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HomeMy WebLinkAbout10301ORDINANCE NO. 10301 AN ORDINANCE APPROVING AN AGREEMENT BETWEEN PUEBLO CORPORATE COLLEGE, A DIVISION OF PUEBLO COMMUNITY COLLEGE, (“PCC”) AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, FOR USE OF A PARKING LOT AT THE PUEBLO MEMORIAL AIRPORT, AND AUTHORIZING THE MAYOR TO EXECUTE SAME WHEREAS, Pueblo Corporate College, a division of Pueblo Community College, (“PCC”) provides Commercial Driver’s License (CDL) training to students; and WHEREAS, the City owns a parking lot normally used for public parking which is not always in use and may be available for use by PCC; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement for Use of Pueblo Parking Lot (“Agreement”) by and between the City of Pueblo, a Municipal Corporation, and Pueblo Corporate College, a division of Pueblo Community College, relating to the use of a City parking lot for the purpose of providing Commercial Driver’s License training to PCC students, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The Mayor is hereby authorized to execute said Agreement 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 authorized to perform any and all acts consistent with the intent of this Ordinance and the attached Agreement 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 26, 2022. Final adoption of Ordinance by City Council on October 11, 2022 . President of City Council Action by the Mayor: ☒ Approved on October 15, 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 # R9 Background Paper for Proposed Ordinance September 26, 2022 COUNCIL MEETING DATE: TO: President Heather Graham and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Marisa Stoller, City Clerk FROM: Greg Pedroza, Director Aviation SUBJECT: AN ORDINANCE APPROVING AN AGREEMENT BETWEEN PUEBLO CORPORATE COLLEGE, A DIVISION OF PUEBLO COMMUNITY COLLEGE, (“PCC”) AND THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, FOR USE OF A PARKING LOT AT THE PUEBLO MEMORIAL AIRPORT, AND AUTHORIZING THE MAYOR TO EXECUTE SAME SUMMARY: An Agreement between Pueblo Corporate College, a division of Pueblo Community College, (“PCC”) and the City of Pueblo, allowing PCC to use a parking lot in the Pueblo Memorial Airport Industrial Park, is attached for City Council’s consideration. PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. BACKGROUND: Pueblo Corporate College provides Commercial Driver’s License (CDL) training to its students and needs a parking lot to perform practical training. The City owns a parking lot located southeast of the Pueblo Memorial Airport Terminal, north of Walt Basset Avenue, between Keeler Parkway and Cherokee Lane, within the Pueblo Memorial Airport Industrial Park, Pueblo County, Colorado, (the “City Facilities”) which is not always in use and is available for use by PCC. FINANCIAL IMPLICATIONS: In consideration for the City allowing PCC use of the City’s parking lot, PCC will provide complete CDL training of up to eight (8) City employees at fifty percent (50%) of the regular rate. No other fees or charges will be paid by City. Additionally, all City employees applying for or undergoing training will have priority over other applicants for said training. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: If this Ordinance is not approved, PCC will not be allowed to use the City’s parking lot and the City will not receive a discount for training its employees who need CDL training. RECOMMENDATION: The Department of Aviation recommends the passage of this Ordinance. ATTACHMENTS: 1. Pueblo Community College 2022 09 26 LEASE AGREEMENT FOR USE OF PUEBLO PARKING LOT THIS AGREEMENT ("Agreement") is made and entered into as of the kiN��day of cAub ar 2022 (the"Effective Date") by and between Pueblo Corporate College. a division of Pueblo Community College ("PCC"), with an address of 900 \V. Orman Avenue. Pueblo. Colorado 81004. (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"). \VHEREAS. Permittee provides Commercial Driver's License ("CDL") training and testing to its students (collectively "Students") within Pueblo County. Colorado: and WHEREAS, City owns a parking lot located southeast of the Pueblo Memorial Airport Terminal, north of Walt Basset Avenue. between Keeler Parkway and Cherokee Lane, within the Pueblo Memorial Airport Industrial Park. Pueblo County. Colorado, (the "City Facilities") which are not always in use and are available for use by Permittee: and WHEREAS. Permittee desires use of the City Facilities in connection with the CDL training it provides to Students: and WHEREAS. City is willing, subject to the conditions set forth in this Agreement, to allow Permittee to use the City Facilities, as coordinated by the City. to provide CDL training to its Students. 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 Students non-exclusive access to and use of the City Facilities. at times and locations designated by the Director of Aviation, when such facilities are not otherwise scheduled for or in use by City or others. As between Permittee and third parties. Permittee will be given priority for scheduling access to the City Facilities. ?. The term of this Agreement shall commence on the Effective Date and proceed for the term of one year. This Agreement shall automatically renew on a yearly basis, unless a party provides written notice of its intent not to renew at least thirty(30) days prior to the end of the then current term. Either party may terminate this Agreement upon thirty(30) days prior written notice to the other party. The provisions of sections 3. 16. 17, 19. 21. 22. 23. and 25 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. 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 not pay City a fee or charge for use of the City Facilities. Instead. Permittee will provide CDL training to City employees at a reduced rate as set forth below. 5. In consideration for City allowing Permittee to use the City Facilities pursuant to this Agreement. each year Permittee shall provide complete CDL training of up to eight (8) City employees at fifty percent (50°0) of the regular rate. No other fees or charges will be paid by City. Additionally, all City employees applying for or undergoing Permittee's training will have priority over other applicants for said training. but in no event shall a City_ employee displace another applicant who has already registered and paid for the training. Should this Agreement be terminated by the Pennittee prior to City employees completing their CDL training.Permittee shall issue a pro-rata refund to City for the unfinished training. 6. Permittee shall submit periodic. but not more frequently than monthly. applications for payment, aggregating to not more than the maximum amount, for actual training rendered. Such applications shall be submitted with appropriate documentation showing that such training has been performed. Thereafter, City shall pay Permittee for the amount of the application within forty-five (45) days of the date of billing. provided that sufficient documentation has been furnished. No separate or additional payment shall be made for profit. overhead, local telephone expenses. lodging, routine photocopying. computer time. or similar expenses 7. The CDL training provided by Permittee to City employees shall include at a minimum education sufficient to meet Federal Motor Carrier Safety Administration ("FMC'SA") regulations, including but not limited to Entry Level Driver Training ("ELDT") with Theory Training and Behind-The-Wheel ("BTW") Range and Road Training. All CDL training for City employees shall be provided within twelve (1_2) months from the Effective Date, at the times and locations designated by City and agreed upon by Permittee. 8. 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 Students and 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. Permittee will be responsible for damages to City Facilities caused by Permittee. its officers. employees, agents. invitees. and students. not to include ordinary wear and tear. 9. 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). Pennittee 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 Students. The storage and accumulation of ftuel, 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. 10. Except for damage caused by Permittee or its students, City shall maintain the City Facilities, to include pavement maintenance,painted markings. and other such activities necessary to maintain said areas. At no time shall the City permit excessive accumulation of snow, dirt, or other debris be piled or stored on public areas while in use by or being supervised by Permittee. Permittee may request snow removal to be done by City personnel at no additional cost when City personnel are available. Permittee is not responsible for snow removal on the City Facilities. Should Permittee make changes to the City Facilities. including painting the pavement for testing purposes or building temporary obstacles, upon termination of this Agreement Permittee shall at its sole cost and expense remove any and 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. 11. Notwithstanding the foregoing. City will at its own expense restripe the selected lots in the manner designated by Permittee. The City will only be required to repaint or restripe the parking lots when it has sufficient funds budgeted and appropriated for said purpose. and no more than once every two years. City will also explore options to repave the selected parking lots to better facilitate Permittee's use, but any such repaving of the parking lots is subject to sufficient funds being budgeted and appropriated for the purpose. 12. City shall have the right to enter the City Facilities at any time for the purposes of repairing. replacing. and'or maintaining the property. City maintains all rights of entry under law. and its right to enter the City Facilities at any time. 13. Pennittee shall at all times have an experienced and qualified training instructor physically present and directly supervising Students when Students 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 Students are provided with all appropriate safety instruction. equipment, 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 Students 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. 14. Under no circumstances will Permittee's employees or non-City Students be permitted to drive City's vehicles. nor act as City personnel or representatives. 15. Pennittee. as an entity of the State of Colorado, is entitled to certain immunities under Colorado law, including the Colorado Governmental Immunity Act. C.R.S. §§ 24-10-101. et seq.. and is self-insured for S424.000 per person and S 1.195.000 per occurrence as more fully set forth in Risk Management laws. C.R.S. §§ 24-30-1501. et seq. The parties agree that such insurance shall satisfy all insurance requirements of this Agreement except as otherwise specified herein. Permittee shall furnish to City upon request. in a form satisfactory to City. a copy of said policies or certificates that such insurance has been issued. 16. Permittee agrees to pay promptly when due all taxes. fees, or charges of whatever nature applicable to its conducting of business and to obtain all licenses and permits, whether 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, fees, and charges. and showing that all required licenses and permits are in effect. The City shall have no fiscal obligations to Permittee,its employees, or Students under this Agreement. except for payments to Permittee pursuant to section 5 hereof. 17. This Agreement is not intended to, nor shall it create, any duty to any Student 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 Student. 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 or Permittee. their officers. employees. or agents. 18. 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 he void. A waiver by any party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party. 19. 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 Students. 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, except as outlined in this Agreement. City maintains the right to close any portion of the City Facilities for any reason. 20. 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: Pueblo Community College Attn: President 900 West Orman Avenue Pueblo. CO 81004 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 21. 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. 22. 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. 23. At all times during the term of this Agreement. Permittee shall be deemed an independent contractor and its employees and non-City Students 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 Students. 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. 24. 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. 25. Intentionally omitted. 26. Permittee shall reimburse City for the full amount of any employer contribution required to be paid by City to the Public Employees' Retirement Association ("PERA") for salary or other compensation paid to a PERA retiree performing contracted services for City under this Agreement. 27. Any delays in or failure of performance by any party of its obligations under this Agreement shall be excused if such delays or failure are a result of acts of God. fires. floods,storms, lightning strikes. labor strikes, labor disputes. pandemics, accidents. regulations or orders of civil or military authorities, shortages of labor or materials, or other causes. similar or dissimilar, which are beyond the control of such party. 28. This Agreement shall inure to the benefit of. and he binding upon. the parties. their respective legal representatives. successors. and assigns: provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. 29. Financial obligations of City, if any, after the current year in which this Agreement is signed by both parties are contingent upon funds for that purpose being appropriated. budgeted and otherwise made available by Pueblo City Council and City executive departments. Nothing herein shall be deemed to create an ongoing financial obligation of City. 30. Nothing in this Agreement is intended to, or shall be deemed to constitute, a partnership or joint venture between the parties. or to create any agency or partner relationship between the Parties. Neither party shall hold itself out as a partner, joint venture, agent. or representative of the other under this Agreement. 31. Each person signing this Agreement on behalf of a party represents and warrants that he or she has the requisite power and authority to enter into,execute,and deliver this Agreement on behalf of such party and that this Agreement is a valid and legally binding obligation of such party enforceable against it in accordance with its terms. 32. This Agreement and all other documents contemplated hereunder may be executed using electronic signatures with delivery via facsimile transmission. by scanning and transmission of electronic files in Portable Document Format (PDF) or other readily available file format, or by copy transmitted via email, or by other electronic means and in one or more counterparts. each of which shall be: (i) an original. and all of which taken together shall constitute one and the same agreement. (ii) a valid and binding agreement and fully admissible under state and federal law, and (iii) enforceable in accordance with its terms_ IN WITNESS WHEREOF, the parties have entered into this Agreement as of the day and year first written above. Executed the day and year first above written. CITY OF PUEBLO, PUEBLO COMMUNITY COLLEGE A MUNICIPAL CORPORATION BY By -:�C.:I Cr_r Nicholas A. Gradisar, ayor Patricia A. Erjavice, President Attest: -EAttest: A L . ►1N City Clerk Secretar APPROVED AS TO FORM: __....elay‘Lij 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 Pueblo Corporate College. a division of Pueblo Community College (PCC). 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. (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: Date: Trainee Instructor Signature: 'Witness: