HomeMy WebLinkAbout10288ORDINANCE NO. 10288
AN ORDINANCE APPROVING AND AUTHORIZING THE
MAYOR TO EXECUTE A MEMORANDUM OF
UNDERSTANDING BETWEEN THE CITY OF PUEBLO, A
COLORADO MUNICIPAL CORPORATION AND INHABX,
LLC, A COLORADO LIMITED LIABILITY COMPANY,
RELATING TO TRAILHEAD ACCESS TO THE CITY OF
PUEBLO’S TRAIL TO THE ARKANSAS RIVER
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Memorandum of Understanding (“Agreement”) dated September 26, 2022,
between the City of Pueblo and InhabX, LLC, a Colorado limited liability company, a copy
of which is attached hereto and is incorporated herein by this reference, having been
approved as to form by the City Attorney, is hereby approved.
SECTION 2.
The Mayor is authorized to execute and deliver said Agreement in the name of the
City and the City Clerk is authorized to fix 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 which are necessary or
appropriate to implement 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 September 12, 2022.
Final adoption of Ordinance by City Council on September 26, 2022 .
President of City Council
Action by the Mayor:
☒ Approved on September 28, 2022 .
□ 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-18
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: September 12, 2022
TO: President Heather Graham 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 EXECUTE
A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF PUEBLO,
A COLORADO MUNICIPAL CORPORATION AND INHABX, LLC, A COLORADO
LIMITED LIABILITY COMPANY, RELATING TO TRAILHEAD ACCESS TO THE
CITY OF PUEBLO’S TRAIL TO THE ARKANSAS RIVER
SUMMARY:
Attached is an Ordinance approving and authorizing the Mayor to sign an Memorandum of
Understanding between the City of Pueblo and InhabX, LLC, a Colorado limited liability company
(“Developer”) relating to trailhead access to the City’s trail to the Arkansas River near S. Main
Street.
PREVIOUS COUNCIL ACTION:
Not applicable to this Ordinance.
BACKGROUND:
Developer is the owner of the following real property located adjacent to S. Main Street in the City
of Pueblo, having the following legal description:
A portion of Lot 10, and all of Lots 11 through 20, Block 214, of The Colorado Coal
and Iron Company, a subdivision of a certain portion of the City of South Pueblo,
recorded December 6, 1883, in Book 40, Page 522 in the County of Pueblo, State
of Colorado.
also known as Parcel No. 536305003 in the records of the Pueblo County Assessor (outlined with
a red border in the attached Exhibit 1) (“Main Street Property”).
Developer acquired the Main Street Property from the Pueblo Conservancy District, a political
subdivision of the State of Colorado (“District”) pursuant to a Quit Claim Deed dated December
15, 2021 which was recorded in the records of the Pueblo County Clerk and Recorder on
December 20, 2021 at Reception No. 2257075. In the aforesaid Quit Claim Deed, the District
reserved a reversionary interest in the Main Street Property in the event that the Developer failed
to provide the City “such easements or deeds as are necessary for the placement of the proposed
Main Street \[Pedestrian\] Bridge abutments” across the Main Street Property.
The Developer desires that the District’s reversionary interest specified in the December 15, 2021
Quit Claim Deed be extinguished and terminated. The City is the owner of real property adjacent
to the Main Street Property, (highlighted in green in the attached Exhibit 1). The City wishes to
construct the Main Street Pedestrian Bridge (highlighted in brown in the attached Exhibit 1) and
also wishes to construct a concrete trail, fifty (50) feet in width, between S. Main Street and the
new pedestrian bridge (highlighted in gray in the attached Exhibit 1) and the City requires
temporary and permanent easements and rights-of-way from the Developer for such purposes.
FINANCIAL IMPLICATIONS:
Consistent with the December 15, 2021 Quit Claim Deed, Developer shall grant and convey the
Temporary Easement and Permanent Easement to the City without receiving any financial
compensation from the City.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
City Council could decide not to enter into the Memorandum of Understanding with the Developer.
RECOMMENDATION:
The Mayor and City staff recommend approval of this Ordinance.
Attachments:
Proposed Ordinance
Proposed Memorandum of Understanding
MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING ("Agreement") is made and entered into
this 26th day of September, 2022 ("Effective Date") by and between the City of Pueblo, a Colorado
municipal corporation ("City") and inhabX, LLC, a Colorado limited liability company("Developer").
City and Developer are sometimes each referred to as a "Party" and collectively "Parties."
WITNESSETH:
WHEREAS, Developer is the owner of the following real property located adjacent to S.
Main Street in the City of Pueblo, having the following legal description:
A portion of Lot 10, and all of Lots 11 through 20, Block 214, of The Colorado Coal
and Iron Company, a subdivision of a certain portion of the City of South Pueblo,
recorded December 6, 1883, in Book 40, Page 522 in the County of Pueblo, State
of Colorado.
also known as Parcel No. 536305003 in the records of the Pueblo County Assessor(outlined with
a red border in the attached Exhibit 1) ("Main Street Property"); and
WHEREAS, Developer acquired the Main Street Property from the Pueblo Conservancy
District, a political subdivision of the State of Colorado ("District") pursuant to a Quit Claim Deed
dated December 15, 2021 which was recorded in the records of the Pueblo County Clerk and
Recorder on December 20, 2021 at Reception No. 2257075; and
WHEREAS, in the aforesaid Quit Claim Deed, the District reserved a reversionary interest
in the Main Street Property in the event that the Developer failed to provide the City "such
easements or deeds as are necessary for the placement of the proposed Main Street [Pedestrian]
Bridge abutments" across the Main Street Property; and
WHEREAS, Developer desires that the District's reversionary interest specified in the
December 15, 2021 Quit Claim Deed be extinguished and terminated; and
WHEREAS, the City is the owner of real property adjacent to the Main Street Property,
(highlighted in green in the attached Exhibit 1); and
WHEREAS, the City wishes to construct the Main Street Pedestrian Bridge (highlighted in
brown in the attached Exhibit 1) and also wishes to construct a concrete trail, fifty (50) feet in
width, between S. Main Street and the new pedestrian bridge (highlighted in gray in the attached
Exhibit 1) and the City requires temporary and permanent easements and rights-of-way from the
Developer for such purposes; and
WHEREAS, the Parties desire to enter into an agreement specifying their respective rights
and responsibilities with respect to the Main Street Property, in accordance with the terms herein
provided;
NOW, THEREFORE, in consideration of the foregoing recitals and terms and conditions
set forth herein and other good and valuable consideration, the adequacy and receipt of which is
hereby acknowledged, the Parties agree as follows:
1
RESPONSIBILITIES OF THE DEVELOPER
(a) Upon execution of this Agreement, Developer shall execute and deliver to the City
the Temporary Easement and Right-of-Way document, marked as Exhibit 2,
attached hereto and incorporated herein by this reference, thereby granting City a
one-year easement and right-of-way to the entirety of the Main Street Property
("Temporary Easement").
(b) During the one-year term of the Temporary Easement, Developer shall cause the
Main Street Property to be surveyed by a surveyor who is licensed by the State of
Colorado. Such survey shall specify the location of:
(i) the concrete trail (50 feet in width) across the Main Street Property;
(ii) a strip of land (50' by 80') located in the northwest portion of Main Street
Property adjacent to the City's property (highlighted in green in the
attached Exhibit A) and S. Main Street;
(iii) a strip of land (50' by 50') located in the southeast portion of the Main
Street Property;
(iv) a strip of land (20' by 20') located northwest and adjacent to the strip of
land described in Section 1 (b) (iii) above
(hereinafter collectively the Permanent Easement).
(c) Following completion of the survey described in Section 1 (b) above, but prior to
the expiration of the term of the Temporary Easement, Developer shall grant and
convey to the City, a dedicated Permanent Easement and Right-of-Way across the
Main Street Property to the land described in Section 1 (b) (i) through (iv) above.
(d) Consistent with the December 15, 2021 Quit Claim Deed, Developer shall grant
and convey the Temporary Easement and Permanent Easement described herein
to the City without receiving any financial compensation from the City.
2. RESPONSIBILITIES OF THE CITY
(a) Upon execution of this Agreement, City or the Developer shall notify the District
that the Developer has provided or agreed to provide the City with the necessary
temporary and permanent easements across the Main Street Property to construct
and operate Main Street pedestrian bridge and that the City consents to the
termination of the District's reversionary interest specified in the December 15,
2021 Quit Claim Deed. Additionally, the City shall execute and deliver to the
Developer Exhibit 3 attached hereto.
(b) During the term of the Temporary Easement, City shall use best efforts to complete
the installation of the Main Street Pedestrian Bridge (highlighted in brown in the
attached Exhibit 1).
2
(c) Once the Permanent Easement and Right of Way is granted by the Developer, the
City agrees to assume, as long as the Permanent Easement remains in effect, all
maintenance of the strips of land subject to the Permanent Easement, described
in Section 1 (b) (i) through (iv) above, including but not limited to, the trail and the
Main Street Pedestrian Bridge.
3. ASSIGNABILITY
This Agreement shall not be assigned or transferred by the Developer without the prior written
consent of the City. Any assignment or attempted assignment made in violation of this provision
shall, at the City's election, be deemed void and of no effect whatsoever.
4. ENTIRE AGREEMENT; AMENDMENTS
The provisions set forth in this Agreement, and all Exhibits and attachments to this Agreement,
constitute the entire and complete agreement of the Parties hereto and supersede all prior written
and oral agreements, understandings or representations related thereto. No amendment or
modification of this Agreement, and no waiver of any provisions of this Agreement shall be binding
unless made in writing and executed by the duly authorized officers of the Parties.
5. NO WAIVER OF GOVERNMENTAL IMMUNITY ACT
The Parties hereto understand and agree that the City and its Mayor, councilors, officials, officers,
directors, agents, and employees, are relying on, and do not waive or intend to waive by any
provisions of this Agreement, the monetary limitations or any other rights, immunities and
protections provided by the Colorado Governmental Immunity Act, § 24-10-101 to 120, C.R.S., or
otherwise available.
6. NO THIRD-PARTY BENEFICIARIES.
It is expressly understood and agreed that enforcement of the terms and conditions of this
Agreement and all rights of action relating to such enforcement shall be strictly reserved to the
Parties and nothing contained in this Agreement shall give or allow any such claim or right of
action by any other third party. It is the express intention of the Parties that any person other than
the Parties receiving services or benefits under the Agreement shall be deemed an incidental
beneficiary only.
7. LITIGATION, VENUE AND WAIVER OF TRIAL BY JURY.
In the event of any litigation arising under this Agreement, the court shall award to the prevailing
Party its costs and reasonable attorney fees. Exclusive venue for any 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 matter jurisdiction of such
District Court. To the fullest extent permitted by law, the Parties hereby waive their right to a trial
by jury.
8. SEVERABILITY.
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.
3
9. RULES OF CONSTRUCTION.
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 Agreement
or any exhibits or amendments hereto.
10. WAIVER.
The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of
any future breach of any such provision or any other provision hereof.
11. NOTICES
Any notice required or permitted to be given or delivered under this Agreement shall be in writing
and shall be given by personal delivery, or by the United States Postal Service, by registered or
certified mail, postage prepaid, or reputable national overnight courier service:
(a) If to City, addressed to:
Mayor
City of Pueblo
1 City Hall Place, 2nd Floor
Pueblo, Colorado 81003
with a copy to: City Attorney
1 City Hall Place, 3rd Floor
Pueblo, Colorado 81003
(b) If to Developer, addressed to:
InhabX, LLC
Attn: John Wark
2311 S. Prairie Ave.
Pueblo, CO 81005
or to such other address or person as any Party may from time to time specify in a writing delivered
to the other Party in the manner provided in this paragraph. 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, and one (1) business day after deposit in the case of overnight
courier.
12. TIME OF ESSENCE / DEFAULT AND REMEDIES
Time is of the essence hereof. If any obligation required to be performed is not performed there
shall be the following exclusive remedies:
(a) If Developer is in Default: In the event Developer defaults in the performance of
its obligations hereunder, City shall have the right to (i) terminate this Agreement
4
by written notice to Developer or (ii) treat this Agreement as being in full force and
effect and to obtain specific performance, but not any damages. Such violations
may be restrained or such obligations enforced by injunction, without the posting
of a bond, at the instance and request of the City without the showing of any special
damages or an inadequate remedy at law.
(b) If City is in Default: In the event City defaults in the performance of its obligations
hereunder, Developer shall have the right to (i)terminate this Agreement by written
notice to City or (ii) treat this Agreement as being in full force and effect and to
obtain specific performance, but not any damages. Such violations may be
restrained or such obligations enforced by injunction, without the posting of a bond,
at the instance and request of the Developer without the showing of any special
damages or an inadequate remedy at law.
13. COUNTERPARTS
This Agreement 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.
IN WITNESS, WHEREOF, the Parties have executed this Agreement as of the date first
above written and under the laws of the State of Colorado.
ATTEST: CITY OF PUEBLO
(V(\f5147-1
By 74terati‹cre.Ogatogiogr
City Clerk Nicholas A Gradisar, Mayor
[S E A L]
InhabX, LLC
A Colorado limited liability company
Signature)
-•hn Wark
President and Manager
5
Exhibit 1
\
7
w S. S` semr. i
s'3Y M4' j Tx F''�r
` ayd
,y� ,./\ -r.".tr '• 1 - • 0-'-•
`*, w f.„,,,,,,
; v
. ,,., ' N, . "Pio "/' ' '4,.. .,''. ''''S;,'...o. '4.' 4.4"'''',7., 3:1;'';'11:',,,,,try„1,..
pf
MY
, � y
* 1444:''*".It''''''..,!: '''.* ,.
,
4111: 1)'' T �f
', /1<\''`..\\.,„, ,,s,
f
A o . • , • \.\\\ ,,,
:.. r >. w
-.,, \
bs �
Bike/Ped Bridg ,,,, \
e
'` , N
v
. ''''''. ' '.'''''''' ' ''''' ' ' ''''''"'''' "''''': ''''''''' / '' er / . ''''' j•I''.',,':' ,
• of
9 s
� " Y ,
' 1
`k'
•
1v \ y ,,m..' `11 r
• 2 I
In� & 4�a}N'"� ' lir .. . ..mak �
i \ ., , ', ,
ys } r i f a3` •8 •., d "r as
\tet
‘1 k - \ .f. r.„ .4 ,
.. . , .4, .
. ..:.,
1 , , V , k°
i,,.,,,-„, „.. .
+ • rip a �� .�,. .
..4 . , . �` a • s«,,„, ,,,,,, , w1
—,.
f,,,,,,..„..
yk. ,
, f
t.- Legend 'Co
C3Wark Parcel , o,► ,,�Ir_ ,' ' 0 �,•
CityOwnedProp `�k j '"
City Easement on Pueblo Consv Dist r. • `ti:
:'
1" � :. .. Gong rgne�r4ap2111
-nnap S�oCdv d Pu'rzd°pian^mg puvpos°s oNv
vC v°�puevo C°m„°ox°a:Ki 9a,aM°° PER PUEBLO WATER.
THIS DRAWING IS FOR GENERAL INFORMATION ONLY.
BEFORE CONSTRUCTION PLANS ARE FINALIZED.YOU MUST
of ps an
11•111•111===M111111IIMI1
CONTACT THE BOARD'S CIVIL ENGINEER TO VERIFY THAT
Miles THE SIZE,TYPE LOCATION,ETC OF THE WATER MAIN4S)
AND/OR THE PROPOSED WATER SERVICE IS CORRECT
0 0.009.01 0.02 0.03
Exhibit 2
TEMPORARY EASEMENT AND RIGHT OF WAY
THIS TEMPORARY EASEMENT, granted this 26th day of September, 2022, by inhabX,
LLC, a Colorado limited liability company, Grantor, to the City of Pueblo, a Colorado Municipal
Corporation, Grantee:
WITNESSETH:
THAT IN CONSIDERATION of the sum of One Dollar ($1.00) and other good and valuable
consideration paid by the Grantee, receipt of which is hereby acknowledged, Grantor hereby
grants to Grantee, its successors and assigns, an easement and right of way for the purpose of
constructing, maintaining, repairing, replacing, controlling, and demolishing a bridge, access
path, irrigation system, public art exhibit, City-installed landscaping improvements, and public
utilities(referred to collectively hereinafter as the "Improvements") which will be constructed or
installed in, through, over, under and across Grantor's property; for providing public access and
use of the Improvements situated in Pueblo County, Colorado, and described as follows: (the
"Property")
See Exhibits"A" and "B"
TOGETHER WITH the right to enter upon the Property for the purposes of construction,
installation, replacement, maintenance, control, repair, and demolition and the right for public
access and use of the Improvements to use so much of the adjoining property of Grantor for
said purposes. The Grantor reserves the right to use and occupy the Property for any purpose
not inconsistent with the right and privilege above granted and which will not interfere with or
endanger any of Grantee's equipment or facilities therein or use thereof.
Grantor warrants to Grantee that Grantor (a) has good and sufficient right and title in
and to the Property and full power to grant this easement and right-of-way, and (b) will defend
Grantee's quiet and peaceful possession of the Property and easement and right-of-way against
all persons who may lawfully claim title to the property.
"Grantee" shall include the plural and the feminine. This Easement and Right of Way
shall be binding upon, and shall inure to the benefit of the heirs, personal representatives,
successors, and assigns of the Grantor and Grantee.
This Temporary Easement shall commence on the date set forth above and shall expire
and terminate on September 25, 2023. In the event there is a delay in the construction of the
Main Street Pedestrian Bridge, due to circumstances beyond the control of the Grantee, the
duration of this Temporary Easement may be extended as agreed to by Grantor and Grantee.
InhabX, LLC
a C do limited liability company
: (Signature)
John Wark
President and Manager
EXHIBIT "A"
An easement located on a portion of Lot 10, and all of Lots 11 through 20, Block 214, of The
Colorado Coal and Iron Company, a subdivision of a certain portion of The City of South Pueblo,
recorded December 6, 1883, in Book 40, Page 522 in the City of Pueblo, County of Pueblo, State
of Colorado.
EXHIBIT "B"
-------- • 401ec
o
14"
1/5
.%Alt.'"'
itf
Sl
n '
fe."
_.off
tt
WE
SCALE: 1 "=250'
Exhibit 3
The City of Pueblo hereby acknowledges to The Pueblo Conservancy District that inhabX, LLC,
the Grantee in a Quit Claim Deed dated December 15, 2021 and recorded December 20, 2021,
has granted to the City of Pueblo such easements or deeds as are necessary for the placement of
the proposed Main Street Bridge abutments. The City of Pueblo consents to The Pueblo
Conservancy District releasing and terminating the right of reversion contained in said Quit
Claim Deed.
Dated thisp ''day of/072022
CITY OF PUEBLO
By.
Nicholas A. Gradis , Mayor
ATTEST.
6‘, 841D--%
•
City CI