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HomeMy WebLinkAbout097 - 08/20/2019 - Approving and Authorizing Execution of the Second Amendment to Permanent Easement Dated April 27, 20 SECOND AMENDMENT TO PERMANENT EASEMENT AGREEMENT THIS SECOND AMENDMENT TO PERMANENT EASEMENT AGREEMENT (“Second Amendment”) is made and entered into this __ day of _____, 2019, by and among THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, 300 LaPorte A venue, Fort Collins, Colorado, 80521 (the “Grantor”) and PUBLIC SERVICE COMPANY OF COLORADO a Colorado corporation d/b/a XCEL ENERGY (the “Grantee”). Grantor and Grantee are collectively referred to as the “parties.” RECITALS AND PURPOSES WHEREAS, Grantor and Grantee entered into a Permanent Easement dated April 27, 2006, for Grantee to implement a removal action and associated activities along the Poudre River. The Permanent Easement was recorded in the real property records of the Larimer County Clerk and Recorder on May 3, 2006, at Reception Number 2006-0032893; and WHEREAS, Grantor and Grantee amended the Permanent Easement on July 5, 2011, to modify the location of the telecommunications line and related easement area. The Amendment to Permanent Easement Agreement was recorded in the real property records of the Larimer County Clerk and Recorder on August 24, 2011, at Reception Number 20110051428; and WHEREAS, references to the Permanent Easement hereinafter set forth shall mean the Permanent Easement as amended by the Amendment to Permanent Easement Agreement; and WHEREAS, the removal action has been completed and Grantee has prepared and delivered to the U.S. Environmental Protection Agency (“EPA”) the Poudre River Removal Action Final Closure Report (“Closure Report”) dated May 25, 2016. Grantee prepared and delivered to EPA a revised Closure Report dated March 31, 2017; and WHEREAS, on August 30, 2017, EPA notified Grantee and Grantor that in accordance with Section XXIX of the Administrative Order on Consent for Removal Action, CERCLA Docket No. CERCLA-08-2005-0003 (“AOC”) the work required under the AOC has been fully performed; and WHEREAS, the parties desire to modify the Permanent Easement to reflect that the removal action has been completed and to remove certain provisions of the Permanent Easement that are now obsolete; and WHEREAS, the vertical wall installed by Grantee as part of the removal action will remain in place indefinitely. Grantee is also voluntarily retaining certain monitoring wells and vaults along the Poudre River until approximately 2020 to monitor, if necessary, for potential changes in site conditions; and EXHIBIT A WHEREAS, the Permanent Easement contains an Exhibit B that describes the Easement Area. The parties desire to replace Exhibit B with a revised description of the Easement Area to remove certain areas of City Property. NOW, THEREFORE, in consideration of the foregoing and the benefits to be derived therefrom, the Permanent Easement is hereby modified as follows: 1. All defined terms and conventions referenced herein shall be interpreted as defined in the Permanent Easement. 2. Paragraph 1.1 of the Permanent Easement is deleted in its entirety and replaced with the following: “Grant of Easement and Right of Way to the Grantee. The Grantor hereby grants, bargains, conveys, delivers, transfers and sells to the Grantee and its successors and assigns a nonexclusive, perpetual easement (the "Permanent Easement") over and through that portion of the City Property more particularly described and depicted on Exhibit B (Revised) attached hereto and incorporated herein by reference (referred to herein as the "Easement Area"), for the remaining monitoring wells, vaults, and vertical wall (the "Improvements") over and within the Easement Area, subject to the terms, conditions and restrictions set forth herein.” 3. Paragraph 1.3(A) of the Permanent Easement is deleted in its entirety and replaced with the following: “Grantee shall have the right to use the Easement Area for purposes of monitoring, repairing or closing the Improvements, or for removing those Improvements that present a safety hazard. Grantee shall also have the right to access City Property outside of the Easement Area to meet its obligations under this Second Amendment, provided that any such activities are conducted so as to have the minimum impacts reasonably possible. Except in the event of an emergency, the Grantee shall not install any fixtures or appurtenances, or other additional improvement of any kind, without prior written notification to the Grantor. In the event of an emergency, the Grantee shall notify the Grantor of the emergency and related installation of improvements as soon as reasonably practicable. The Grantor’s approval of this Easement Agreement or its approval in the future of any schedule is not and shall not be construed as an endorsement of or approval by the Grantor of the technical or practical sufficiency of the Improvements.” 4. Paragraph 1.3(C) of the Permanent Easement is deleted in its entirety and replaced with the following: “The Grantee shall have the right of vehicular and non-vehicular access across the City Property as necessary to access the Easement Area to perform any obligations under this Second Amendment, subject to Grantee's obligation to fully restore the City Property in the event of any damage thereto. Except in the event of an emergency, vehicular access across the City Property shall be limited to existing paved roads and surfaces, to the extent practicable. For ingress and egress across the City Property to and from the Easement Area, the Grantee shall primarily use the permanent vehicular access, as described on Exhibit C, attached hereto and incorporated herein by this reference.” 5. Paragraph 1.3(D) of the Permanent Easement is deleted in its entirety. 6. Paragraph 1.3(G) of the Permanent Easement is deleted in its entirety and replaced with the following: “The parties acknowledge and agree that all activities by the Grantee on the Easement Area, and any access across the City Property shall be carried out in a manner and on a schedule reasonably expected to minimize disturbance to and preserve the improvements on and the natural or improved features and intended purposes of, the City Property. Grantee shall be responsible for repairing or removing any Improvements installed by Grantee in the Easement Area that present a safety hazard. In the event damage has resulted from the maintenance, repair, removal or presence of the Improvements, or Grantee's activities on the Easement Area or the City Property, the Grantee agrees to make such repairs or take such other action, promptly and at its own expense, as may be necessary to restore the same to a condition consistent with the Grantor's standards for work on Grantor's similarly managed properties in place at the time the need for restoration is ascertained, as reasonably determined by mutual agreement of the parties. The parties acknowledge that sensitive vegetation, habitat or other natural conditions, or specific conditions required for safe public use of the City Property, may require special effort by the Grantee to protect, restore, or replace in the event they are disturbed by the activities of the Grantee.” 7. Paragraphs 1.4(A) and (B) of the Permanent Easement are deleted in their entirety and replaced with the following: “A. An authorized representative of the Grantee and the Grantor will meet or otherwise confer on an as-needed basis to discuss proposed City projects that may potentially impact the Improvements, including but not limited to the City of Fort Collins’ Downtown River District Master Plan, 2014. The Grantor will initiate and coordinate such meetings. B. To the extent practicable, the parties shall provide the following information to each other, as applicable, during any such meeting: 1. Schedule and location of proposed and planned City projects; 2. Any sampling events or other activities proposed by Grantee (“site visit”); and 3. Observations of site conditions. 8. The contacts and addresses for Grantee in Section 7 of the Permanent Easement are deleted and replaced with the following: For Grantee: Manager, Waste and Remediation Xcel Energy Services Inc. 1800 Larimer St., Suite 1300 Denver, CO 80202 With a copy to: Assistant General Counsel (Environmental) Xcel Energy Services Inc. 1800 Larimer St., Suite 1100 Denver, CO 80202 and: Director, Real Estate Services Xcel Energy Services Inc. 414 Nicollet Mall Minneapolis, MN 55402 9. The Permanent Easement shall remain in full force and effect and unmodified except as expressly set forth in this Second Amendment. IN WITNESS WHEREOF, the parties here to have executed this Second Amendment the day and year first written above. CITY OF FORT COLLINS, COLORADO a municipal corporation By: ______________________________ Wade O. Troxell, Mayor ATTEST: _______________________ City Clerk APPROVED AS TO FORM: _______________________ Assistant City Attorney PUBLIC SERVICE COMPANY OF COLORADO, a Colorado corporation d/b/a XCEL ENERGY By: ______________________________________ EXHIBIT B