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HomeMy WebLinkAbout09657 ORDINANCE NO. 9657 AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE NORTHERN COLORADO TRUCK DRIVING ACADEMY AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, FOR USE OF A PARKING LOT IN THE PUEBLO MEMORIAL AIRPORT INDUSTRIAL PARK, AND AUTHORIZING THE MAYOR TO EXECUTE SAME WHEREAS, the Northern Colorado Truck Driving Academy provides Commercial Driver’s License (CDL) testing to its clients within Pueblo County, Colorado; and WHEREAS, the City owns vacant lots normally used for public parking which are not always in use and may be available for use by the Northern Colorado Truck Driving Academy; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement for Use of Pueblo Parking Lot by and between the City of Pueblo, a Municipal Corporation, and the Northern Colorado Truck Driving Academy, relating to the use of a City parking lot for the purpose of providing Commercial Driver’s License testing to the Academy’s clients, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved, subject to the conditions as set forth in said Agreement. SECTION 2. The Mayor is hereby authorized to execute said Agreement for Use of Pueblo Parking Lot on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City thereto and attest the same. SECTION 3. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Ordinance and the attached Agreement to effectuate the transactions described therein. SECTION 4. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on January 27, 2020. Final adoption of Ordinance by City Council on February 10, 2020. President of City Council Action by the Mayor: ☒ Approved on February 12, 2020 . ☐ Disapproved on based on the following objections: Mayor Action by City Council After Disapproval by the Mayor: ☐ Council did not act to override the Mayor's veto. ☐ Ordinance re-adopted on a vote of , on ☐ Council action on __________________failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-4 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: January 27, 2020 TO: President Dennis E. Flores and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Brenda Armijo, City Clerk FROM: Greg Pedroza, Interim Director of Aviation SUBJECT: AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE NORTHERN COLORADO TRUCK DRIVING ACADEMY AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, FOR USE OF A PARKING LOT IN THE PUEBLO MEMORIAL AIRPORT INDUSTRIAL PARK, AND AUTHORIZING THE MAYOR TO EXECUTE SAME SUMMARY: An Agreement between the Northern Colorado Truck Driving Academy and the City of Pueblo, allowing the Academy to use a parking lot in the Pueblo Memorial Airport Industrial Park, is attached for City Council’s consideration. PREVIOUS COUNCIL ACTION: None. BACKGROUND The Northern Colorado Truck Driving Academy provides Commercial Driver’s License (CDL) testing to its clients within Pueblo County, Colorado and needs a place to do its testing. The City owns a parking lot in the Pueblo Memorial Airport Industrial Park which is not always in use and may be used for this testing. The lot is located south of United Avenue, between Lockheed Avenue and Big R Street. FINANCIAL IMPLICATIONS: In consideration for the City allowing the Northern Colorado Truck Driving Academy use of the City’s parking lot, the company will provide CDL testing to five (5) City employees at no cost or charge. BOARD/COMMISSION RECOMMENDATION: None. STAKEHOLDER PROCESS: None. ALTERNATIVES: If this Ordinance is not approved, the Northern Colorado Truck Driving Academy will not be allowed to use the City’s parking lot. RECOMMENDATION The Department of Aviation recommends the passage of this Ordinance. Attachments: Agreement for Use of Pueblo Parking Lot AGREEMENT FOR USE OF PUEBLO PARKING LOT THIS AGREEMENT ("Agreement") is made and entered into as of the 9' day of , 2020 (the "Effective Date")by and between the Northern Colorado Truck Driving A ademy with an address of 425 John Deere Dr. #3, Fort Collins, Colorado 80524 (hereinafter referred to as"Permittee"), and the City of Pueblo, a Municipal Corporation, with an address of 1 City Hall Place, Pueblo, Colorado 81003 (hereinafter referred to as"City"). WHEREAS, Permittee provides Commercial Driver's License(CDL) testing to its clients (collectively "Clients") within Pueblo County, Colorado; and WHEREAS, City owns vacant lots (collectively "City Facilities") normally used for public parking, which City Facilities are not always in use and may be available for use by Permittee; and WHEREAS, Permittee desires to use the City Facilities in connection with the CDL testing it provides to Clients; and WHEREAS, City is willing, subject to the conditions set forth in this Agreement, to allow Permittee to use the City Facilities, when not in use by City, to provide CDL testing to its Clients; and WHEREAS, Permittee has specifically authorized the undersigned representative of Permittee to execute this Agreement on its behalf and thereby contractually obligate and bind Permittee to the terms of this Agreement; NOW, THEREFORE, in consideration of the foregoing recitals and the terms and conditions set forth herein, the parties agree as follows: 1. Subject to the terms, conditions and requirements of this Agreement, City will allow Permittee and its Clients to use and occupy the City Facilities as designated by the Director of Aviation when such facilities are not otherwise scheduled for or in use by City. City Facilities include only the City's parking lot located south of United Avenue, between Lockheed Avenue and Big R Street, within the Pueblo Memorial Airport Industrial Park. 2. The term of this Agreement shall commence on the Effective Date and proceed on a month-to-month basis. This Agreement shall automatically renew each month, unless a party provides written notice of its intent not to renew at least fourteen (14) days prior to the end of the then current month. City may immediately terminate this Agreement at any time upon written notice to Permittee. The provisions of sections 3, 13, 14, 16, 18, 19, 20, and 22 shall survive the expiration or termination of this Agreement. 3. It is understood and agreed that City hereby reserves all rights to control and manage City Facilities and to enforce all necessary and proper rules for the management and operation of the same and for its authorized representatives to enter the facilities at any time to make inspections regarding Permittee's conformity with the terms of this Agreement. City also reserves the right, but not the duty, through its duly appointed representatives, to eject any objectionable persons from the premises and Permittee hereby waives any and all claims for damages against City and any and all of its agents or employees resulting from the exercise of this authority. 4. Permittee shall pay to City for use of the City Facilities a usage fee of$ for each day Permittee intends to use the City Facilities, where fees will not be prorated or reduced for partial days of use. This fee shall be paid in full on the first day of each month prior to any use of City Facilities. Fees shall be adjusted annually on January 1 of each year by the increase or decrease of the Consumer Price Index— All Urban Consumers. 5. In consideration for City allowing Permittee to use City Facilities in accordance with this Agreement, Permittee shall provide, at no cost or charge, CDL testing to five (5) City employees. Said CDL testing shall be provided within twelve (12) months from the Effective Date, and annually thereafter, at the times and locations designated by City and agreed upon by Permittee. 6. Permittee shall use City Facilities in a careful, safe, and proper manner and not permit or maintain any damage, nuisance, or waste in, on, or about City Facilities. Permittee shall monitor its employees and Clients on their use of the City Facilities to ensure that they use the same in a careful, safe, and proper manner in compliance with this Agreement. Upon execution of this Agreement, Permittee shall deliver to City a security deposit in the amount of five hundred dollars ($500.00). In the event that Permittee fails to pay the usage fee or any other fee due under this Agreement, fails to perform any obligation at any time under this Agreement, or damages the City Facilities in any way, City may draw from the security deposit to remedy same. In the event that the City draws from this deposit, City shall notify Permittee in writing and require Permittee to replenish the deposit to the original level. 7. Permittee shall maintain the City Facilities in accordance with the requirements and regulations of City. Permittee shall be responsible for all costs, fees, charges, and penalties associated with the discharge or release of any hazardous material (including petroleum products). Permittee shall be responsible for the containment or removal of any contamination or hazardous material (including petroleum products) on, over or under the City Facilities, which is caused by Permittee, its officers, agents, employees, contractors or Client. The storage and accumulation of fuel, flammables, explosive liquids or solids, waste, debris or other hazardous materials within or on the City Facilities or adjacent grounds is expressly prohibited without prior written consent from the Director of Aviation. 8. Permittee, at its sole cost and expense, shall maintain the City Facilities, to include pavement maintenance, painted markings, pest control, snow removal, and other such activities necessary to access said areas. At no time shall snow, dirt, or other debris be piled or stored on public areas. It is the Permittee's responsibility to keep the City Facilities free and clear of all snow, dirt, and other debris. Should Permittee make changes to the City Facilities, including painting the pavement for testing purposes or building of temporary obstacles, upon termination of this Agreement, Permittee shall at its sole cost and expense remove any all changes to the City Facilities and restore them to their original state or as desired by City. No permanent alteration of City Facilities shall be made by Permittee except with the prior written approval of City. 9. City shall have the right to enter the City Facilities at any time for the purposes of repairing, replacing, and/or maintaining its property. City maintains all rights of entry under law, and its right to enter the City Facilities at any time. 10. Permittee shall, at all times, have an experienced and qualified training instructor physically present and directly supervising Clients when Clients are upon City Facilities and when trucks and equipment are being used or demonstrated. It shall be the responsibility of Permittee, and not of City, to ensure Clients are provided with all appropriate safety instruction and training on the operation and use of trucks and equipment prior to any handling or use of same. Additionally, prior to the first entry upon City Facilities, Permittee shall require all of its employees and Clients who are to enter upon City Facilities to sign a Release of Liability Agreement on the form attached hereto as Exhibit"A" (the"Release"). Permittee shall keep a record of all signed Releases during the term of this Agreement and for at least three (3) years thereafter. Permittee shall immediately provide copies of all Releases to City upon request. 11. Under no circumstances will Permittee's employees or Clients be permitted to drive City's vehicles, nor act as City personnel or representatives. 12. Permittee agrees to obtain at its own cost and expense liability and auto insurance with limits of not less than $1 million ($1,000,000.00) per person and $3 million ($3,000,000.00) per accident for bodily injury, or $1 million ($1,000,000.00)combined single limit and $3 million ($3,000,000.00) per accident for property damage, in which City is named as an additional insured thereunder. Permittee shall furnish to City, in a form satisfactory to City, a copy of said policy or a certificate that such insurance has been issued which shall include an endorsement to the effect that no cancellation in the terms of the policy shall be effective unless at least ten (10) calendar days written notice thereof has been given to City. 13. Permittee agrees to pay promptly all taxes, excise or license fees of whatever nature applicable to its conducting of business and to take out all licenses, permits, municipal, state or federal, required for the usage herein permitted, and further agrees to furnish City, upon request, duplicate receipts or other satisfactory evidence showing the prompt payment of all taxes and fees above referred to, and showing that all required licenses and permits are in effect. The City shall have no fiscal obligations to Permittee, its employees or Clients under this Agreement. 14. This Agreement is not intended to, nor shall it create, any duty to any Client or Permittee employee, or any other person, firm or entity with regards to the provision of facilities or equipment by City, nor security, level of safety, or activities undertaken by City's employees or conditions resulting therefrom. No Client, Permittee employee, or other person, firm or entity shall be granted or have any private right of action, claim or civil liability remedy against the City, or its respective officers, employees or agents, by virtue of this Agreement. Nothing in this Agreement shall be construed to create any liability, or to waive any of the immunities, limitations on liability or other provisions of the Governmental Immunity Act, §24-10-101 et seq., C.R.S., or to waive any immunities or limitations on liability otherwise available to the City, its officers, employees or agents. 15. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No modification of this Agreement, and no waiver of any of the Agreement's provisions or conditions, shall be binding unless made by written document signed by the parties. Any delegation or assignment of this Agreement by either party, without the prior written consent of the other party, shall be void. 16. Permittee acknowledges that the use of the City Facilities presents inherent dangers and that use of trucks and equipment presents inherent risks. Permittee acknowledges that it has inspected City Facilities and finds them suitable for its intended use. The use by Permittee, its Clients and employees of the City Facilities is "AS IS" and "WITH ALL FAULTS" and in its existing condition, whatever that may be. NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, IS MADE BY THE CITY CONCERNING THE SAFETY, USABILITY, OR FITNESS FOR ANY PURPOSE OF THE CITY FACILITIES FURNISHED HEREUNDER, AND CITY EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES. Permittee agrees that City shall have no obligation to upgrade, repair, resurface or maintain the City Facilities. City maintains the right to close any portion of the City Facilities for any reason. 17. Except as set forth elsewhere in this section, all notices to be given under this Agreement shall be made in writing, and shall be sufficient if delivered personally, or mailed by First Class United States Mail, postage prepaid, to the other party at the following addresses: If to Permittee: 411 S,euscktc L� Attn: NrGLioIas 1Z. -Ivn. _t,- `-� ,10 t.ivi Do2ve v i4- �ot2-T COLLI NS CC 00c-24 If to the City: Pueblo Memorial Airport Attn: Director of Aviation 31201 Bryan Circle Pueblo, CO 81001 With a Copy to: City of Pueblo Attn: City Attorney 1 City Hall Place Pueblo, CO 81003 18. This Agreement shall be governed by the laws of the State of Colorado. Venue for any action arising under this Agreement or for the enforcement of this Agreement shall be in a state court with jurisdiction located in Pueblo County, Colorado. 19. This Agreement shall be subject to the City of Pueblo's Municipal Code, including but not limited to, Title III as it relates to the Pueblo Memorial Airport and operations thereon. In its use or occupancy of City Facilities, Permittee shall comply with all applicable state, federal and local non-discrimination laws and regulations. 20. At all times during the term of this Agreement, Permittee shall be deemed an independent contractor and its employees and Clients shall not be employees of the City. Permittee shall be responsible in accordance with law for all withholding of taxes, social security, pension, unemployment, workers' compensation, and other employment taxes and costs with respect to its employees and Clients, and, to the maximum extent permitted by law, it shall indemnify, defend and hold City harmless from and against any and all claims for the same. Permittee and any insurance carrier providing insurance coverage for the Permittee's employees shall be deemed to have waived all rights of subrogation against City for injury or loss arising from such employees' entry and presence upon and use of the City Facilities. 21. If any provision of this Agreement is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Agreement shall continue in full force and effect. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together constitute one and the same agreement. 22. Permittee agrees to defend, hold harmless, and indemnify, the City and its officers, employees, and agents, from any and all claims and liability, including reasonable attorney's fees and costs, for injuries, death, or damages to any person, arising from or in any way connected with Permittee's use of the City Facilities, or any default or breach of any term of this Agreement by Permittee, excepting only claims based solely on the City's gross negligence, bad faith, or intentional acts. IN WITNESS WHEREOF, the parties have entered into this Agreement as of the day and year first written above. PERMITTEE: All C COL' LLC Name: N ,G .e 1Ct5 Title: Quit/ STATE OF COLORADO ) ss. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this 1\day ofYAYMA , 201.1)by N i t,r \GS V- l)UAn\Ur(as O w\ X of the A\\(1rASOhS C'DL_ a L..LL corporation, on behalf of the corporation. Witness my hand and official seal. My commission expires:\MAA [ SEAL ] GABRIELLE NOTARY PUBLICSA STATE OF COLORADO Notary Public NOTARY ID 20184029327 MY COMMISSION EXPIRES JULY 25,2022 CITY OF PUEBLO, A MUNICIPAL CORPORATION By: //41.' ea ' Nicholas A. Gra sar, Mayor Attest: )et.kfl CtO OAA'Irt:Lde) City Clerk APPROVED AS TO FORM: City Attorney EXHIBIT"A" Release of Liability Agreement I. RELEASE OF LIABILITY AGREEMENT: PARTICIPANT MUST READ CAREFULLY BEFORE SIGNING In consideration for being permitted to use and occupy certain City Facilities in connection with instruction provided by Northern Colorado Truck Driving Academy, I hereby acknowledge, represent, and agree as follows: A. I understand that use of said City Facilities and related activities are inherently dangerous and do or may involve risks of death, injury, loss, or damage. I further acknowledge that such risks may include, but not be limited to, bodily injury, personal injury, sickness, disease, death, and property loss or damage. I acknowledge that such risks may arise from a variety of foreseeable and unforeseeable circumstances connected with the use of the City Facilities and related activities, including but not limited to the following risks: heart attack, back injury, skeletal injuries, hernia, muscular injuries, eye injuries, loss of fingers or limbs, and injuries related to use of vehicles, heavy lifting, pulling, pushing and climbing. 1•11 (Participant initials here) B. I hereby expressly assume all such risks of injury, loss, or damage to me arising out of or in any way related to the above-described use of said City Facilities and related activities, whether or not caused by the act, omission, negligence, or other fault of the City of Pueblo, its officers, its employees, or by any other cause. (Participant initials here) C. I understand and acknowledge that the City of Pueblo, its officers, and its employees are relying on, and do not waive or intend to waive by any provision of this Release of Liability Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. §24-10-101, et seq., as amended, or otherwise available to the City of Pueblo, its officers, or its employees. I hereby agree that this Release of Liability Agreement extends to all acts of negligence by City, its officers and employees, including negligent rescue operations, and is intended to be as broad and inclusive as permitted by the laws of Colorado. ") (Participant initials here) D. I understand and agree that this Release of Liability Agreement shall be governed by the laws of the State of Colorado, and that jurisdiction and exclusive venue for any suit or cause of action under this Release of Liability Agreement shall lie in the district court of Pueblo County, Colorado and I consent to and submit to the jurisdiction of that Court. (Participant initials here) E. This Release of Liability Agreement shall be effective as of the date set forth below (or the date signed if the date has not been completed) and shall be binding upon me, my successors, representatives, heirs, executors, assigns, and transferees. (Participant initials here) II. PARTICIPANT SIGNATURE AND DATE: Trainee/Instructor-Print Name: Ki t a G._5 < �-,v� •-V Date: Oi 7 Z(5 Zc Trainee/Instructor Signatur• Witness: % /VT01 )5%✓'v )g