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Home My WebLink About10013ORDINANCE NO. 10013 AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO SIGN AN AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THUNDERVILLAGE METROPOLITAN DISTRICT, A COLORADO SPECIAL DISTRICT, RELATING TO THE OPERATION AND MAINTENANCE OF PUBLIC IMPROVEMENTS BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Amended and Restated Intergovernmental Agreement (“Amended Maintenance Agreement”) between the City of Pueblo, a Colorado Municipal Corporation and ThunderVillage Metropolitan District, a Colorado Special District, dated as of September 27, 2021, copies of which are attached hereto, having been approved as to form by the City Attorney, relating to the operation and maintenance of public improvements within the adjusted boundary of the ThunderVillage Metropolitan District is hereby approved. SECTION 2. The Mayor is authorized to execute and deliver the Amended Maintenance Agreement in the name of the City and the City Clerk is directed 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 the intent of the Ordinance and Amended Maintenance Agreement to implement the policies and procedures 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 September 13, 2021 . Final adoption of Ordinance by City Council on September 27, 2021 . President of City Council Action by the Mayor: ☒ Approved on September 29, 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 Deputy City Clerk City Clerk’s Office Item # R-5 BACKGROUND PAPER FOR PROPOSED ORDINANCE COUNCIL MEETING DATE: September 13, 2021 TO: President Lawrence W. Atencio and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Marisa Stoller, City Clerk FROM: Scott Hobson, Acting Director of Planning and Community Development SUBJECT: AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO SIGN AN AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THUNDERVILLAGE METROPOLITAN DISTRICT, A COLORADO SPECIAL DISTRICT, RELATING TO THE OPERATION AND MAINTENANCE OF PUBLIC IMPROVEMENTS SUMMARY: This Ordinance approves an Amended and Restated Intergovernmental Agreement (“IGA”) between Pueblo, a Colorado Municipal Corporation (“City”) and ThunderVillage Metropolitan District (“District”), a Colorado Special District, relating to the operation and maintenance of public improvements. The IGA is being amended to reflect the exclusion of 562 acres from the ThunderVillage Metropolitan District boundary. PREVIOUS COUNCIL ACTION: City Council approved an IGA with the Thunder Village Metropolitan District dated April 27, 2009. BACKGROUND: The purpose of the Amended and Restated City Maintenance Agreement is to define those public improvements for which the District shall have responsibility for operation and maintenance to the extent such improvements are physically located within the District’s boundary, along with setting forth maintenance standards. The changes to the IGA are precipitated by the exclusion of 562 acres of property from the District boundary. The District will be responsible for the operation and maintenance of landscaping, streetscapes, trails, bicycle paths, fencing, street medians, entry islands, irrigation facilities and associated water system improvements, themed areas and neighborhood theme signage, and public art which will be located within and along the dedicated right-of-way for expressways, principal arterials, and minor arterials within the adjusted boundaries of the District including the round-about at Rawlings Boulevard and Troy Avenue; Troy Avenue south from the round-about to and including the intersection of State Highway 47 and Troy Avenue; Rawlings Boulevard from the round-about at Troy Avenue west to the District boundary; Alamosa Boulevard (Drive) west from Troy Avenue to the District boundary and those portions of Drew Dix Drive and Constitution Road that are within the District boundary. In addition, the District will operate and maintain detention facilities and landscaping on Parcels A, B, and C of Villa Bella Subdivision Filing 1. Some of the areas with public improvements contemplated for District maintenance have been subdivided, and the operational responsibilities of such public improvements may have been delegated to the property owners or property owner’s association through the applicable City documents. The District shall have an obligation to operate and maintain these public improvements according to the terms of this Agreement following the expiration of any applicable warranty period and upon acceptance of these improvements by the District from the appropriate entity FINANCIAL IMPLICATIONS: This amended and restated IGA provides for the operation and maintenance of eligible public improvements within the adjusted boundary of the District to be undertaken by the District and for the District to pay all related costs upon acceptance of these improvements by the District. These improvements are generally at a more significant scale than what would be constructed, operated, and maintained by the City. The cost impact to the City is to have higher quality improvements accepted for operation and maintenance of the District which will result in the saving of city funds required if the improvements were maintained by the City. BOARD/COMMISSION RECOMMENDATION: Not Applicable. STAKEHOLDER PROCESS: None. ALTERNATIVES: If the Villa Bella Metropolitan District Nos.1-3 is approved by City Council, the original area for the operation and maintenance of public improvements within the District will need to be modified based on the adjusted District boundary. RECOMMENDATION: Approval the Ordinance. Attachments: Proposed Ordinance Proposed Amended and Restated Intergovernmental Agreement AMENDED AND RESTATED THUNDERVILLAGE OPERATION AND MAINTENANCE INTERGOVERNMENTAL AGREEMENT This Amended and Restated ThunderVillage Operation and Maintenance Intergovernmental Agreement ("Amended Maintenance Agreement") is entered into as of jr ,, k14, 2021, by and between the CITY OF PUEBLO, a Municipal Corporation (hereinafter referred to as the "City"), and THUNDERVILLAGE METROPOLITAN DISTRICT, a Quasi-municipal Corporation and a political subdivision of the State of Colorado (hereinafter referred to as the "District")(each a"Party"and collectively the "Parties"). Recitals Whereas, on September 22, 2008, the Pueblo City Council adopted a Resolution approving the Service Plan for the ThunderVillage Metropolitan District (the "Service Plan"), which may be amended from time to time; and Whereas, pursuant to the Service Plan the District is permitted to levy up to (5) five mills of property tax (as adjusted pursuant to the terms of the Service Plan) for operation and maintenance of certain defined public improvements as set forth in the ThunderVillage Operation and Maintenance Intergovernmental Agreement between the City and the District, dated April 27, 2009 ("Original Maintenance Agreement"); and Whereas, certain real property was excluded from the boundaries of the District, and the City and District desire to amend and define those public improvements to be operated and maintained by the District as only those public improvements that are physically located within the District's boundary; and Whereas, the purpose of this Amended Maintenance Agreement is to: 1) define those public improvements for which the District shall have responsibility for operation and maintenance to the extent such improvements are physically located within the District's boundary; and 2) set forth applicable operation and maintenance standards; and Whereas, the Parties intend that this Amended Maintenance Agreement shall replace and supersede the Original Maintenance Agreement in its entirety. Now therefore, in consideration of the mutual covenants and agreements contained herein and other good and sufficient consideration, the City and District agree to the terms hereinafter set forth. Covenants and Agreements A) The District hereby agrees to operate and maintain or cause to be operated and maintained the following public improvements to the extent such improvements have been separately constructed and installed and then presented to and accepted by the District which are located within the District's boundary (a map showing the District's boundary after the above mentioned property exclusion is attached hereto as Exhibit A). The public improvements and District areas shown on the Exhibits A, B and C attached hereto and contemplated herein are for the District's acceptance consideration and operation and maintenance only. The District has no public improvement construction obligations for the areas depicted in the attached Exhibits. i) Landscaping, streetscapes, street medians, entry islands, irrigation facilities and associated water system improvements which will be located within and along the dedicated right-of-way for expressways, principal arterials, and minor arterials within the boundaries of the District including: The round-about at Rawlings Boulevard and Troy Avenue, Troy Avenue south from the round-about to and including the intersection of State Highway 47 and Troy Avenue, Rawlings Boulevard from the round-about at Troy Avenue west to the District boundary, Alamosa Boulevard[Drive] west from Troy Avenue to the District boundary, those portions of Drew Dix Drive and Constitution Road that are within the District boundary. ii) Detention facilities and landscaping on Parcels A, B, and C Villa Bella Subdivision Filing 1, also commonly known as detention basins 2, 3, & 4 were part of the property exclusion noted above, are no longer located within the District's boundary, and therefore the District has no operation and maintenance obligation thereto. iii) The Parties acknowledge that certain areas which include public improvements contemplated for District maintenance herein have been subdivided, and maintenance and operational responsibilities of such public improvements may have been delegated to the property owners or property owners association through the applicable City documents. The District shall have an obligation to operate and maintain such public improvements, if any, pursuant to the terms of this Amended Maintenance Agreement at the expiration of any applicable warranty period only upon acceptance of such improvements by the District from the appropriate entity. Upon acceptance by the District, operation and maintenance responsibilities shall pass to the District and all such public improvements shall be identified on the Operational Map described in Section D below. B) The District hereby agrees to the following operation and maintenance standards: i) Operation and maintenance obligations for the public improvements will not commence until the improvements are installed and accepted by the District. ii) The District will use its best efforts to operate and maintain public improvements in a good workman like manner within the funding limitations of the (5) five mill ad valorem authorization under the Service Plan. iii) The District shall operate, maintain, repair, replace, or remove the public improvements, in compliance with the City's standards and requirements of the PUD Development Guides for the various individual developments within the District. iv) By entering into this Amended Maintenance Agreement, the District represents and agrees that it has been authorized in a duly conducted TABOR election to enter into this Amended Maintenance Agreement as a binding, multi-fiscal year financial obligation. v) Notwithstanding anything contained herein to the contrary, the Parties agree that to the extent that fire, flood, earthquake, natural catastrophe, explosion, accident, 2 illegality, act of God, or any cause beyond the control of the District, or strikes or labor trouble affecting the District (whether or not in the power of the District to settle the same), prevents or delays the performance by the District under this Amended Maintenance Agreement, the District shall be relieved of the consequences thereof without liability, so long as and to the extent that the District's performance is prevented by such cause; provided, however, that the District shall exercise due diligence in its efforts to resume performance within a reasonable period of time. vi) District shall reimburse City for all charges incurred by or billed to City for water services and/or electric services with respect to landscaping and streetscape maintenance services for the pubic improvements shown on attached Exhibit C. C) The City hereby agrees to operate and maintain all public improvements within the District boundary as are normally and customarily operated and maintained by the City, other than those improvements to be operated and maintained by the District under this Amended Maintenance Agreement and those to be operated and maintained by the property owners or property owners association through the applicable City documents. The City's responsibility for operation and maintenance shall at all times be subject to dedication and acceptance by the City under the rules and regulations of the City and applicable provisions of the City's ordinances. i) To the extent that any of the obligations of the City contained in this Amended Maintenance Agreement are or should be considered multiple-fiscal year obligations, such obligations are contingent upon funds for that purpose being budgeted, appropriated and otherwise made available. Failure of the City Council to make any appropriation necessary to further the purposes of this Amended Maintenance Agreement shall not be construed to be a default by City hereafter and shall not relieve the District of any further obligations under this Amended Maintenance Agreement. D) The Parties agree on an annual basis, not later than June 30 of each subsequent year, to coordinate in the preparation of a map that identifies the public improvements that have been installed and then accepted by the District for which the District has operational and maintenance responsibilities hereunder (the "Operational Map"), the 2021 version of which is attached hereto as Exhibit B. The Operational Map shall also show the location of all potential public improvements for which the District will have operational and maintenance responsibilities, including the public improvements described in Section A(i) above, and those potential public improvements that have been specifically delineated as a District responsibility through the City subdivision process and PUD Development Guides described in Section A(iii) above. E) Governing Law and Enforceability. This Amended Maintenance Agreement shall be construed in accordance with the laws of the State of Colorado, and exclusive venue shall be in the District Court of the County of Pueblo, State of Colorado. The Parties recognize that there are legal constraints imposed upon the City by constitutions, statutes, rules, and regulations of the State of Colorado and of the United States and imposed upon it by the City Charter and the Pueblo Municipal Code, and that subject to such constraints, the Parties intended to carry out the terms and conditions of this Amended Maintenance Agreement. 3 F) Assignment. Neither Party may assign this Amended Maintenance Agreement without the other Party's prior written consent. G) Waiver. No waiver by either of the Parties of any term or condition of this Amended Maintenance Agreement shall be deemed to be or shall be construed as a waiver of any other term or condition of this Amended Maintenance Agreement nor shall any waiver of a breach of any provision of this Amended Maintenance Agreement be deemed to constitute a waiver or any subsequent breach of the same provision. H) Binding Effect. This Amended Maintenance Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. I) Entire Agreement. This Amended Maintenance Agreement contains the entire agreement of the Parties relating to the subject matter hereof and, except as provided herein, may not be modified or amended except by written agreement of the Parties. J) Severability. In the event a court of competent jurisdiction holds any provision of this Amended Maintenance Agreement invalid or unenforceable, such holding shall not invalidate or render unenforceable any other provision of this Amended Maintenance Agreement. K) Headings. Paragraph headings used in this Amended Maintenance Agreement are for convenience of reference and shall in no way control or affect the meaning or interpretation of any provision of this Amended Maintenance Agreement. L) Good Faith of Parties. In the performance of this Amended Maintenance Agreement or in considering any requested approval, acceptance, or extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold, condition or delay any approval, acceptance, or extension of time required or requested pursuant to this Amended Maintenance Agreement. M) Indemnification. To the extent authorized by law, District shall indemnify, save, and hold harmless the City, its officers, employees and agents, against any and all claims, damages, liability, court awarded costs, expenses and reasonable attorney fees incurred directly or indirectly, as a result of any act or omission by District or its officers, employees, agents, subcontractors, or assigns. N) Default. If either Party shall default in the performance of any provision of this Amended Maintenance Agreement on its part to be performed, the non-defaulting party may seek any remedy available at law or in equity, including damages, court costs, expenses of litigation and reasonable attorney fees. Neither Party shall have the right to recover special, consequential, exemplary or punitive damages. No officer, employee or agent of the City or District shall be personally liable under this Amended Maintenance Agreement. 4 0) Notices. Written notices required under this Amended Maintenance Agreement and all other correspondence between the Parties shall be directed to the following and shall be deemed received when hand-delivered or three (3) days after being sent by certified mail, return receipt requested: i) If to the City: City Manager City of Pueblo One City Hall Place Pueblo, CO 81003 With a copy to: Department of Law City of Pueblo One City Hall Place Third Floor Pueblo, CO 81003 ii) If to District: ThunderVillage Metropolitan District Attn: Dan DeRose 504 N. Grand Ave. Pueblo, CO 81003 With a copy to: White Bear Ankele Tanaka&Waldron Attorneys at Law c/o Sean Allen, Esq. 2154 E Commons Avenue, Suite 2000 Centennial, CO 80122 P) Construction of Agreement. This Amended Maintenance Agreement shall be construed according to its fair meaning as if prepared by both Parties and shall be deemed to be and contain the entire understanding of the Parties. Q) No Third-Party Beneficiaries. This Amended Maintenance Agreement is intended to describe the rights and responsibilities only as to the Parties. This Amended Maintenance Agreement is not intended and shall not be deemed to confer any rights on any person or entity not a Party hereto. R) Parties Not Partners. Notwithstanding any language in this Amended Maintenance Agreement or any other Amended Maintenance Agreement, representation, or 5 warranty to the contrary, the relationship between the parties is purely contractual, and the parties are not nor shall they be deemed to be partners or joint venturers, and neither party shall be responsible for any debt or liability of the other party. S) Governmental Immunity. Nothing in this Amended Maintenance Agreement shall be construed to constitute a waiver, in whole or in part, of any of the City's or the District's rights and protections under the Colorado Governmental Immunity Act, §§ 24-10-101, et seq., C.R.S., as amended from time to time. IN WITNESS WHEREOF, the parties have executed this Amended Maintenance Agreement as of the date first above written. CITY OF PUEBLO, COLORADO • By:2e...e4 X4i4ALIK.." N; yor Nicholas Gradisar ATTEST: '34?,.1,1 City Clerk APPROVED AS TO FORM:`4..� • City Attorney ------ -- _---- 11 .4i LLAGE W 'O' I LITAN DISTRICT Dan DeRose, 'resident ATTEST: APPROVED AS TO FORM: WHITE BEAR ANKELE TANAKA&WALDRON Attorne I. General %ounsel to the District 6 Exhibit A To Amended IGA ThunderVi l lage Metro District Boundary e,Akoi,11 , 01,a-2 .0 t • • •Wal;".I *4 1/41 t / PtIC1110 • • •••-• .• • • • 4)4. VAI‘ Ifto.= 4 - 4 pit . A ? H . 4 . agar47 , , EXHIBIT B Annual Operational Map Of TVMD Accepted Improvements for Operation and Maintenance Shown In Green As Of 6-21-2021 ThunderVillage Metro District Boundary } ., ,I. 1 A ,--,. ,, a !'`0 6 '•.0k*. . s` .io ..i . :rd.• [MUM= �cy o e IMi ♦• S ' yI - �( ::fi ]'it;t� NiO 1 � -r;a.....---+sem....... MC_ �''F lip .;e �.. I b` a i p b e° 1/11 4...p �� I ` . i imry'.3 .J •' + ` ` urine 1 .e -'".i � ,. �.I•.♦�,.'n_— - , ~ .•.-yam / • •f J x ' 1111 Legend >•�„ tglikkeRED =TVMD Boundary r� a � i •,°*V. GREEN = Accepted i ` 3`r tw ,. *BLUE = Potential 4 ,,,,,,,,,r) I „ ,q. , f r ., W^ ` *Areas shown in BLUE only represent the • • {s%..., . hl f ` . 1 potential future acceptance of areas for f . — r .,. the operation and maintenance in regards ly '` i^ to the Landscaping,Streetscape,Street U ; • 9,, 's .,'�}�1. Medians,Entry Islands,and Irrigation ``-= - VS,'-. r ,ij, Facilities and associated water system ¢ ;dl.ke. improvements as described in Section A)i)+ fof the IGA and do not represent any type , al/ •••,',.'-'444,. .i' II c t 1, of agreement for the actual construction of those future improvements. Exhibit C To Amended IGA etrhund@gownoogag@ Metro ffit NM District Bombay • Urban Boundary Y , l'i1k hill R 40 -7, .rte`" Eligible Public Improvements Stqi v Public Landscaping tii and Streetscape 9/i ,�=�, � 100%Reimbursement ill, . Ibr all Improvements #- ?:,4• ♦ ♦ ♦ landstapMq - Y#' • . S SD'aatscay I� Use Legend _ v - camwMrow 0 i ;.,. pi 1 OMNI Co*mwoU) * i , ,r Y1dos0Ul NO Downy - m "'an U I .FLY i 0, LowD. '0 IMrhd. t