HomeMy WebLinkAbout08547ORDINANCE NO. 8547
AN ORDINANCE APPROVING AN INTERGOVERNMENTAL
AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE
PUEBLO CONSERVANCY DISTRICT RELATING TO
RESOLUTION OF UNPAID ASSESSMENTS, AUTHORIZING
THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME
AND BUDGETING AND APPROPRIATING $25,000
THEREFOR
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Intergovernmental Agreement dated December 10, 2012 by and between the
Pueblo Conservancy District (“District”) and the City of Pueblo, a Municipal Corporation
("City") resolving unpaid assessments levied by the District on real property and
improvements owned by the City, having been approved as to form by the City Attorney, is
hereby approved.
SECTION 2.
The President of City Council is authorized to execute and deliver said agreement
for and on behalf of the City, and the City Clerk is directed to affix the seal of the City
thereto and attest same.
SECTION 3.
Funds in the amount of $25,000 are hereby budgeted and appropriated from the
Stormwater Enterprise Fund for payment of amount due on December 15, 2012 in
accordance with the terms of the Intergovernmental Agreement.
SECTION 4.
This Ordinance shall become effective upon final passage and approval.
INTRODUCED: November 26, 2012
BY: Steve Nawrocki
COUNCIL PERSON
PASSED AND APPROVED: December 10, 2012
Background Paper for Proposed
ORDINANCE
DATE:November 26, 2012AGENDA ITEM # R-6
DEPARTMENT: Law Department
Robert P. Jagger, Interim City Attorney
TITLE
AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN
THE CITY OF PUEBLO AND THE PUEBLO CONSERVANCY DISTRICT RELATING TO
RESOLUTION OF UNPAID ASSESSMENTS, AUTHORIZING THE PRESIDENT OF CITY
COUNCIL TO EXECUTE SAME AND BUDGETING AND APPROPRIATING $25,000
THEREFOR
ISSUE
Should City Council approve the Intergovernmental Agreement with the Pueblo
Conservancy District which provides for the resolution of unpaid assessments levied on
real property and improvements owned by City?
RECOMMENDATION
Approve the Agreement.
BACKGROUND
For the years 2008, 2009 and 2010 the District imposed assessments against City property
relating to maintenance of the Pueblo Conservancy District Levy. The amount of the
assessments for said period totaled approximately $450,000. The City has contested said
assessments. In resolution of this dispute, the City would pay, subject to annual
appropriations, the amount of $127,500 as follows:$25,000 on or before December 15,
2012; $25,000 on or before January 15, 2013; and $77,500 on or before January 14, 2015.
Upon such payments, the District’s assessment would be satisfied. In addition, no
assessments will be levied in 2012 or 2013 against City property.
FINANCIAL IMPACT
The City will reduce the disputed amount from $450,000 to $127,500 and will make the
following payments, subject to annual appropriation: $25,000 on or before December 15,
2012; $25,000 on or before January 15, 2013; and $77,500 on or before January 14, 2015.
INTERGOVERNMENTAL AGREEMENT
THIS INTERGOVERNMENTAL AGREEMENT ( "Agreement ") is made and entered into as
of the 10 day of December, 2012, by and between the Pueblo Conservancy District, a Colorado
conservancy district established under the Conservancy Law of Colorado, hereinafter referred to as
"District" and Pueblo, a Municipal Corporation, hereinafter referred to as the "City ". Together these
entities may be referred to herein as the "Parties" or each individually as a "Party".
RECITALS
A. This Agreement is entered into pursuant to Sections 18(2)(a) and (b) of Art. XIV of
• the Colorado Constitution and §29 -1 -203, C.R.S.. Each of the parties is a political subdivision of the
State of Colorado within the meaning of section 29 -1- 202(2), C.R.S. (2010), and therefore, each is a
government within the meaning of section 29- 1- 202(1), C.R.S. (2010).
B. The District was formed after the 1921 Pueblo Flood for the principal purpose of
providing flood protection in a portion of the City of Pueblo. In furtherance of said purpose, it has
constructed and has since maintained the so- called "Pueblo Conservancy District Levee" (the
"Levee ").
C. City is a Colorado home rule city organized and existing under and by virtue of
Article XX of the Colorado Constitution.
D. Pursuant to the authority granted in C.R.S. §37 -4 -102 (3) and §37 -5 -117, the District
has imposed maintenance fund assessments for the years 2008, 2009 and 2010, which were payable
in years 2009, 2010 and 2011 (the "Assessments "). The City contends the Assessments are void and
unenforceable.
E. The District did not impose a maintenance fund assessment for the year 2011 that
would have been payable in the year 2012, but instead, chose to have all property in the District
reappraised, and an equitable method of assessment established for use in creating an assessment for
future years beginning in the year 2012(payable in the year 2013).
F. The District has funds totaling approximately $900,000.00. The District has received
a preliminary report from ASI Constructors, Inc. that repairs to the levee through the County of
Pueblo and Wildhorse Creek necessary to maintain the flood control capabilities required by FEMA
could cost up to $13,900,000.00, including preliminary engineering evaluations, geotechnical
services, engineering design and permitting costs of $700,000.00.
G. The District will have twenty -four months from the issuance by FEMA of final
regulations within which to have the levee certified in such a manner as to keep the entire downtown
area of the City of Pueblo out of a potential flood plain zone.
• H. The District will within the calendar year 2013 as funds are received, contract for an
•
• engineering analysis of the need to replace the lower 10 or 20 feet of the entire levee maintained by
the District, at an estimated cost to the District of $700,000.00.
I. The District will contract for levee and Wildhorse Creek repairs as soon as the
preliminary engineering work is completed and when funds have been assessed and collected. The
District will contract for the work necessary to cause the levee to be certified by FEMA to prevent
the downtown area of the City of Pueblo from becoming designated as a flood plain zone, as soon as
final regulations are promulgated by FEMA and when funds have been assessed and collected.
J. Without admitting any liability or the correctness of the other party's position, the
parties desire to resolve all issues and conflicts relating to the Assessments to include release of any
perpetual lien on property owned by the City pursuant to §37 -5 -114 and satisfaction in full of the
City's alleged obligation to the District.
AGREEMENT
• NOW, THEREFORE, in consideration of the foregoing recitals and the terms and conditions
set forth herein, the parties hereto do mutually agree as follows:
1. OBLIGATIONS OF CITY.
The City will pay to the District the sum of $127,500.00 payable as follows: $25,000.00 on or
before December 15, 2012; $25,000.00 on or before January 15, 2013; and $77,500.00 on or before
January 14, 2015. All funds received by the District shall be maintenance funds for the District.
This Agreement is expressly made subject to the limitations of the Colorado Constitution.
Nothing herein shall constitute, nor be deemed to constitute, the creation of a debt or multi -year
fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to
Article X, §20 of the Colorado Constitution or any other constitutional, statutory or charter debt
limitation. Notwithstanding any other provision of this Agreement, with respect to any financial
obligation of City which may arise under this Agreement in any fiscal year after 2012, in the event
the budget or other means of appropriations for any such year fails to provide funds in sufficient
•
amounts to discharge such obligation, such failure shall not constitute a default by or breach of this
Agreement, including any sub - agreement, attachment, schedule or exhibit thereto, by the City.
2. OBLIGATIONS OF DISTRICT.
The District agrees to the following:
a. Upon receipt of all payments provided in paragraph 1 hereof, to cause the
perpetual lien established by C. R. S. §37 -5 -114 for the Assessments on all property owned
by the City or by entities established by the City to be released and to cause said release to
be recorded in the records of the Recorder of Pueblo County, Colorado. Upon execution of
this Agreement, any perpetual lien existing against property owned by the City or by entities
established by the City pursuant to C.R.S. §37 -5 -114 shall be limited to the settlement
amount of $127,500.00.
b. The District shall not impose a maintenance fund assessment on any property
owned by the City or by entities established by the City for the years 2012 and 2013 (payable
in the years 2013 and 2014).
3. MUTUAL RELEASE.
The Parties hereby release, acquit, and forever discharge the other from any and all liability,
claims, rights, demands, obligations, actions or causes of action relating to the Assessments as
defined herein.
4. ASSIGNABILITY.
This Agreement shall not be assigned or transferred by either party without the prior written
consent of the other party. Any assignment or attempted assignment made in violation of this
provision shall, at the non - assigning party's election, be deemed void and of no effect whatsoever.
5. SIGNATURES.
The persons signing this Agreement on behalf of each party represent and warrant that such
persons and their respective party have the requisite power and authority to enter into, execute and
deliver this Agreement and that this Agreement is a valid and legally binding obligation of such party
enforceable against it in accordance with its terms.
6. OTHER PROVISIONS.
(a) Notices. All notices and other communications that are required or permitted to be
given to the Parties under this Agreement shall be sufficient in all respects if given in writing and
delivered in person, by express courier, or by First Class U.S. Mail, postage prepaid. Notice
delivered in person or by courier shall be effective upon such delivery; notice through U.S. Mail
shall be effective three (3) days after deposit in the U.S. Mail. Notice shall be given to the receiving
party at the following addresses:
If to Pueblo: City Manager
Pueblo Municipal Justice Center
200 S. Main Street
Pueblo, CO 81003
with a copy to: City Attorney
503 N. Main Street, Suite 203
Pueblo, CO 81003
•
If to District: Pueblo Conservancy District
c/o Mr. Rick Kidd
Kidd Engineering, Inc.
P.O. Box
Pueblo, CO 8100
with a copy to: Mr. Donald J. Banner
P. O. Box 583
Pueblo, CO 81002
or to such address as such Party may have given to the other by notice pursuant to this paragraph.
(b) No Costs or Attorneys' Fees. In the event of any litigation or other dispute resolution
process arising out of this Agreement, the Parties agree that each shall be responsible for its own
costs and attorneys' or other fees associated with any such action.
• (c) Entire Agreement; Amendments. This Agreement constitutes the entire agreement
between the Parties relating to the subject matter hereof. All prior or contemporaneous oral
agreements and discussions among the Parties or their respective agents or representatives relating to
the subject matter are merged into this Agreement. This Agreement may be altered, amended, or
revoked only by an instrument in writing signed by the Parties. Email and all other electronic
(including voice) communications from either Party in connection with this Agreement are for
informational purposes only. No such communication is intended by any Party to constitute either an
electronic record or an electronic signature or to constitute any agreement by any Party to conduct a
transaction by electronic means. Any such intention or agreement is hereby expressly disclaimed.
(d) Applicable Law. This Agreement shall be governed by and construed according to
the law of the State of Colorado.
(e) Waiver. The failure of either of the Parties to insist upon the strict performance of
any provisions of this Agreement or to exercise any right, power, or remedy upon a breach thereof
shall not constitute a waiver of that or any other provision of this Agreement or limit that Party's
• right thereafter to enforce any provision or exercise any right.
(f) Captions. All captions contained in this Agreement are for convenience only and
shall not be deemed to be part of this Agreement.
(g) Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original and all of which, when taken together, shall constitute one
agreement.
(h) Parties Bound by Agreement. This Agreement is binding upon the Parties hereto and
upon their respective legal representatives and successors.
(i) Authorizations. The governing bodies of each of the Parties have authorized the
execution of this Agreement by resolution or ordinance.
(j) Dispute Resolution. If a dispute arises between the Parties relating to this Agreement,
the following procedure shall be followed: The Parties agree to meet and confer in good faith in an
attempt to resolve any dispute, allowing a period of thirty (30) calendar days for same. If the Parties
are not successful in resolving the dispute in this fashion, then the Parties shall be free to pursue any
available legal or equitable remedy.
(k) No Third Party Beneficiaries. This Agreement is intended to describe the rights and
responsibilities of and between the Parties and is not intended to, and shall not be deemed to confer
• any rights upon any persons or entities not named as parties, nor to limit in any way the powers and
responsibilities of the Parties or any other entity not a party hereto.
(1) Joint Draft. The Parties, with each having the opportunity to seek the advice of legal
counsel and each having an equal opportunity to contribute to its content, drafted this Agreement
• jointly.
(m) Non - Severability. Each paragraph of this Agreement is intertwined with the others
and is not severable unless by mutual consent of the Parties.
(n) Effect of Invalidity. If any portion of this Agreement is held invalid or unenforceable
for any reason by a court of competent jurisdiction as to any Party or as to all Parties, the Parties will
immediately negotiate valid alternative portion(s) that as nearly as possible give effect to any stricken
portion(s).
(o) Liability Exposure. Notwithstanding any other provision of this Agreement, no term
• or condition of this Agreement shall be construed or interpreted as a waiver of any provision of the
Colorado Governmental Immunity Act, C.R.S. §24 -10 -101, et seq., by City.
IN WITNESS WHEREOF, the City and the District have executed this Agreement as of the
date first above written.
PUEBLO CONSERVANCY DISTRICT
,
4 f !%A� / B y
ecretary ' President of the Boar
PUEBLO, A MUNICIPAL CORPORATION
ATTEST:
B AeLL..
City C Presid- t o the arty Council
[ SEAL ]