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HomeMy WebLinkAbout2011 Ordinance No. 007ORDINANCE NO. J_ SERIES OF 2011 CONTRACT NO~ AS--j_a // 9 b ii BY AUTHORITY COUNCIL BILL NO. 6 INTRODUCED BY COUNCIL MEMBER WILSON AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT ENTITLED U.S. DEPARTMENT OF AGRICULTURE, FOREST SERVICE, SPECIAL USE PERMIT AUTHORITY: FEDERAL LAND POLICY AND MGMT ACT, AS AMENDED OCTOBER 21, 1976 (REF .:FSH 2709.11, SECTION 41.53) BETWEEN THE U.S. DEPARTMENT OF AGRICULTURE AND THE CITY OF ENGLEWOOD, COLORADO. WHEREAS, municipalities or collective organizations apply for special use permits to use U.S. Forest Service land for ditches, wells, roads and communication sites used for a common good;and WHEREAS, the U.S . Department of Agriculture -Forest Service submitted a Special Use Pemlit for the continued operation and maintenance of the Boreas Ditch #2; and WHEREAS, the existing 30-year permit has expired and tllis special use permit allows the Boreas Ditch #2 to cross the White River Forest in the Dillon Ranger District for an additional 30 years; and WHEREAS, the Englewood Water and Sewer Board reviewed and recommended City Council approval of the U .S . Depa1tment of Agriculture Forest Service Special Use Permit for the Boreas Ditch at their November 10,2010 meeting; and WHEREAS , the passage of this proposed Ordinance will authorize Englewood to renew the Pennit for an additional 30 years; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The Intergovernmental Agreement entitled U.S. Department of Agriculture, Forest Service, Special Use Pennit Authority: Federal Land Policy and Mgmt Act, as amended October 21, 1976 (Ref.: FSH 2709.11 , section 41.53) is hereby accepted and approved by the Englewood City Council, attached hereto as "Exhibit A". Section 2. The Mayor and City Clerk are hereby authorized to sign and attest said Agreement for and on behalf of the City of Englewood, Colorado. Introduced , read in full , and passed on first reading on the 22 nd day of February , 2011 . Published by Title as a Bill for an Ordinance in the C ity 's official newspaper on the 25 u, day of February , 2011. Published as a Bill for an Ordinance on the City's official website beginning on the 23 rd day of February, 2011 for thirty (30) days. Read by title and passed on final reading on the ?11, day of March, 2011. Published by title in the City's official newspaper as Ordinance No. 7, Series of 20 11 , on the 11th day of March, 2011. Published by title on the City's official website beginning on the 9th day of March, 2011 for thirty (30) days. I, Loucrishia A. Ellis, City Clerk of the City of Englewood, Co lorado, hereby ce1tify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by title as Ordinance No.£, Series of 2011. Authorization ID: OIL 790 Contact ID: ENGLEWOOD_CITY Expiration Date: 12/31/2039 Use Code : 911 U.S. DEPARTMENT OF AGRICULTURE Forest Service SPECIAL USE PERMIT FS-2700-4 (03/06) 0MB 0596-0082 Authority: FEDERAL LAND POLICY AND MGMT ACT, AS AMENDED October 21, 1976 (Ref.: FSH 2709.11, section 41.53) CITY OF ENGLEWOOD of 1000 ENGLEWOOD PARKWAY, ENGLEWOOD CO 80110 -2373 (hereinafter called the Holder) is hereby authorized to use or occupy National Forest System lands, to use subject to the conditions set out below, on the White River National Forest and . This permit covers 4.48 acres or 1 .48 miles and is described as a 25 foot right-of-way located in the NW1 /4NE1/4 Sec . 35, E1/2W1/2 Sec. 26, and SW1/4 Sec. 23, T. 7 S,, R. 77 W., 6th P.M., ("the permit area"), as shown on the map attached as Appendix A. This permit is issued for the purpose of: operation and maintenance of 7 7800 feet of a ditch and buried pipeline (4,700 ft on the north side and 3,100 ft on the south side of Boreas Pass) called the Boreas Ditch #2 and associated facilities. · The above described or defined area shall be referred to herein as the "permit area", \ TERMS AND CONDITIONS I. AUTHORITY AND GENERAL TERMS OF THE PERMIT A . Authority. This perr,:iit is issued pursuant to the authorities enumerated at Title 36, Code of Federal Regulations, Section 251 Subpart B, as amended. This permit, and the activities or use authorized, shall be subject to the terms and conditions of the Secretary's regulations and any subsequent amendment to them. B. Authorized Officer. The authorized officer is the Forest Supervisor or a delegated subordinate officer. C. License. This permit is a license for the use of federally owned land and does not grant any permanent, possessory interest in real property, nor shall this permit constitute a contract for purposes of the Contract Disputes Act of 1978 (41 U .S.C . 611 ). Loss of the privileges granted by this permit by revocation, termination, or suspension is not compensable to the holder. D. Amendment. T.his permit may be amended in whole or in part by the Forest Service when, at the discretion of the authorized officer , such action is deemed necessary or desirable to incorporate new terms, conditions, and stipulations as may be required by law, regulation, land management plans, or other management decisions. E. Existing Rights. This permit is subject to all valid rights and claims of third parties. The United States is not liable to the holder for the exercise of any such right or claim. F. Nonexclusive Use and Public Access. Unless expressly provided for in additional terms, use of the permit area is not exclusive. The Forest Service reserves the right to use or al.low others to use any part of the permit area, including roads, for any purpose , provided, such use does not materially interfere with the holder's authorized .use. A final determination of conflicting uses is reserved to the Forest Service. G. Forest Service Right of Entry and Inspection . The Forest Service has the right of unresfricted access of the E X H I B I T A permitted area or facility to ensure compliance with laws, regulations, and ordinances and the terms and conditions of this permit. H. Assignability. This permit is not assignable or transferable. If the holder through death, voluntary sale or transfer, enforcement of contract, foreclosure, or other valid legal proceeding ceases to be the owner of the improvements, this permit shall terminate.· I. Permit Limitations. Nothing in this permit allows or implies permission to build or maintain any structure or facility, or to conduct any activity unless specifically provided for in this permit. Any use not specifically identified in this permit must be approved by the authorized officer in the form of a new permit or permit amendment. II. TENURE AND ISSUANCE OF A NEW PERMIT A. Expiration at the End of the Authorized Period. This permit will expire at midnight on 12/31/2041._Expiration shall occur by operation of law and shall not require notice, any decision document, or any environmental analysis or other documentation. 8 , Minimum Use or Occupancy of the Permit Area. Use or occupancy of the permit area shall be exercised at least 50 days each year, unless otherwise authorized in writing under additional terms of this permit. C. Notification to Authorized Officer. If the holder desires issuance of a new permit after expiration, the holder shall notify the authorized officer in writing not less than six (6) months prior to the expiration date of this permit. D. Conditions for Issuance of a New Permit. At the expiration or termination of an existing permit, a new permit may be issued to the holder of the previous permit or to a new holder subject to the following conditions: 1. The authorized use is compatible with the land use allocation in the Forest Land and Resource Management Plan. · 2. The permit area is being used for the purposes previously authorized. 3. The permit area is being operated and maintained in accordance with the provisions of the permit. 4. The holder has shown previous good faith compliance with the terms and conditions of all prior or other existing · permits, and has not engaged in any activity or transaction contrary to Federal contracts, permits laws, or regulations. · E. Discretion of Forest Service . Notwithstanding any provisions of any prior or other permit, the authorized officer may prescribe new terms, conditions, and stipulations when a new permit is issued. The decision whether to issue a new permit to a holder or successor in interest is at the absolute discretion of the Forest Service. F. Construction . Any construction authorized by this permit may commence by NIA and shall be completed by NIA. If construction is not completed within the prescrib,ed time, this permit may be revoked or suspended . Ill. RESPONSIBILITIES OF THE HOLDER A. Compliance with Laws, Regulations, and other Legal Requirements. The holder shall comply with all applicable Federal, State, and local laws, regulations, and standards, including but not limited to, the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S. C . 9601 et seq ., and other relevant environmental laws, as well as public health and safety laws and other laws re.lating to the siting, construction, .operation, and maintenance of any facility, improvement, or equipment on the property. B. Plans . Plans for de velopment, layout, construction, reconstruction, or alteration of improvements on the permit area , as well (:IS revisions of such plans, must be prepared by a qualified individual acceptable to .the authoriz ed officer and Page 2 of 9 shall be approved in writing prior to commencement of work. The holder may be required to furnish as -built plans, maps, or surveys, or other similar information, upon completion of construction. C. Maintenance. The holder shall maintain the improvements and permit area to standards of repair, orderliness , neatness, sanitation, and safety acceptable to the authorized officer and consistent with other provisions of this authorization. If requested , the holder shall comply with inspection requirements deemed appropriate by the authori ze d · officer. D. Hazard Analysis. The holder has a continuing responsibility to identify all hazardous conditions on the permit area which would affect the improvements, resources, or pose a risk of injury to individuals. Any non-emergency actions to abate such hazards shall be performed after consultation with the authorized officer. In emergency situations, the holder shall notify the authorized officer of its actions as soon as possible, but not more than 48 hours, after such actions have been taken . E. Change of Address. The holder shall immediately notify the authorized officer of a change in address . F. Change in Ownership . This permit is not assignable and terminates upon change of ownership of the improvements or control of the business entity. The holder shall immediately notify the authorized officer when a change in ownership or control of business entity is pending. Notification by the present holder and potential owner shall be executed using Form SF-299 Application for Transportation and Utility Systems and Facilities of Federal Lands , or Form FS-2700-3a, Holder Initiated Revocation of Existing Authorization, Request for a Special Use Permit. Upon receipt of the proper documentation, the authorized officer may issue a permit to the party who acquires ownership of, or a controlling interest in, the improvements or business entity. IV. LIABILITY For purposes of this section, "holder" includes the holder's heirs, assigns, agents, employees, and contractors. A. The holder assumes all risk of loss to the authorized improvements. B. Subject only to the limits on the holder's liability under Title 24, Article 10, of the Colorado Governmental'lmmunity Act (CGIA), Colorado Revised Statutes (C.R.S.) §§ 24-10-101 through 24-10 -119, the holder shall indemnify, defend, and hold harmless the United States for any costs, damages, claims, liabilities, and judgments arising from past, present, and future acts or omissions of the holder in connection with the use or occupancy authorized by this permit. This indemnification and hold harmless provision includes but is not limited to acts and omissions of the holder or the holder's heirs, agents, employees, or contractors in connection with the use or occupancy authorized by this permit which result in (1) violations of any laws and regulations which are now or which may in the future become applicable, and including but not limited to those environmental laws listed in clause Ill.A of this permit; (2) judgments, claims, demands , penalties, or fees assessed against the United States; (3) costs, exper)ses, and damages incurred by the United States; or (4) the release or threatened release of any solid waste, hazardous waste, hazardous substance, pollutant, contaminant, oil in any form, or petroleum product into the environment. This clause shall survive termination or revocation of this permit, regardless of cause. C. The Forest Service has no duty, either before or during the term of this permit, to inspect the property or to warn of hazards. If the Forest Service inspects the property, the Forest Service shall not incur any additional duty or liability for hazards not identified or discovered through the inspections. D. The holder has an affirmative duty to protect from injury and damage the land, property, and other interests of the United States. Damage includes but is not limited to fire suppression costs and all costs and damages associated with or resulting from the release or threatened release of a hazardous material occurring during or as a result of activities of the holder or the holder's heirs , agents, employees or contractors on, or related to, the lands , property , and other interests covered by this permit. For purposes of this clause, "hazardous material" shall mean any hazardous Page 3 of 9 substance, pollutant, contaminant, hazardous waste, oil, and/or petroleum product, as those terms are defined under any Federal, State , or local law or regulation. 1. The holder shall avoid damaging or contaminating the environment, including but not limited to the soil, vegetation (su c h as trees, shrubs, and grass), surface water , and groundwater, during the holder's use or occupancy of the site . If the environment or any government property covered by this permit becomes damaged during the holder's use or occupancy of the site, the holder shall immediately repair the damage or replace the damageq items to the satisfaction of the authorized officer and at no expense to the United States . 2 . Subject only to the limits on the holder's liability under Title 24, Article 10 of the CGIA, C.R.S . §§ 24-10-101 through 24 -10-119, the holder shall indemnify, defend, and hold harmless the United States for any damages arising out of the holder's use or occupancy authorized by this permit. The holder shall be liable for all injury, loss, or damage, including fire ·suppression or other costs associated with rehabilitation or restoration of natural resources, associated with the holder's use and/or occupancy. Compensation shall include but is not limited to the value of resources damaged or destroyed, the costs of restoration, cleanup, or other mitigation, fire suppression or other types of abatement costs, and all administrative, legal (including attorney's fees), and other associated costs. 3. With respect to roads, the holder shall be liable for damages to all roads and trails of the United States caused by use of the holder or the holder's heirs , agents , employees, and contractors to the same extent as provided under clause IV.D.1, except that liability shall not include reasonable and ordinary wear and tear. E. Clauses IV.Band IV.D.2 shall not be interpreted to limit any of the holder's liability for, or prevent the United States from taking any action to address, injury, loss, damages, or costs associated with environmental contamination, injury to natural resources , or other cause of action that arises under other law, including the Resource Conservation and Recovery Act, as amended , 42 U.S.C. § 6901 et seq., the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. § 9601 et seq., and the Clean Water Act, as amended, 33 U.S.C. § 1251 et seq., in connection with the holder's use or occupancy of Federal lands, or to diminish any independent obligation of !ht holder to indemnify the United States with respect to the same. F. The holder has a continuing responsibility to identify and abate hazardous conditions in the permit area which could affect the improvements or pose a risk of injury to individuals. The holder shall consult with the authorized officer before taking any action to abate these hazards. G. The authorized officer has determined through a risk assessment that the potential liability of the United States for prp,erty damage and personal injury or death arising from the holder's use or occupancy authorized by this permit is $ 5 I<.. per incident. 1. The holder shall maintain commercial general liability (CGL) coverage with a combined single limit self-insurance and/or insurance procured from a third party covering property damage and personal injury or death for$ !!i m/!l;op per incident and $ Alj& in the aggre~ate. The holder shall pay the premiums for any insurance procured under this clause. The self-insurance documentation shall name the United States as a c~rtificate hol,der, ~md the procured insur(;ince policy shall name the United States as an additional insured. The coverage under both types ofirisurance shall extend to property damage and personal injury or death arising from the holder's ac_tivitie!3 under th~ permit, including use or occupancy of National Forest System lands and the construction, m_~inte.nan9~, anp open;ition of the structures, facilities, or equipment authorized by the permH. If the aggregate coverage lim_it is r~ached or ex6E!eded and the holder fails fo obtain ari increase in the aggregate coverage limit or to procure addit.ional insurince, this permit shail terminate. The holder shall prov·ide notice within 48 hours to the Director of Physical Resources, Rocky Mountain Region (303) 275-5350, if the aggregate coverage limit in the procured insurance policy is reached or exceeded during the policy period. 2. Notwithstanding clauses IV.Band IV.D .2 of this permit, any limitation on the holder 's liability under State law, including but not limited to the holder's sovereign immunity and the liability under Title 24, Article10 , of the CGIA, C.S.A. P ag e 4 of9 §§ 24-10-101 through 24-10-119, that may apply to this permit shall not be construed in any way to impinge upon the ability of the United States to recover under the self-insurance or any procured insurance policy. CGL insurance shall be written on ISO occurrence form CG 00 01 12 07 (or a substitute form providing equivalent coverage) and shall cover liability arising from premises, operations, independent contractors, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). The United States shall be included as an additional insured under the CGL insurance policy, using USDA Forest Service additional insured form FS-2700-33. Nothing in this clause precludes the holder or the insurer from asserting any defense that may be available to the holder, including sovereign immunity, in an action brought against the holder. 3. The Forest Service reserves the right to review and approve the self-insurance documentation and any procured insurance policy. The holder shall provide the authorized officer with a copy of the approved self-insurance documentation and an authenticated copy of any procured insurance policy to the Forest Service immediately upon approval or issuance. The self-insurance documentation and any procured insurance policy shall specify that the Forest Service shall be given 30 days prior written notice of cancellation or any modification of the self-insurance documentation or procured insurance policy. 4. If there is a conflict between this permit, the certificate of insurance or insurance policy provided by the Colorado Risk Management Division ("the certificate" or "the insurance policy''), and/or the Colo.rado Risk Management Division's insurance policy manuals ("insurance policy manuals"), the order of precedence among those documents shall be (1) this permit; (2) the certificate or insurance policy; and (3) the insurance policy manuals. 5 . If a claim is submitted to the United States for property damage and personal injury or death arising from the holder's U$e or occupancy authorized by this permit, the Forest Service shall tender the defense of the claim to the respective representatives of the self-insurance and p·rocured insurance providers. The holder understands that tort claims against the United States are governed by the Federal Tort Claims Act, which may result in the administrative denial of a claim. The holder further understands that in litigation the United States is represented by the United States Department of Justice (USDOJ) and agrees that representatives of the self-insurance and procured insurance providers will coordinate the defense with USDOJ, if a claim is litigated. H. In the event of any breach of the conditions of this authorization by the holder, the authorized officer may, on ref;!sonable notice, cure the breach for the account at the expense of the holder. If the Forest Service at any time pays any sum of money or does any act which will require payment of money, or incurs any expense, including reasonable attorney's fees, in instituting, prosecuting, andfor defending any action or proceeding to enforce the United Stc1tes' rights hereunder, the sum or sums so paid by the United States, with all interests, costs and damages shall, at the election of the Forest Service, be deemed to be additional fees hereunder and shall be due from the holder to the Forest Service on the first day of the month following such election. V. TERMINATION, REVOCATION, AND SUSPENSION A. General. For purposes of this permit, "termination", "revocation", and "suspension" refer to the cessation of uses and privileges under the permit. "Termination" refers to the cessation of the permit under its own terms without the necessity for any decision or action by the authorized officer. Termination occurs automatically when, by the terms of the permit, a fixed or agreed upon condition, event, or time occurs. For example, the permit tenninates at expiration. Terminations are not appealable. "Revocation" refers to an action by the authorized officer to end the permit because of noncompliance with any of the prescribed terms, or for reasons in the public interest. Revocations are appealable. "Suspension" refers to a revocation which is temporary and the privileges may be restored upon the occurrence of prescribed actions or co_nditions. Suspensions are appealable . B. Revocation or Suspension. The Forest Service may suspend or revoke this permit in whole or part for: 1. Noncompliance with Federal , State , or local laws and regulations. 2. Noncompliance with the terms and conditions of this permit . 3. Reasons in the public interest. Page 5 of 9 4. Abandonment or other failure of the holder to otherwise exercise the privileges granted. C. Opportunity to Take Corrective Action. Prior to revocation or suspension for cause pursuant to Section V (8), the authorized officer shall give the holder written notice of the grounds for each action and a reasonable time, not to exceed 90 days, to complete the corrective action prescribed by the authorized officer. D . Removal of Improvements. Prior to abandonment of the improvements or within a reasonable time following revocation or termination of this authorization, the holder shall prepare, for approval by the authorized officer, an abandonment plan for the permit area. The abandonment plan shall address removal of improvements and restoration of the permit area and prescribed time frames for these actions . If the holder fails to remove the improvements or restore the site within the prescribed time period, they become-the property of the United States and may be sold, destroyed or otherwise disposed of without any liability to the United States. However, the holder shall remain liable for all cost associated with their removal, including costs of sale and impoundment, cleanup, and restoration of the site. VI. FEES A. Termination for Nonpayment. This permit shall automatically terminate without the necessity of prior notice when land use rental fees are 90 calendar days from the due date in arrears. B. The holder shall pay annually in advance a sum determined by the Forest Service to be the fair market value of the use granted by this authorization. The initial payment is set at $214.95 for the remainder of the calendar year. Subsequent payments shall be determined by the use of an annual fee schedule . The Forest Service may adjust the amount of payment annually by an appropriate indexing factor to reflect more nearly the fair market value of the use. At certain intervals the Forest Service shall review the fee and adjust the fee as necessary to assure that it is . commensurate with the fair market value of the authorized rights and privileges, as determined by appraisal or other sound business management principles. C. Payment Due Date . The payment due date shall be the close of business on January 1 of each calendar year payment is due. Payments in the form of a check, draft, or money order are payable to USDA, Forest Service . Payments shall be credited on the date received by the designated Forest Service collection officer or deposit location. If the due date for the fee or fee calculation statement falls on a non-workday, the charges shall not apply until the close of business on the next workday. D. Late Payment Interest. Administrative Costs and Penalties Pursuantto 31 U.S.C. 3717, et seq., interest shall be charged on any fee amount not paid witliin 30 days from the date the fee or fee calculation financial statement specified in this authorization becomes due. The rate of interest assess~d shall be the higher of the rate of the current value of funds to the U.S. Treasury (i.e ., Treasury tax and loan account rate), as prescribed and published by the Secretary of the Treasury in the Federal Register and the Treasury Fiscal Requirements Manual Bulletins annually or quarterly or at the Prompt Payment Act rate. Interest on the principal shall accrue from the date the fee or fee calculation financial statement is due. In the event the account becomes delinquent, administrative costs to cover processing and handling of the delinquency will be assessed. A penalty of 6 percent per annum shall be assessed on the total amount delinquent in excess of 90 days and shall accrue from the same date on which interest charges begin to accrue. Payments will be credited on the date received by the designated coUection officer or deposit location. If the due date for the fee or fee calculation statement falls on a non-workday, the charges shall not apply until the close of business on the next workday. Disputed fees are due and payable by the due date. No appeal of fees will be considered by the Forest Service without full payment of the disputed amount. Adjustments, if necessary, will be made in accordance with settlement terms or the appeal decision. If the fees become delinquent, the Forest Service will: Page 6 of 9 Liquidate any security or collateral provided by the authorization. If no security or collateral is provided, the authorization will terminate and the holder will be responsible for delinquent fees as well as any other costs of restori11g the site to it's original condition including hazardous waste cleanup. Upon termination or revocation of the authorization, delinquent fees and other charges associated with the authorization will be subject to all rights and remedies afforded the United States pursuant to 31 U.S.C . 3711 et seq. Delinquencies may be subject to any or all of the following conditions: Administrative offset of payments due the holder from the Forest Service. Delinquencies in excess of 60 days shall be referred to United States Department of Treasury for appropriate collection action as provided by 31 U.S.C . 3711 (g), (1 ). The Secretary of the Treasury may offset an amount due the debtor for any delinquency as provided by 31 U.S .C . 3720, et seq.) VII. OTHER PROVISIONS A. Members of Congress. No Member of or Delegate to Congress or Resident Commissioner shall benefit from this permit either directly or indirectly, except when the authorized use provides a general benefit to a corporation. B. Appeals and Remedies . Any discretionary decisions or determinations by the authorized officer are subject to the appeal regulations at 36 CFR 251, Subpart C, or revisions thereto. · C . Superior Clauses. In the event of any conflict between any of the preceding printed clauses or any provision thereof and any of the following clauses or any provision thereof, the preceding printed clauses shall control. D. Superseded Permit. This permit supersedes a special use permit designated: CITY OF ENGLEWOOD, OIL 100701, dated 09/28/1998. E . Augmentation Plans for Existing Water Rights (R2-D-108). In the event that the authorized facilities/activities result in an out-of-priority diversion that requires augmentation, the Forest Service authorized officer must approve the augmentation plan in writing prior to the applicant submitting the plan for final decree by the court. F. Water Rights, Boulder Canyon Act (R2-X-102). This authorization is issued subject to the Boulder Canyon Project Act of December 21, 1928 (45 Stat., 1064). G. Water Rights (R2-X-103). This authorization confers no right to the use of water by the Holder; such rights must be obtained under State law. H . Disputes (X96). Appeal of any provisions of this authorization or any requirements thereof shall be subject to the appeal regulations at 36 CFR 251, Subpart C, or revisions thereto. Page 7 of 9 This permit is accepted subject to the conditions set out above. HOLDER: CITY OF ENGLEWOOD By:--------------- (Holder Signature) Title·: --'J=-a=m.:..;:e:;..;s::;.._=-K:....:._W~o-=o;....;d=-w'-'--"-'a-=r;....;d"--'-, _M~a~y~o~r __ (Name and Title) Date: __________________ _ U.S. DEPARTMENT OF AGRICULTURE Forest Service By: ______________ _ (Authorized Officer Signature) Title: SCOTT G. FITZWILLIAMS, Forest Supervisor (Name and Title) Date: _________________ _ According to the Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, nnd a perrmn is not required to respond lo a collection of information unless it displays a valid 0MB cont.ml number. The valid 0MB control number for this information collection is 0596-0082. The tim e required to complete thi s information collection is estimated to average l hour per response, including the time for reviewing instructions, sea rching existing data som-ces, gathering and maintaining the data needed, and completing and reviewing the collection of information. TI1e U.S . Deparlmc'11t of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis ofrace, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and m arital or family status. (Not all prohibited bases apply to nil programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Centet· at 202-720-2600 (voice and TDD). To file a complaint ofdiscriminntion, write USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW, Washington, DC 20250-9410 or ca ll (800) 975-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider and employer. The Privacy Act of 1974 (5 U.S.C. 552a) and the Freedom of Infonna·tion Act (5 U.S.C. 552) govern the confidentiality lo be provided for infonnntion received by the Forest Se,vice. Page 8 of 9 APPENDIX A City of Englewood Boreas Ditch No. 2 -DIL 790 (Formerly DIL100701) This permit covers 4.48 acres or 1.48 miles and is described as a 25 foot right-of-way located in the NW1/4NE1/4 Sec. 35, E1/2W1/2 Sec. 26, SW1/4 Sec. 23, T. 7 S ., R. 77 W., 6th P.M [BoreaR Pa.~s Quadrangle Map, Scale= 1: 24,000] Page 9 of 9 'i I : i Risk Assessment for Boreas Ditch #2 and Facility · On United States Forest Service Site 1. Name of Site: Boreas Ditch #2 A. What is the Specific Activity: The activity is the operation and maintenance of 7,800 feet of a ditch and buried pipeline (4,700 ft on the north side and 3~100 ft on the south side of Boreas Pass called the Boreas Ditch #2 and facility (a secured concrete vault.) The location is NW ¼NE¼ Sec. 35, E1/2W1/2 Sec. 26, and SWl/4 Sec 23, T. 7 S., R. 77W. 6th P.M. "the permit area". The permit is described as a 25 foot right-of-way. The term of the lease is 30 years. B. Identify the risks associated with the activity and potential loss exposures: a. Risk Identification: Frequency Certain Likely Possible Not Likely Loss to property and others Hazards: • Equipment Failure • Fire • Lightning • Flooding • Open ditch • Employee injury • · Accidents to Public Frequency and severity of Accidents: Severity Catastrophic Severe Excessive Moderate Minor Risk Rating Extreme High Moderate Low Risk Ratings: Extreme (consider not doing the activity), High (higher involvement of risk control, risk .transfer and change in insurance limits), Moderate (monitor exposures with risk control), Low (Manage the risk with procedures, regular inspections and insurance limits). History of Claims at this site: None Potential Loss Exposure Frequency Severity Risk Rating Employee Injury Possible Moderate Low lnjuryto Public Not likely Moderate Low Fire Not likely Severe Low Flooding Possible Minor Low Lightning Likely Moderate Low Equipment Failure Not Likely Minor Low C. Based on risk assessment and risk rating for each exposure, the following are the tools used to mitigate or manage the risks listed. • Satellite Antenna with ground wire is located outside vault on 12' pole which runs on batteries in the vault. Other than antenna there would be no further lightning exposure. • Fire exposure: All items on site are non-combustible. Vault is ·concrete ·in ground approximately 8 to 10' deep with a locked metal cover. Inside the vault is a recorder/flume. Outside the vault is a metal turnout gate. • Equipment failure within the vault would result in no record of water flow. No damage would result as the amount of water would be the same amount that would naturally flow from a snowfield through natural ·drainage into tbe Blue River Drainage. • Flooding should there be a leak in the pipe or open ditch would result in little to no damage. The maximum amount of leakage would be 3 cfs. There is a distance to the road of approximately 30 '. The open ditch is approximately 4' deep and the ditch is about 8'wide which would reduce any potential flooding to minimal water loss with no damage to property. • Employees and/or independent contract ors receive training for inspection and maintenance of equipment in vault. • During the months of May-Oct the site is inspected on a weekly basis. Water runs during the months of May-August only . • Injuries to Public are unlikely because of the of the location and the security of the vault. D. Insurance Coverage Assessment: The City of Englewood maintains General Liability coverage for bodily injury, and/or property damage to others in the amount of $5 million per occurrence. The City also provides workers' compensation insurance as required by State of Colorado Workers' Compensation. Attach ed: 2 maps .r . ACORD,. CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/YY) 02/04/2011 PRODUCER LIC #N/A l-303-757-5475 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION CIRSA ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 3665 Cherry Creek North Drive ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Denver, co 80209 INSURERS AFFORDING COVERAGE INSURED INSURER A: CIRSA City of Englewood INSURER B: 1.000 Englewood Parkway INSURERC : Englewood , co 80110 INSURER D: I INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR POLIC Y NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS IT~ TYPE OF INSURANCE "~T" nn,: A GENERAL LIABILITY LIAB 01-2011 I- 01/01/11 01/01/12 EACH OCCURRENCE $ s,000,000 X COMMERCIAL GENERAL LIABILITY FIRE DAMAGE (Any one fire) $5,000,000 I-0 CLAIMS MADE □ OCCUR MED EXP (Any one person) $ 0 I- X $10m E&O Aggregate PERSONAL & ADV INJURY $5 ,000,000 I- GENERAL AGGREGATE $ I- GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS -COMP/OP AGG $ s,000,000 n POLICY n ~fr?,: nwc A AUTOMOBILE LIABILITY LIAB 01-2011 01/01/11 01/01/12 COMBINED SINGLE LIMIT I-$1,500,000 X ANY AUTO (Ea accident) I- ALL OWNED AUTOS BODILY INJURY I-(Per person) $ SCHEDULED AUTOS I- HIRED AUTOS BODILY INJURY I-(Per accident) $ NON-OWNED AUTOS I- I-PROPERTY DAMAG.E (Per accident) $ GARAGE LIABILITY AUTO ONLY -EA ACCIDENT $ R ANY AUTO OTHER THAN EAACC $ AUTO ONLY: AGG $ EXCESS LIABILITY EACH OCCURRENCE $ ::::J OCCUR □ CLAIMS MADE AGGREGATE $ $ =i DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION AND I T't/,~JT~J.¥;,, I IOJ~- EMPLOYERS' LIABILITY E.L. EACH ACCIDENT $ E.L. DISEASE -EA EMPLOYEE $ E.L. DISEASE· POLICY LIMIT $ OTHER s s $ DESCRIPTION OF OPERATIONS/LDCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Certificate Holder is Additional Insured on Liability Policies if required by contract . Boreas Ditch #2 and facility. Located in the NW 1/4NE 1/4Section 35, El/2W l/2Section 26, and SW l/4Sec, T.7S. ,R. 77W., 6th P.M. (the permit area) operation and maintenance. CERTIFICATE HOLDER I y I ADDITIONAL INSURED; INSURER LETTER: Agriculture, U.S. Forest Service lu.s. Department of Supervisor Office, White River National Forest 900 Grand Ave . Glenwood Springs, co 81601 I ACORD 25-S (7/97) cwegman 19658948 USA A for the purpose of CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING IN SURER WILL ENDEAVOR TO MAIL ~ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBL IG ATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE d{, '~ lL ,z.u._. Jo/" ,;e.. @ACORD CORPORAT ION 1988 ' I • I C COUNCIL COMMUNICATION Date: Agenda Item: Subject: February 22 , 2011 9 a ii USDA Special Use Permit for Boreas Ditch #2 Initiated By: Staff Source: Utilities Department Stewart H. Fonda, Director of Utilities COUNCIL GOAL AND PREVIOUS COUNCIL ACTION None. RECOMMENDED ACTION The Englewood Water and Sewer Board, at their November 9, 2010 meeting, recommended Council adopt a bill for an ordinance approving the U .S. Department of Agriculture Forest Servic e Special Use Permit for Boreas Ditch #2. BA CKGROUND, ANAL YSIS, AND ALTER NAT IVES ID ENTIF IE D Municipalities or collective organizations apply for special u·se permits to use Forest Service land for ditches, wells, roads and communication sites used for a common good. The U.S. Department of Agriculture -Forest Service submitted a Special Use Permit for the continued operation and maintenance of the Boreas Ditch #2. This allows the Boreas Ditch #2 to cross the White River Forest in the Dillon Ranger District. The existing 30-year permit has expired and this permit would be for an additional 30 years. FINANCIAL IMPACT An annual fee of $210.92 is assessed for a 25 ' right-of-way for 1.48 miles. LIST OF ATTACHMENTS Excerpt from November 9, 2010 Water and Sewer Board Minutes Bill for Ordinance WATER AND SEWER BOARD MINUTES November 9, 2010 The meeting was called to order at 5:04 p.m. Members present: Members absent: Also present: Cassidy, Wiggins, Woodward, Olson, Habenicht, Higday, McCaslin, Clark Burns Stewart Fonda, Director of Utilities Excerpt from Page 2 of the November 9, 2010 Water and Sewer Board Minutes 2. BOREAS PASS DITCH The U.S. Department of Agriculture-Forest Service, submitted a Special Use Permit for the continued operation and maintenance of the Boreas Ditch #2. This allows the Boreas Ditch #2 to cross the White River Forest in the Dillon Ranger District. The existing 30-year permit has expired and this permit would be for an additional 30 years. An annual fee of $210.92 is assessed for a 25' right-of-way for 1.48 miles. Englewood received approximately 250 acre feet ofraw water per year from this ditch. The City Attorney's office reviewed and approved the Special Use Permit. A modification to the Forest Service indemnity clause was added by the City Attorney and accepted by the Forest Service. Mr. Habenicht moved; Mr. Higday seconded: Ayes: Nays: Absent: Motion canied. To recommend Council approval of the U.S. Department of Agriculture Forest Service Special Use Pe1mit for Boreas Ditch #2. Cassidy, Wiggins, Woodward, Olson, Habenicht, Higday, Mccaslin, Bums, Clark None None \ '