the Property unless approval from
Contact Person for such location is so obtained.
(d) All activities performed on the Property by CSU shall be scheduled
during the period between 7:00 o'clock a.m, and 7:00 o'clock p.m., according to the
prevailing time then in effect, Monday through Friday except during national or state
holidays. Additional times and days may be arranged with the City upon written request
and written approval by the Contact Person.
(e) With respect to each area under the control of an Occupant of City,
CSU shall also make arrangements with such Occupant to schedule any entry into such
area, and shall conduct its activities so as not to interfere with the Occupant's activities or
operations conducted anywhere upon the Property.
(f) A representative of City or Contact Person, or both, shall be
entitled to be present during any entry upon the Property by CSU, and shall be permitted
to observe CSU's activities thereon.
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(g) All entries upon the Property and all authorized inspections, tests,
sampling, procedures or other investigations performed upon the Property by CSU shall
be made and performed in a manner calculated to minimize damage to the Property
therefrom. CSU shall promptly repair in a good and workmanlike manner any damage to
the Property arising or resulting from its actions or activities and it shall restore the
Property to the condition existing prior to the occurrence of such damage. Unless directed
otherwise by City, upon termination of access or expiration of the term hereof, CSU shall
fill and revegetate any excavations or disturbed areas in a proper manner and as required
by applicable laws, regulations and permits.
(h) If any activities are conducted by Contractors, subconsultants or
subcontractors of CSU, CSU shall require same to be bound by all the terms and
conditions applicable to CSU which are set forth in this Agreement. Notwithstanding
compliance with this paragraph, as to the City, CSU shall remain fully responsible for the
acts and omissions of any such Contractors, subconsultants and subcontractors.
4. Any testing, excavation, sampling or other activities which are authorized
under paragraph 2 of this instrument and which are undertaken by CSU upon or with
respect to the Property, shall be performed in a workmanlike and safe manner and in
accordance with law and standard methods. CSU shall be responsible for the safety of its
employees and agents while on the Property, including the provision of any protective
gear or equipment. Entry upon the Property by CSU, and its employees, agents,
Contractors and subconsultants, shall be at the entering parties' sole risk. Under no
circumstances shall City be responsible or liable for any personal injury, including death,
or damage to personal property of any person occupying or visiting the Property. Nothing
in this instrument shall be interpreted to limit or waive the protections afforded to City,
CSU or the City of Colorado Springs under the Colorado Governmental Immunity Act,
C.R.S. § 24 -10 -101, et seq. However, CSU agrees to indemnify the City for any injuries,
damage or loss caused by CSU's actions on the Property to the extent permitted by law
and subject to the availability of appropriated funds for the SDS project.
5. The term of this instrument shall commence on the date first above written
and shall expire exactly three hundred eighty (380) days later, unless extended by
subsequent written instrument signed by the parties hereto, or terminated earlier by City.
City may, at any time, revoke or terminate the conditional grant of access hereunder for
good cause. Upon expiration or termination, CSU shall immediately remove its
equipment, repair all damage to the Property, and fill or repair any areas disturbed by
CSU unless and to the extent otherwise directed by City. CSU's obligations under this
instrument to furnish copies of logs, Data and photographs relating to the Property
accessed prior to termination, repair damage, and revegetate disturbed areas shall survive
the expiration of the term, or earlier termination, of this instrument.
6. CSU shall comply with all federal, state and local laws and regulations
that are applicable to CSU's activities upon the Property, including but not limited to
environmental laws and regulations. No action or activity shall be undertaken by the
CSU, its employees, agents, or subcontractors, if any, on any portion of the Property
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which would cause or permit: (i) the presence, use, generation, release, discharge, storage
or disposal of any hazardous material in, on, under, about or from the Property or any
part thereof in violation of any environmental law or regulation; (ii) any portion of the
Property to become a hazardous waste treatment, storage or disposal facility without
receiving authorization from City, proper governmental authorization, and in compliance
with all environmental laws and regulations; or (iii) the discharge of pollutants or
effluents into any storm sewer, sanitary sewer, street or roadway, or any water source or
system, or the discharge into the air of any emissions without receiving proper
governmental authorization, and in compliance with all environmental laws and
regulations, including without limitation, the Federal Water Pollution Control Act, 33
USC § 1251, et seq., and the Clean Air Act, 42 US C §7401, et seq.
7. CSU shall require that all of its Contractors provide and maintain
insurance of the type and with limits as set forth below, on all of its operations, and with
companies authorized to do business in the State of Colorado and rated by A.M. Best's
Rating as A:VIII or better, or with companies reasonably acceptable to CSU, as follows:
(i) Workers' Compensation insurance as required by an applicable law or regulation; (ii)
Employer's liability insurance in amounts not less than $500,000 each accident for bodily
injury by accident, with a $500,000 policy limit for bodily injury by disease, and
$500,000 each employee for bodily injury by disease; (iii) Commercial General Liability
insurance in amounts not less than $1,000,000 each occurrence (combined single limit for
bodily injury and property damage) and $2,000,000 General Aggregate; (iv) Professional
Liability insurance including errors and omissions coverage in an amount of not less than
w. $1,000,000 per occurrence (or claims made) and aggregate for licensed professional
consultants; and (v) Umbrella/excess liability insurance in an amount of not less than
$1,000,000.
8. This instrument sets forth the complete agreement and understanding of
the parties with respect to access to the Property necessary for CSU to conduct studies
and investigations deemed necessary for the SDS and supersedes any prior or
contemporaneous oral or written agreements or understandings between the parties with
respect to such access.
9. No amendment to this instrument shall be made nor be enforceable unless
made by written amendment signed by an authorized representative of each of the parties.
This provision may not be waived except by a writing signed by all parties.
10. This instrument shall be governed and interpreted in accordance with the
laws of the State of Colorado.
11. Any dispute or disagreement between the parties arising from or related to
this instrument shall be determined and decided by a Colorado state court of competent
jurisdiction.
12. The persons executing this instrument on behalf of CSU and City each
represent and warrant that they have full authority to execute this instrument on behalf of,
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and to contractually obligate, the party for whom they are signing this instrument.
IN WITNESS WHEREOF, the parties have made and executed this instrument
the day and year first above written.
CITY OF PUEBLO,
A MUNICIPAL CORPORATION
By: Q�L' , p 1.) &"')
President of City Council
ATTEST:
City rk
APPROVED AS TO FORM:
City Attorne 0
COLORADO SPRINGS UTILITIES
Name: Jt1V �CnC Gar6a
Title: SpS LAr% M anit5tr
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