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HomeMy WebLinkAbout10060 ORDINANCE NO. 10060 AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO SIGN AMENDMENT NO. 3 TO THE COOPERATION AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THE HOUSING AUTHORITY OF THE CITY OF PUEBLO, A COLORADO HOUSING AUTHORITY, RELATING TO PAYMENTS IN LIEU OF TAXES BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. Amendment No. 3 to the Cooperation Agreement between the City of Pueblo, a Colorado municipal corporation and the Housing Authority of the City of Pueblo, a Colorado housing authority, dated November 22, 2021, a copy of which is attached hereto and incorporated herein by this reference, having been approved as to form by the City Attorney, is hereby approved. The Mayor is authorized to execute and deliver said Amendment No. 3 in the name of the City and the City Clerk is authorized to affix the seal of the City thereto and attest same. SECTION 2. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance and the attached Amendment No. 3 which are necessary or appropriate to implement transactions described therein. SECTION 3. 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 November 22, 2021. Final adoption of Ordinance by City Council on December 13, 2021 . President of City Council Action by the Mayor: ☒ Approved on December 20, 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 City Clerk’s Office Item # R-14 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: November 22, 2021 TO: President Lawrence W. Atencio and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Marisa Stoller, City Clerk FROM: Daniel C. Kogovsek, City Attorney SUBJECT: AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO SIGN AMENDMENT NO. 3 TO THE COOPERATION AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THE HOUSING AUTHORITY OF THE CITY OF PUEBLO, A COLORADO HOUSING AUTHORITY, RELATING TO PAYMENTS IN LIEU OF TAXES SUMMARY: Attached is an Ordinance approving and authorizing the Mayor to sign Amendment No. 3 to the Cooperation Agreement between the City and the Housing Authority of the City of Pueblo (“Authority”) relating to the annual Payment in Lieu of Taxes (“PILOT”) to the City by the Authority. PREVIOUS COUNCIL ACTION: On April 10, 1972, the City and the Authority entered into a Cooperation Agreement in which the Authority agreed to make annual PILOT payments to the City. On July 22, 1974, City and Authority signed an Amendment to the Cooperation Agreement. On March 8, 1982, the Parties executed an “Amendment No. 2 to Cooperation Agreement.” BACKGROUND: Since the execution of the Cooperation Agreement on April 10, 1972, the City and the Authority have acted in good faith with respect to all matters relating to the PILOT program. However, the prior PILOT agreements are outdated, inadequate and lack clarity with respect to key issues. Therefore, the parties desire to restate and clarify their respective rights and responsibilities with respect to the PILOT program. FINANCIAL IMPLICATIONS: In Amendment No. 3, the City and the Authority agree that any and claims or causes of action which one party may have against the other with respect to the PILOT program, are waived and released. In addition, the Authority is allowed to retain all PILOT funds currently in its possession and the prior expenditures of PILOT funds by the Authority are approved and ratified. Under Amendment No. 3, the Authority is authorized to retain and spend PILOT funds, subject to certain terms and conditions. The Authority is required to annually, on before the 1st day of August, submit a written report to the Mayor and the City’s Director of Finance, specifying the amount of PILOT funds retained by the Authority during the prior calendar year and further specifying the manner in which said funds were spent by the Authority. Pursuant to Amendment No. 3, PILOT funds may be retained and spent by the Authority only for the following purposes: a. Planning and development of affordable housing programs in conjunction with Low- Income Tax Credits and/or other Federal, State, County and City Grants or other funding sources that may be available; b. Acquisition of existing houses or vacant land for the purpose of increasing affordable housing; c. Development, administration of recreation programs including playgrounds, and the maintenance of such; d. Required housing inspections; e. Security services for sites under construction and completed housing developments; f. Extraordinary maintenance and repairs due to wear and tear at the Authority’s community centers; g. Authority Board approved (a) educational programs and (b) recreational programs for entities that are providing such services at the Authority’s community centers; h. Such other affordable housing programs and projects as agreed to by the City and the Authority.. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: A no-action alternative would leave the operation of the PILOT Program to be administered under outdated and inadequate agreements RECOMMENDATION: Approve the Ordinance. Attachments: Proposed Ordinance Proposed Amendment AMENDMENT NO. 3 TO COOPERATION AGREEMENT THIS AMENDMENT NO. 3 TO COOPERATION AGREEMENT (hereinafter "Amendment No. 3") is entered into this 13th day of December, 2021 (hereinafter "Effective Date") by and between the City of Pueblo, a Colorado Municipal Corporation (hereinafter "City") and the Housing Authority of the City of Pueblo, a Colorado Housing Authority (hereinafter "Authority"). The City and the Authority are referred to collectively in this Amendment No. 3 as the "Parties" and individually, without differentiation, each as a "Party." Recitals The following recitals are incorporated in and made a part of this Amendment No. 3: WHEREAS, the City is a Colorado home-rule municipality duly organized pursuant to and having all powers conferred by Article XX of the Colorado Constitution; and WHEREAS, Authority was duly organized pursuant to the Colorado Housing Authorities Law and has the powers conferred by C.R.S. 29-4-209; and WHEREAS, on or about April 10, 1972, the City and the Authority entered into a Cooperation Agreement in which the Authority agreed to make annual Payment in Lieu of Taxes (hereinafter"PILOT") payments to the City; and WHEREAS, on or about July 22, 1974, City and Authority signed an Amendment to the Cooperation Agreement ("hereinafter "Amendment No. 1") which permitted the Authority to retain and spend PILOT funds, provided that they were used for certain approvedactivities. Amendment No . 1 also required the Authority to provide a report to the City on May 1st of each year calculating the amount of PILOT funds for the prior calendar year and specifying how those funds were used by the Authority; and WHEREAS, on or about March 8, 1982, the Parties executed an "Amendment No. 2 to Cooperation Agreement" (hereinafter "Amendment No. 2") which (1) terminated Amendment No. 1; (2) increased the goal of housing units to be managed by the Authority from 1,000 units to 1,500 units; (3) gave the City the right, upon 120 days prior notice, to terminate Amendment No. 2 and thereafter require the Authority to annually remit PILOT funds to the City and (4) limited the use of PILOT funds by the Authority to: • "development, acquisition and administration of a tenant recreation program and housing inspection program" and • "providing public officials liability insurance for Authority's Commissioners and Executive Director in reasonable amounts;" and WHEREAS, the Parties desire to restate and clarify their respective rights and responsibilities with respect to the PILOT program. NOW, THEREFORE, in consideration of the foregoing recitals and the terms and 1 conditions set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto mutually agree as follows: 1. Amendment No. 2, dated March 8, 1982, shall be and hereby is terminated. 2. The Parties stipulate and agree that at all times since the execution of the Cooperation Agreement on April 10, 1972, the Parties have acted in good faith with respect to all matters relating to the PILOT program. Therefore, the Parties agree that any and claims or causes of action which one Party may have against the other with respect to the PILOT program, are hereby waived and released. The Authority shall retain all PILOT funds currently in its possession and the prior expenditures of PILOT funds by the Authority are hereby approved and ratified. 3. The Authority is hereby authorized to retain and spend PILOT funds, subject to the terms and conditions of this Amendment No. 3. The Authority shall annually, on before the 1st day of August, submit a written report to the Mayor and the City's Director of Finance, specifying the amount of PILOT funds retained by the Authority during the prior calendar year and further specifying the manner in which said funds were spent by the Authority. 4. The Parties stipulate and agree that PILOT funds may be retained and spent by the Authority for the following purposes: a. Planning and development of affordable housing programs in conjunction with Low-Income Tax Credits and/or other Federal, State, County and City Grants or other funding sources that may be available; b. Acquisition of existing houses or vacant land for the purpose of increasing affordable housing; c. Development, administration of recreation programs including playgrounds, and the maintenance of such; d. Required housing inspections; e. Security services for sites under construction and completed housing developments; f. Extraordinary maintenance and repairs due to wear and tear at the Authority's community centers; g. Authority Board approved (a)educational programs and(b) recreational programs for entities that are providing such services at the Authoritys community centers; h. Such other affordable housing programs and projects as agreed to by the Parties. 5. The term of this Amendment No. 3 shall be from the Effective Date until December 2 31, 2022. This Amendment No. 3 shall automatically be renewed for successive one-year periods unless, thirty (30) days prior to the expiration of the initial term or any one-year extensions thereof, a Party gives notice in writing stating that an extension is not desired. In the event of such non-renewal, the Parties agree that this Amendment No. 3 shall be terminated and thereafter all remaining PILOT funds shall be remitted by the Authority to the City on an annual basis, by August 1St of each year. 6. Authority hereby agrees to indemnify, defend, save and hold harmless the City its respective agents, officers, directors, employees and representatives from and against any and all claims, suits, losses, injuries, damages, liabilities and expenses, including, without limitation, reasonable attorneys' fees and expenses occasioned in connection with, arising or alleged to arise from, wholly or in part, Authority's normal operations or the programs and services provided by Authority with PILOT funds under this Amendment No. 3. 7. No term or provision of this Amendment No. 3 shall be construed or interpreted as a waiver, express or implied, of any of the immunities, benefits, rights, protections, or any other provision of the Colorado Governmental Immunity Act, sections 24-10-101 et seq., C.R.S., as amended, or any other law granting immunity to the City or Authority and their respective officers and employees. 8. This Amendment No. 3 sets forth all understandings and agreements between City and Authority relating to the subject matter hereof. No modification or amendment to this Amendment No. 3 shall be valid unless set forth in writing and approved by City and Authority. No verbal representation, agreement or understanding by any officer or employee of City or Authority, either before or after execution of this Amendment No. 3, shall modify or amend any of the terms and provisions of this Amendment No. 3. 9. The provisions of this Amendment No. 3 are for the benefit of City and Authority only and no third party shall have any right or remedy hereunder or the right to enforce any provisions of this Amendment No. 3. 10. Any notice required or permitted to be given or delivered under this Amendment No. 3 shall be in writing and shall be given by personal delivery, or by registered or certified mail, postage prepaid using the United States Postal Service or by reputable national overnight courier service: (a) If to City: City of Pueblo Attn: Mayor One City Hall Place, Second Floor Pueblo, CO 81003 with a copy to: City Attorney 1 City Hall Place, Third Floor Pueblo, CO 81003 (b) If to Authority: 3 Housing Authority of the City of Pueblo Attn: Executive Director 201 S. Victoria Avenue Pueblo, CO 81003 with a copy to: Richard A, Orona, Esq. Orona Garcia Petersen Fonda, PC 215 West Second Street Pueblo, CO 81003 or to such other person or address as either Party shall specify in written notice given to the other Party pursuant to the provisions of this Section 10. Any notice shall be deemed delivered on the day on which personal delivery is made or three (3) days after deposit in the mail in the case of registered or certified mail, or one (1) business day after deposit with a reputable national overnight courier service. 11. This Amendment No. 3 shall be construed in accordance with and be governed by the laws of the State of Colorado without regard to conflict of law principles. 12. Time is of the essence hereof. This Amendment No. 3 shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns, provided Authority may not assign this Amendment No. 3 or any interest herein without the express written consent of the City. 13. In no event shall City, its officers, agents or employees be liable to Authority for damages, including without limitation, compensatory, punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Amendment No. 3 or the performance or breach thereof by City or the failure or delay of City in the performance of any covenant or provision under this Amendment No. 3 on City's part to be performed. In consideration of City entering into this Amendment No. 3, Authority hereby waives and discharges City, its officers, agents and employees from all claims for any and all such damages. No breach, default, delay or failure of City under this Amendment No. 3 shall be or be construed to be a waiver, discharge or release of Authority's obligations under this Amendment No. 3. In the event of a breach of this Amendment No. 3 by the City, Authority's sole and exclusive remedy shall be to bring an equitable action for specific performance in the District Court of Pueblo County, Colorado. Such violations may be restrained, or such obligations enforced by injunction at the instance and request of the Authority without the showing of any special damages or an inadequate remedy at law. 14. If any provision of this Amendment No. 3 is declared by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the other provisions of this Amendment No. 3 which shall remain in full force and effect. 15. Each Party acknowledges that this Amendment No. 3 was fully negotiated by the Parties and, therefore, no provision of this Amendment No. 3 shall be interpreted against any Party because such Party or its legal representative drafted such provision. 16. In the event of any litigation arising under this Amendment No. 3, the court shall award to the prevailing Party its costs and reasonable attorney fees. Exclusive venue for any 4 such litigation shall be Pueblo County, Colorado. All such litigation shall be filed in the District Court, County of Pueblo, State of Colorado and each Party submits to the personal and subject jurisdiction of such District Court. To the fullest extent permitted by law, the Parties hereby waive their right to a trial by jury. 17. The Cooperation Agreement between the Parties, dated April 10, 1972, which is incorporated herein by this reference, is hereby ratified, and shall remain in full force and effect, except as expressly amended by this Amendment No. 3. The Parties agree that in the event that this Amendment No. 3 is terminated as set forth herein, the Cooperation Agreement dated April 10, 1972 shall be the sole instrument governing the Parties' rights and responsibilities with respect to the PILOT program and PILOT funds. 18. This Amendment No. 3 may be executed in two (2) or more counterparts and each such counterpart shall be deemed for all purposes to be an original and all such counterparts shall together constitute but one and the same original. Executed at Pueblo, Colorado, the day and year first above written. [ SEAL ] CITY OF PUEBLO, a Colorado municipal corporation Attest: Sc°63 ` By /[`� City Mayor ,44/Adeot; rk Ma or HOUSING AUTHORITY OF THE [ SEAL ] CITY OF PUEBLO, a Colorado Housing Authority Attest: i�� By ecretary I Chai 5