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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 ]