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HomeMy WebLinkAbout11259RESOLUTION NO. 11259 A RESOLUTION APPROVING A PRE - ANNEXATION AGREEMENT AND ESCROW AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND PUEBLO SPRINGS RANCH, LLC RELATING TO AN ESCROW DEPOSIT FOR PAYMENT OF CITY'S CONSULTANTS ENGAGED TO ASSIST THE CITY IN PROCESSING ANNEXATION AND ZONING MATTERS AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Pre - Annexation Agreement and attached Escrow Agreement between the City and Pueblo Springs Ranch, LLC relating to an escrow deposit for payment of City's consultants engaged to assist City in processing annexation and zoning matters, copies of which are attached hereto, having been approved as to form by the City Attorney, are hereby approved. SECTION 2 The President of the City Council is authorized to execute the Pre - Annexation Agreement and Escrow Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED March 24. 2008 Pe-& // )-s9 ED A Background Paper for Proposed RESOLUTION AGENDA ITEM # �-' Z DATE: MARCH 24, 2008 DEPARTMENT: PLANNING AND COMMUNITY DEVELOPMENT JERRY M. PACHECO, DIRECTOR TITLE A RESOLUTION APPROVING A PRE - ANNEXATION AGREEMENT AND ESCROW AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND PUEBLO SPRINGS RANCH, LLC RELATING TO AN ESCROW DEPOSIT FOR PAYMENT OF CITY'S CONSULTANTS ENGAGED TO ASSIST THE CITY IN PROCESSING ANNEXATION AND ZONING MATTERS AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council approve Pueblo Springs Ranch, LLC, consultants engaged to as Annexation and Zoning? Approval of Resolution BACKGROUND a Pre - Annexation Agreement and Escrow Agreement with relating to an escrow deposit for payment of the City's ass the City in processing the Pueblo Springs Ranch The Annexation and Zoning of such a substantial area commonly known as Pueblo Springs Ranch (PSR) is unprecedented for the City and the City does not have the depth of resources including staff, knowledge, and experience to review and act on the Annexation and Zoning in a timely manner. Professional services are needed to supplement City Staff's review of the development proposal's social, physical, fiscal and environmental impacts to the community including impacts to municipally provided services and infrastructure. As proposed, the agreements will allow the City to hire professional consultants to assist City Staff with the development review of PSR. FINANCIAL IMPACT None. The funds in an amount up to $250,0000 will be paid from the special escrow fund established pursuant to the Escrow Agreement. ESCROW AGREEMENT THIS ESCROW AGREEMENT, made and entered into this 21 st day of April 2008, by and between Community Banks of Colorado (the "Escrow Agent "), whose legal address is 121 W First Street Pueblo, CO 81 003 Pueblo Springs Ranch, LLC, a Nevada limited liability company ( "Company "), whose legal address is 5440 W. Sahara Avenue, 3 rd Floor, Las Vegas, Nevada, 89146, and the City of Pueblo, Colorado, a political subdivision of the State of Colorado ( "City "), whose legal address is 1 City Hall Place, Pueblo, Colorado, 81003: WITNESSETH THAT, in the joint and mutual exercise of their powers, and in consideration of the mutual covenants herein contained, the parties hereto recite and agree as follows: Section 1. Recitals. 1.01 Company and City have entered into an Agreement dated March 24, 2008 (the "Agreement "), a copy of which is attached hereto, whereby Company has agreed to deposit $250,000.00 ( "Deposit ") with the Escrow Agent for the purpose of paying professional fees and reimbursable expenses, except those of special legal counsel, incurred by City in connection with the Annexation and Zoning ( "Professional Fees "). 1.02 This Escrow Agreement is not intended to alter or change in any way the rights and obligations of Company and City under the Agreement, but is entirely supplemental thereto. 1.03 The terms capitalized in this Escrow Agreement but not defined herein shall have the meanings given to them in the Agreement. 1.04 Subject to the terms and provisions of this Escrow Agreement, Company and City agree to employ Escrow Agent to receive, hold, invest and disburse the Deposit to be paid to Escrow Agent by Company as described in Section 1.01, all as hereinafter provided; however, Escrow Agent shall not be obligated to assume or perform any obligations of Company or City under the Agreement. 1.05 Each of the parties has authority to enter into this Escrow Agreement and has taken all actions necessary to authorize the execution of this Escrow Agreement by the officers whose signatures are affixed hereto. Section 2. Escrow Fund. 2.01 Escrow Agent shall establish and hold the Deposit in a special escrow fund designated as the "Pueblo Escrow Fund" (the "Fund ") and shall keep such Fund separate and apart from all other funds and money held by it, and shall administer such Fund as provided in this Escrow Agreement. 2.02 The Fund shall be disbursed for the following purposes: first, to pay all reasonable and necessary fees and expenses incurred by Escrow Agent in connection herewith as evidenced by its statements forwarded to the City's Director of Finance (the "Director "), second, to pay Professional Fees upon submission to Escrow Agent by Director of written requests for payment (the "Request "). 2.03 Upon receipt by Escrow Agent of a Request signed by the Director, the Escrow Agent shall pay out of the Fund such amounts and to such persons as the Director shall specify in each such Request. 2.04 Escrow Agent shall only be responsible for the safekeeping and investment of the money held in the Fund, and the disbursement thereof in accordance with the Request signed by Director, and shall not be responsible for the authenticity or accuracy of such Requests or the application of amounts paid pursuant to such Request by the persons or entities to whom they are paid. Section 3. Fund; Investment. 3.01 The Fund and investments held by Escrow Agent under this Escrow Agreement are irrevocably held in trust for the benefit of City, and the Fund and investments, together with any income or interest earned thereon, shall be expended and disbursed only as provided in this Escrow Agreement, and shall not be subject to levy or attachment or lien by or for the benefit of any creditor of either Escrow Agent or Company. 3.02 Escrow Agent shall hold and invest the moneys held in the Fund in securities which are legal investments of public funds as the Director shall designate, or in lieu of such designation, in a Public Money Market Checking Account with interest at a rate equal to the 91 day T -Bill Rate plus -0- percent. Any income received on such investments shall be credited to the Fund. The Escrow Agent shall at least semi - annually furnish an accounting of all money, investments and income therefrom. 3.03 Escrow Agent shall, without further direction from the Director, sell such investments as and when required to make any payment from the Fund in accordance with Requests received by the Escrow Agreement. Section 4. Escrow Agent's Authority. Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, may assume the validity and accuracy of any statement of assertion contained in such a writing or instrument, and may assume that any person purporting to give any writing, notice or advice or instructions in connection with the provisions hereof has been duly authorized to do so. Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner and execution, or validity of any instrument deposited with it, nor as to the identity, authority or right of any person executing the same; and its duties hereunder shall be limited to those specifically provided herein. Section 5. Administrative Provisions. 5.01 This Escrow Agreement shall be construed and governed in accordance with the laws of the State of Colorado. 5.02 This Escrow Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. 5.03 This Escrow Agreement shall terminate upon written notice given by the Director to the Escrow Agent specifying the date of termination. 5.04 This Escrow Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF date and year first written above. [SEAL] the parties have executed this Escrow Agreement as of the ATTEST: City Irk APPROVED: As To FoXM CITY p-V (D av0 y PUEBLO SPRI 3S RANCH, LLC By game: Title: CITY OF PUI:j COLORADO, as City By President of the City Council APPROVED PRE - ANNEXATION AGREEMENT This Pre- Annexation Agreement ( "Agreement ") is entered into as of March 24, 2008, by and between the City of Pueblo, a municipal corporation (the "City ") whose legal address is 1 City Hall Place, Pueblo, Colorado, 81003, and Pueblo Springs Ranch, LLC, a Nevada limited liability company (the "Company ") whose legal address is 5440 W. Sahara Ave., 3` Floor, Las Vegas, Nevada, 89141, (City and Company may be referred to herein individually as "Party" and collectively as "Parties "), WITNESSETH RECITALS A. Company has filed with the City Petitions to annex to the City Company's approximately 24,000 acres of land located in Pueblo County, Colorado ( "Land ") ( "Annexation "). B. In conjunction with the Annexation, Company intends to file applications to zone the Land ( "Zoning "). C. Company has requested that the Annexation and Zoning be completed by February 1, 2009. D. Such expedited Annexation and Zoning will impose significant and substantial extra - ordinary duties and responsibilities on the City and its staff. E. The Annexation and Zoning of such a substantial area is unprecedented for the City and the City does not have the depth of resources including staff, knowledge, and experience to review and act on the Annexation and Zoning in a timely manner. F. Company will make available to City funds as hereinafter provided for the purpose of paying professional fees and reimbursable expenses of consultants, except those of special legal counsel, engaged by City, in its sole reasonable discretion, to assist the City in connection with the Annexation and Zoning ( "Professional Fees"). Now, therefore, in consideration of the foregoing Recitals and mutual covenants contained herein, City and Company agree as follows: Recitals. The Recitals set forth above are true and correct. 2. Deposit and Escrow. Company shall on or before March 31, 2008 deposit $250,000.00 ( "Deposit ") in an interest bearing escrow account designated as the "Pueblo Escrow Fund" ( "Fund ") to be held by an escrow agent authorized to do business in the City of Pueblo mutually selected by Company and City's Director of Finance ( "Director ") ( "Escrow Agent ") and disbursed by Escrow Agent at the request and direction of the Director for payment of Professional Fees ( "Requesf'). Director shall submit with each Request a statement or invoice from the person or entity requesting payment of Professional Fees to substantiate the amount of fees and expenses that have been incurred by such person or entity in performing professional services ( "Statement "). The Fund will be disbursed and paid by the Escrow Agent directly to the entity or persons performing consulting or legal services for the City in connection with the Annexation and Zoning as shown on the Request. For informational purposes and not as a condition precedent to the disbursement of the Fund, Director shall give a copy of each Request and Statement to Company. In the event a balance exists in the Fund after payment of all Professional Fees, Director shall file a final Request with the Escrow Agent to pay and distribute the balance of the Fund to Company. 3. Escrow Agreement. City and Company shall execute and deliver to the Escrow Agent with the Company's Deposit an executed Escrow Agreement in substantially the same form and content as the Escrow Agreement attached hereto. 4. Additional Fees. The Deposit is in addition to any other fees or expenses required to be paid to City by Company with respect to the Annexation and Zoning and is not in lieu of or satisfaction thereof, either in whole or in part. 5. No Limitation on City Council Powers. Neither this Agreement nor any provision hereof is intended to be nor shall same be construed to be an approval of the Annexation and /or Zoning or any part thereof. The Parties understand that any decision to annex or zone the Land must be made by the City Council of City in its discretion by Ordinance duly adopted. No provision of this Agreement shall be deemed or construed to limit, impair or restrain any of the powers and authority of City Council conferred by constitution, statute, charter, ordinance or other laws, including, but not limited to, the lawful exercise of its legislative powers. 6. Entire Understanding. This Agreement expresses the entire understanding of the Parties and supersedes any and all prior dealings and commitments with respect to the subject matter of this Agreement and may not be amended except in writing signed by City and Company, provided, however, it is anticipated that the Parties will enter into a separate agreement and escrow with respect to the fees and expenses of special legal counsel. 7. Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Colorado, without regard to conflict of laws principles. 8. Notices. Any notices hereunder shall be sufficiently given if given personally or mailed by certified mail, postage prepaid, addressed: (a) if to City, City Manager, City of Pueblo, I City Hall Place, Pueblo, Colorado, with a copy to Thomas E. Jagger, City Attorney, 503 N. Main Street, Suite 127, Pueblo, Colorado, 81003, or (b) if to the Company, 5440 W. Sahara Avenue, 3 d Floor, Las Vegas, Nevada, 89146, Attention: Manager or to such other address as either party shall specify in written notice given to the other party. 9. Binding effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors. This Agreement shall not be assigned in whole or in part by either City or Company. 10. Execution of Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 11. Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, such holding shall not affect the other provisions of this Agreement which shall remain in full force and effect. 12. Parties Interested Herein. Nothing in this Agreement expressed or implied is intended or shall be construed upon, or given to, any person other than the City and Company any right, remedy or claim under or by reason of this Agreement or any covenants, conditions or stipulations hereof, and all the covenants, stipulations, provisions and agreements herein contained by and on behalf of the City and Company shall be for the sole and exclusive benefit of the City and Company. 13. Venue, Jurisdiction and Jury Trial. Venue for any action, proceedings or other litigation of any type brought by either Party against the other Party for the enforcement or interpretation of the covenants and provisions of this Agreement ( "Litigation ") shall be Pueblo County, Colorado. All such Litigation shall be filed in the District Court of the Tenth Judicial District of Colorado, and City and Company submit to the jurisdiction of said District Court. City and Company waive their respective rights to a trial by jury in any such Litigation, and agree that any such Litigation is to tried by a court trial without a jury. 14. Attorney Fees. In the event of any Litigation arising under this Agreement, the prevailing Party in such Litigation shall be entitled to recover its costs and expenses (including reasonable attorneys' fees, court costs and litigation - related expenses) in addition to any other relief granted in such Litigation. Executed at Pueblo, Colorado, the day and year first above written. [SEAL] ATTEST: Name: S m 7 1=1121F.".1im's Title: Title. [SEAL] ATTEST: Clerk Approved as to form: PUEBLO, A MLJNI B President of the City Council City Atto