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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 07/17/2001 - RESOLUTION 2001-83 AUTHORIZING A REVOCABLE PERMIT AGENDA ITEM SUMMARY ITEM NUMBER: 19 DATE: July 17, 2001 FORT COLLINS CITY COUNCIL FROM:' Ron Mills SUBJECT: Resolution 2001-83 Authorizing a Revocable Permit over City-Owned Property located at 701-741 North College Avenue for Monitoring and Petroleum Contamination Clean Up by TPI Petroleum, Inc. RECOMMENDATION: Staff recommends adoption of the Resolution. EXECUTIVE SUMMARY: The City of Fort Collins entered into a purchase agreement January 22, 2001,with TPI Petroleum, Inc. for the property located at 701-741 North College Avenue and the conveyance of that property to the City closed on March 30, 2001. At the time of purchase, TPI was in the process of implementing a corrective action plan with the Oil Inspection Section of the Department of Labor and Employment of the State of Colorado for the clean up of petroleum contamination of the site. As part of the City's purchase agreement,TPI remains responsible for all costs and liability resulting from any hydrocarbon-related substances existing on the Property at the time of closing. TPI has requested that the City formally authorize TPI's monitoring and clean up activities on the site to allow the completion of its corrective action plan. Adoption of this Resolution authorizes the City Manager to execute a revocable permit to TPI Petroleum, Inc., in the form of agreement that has been negotiated by staff and TPI, which is attached to the Resolution as Exhibit A. RESOLUTION 2001-83 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING A REVOCABLE PERMIT OVER CITY-OWNED PROPERTY LOCATED AT 701-741 NORTH COLLEGE AVENUE FOR MONITORING AND PETROLEUM CONTAMINATION CLEAN UP BY TPI PETROLEUM, INC. WHEREAS,the City of Fort Collins(the"City")is the owner of the property known as 701- 741 North College Avenue in Larimer County,Colorado(hereinafter referred to as the"Property"), which it acquired from TPI Petroleum, Inc. ("TPI"); and WHEREAS,the purchase agreement between the City of Fort Collins and TPI requires that TPI monitor and complete the clean up of all hydrocarbon-related substances on the Property; and WHEREAS, in order to carry out such monitoring and clean up activities on the Property, TPI has requested that the City formally authorize TPI's activities on the Property; and WHEREAS,Article XI,Section 10,of the Charter of the City of Fort Collins authorizes the Council to permit the use or occupation of any street, alley, or public place, provided that such permit shall be revocable by the Council at its pleasure, whether or not such right to revoke is expressly reserved in such permit. NOW, THEREFORE,BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Council hereby approves the revocable permit as in the best interests of the City,and authorizes the City Manager to execute the revocable permit in the form of the agreement attached hereto as Exhibit"A" and incorporated herein by this reference. Passed and adopted at a regular meeting of the City Council of the City of Fort Collins held this 17th day of July A.D. 2001. Mayor ATTEST: City Clerk EXHIBIT "A" TESTING AND REMEDIATION LICENSE AGREEMENT . This Testing and Remediation License Agreement ("Agreement") is made between the CITY OF FORT COLLINS, COLORADO, a municipal corporation ("Licensor") , with an address of P.O. Box 580, Fort Collins, Colorado 80522, and TPI PETROLEUM, INC. , a Michigan corporation ("Licensee") , with an address of 6000 N. Loop 1604 W. , San Antonio, Texas 78249-1112. WITNESSETH: For and in consideration of the mutual promises recited herein and other good and valuable consideration exchanged between the parties, the receipt of which is hereby acknowledged, Licensor hereby grants a temporary license to Licensee, and Licensee hereby accepts a temporary license from Licensor to enter upon the land located at 701- 741 N. College Avenue, Fort Collins, Colorado, being further described in Exhibit "A" attached hereto, together with all rights, privileges and appurtenances thereto belonging (the "Premises") for the sole purpose of conducting, and with a license herein granted to conduct, the environmental testing and remediation of any hydrocarbon motor fuels or their derivatives leaked, spilled or discharged by Licensee on the Premises . 1. Term - This Agreement shall commence as of the date hereof, and . expires as soon as Licensee has received from the Oil Inspection Section of the Department of Labor and Employment of the State of Colorado ("Agency") a No Further Action Notice (as defined in Paragraph 7) . Licensee shall thereafter surrender and vacate the Premises, remove all testing and remediation units and equipment, fill in and level any holes or wells, and restore any damage. In accordance with Article XI, Section 10, of the Charter of the City of Fort Collins, which allows the City Council to permit the use or occupation of any street, alley, or public place, and Resolution 2001 - approved by the City Council on _ , 2001, this license shall be revocable by the Council at o� its pleasure. 2 . Current Levels of Contamination - Licensee has been operating a retail motor fuel dispensing facility on the Premises. Prior to the date hereof, environmental investigations have been conducted and a complete analysis has been done of the levels of existing contamination on the Premises . Copies of all tests and results have been presented to both Licensor and Licensee. 3. Testing and Remediation - (a) Licensor agrees that Licensee shall carry out any necessary activities ' to further investigate and remediate subsurface contamination caused by any leak, spill or discharge of hydrocarbon motor fuel and its derivatives including the operation and removal of underground storage tanks on the Premises prior to the date hereof (the "Existing Releases") which was caused by Licensee's use and possession of the Premises. Licensee will use only that portion of the Premises necessary to conduct its investigation and remediation efforts. Licensee's obligations hereunder shall be in accordance with, and not in lieu of, Licensee' s continuing obligations under that certain Agreement of Purchase and Sale of Real Property, between Licensor and Licensee and dated January 22, 2001, as amended (the "Purchase Agreement") . (b) Prior to final release of Licensee' s remediation obligations herein, Licensee shall receive a No Further Action Notice from the Agency and acknowledgment that the baseline condition of the Premises is below Agency corrective action levels (the "Corrective Action Standard") with respect to any hydrocarbon motor fuels or their derivatives leaked, spilled or discharged on the Premises. (c) Licensee agrees to provide to Licensor copies of all data, reports and correspondence with the Agency, or any other governmental agency with regulatory authority over the Premises, as soon as reasonably practicable. 4. Use - (a) Licensor agrees that Licensee, at its option, may install any number of additional monitoring, extraction, ventilation and/or recovery wells upon the Premises as may be required by the Agency or as Licensor and Licensee mutually agree are necessary to ascertain, investigate or monitor the condition of the Premises or any other property. Licensee shall have the right to remove contamination from any wells on the Premises which were placed there by Licensee, its agents, employees, tenants or contractors . Licensee shall use reasonable efforts to avoid the necessity of placing any well, or of conducting remediation activities, in, upon, over or under the driveways, buildings and entrances to minimally disrupt the business activities of Licensor on the Premises during Licensee' s activities . Licensor shall be responsible for any damage which Licensor or Licensor' s employees negligently cause to the environmental remediation units or associated piping and equipment. Licensee shall use reasonable efforts not to unreasonably interfere with the ongoing business operated on the Premises . (b) Licensee will comply with all applicable environmental laws and regulations relating to further testing and remediation on the Premises . 2 5. Improvements - During the term hereof, Licensee may use, move, remove or alter any well, curbing, pavement, driveway, improvement, machinery or remediation or monitoring equipment which Licensee placed upon the Premises and shall repair or restore any damage caused thereby prior to the expiration or termination hereof. 6. Underground Storage Tank Installation. Licensor agrees that a new Underground Storage Tank ("UST") will not be installed nor an existing UST replaced on the Premises until such time as the comprehensive site assessment required by the Agency has been completed and the baseline contamination of the Premises has been established (unless already established) . If a UST is to be installed during the term of this Agreement, Licensor agrees that Licensee shall have the right to approve the UST location on the Premises. The location will be approved or disapproved within 15 days of plans being submitted and approval will not be unreasonably withheld. If in the process of constructing the new UST installation it is determined that disposal is required for excavated dirt, then Licensor agrees that Licensor shall be responsible for all costs associated with the excavation and disposal. 7 . Indemnity - Subject to full compliance by Licensor with the use obligations set forth in Paragraph 4, Licensee shall indemnify Licensor from and against any and all claims, demands, obligations, lawsuits, causes of action, costs, expenses, attorney's fees and liabilities ("Claims") relating to the Existing Releases to the extent the Claims arise from soil or groundwater contamination caused by the Existing Releases in excess of Corrective Action Standard as established by the Agency. Licensee shall further indemnify Licensor from and against any and all Claims related to Licensee' s performance of assessment, investigation, remediation, monitoring or disposal activities (the "Activities") not attributable to the negligence of Licensor or its tenants, employees, representatives, contractors and/or agents. The foregoing indemnities shall expire automatically upon written notice by the Agency that it no longer requires the Activities to be performed with respect to the Existing Releases ("No Further Action Notice") . Licensor shall indemnify and hold harmless Licensee from and against all Claims arising from any increase in levels of contamination or hazardous substances generated, spilled, leaked or otherwise discharged upon the Premises by Licensor. Neither Licensee nor Licensor shall,' under any circumstances, be liable hereunder to the other for special, consequential or indirect damages of any kind. Licensee' s obligations hereunder shall be in addition to the surviving obligation to indemnify Licensor pursuant to the Purchase Agreement. 3 8. Licensor Covenants - Once all of Licensee's remediation operations required under this Agreement have been completed and the Agency has issued a No Further Action Notice, then the obligation to indemnify Licensor imposed' upon Licensee by this License Agreement shall cease, except for Licensee's obligations with respect to third party claims, if any, which may be made relating to Licensee's operations during the time periods prior to or during this Agreement. 9. Subsequent Releases - The indemnity obligations of Licensee set forth in Paragraph 7 of this Agreement shall not be applicable to the extent a spill, leak or other release of hydrocarbons or their derivatives occurs at the Premises before the issuance of a No Further Action Notice, and such spill, leak or release is not caused by the Licensee's Activities and cannot be segregated from the contamination on the date hereof. 10. Notice - Any notice hereunder shall be in writing and shall be deemed given when sent by overnight mail, personally delivered, facsimile (with proof of transmission and answer-back capability) or deposited in the mail registered or certified, charges prepaid, and addressed to the party for whom intended at such party' s address herein specified, or at such other address as such party may have substituted therefore by proper notice to the other. 11. Headings - The heading of the paragraphs and subparagraphs of this Agreement are for convenience only and do not in any way limit, amplify or otherwise affect the covenants and agreements contained in this Agreement. Dated to be effective 2001 . LICENSOR: CITY OF FORT COLLINS, COLORADO, a municipal corporation BY: Title: LICENSEE: TPI PETROLEUM, INC. , a Michigan corporation BY: PZ15i:z -Or it1e 4 EXHIBIT A PARCEL I A TRACT OF LAND LOCATED IN THE SE 1/4 OF SECTION 2, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH P.M., LARIMER COUNTY, COLOADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: CONSIDERING THE SOUTH LINE OF THE SE 1/4 OF SAID SECTION 2 AS BEARING N 88 DEGREES 44' 00" W AND WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO: COMMENCING AT THE SE CORNER OF SAID SECTION 2: THENCE ALONG THE SAID SOUTH LINE, N 88 DEGREES 44' 00' W 40.00 FEET TO THE WEST RIGHT OF WAY LINE OF V.S. HIGHWAY 287; THENCE ALONG SAID RIGHT OF WAY, N 01 DEGREES 16 ' 00" E 207.16 FEET TO THE TRUE POINT OF BEGINNINGS THENCE S 85 DEGREES 56 ' 33" W 107.51 FEET TO THE EAST RIGHT OF WAY OF THE UNION PACIFIC RAILROAD, SAID EAST RIGHT OF WAY BEING 25 FEET FROM THE CENTERLINE OF THE MAIN TRACT; THENCE ON A CIRCULAR CURVE TO THE LEFT HAVING A RADIUS OF 1960.08 FEET A DISTANCE OF 160.75 FEET; THENCE CONTINUING ALONG SAID EAST RIGHT OF WAY N 05 DEGREES 47 ' 56" W 122.07 FEET TO .THE SOUTH BANK OF LAKE CANAL; THENCE ALONG THE SOUTH BANK OF LAKE CANAL S 72 DEGREES 18' 00" E 152.39 FEET TO THE WEST RIGHT OF WAY OF U.S. HIGHWAY 287; THENCE ALONG SAID RIGHT OF WAY OF HIGHWAY 287 S 01 DEGREES 16 ' 00' W 226.94 FEET TO THE TRUE POINT OF BEGINNING. PARCEL II A TRACT OF LAND LOCATED IN THE SE 1/4 OF SECTION 2, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH P.M. , LARIMER COUNTY, COLORADO AND IN THE NE 1/4 OF SECTION 11, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH P.M. , LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: CONSIDERING THE SOUTH LINE OF THE SE 1/4 OF SAID SECTION 2 AS BEARING N 88 DEGREES 44' 00' W AND WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO; COMMENCING AT THE SE CORNER OF SAID SECTION 2; THENCE ALONG THE SAID SOUTH LINE, N 88 DEGREES 44' 00" W 40.00 FEET TO THE WEST RIGHT OF WAY OF U.S. HIGHWAY 287, AND THE TRUE POINT OF BEGINNING; THENCE S 01 DEGREES 01' 00 ' W, ALONG SAID RIGHT OF WAY, A DISTANCE OF 226 .74 FEET TO THE NORTH BANK OF THE CACHE LA POVDRE RIVER; THENCE ALONG SAID NORTH BANK N 67 DEGREES 28' 07" W 101.22 FEET TO THE EAST RIGHT OF WAY LINE OF THE UNION PACIFIC RAILROAD, SAID RIGHT OF WAY LINE BEING 25 FEET EAST OF THE CENTERLINE OF THE MAIN TRACK; THENCE ALONG SAID RAILROAD RIGHT OF WAY N 01 DEGREES 064 55" E 58.21 FEET; THENCE CONTINUING ALONG SAID RIGHT Ok' WAY ON A SPIRAL CURVE TO THE LEFT RAVING A SPIRAL DELTA OF 3 DEGREES 36 ' A DISTANCE OF 241.60 FEET TO THE POINT OF A CIRCULAR CURVE; THENCE ON A CIRCULAR CURVE TO THE LEFT HAVING A RADIUS OF 1960.08 FEET A DISTANCE OF 87.88 FEET; THENCE LEAVING THIS RAILROAD RIGHT OF WAY, N 85 DEGREES 56' 33" E 107.51 FEET TO THE WEST RIGHT OF WAY LINE OF U.S. HIGHWAY 287; THENCE ALONG SAID WEST RIGHT OF WAY S 01 DEGREES 16' 00' W 207.16 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING FROM PARCELS I AND II THAT PARCEL AS CONVEYED IN DEED RECORDED AUGUST 3, 1995 AT RECEPTION NO. 95046671. PARCEL III A TRACT OF LAND LOCATED IN THE SE 1/4 OF SECTION 2 AND THE NE 1/4 OF SECTION 11, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH P.M. , COUNTY OFLARIMER, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS; CONSIDERING THE SOUTH LINE OF THE SE 1/4 OF SAID SECTION 2 AS BEARING N 88 DEGREES 44' 00" W AND WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO: COMMENCING AT THE SE CORNER OF SAID SECTION 2; THENCE ALONG THE SAID SOUTH LINE, N 88 DEGREES 44 ' 00" W, 40.00 FEET TO THE WEST RIGHT OF WAY LINE OF US HIGHWAY 287; THENCE ALONG SAID WEST RIGHT OF WAY S O1 DEGREES O1' 00" W 226.74 FEET TO THE NORTH BANK OF THE CACHE LA POUDRE RIVER; THENCE ALONG THE SAID NORTH BANK N 67 DEGREES 28' 07" W, 101.22 FEET; THENCE N 66 DEGREES 20' 13" W, 92.03 FEEET TO THE WEST RIGHT OF WAY LINE OF THE UNION PACIFIC RAILROAD, BEING 60 FEET WESTERLY FROM THE CENTERLINE OF THE MAIN TRACK ALSO BEING THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG THE NORTH BANK OF THE CACHE LA POODRE RIVER, N 61 DEGREES 26' 14" W, 152.35 FEET; THENCE N 45 DEGREES 46' 04" W, 115.92 FEET; THENCE N 14 DEGREES 09' 08" W, 214.73 FEET; THENCE N 04 DEGREES 46 ' 07" W, 412.17 FEET TO THE SOUTH BANK OF THE LAKE CANAL; THENCE LEAVING THE NORTH BANK OF THE RIVER, S 69 DEGREES 43 ' 01" E ALONG THE SOUTH BANK OF LAKE CANAL A DISTANCE OF 251.12 FEET TO THE WEST RIGHT OF WAY OF THE UNION PACIFIC RAILROAD, SAID RIGHT OF WAY BEING 60 FEET WEST OF THE MAIN TRACK; THENCE ON A CIRCULAR CURVE TO THE RIGHT HAVING A RADIUS OF 1875.08 FEET A DISTANCE OF 432.78 FEET TO THE P.C.C. ; THENCE ON A SPIRAL CURVE TO THE RIGHT RAVING A SPIRAL DELTA OF 03 DEGREES 36 ' A DISTANCE OF 236.31 FEET; THENCE S O1 DEGREES 06 ' 55" W, 22.92 FEET TO THE TRUE POINT OF BEGINNING.