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HomeMy WebLinkAbout09874 City Clerk’s Office Item # S-1 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: January 25, 2021 TO: President Lawrence W. Atencio and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Brenda Armijo, City Clerk FROM: Steven Meier, Acting Director of Public Works SUBJECT: AN EMERGENCY ORDINANCE APPROVING AN AGREEMENT TO DONATE SOILS AND RELEASE OF CLAIMS BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THE PUEBLO DEVELOPMENT FOUNDATION, INC., A COLORADO CORPORATION, RELATING TO THE DONATION OF APPROXIMATELY 100,000 CUBIC YARDS OF SOILS AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT SUMMARY: Attached is an agreement and release of claims between the City of Pueblo and the Pueblo Development Foundation, Inc. (“PDF”) concerning the donation of soils owned by the City to PDF. PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. BACKGROUND: Approximately 100,000 cubic yards of soils are located in various piles on land owned by the City in the St. Charles Industrial Park. PDF is in the process of constructing a building, for future economic development, in the Minnequa Industrial Park. PDF has asked the City to donate the soils to be used as fill in the construction of PDF’s new building. The City has no plans to use the soils. The donation will reduce the cost of constructing the new building to the benefit of City taxpayers. FINANCIAL IMPLICATIONS: PDF will not pay the City for the soils but PDF will be responsible for all costs associated with transporting the soils and reclamation of the City-owned land after the soils are moved. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: The City Council could decide not to donate the soils. RECOMMENDATION: The Mayor recommends approval of this Ordinance. Attachments: Proposed Ordinance and proposed Agreement ORDINANCE NO. 9874 AN EMERGENCY ORDINANCE APPROVING AN AGREEMENT TO DONATE SOILS AND RELEASE OF CLAIMS BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THE PUEBLO DEVELOPMENT FOUNDATION, INC., A COLORADO CORPORATION, RELATING TO THE DONATION OF APPROXIMATELY 100,000 CUBIC YARDS OF SOILS AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement to Donate Soils and Release of Claims between City of Pueblo and the Pueblo Development Foundation, Inc. (“PDF”) (“Agreement”) a copy of which is attached hereto and incorporated herein by reference, dated January 25, 2021, relating to the donation of soils, having been approved as to form by the City Attorney, is hereby approved. The City Council hereby approves the donation of the soils as located and depicted on the attached map, marked as Exhibit A, which is incorporated herein by reference. SECTION 2. The Mayor is hereby authorized to execute the Agreement in the name of the City and the City Clerk is hereby authorized to affix the seal of the City thereto and attest same. SECTION 3. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance and the attached Agreement to implement the policies and procedures described therein. SECTION 4. Savings Clause: The immediate enactment of this Ordinance is necessary in order to preserve and protect the health, safety and welfare of the residents of the City. The general contractor employed by PDF to construct the new building, has immediate need for the use of the donated soils. Pursuant to Sec. 3-20 of the City Charter, 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 25, 2021. Final adoption of Ordinance by City Council on January 25, 2021 . President of City Council Action by the Mayor: ☒ Approved on January 26, 2021 . □ 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 AGREEMENT TO DONATE SOILS AND RELEASE OF CLAIMS THIS AGREEMENT to Donate Soils and Release of Claims ("Agreement") is made and entered into this 25th day of January, 2021, by and between the City of Pueblo, a Colorado municipal corporation ("City") and the Pueblo Development Foundation, Inc., a Colorado corporation ("PDF"). City and PDF are sometimes referred to herein as a "Party" and collectively, as the "Parties." WITNESSETH: WHEREAS, City owns approximately 100,000 cubic yards of soils (hereinafter the "Soils"); located in various piles on land owned by the City in the St. Charles Industrial Park ("Property"); and WHEREAS, the Soils are surplus to the City's needs and the City is willing to transfer the Soils to PDF; and WHEREAS, PDF is in the process of constructing a building, for future economic development, in the Minnequa Industrial Park and PDF has asked the City to donate the Soils to be used as fill in the construction of PDF's new building; and WHEREAS, PDF has agreed to accept the Soils in their current condition without warranty and to release City from any and all claims and demands with respect to the condition or future use of the Soils; and WHEREAS, the Parties desire to enter into this Agreement setting forth the terms and conditions of the transfer of the Soils. NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereto agree as follows: 1. Transfer. City transfers all its right, title, and interest in and to the Soils to PDF and PDF accepts such transfer. This transfer is made as a donation and PDF shall pay no compensation to the City for the Soils. The Soils subject to this Agreement are limited to those as located and depicted on the attached map, marked as Exhibit A, which is incorporated herein by reference. 2. Disclaimer of Warranties. PDF ACCEPTS THE SOILS "AS IS, WITH ALL FAULTS." CITY MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE SOILS, THEIR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND CITY HEREBY DISCLAIMS THE SAME. 3. Release and Discharge. PDF agrees to completely release and forever discharge City and its agents, employees and officers of and from any and all claims, liabilities, or causes 1 of action, whether known or unknown, disclosed or undisclosed, material or immaterial, liquidated or unliquidated, which PDF or its officers, agents and employees may have or may hereafter have against the City for or by reason of any matter, cause, or thing relating to the removal, transfer, use, or condition of the Soils. 4. Removal and Transportation of Soils. PDF agrees to conduct all such soil removal and transportation on the Property in a commercially reasonable manner that will not harm or damage the Property. PDF further agrees that the soil removal and transportation activities will be performed in an expeditious manner through qualified workers and contractors and in full compliance with all applicable laws, codes and regulations. PDF shall promptly remove (or bond over) any lien that may attach to any portion of the Property as a result of such soil removal and transportation activities. All inspection fees, engineering fees, construction costs and other expenses of any kind incurred by PDF relating to soil removal and transportation activities will be solely PDF 's expense. 5. Indemnification. PDF shall and shall cause its contractors to defend, reimburse, indemnify and hold harmless City, from and against all damages, losses, liens, actions, causes of action, rights, demands, liabilities, costs or expenses whatsoever (including attorneys' fees, court costs and litigation expenses as and when they accrue) and claims caused by any acts or omissions of PDF or its contractors in performing the soil removal and transportation activities. PDF 's obligations under the foregoing sentence shall survive the expiration of this Agreement. 6. Term. The term of this Agreement (the "Term") shall expire and terminate and the obligations hereunder shall be null and void with no further force or effect, 5:00 p.m. (Mountain Time) September 30, 2021. 7. Governing Law. This Agreement shall be governed according to the laws of the state of Colorado. 8. Partnership/Agency. This Agreement may not interpreted by any party as a joint venture, partnership or agency relationship between the Parties for any purpose. 9. Counterparts. This Agreement may be executed in any number of counterparts and shall be deemed to be effective upon delivery of all of such counterparts. Each counterpart of this Agreement shall be deemed an original and all such counterparts shall be taken to be one and the same instrument, for the same effect as if all Parties hereto had signed the same signature page. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more additional signature pages. 10. Governmental Immunity. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S. or the Federal Tort Claims Act, 28 U.S.C. Sections 1346(b) and 2671 et seq., as applicable now or hereafter amended. This Section shall survive any expiration or termination of this Agreement. 11. City and PDF agree that the provisions of this Agreement shall survive the termination date and shall be enforceable by the Parties for a period of three (3)years following the date of this Agreement. 2 12. All understandings and agreements heretofore had between the Parties hereto are merged into this Agreement, which alone fully and completely expresses their agreement, and this Agreement is entered into after full investigation, neither party relying upon any statement or representation, not embodied in this Agreement, made by the other. 13. Soil Removal and Remediation. PDF and its contractors shall not remove any soils below the elevation of the existing topography of the Property. If PDF or its contractors do not remove all dirt from a pile of soils, the edges of the dirt left behind shall be rounded and left in a compacted an esthetically pleasing condition. After soil excavation is completed, PDF and its contractors shall seed the disturbed areas with native grasses. 14. This Agreement may not be changed or terminated orally. 15. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect. 16. The provisions of this Agreement are and will be for the benefit of City and PDF, and their respective heirs, executors, administrators, successors and permitted assigns only and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement. 17. The section headings appearing in this Agreement are for convenience of reference only and are not intended, to any extent and for any purpose, to limit or define the text of any section or any subsection hereof. 18. The Parties acknowledge that the Parties and their counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this t Agreement. 19. The failure to enforce any provision of this Agreement shall not operate as a waiver of any preceding or future breach of any such provision or any other provision hereof. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written. CITY: CITY OF PUEBLO, CO A MUNICIPAL CORPORATION By: 2e€0&le Nicholas A. radisar, Mayor ATTESTEDY:B Dt1tilt (hj9 City Clerk 3 PDF: Pueblo Development Foundation, Inc. a Colorado corporation By: Name: -obert L. Root Title: Board Chair 4