HomeMy WebLinkAbout07841ORDINANCE NO. 7841
AN ORDINANCE APPROVING THE AMENDED AND RESTATED HISTORIC ARKANSAS
RIVERWALK OF PUEBLO (HARP) AUTHORITY INTERGOVERNMENTAL AGREEMENT AND
AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that
SECTION 1.
The Amended and Restated Historic Arkansas Riverwalk of Pueblo (HARP) Authority
Intergovernmental Agreement dated as of May 19, 2008, a copy of which is attached hereto,
having been approved as to form by the City Attorney is hereby approved. The President of the
City Council is authorized to execute the Intergovernmental Agreement in the name of the City and
the City Clerk is directed to affix the seal of the City thereto and attest same.
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This Ordinance shall become effective upon final passage and approval.
INTRODUCED July 14. 2008
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Background Paper for Proposed
ORDINANCE
DATE: July 14, 2008 AGENDA ITEM # 3.�
DEPARTMENT: Law Department
TITLE
AN ORDINANCE APPROVING THE AMENDED AND RESTATED HISTORIC ARKANSAS
RIVERWALK OF PUEBLO (HARP) AUTHORITY INTERGOVERNMENTAL AGREEMENT AND
AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
ISSUE
Should the City Council approve the amended and restated HARP Intergovernmental Agreement?
RECOMMENDATION
HARP Authority has requested that the agreement be approved.
BACKGROUND
The Urban Renewal Authority of Pueblo, Colorado ( "Authority ") has agreed to be a party to the
HARP Intergovernmental Agreement ( "Agreement ") thereby necessitating modification to the
Agreement dated December 1, 1997 which created the HARP Authority ( "Original Agreement "). In
addition to the Authority, parties to the Agreement are: City of Pueblo, Pueblo County, Board of
Water Works of Pueblo and Pueblo Conservancy District.
Amendments to the Original Agreement generally relate to the Authority being a party; increasing
the number of the members of the HARP Board of Directors ( "Directors ") from 5 to 7, providing that
the Authority may appoint one new member and the other new member will be appointed by an
appointment committee composed of 5 persons appointed by the governing bodies of the 5 parties
to the Agreement; and providing that 4 Directors constituted a quorum and at least 4 Directors must
approve any action of the Directors
The Agreement is restated to incorporate all prior addenda to the Original Agreement.
FINANCIAL IMPACT
Although not contractually binding on the parties to the Agreement and subject to annual
appropriation, the Agreement sets forth the following share of contributions of HARP Authority's
expenses in excess of revenues beginning in the year 2008:
City of Pueblo 50%
County of Pueblo 40%
Pueblo Conservancy District $50,000 per year (contingent, see below)
Authority $20,000 per year to be increased to $50,000
Pueblo Conservancy District's contribution is subject to and contingent upon the District receiving
funding from a proposed Maintenance Fee Assessment levied upon property benefited by the
Arkansas River Levy maintained by the District. The District has not yet levied any Maintenance Fee
Assessment, however, the District has paid its $50,000 contribution for 2008.
Amended and Restated
Historic Arkansas Riverwalk of Pueblo (HARP) Authori ty
INTERGOVERNMENTAL AGREEMENT
THIS Amended and Restated Intergovernmental Agreement (the "Agreement ") entered
into as of May 19, 2008 between Pueblo, a Municipal Corporation, organized and existing under the
constitution and laws of the state of Colorado (herein "City"); Pueblo County, Colorado, a political
subdivision of the state of Colorado, organized and existing under the constitution and laws of the
state of Colorado (the "County"); Pueblo Conservancy District, a special district organized and
existing under the laws of the state of Colorado (the "District'); the Urban Renewal Authority of
Pueblo, Colorado, a corporate body organized pursuant to the Laws of the State of Colorado
( "URA ") and the Board of Water Works of Pueblo, Colorado an independent body established,
organized and existing under the charter of the City (the `Board "), (individually the "Party" and
collectively the "Parties "), WITNESSETH:
RECITALS:
A. Sections 18(2)(a) and (b) of Article XIV of the constitution of the state of Colorado
and the Colorado Intergovernmental Relationships statute, §29 -1 -2 -1 et. seq. C.R.S., authorize
political subdivisions to cooperate and contract with one another, including the establishment of a
separate entity, to provide any function, service or facility lawfully authorized to each of the
contracting units, including the sharing of costs, if such contract sets forth fully the purposes,
powers, rights, obligations, and responsibilities, financial or otherwise, of the contracting parties.
B. Each of the Parties is a political subdivision as defined in the §29 -1- 202(2) C.R.S.
and desires to cooperate and contract among themselves to create a separate legal entity to promote,
manage, supervise, operate, develop, and maintain the project within the jurisdictional boundaries of
each of the Parties known as the Historic Arkansas Riverwalk of Pueblo (the "HARP ").
C. The Promotion, management, supervision, operation, development, and maintenance
of HARP will be in furtherance of the purposes of, and within the powers and authority of each of
the Parties.
D. The Parties, except URA, entered into an Intergovernmental Agreement dated December
1, 1997 creating the Historic Arkansas Riverwalk of Pueblo Authority (the "Original
Intergovernmental Agreement').
E. The Original Intergovernmental Agreement has been amended and is further amended by
this agreement, which amendments include but are not limited to the addition of URA as a Party.
This Agreement constitutes a restatement of the Original Intergovernmental Agreement as it exists
as of the effective date hereof.
AGREEMENT
In consideration of the foregoing Recitals and mutual covenants and conditions contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, City, County, District, URA and Board agree as follows:
ARTICLE I — DEFINITIONS
For purposes of this Agreement, the following defined terms shall have the meaning given to
them in this Article:
1.1 "Act' means the Colorado Intergovernmental Immunity Act, §24 -10 -101 et, seq.
C.R.S. and any amendments thereto or substitutions therefore.
1.2 "Bonds" means the $12,850,000 City of Pueblo, Colorado Limited Tax General
Obligation Bonds, Series 1996.
1.3 "Development Plan" or "Plan" means the HARP Program Diagram dated November
26, 1996 attached hereto as Exhibit "A" and as same may be hereafter amended by consent of all of
the Parties to this Agreement,
1.4 "Land" means and includes Public Land and Private Land.
1.5 "Private Land" means, Lot 2, Block 1; Lott, Block 2; Lots 2 and 3, Block 4; and Lots
and 2, Block 4 and facilities thereon within the Subdivision.
1.6 "Public Land" means all the land and facilities thereon within any Subdivision except
the Private Land.
1.7 "Subdivision" means the Historic Arkansas Riverwalk Project, Filing One, as
amended, from time to time, by the approval of both the City and the District.
ARTICLE II — HISTORIC ARKANSAS RIVERWALK AUTHORITY
2.1 There is hereby created and organized as a separate legal entity pursuant to §29 -1 -203
C.R.S., the Historic Arkansas Riverwalk of Pueblo Authority (the "Authority"), whose function,
purpose and obligation shall be to promote, manage, supervise, operate, develop, and maintain
HARP. The Authority shall be an agency and instrumentality of the State of Colorado separate from
the Parties, and, except as otherwise specifically provided in the Agreement, shall not be subject to
administrative direction by the Parties nor their respective officers or employees. The creation of the
Authority, effective December 1, 1997, is hereby continued, approved, confirmed and ratified.
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2.2 The governing body of the Authority shall be known as the HARP Board of Directors
(HARP Board). The HARP Board shall consist of seven members, two appointed by the City
Council of City, one appointed by the Board of Pueblo County Commissioners; one appointed by the
governing body of each of the other Parties, and one appointed by the majority vote of an
appointment committee composed of five (5) persons, one (1) appointed by each of the governing
bodies of the Parties. The members of the HARP Board may be persons other than members of the
governing bodies of the parties. The members of the HARP Board shall be appointed for terms of
three years, provided, that the members who are first appointed shall be appointed for staggered
terms as follows: one appointed by the City Council of City for a term of one year; one appointed by
the Board of Commissioners of County for a term of two years; one appointed by the members of the
Board for a term of two years; one appointed by the directors of the District for a term of three years;
and one appointed by the City Council of City for a term of three years. The member appointed by
the URA shall serve an initial term of two years and the member appointed by the appointment
committee shall serve an initial term of three years. Any member of the HARP Board may be
removed at any time by a majority vote of the members of the governing body or bodies of the Party
who appointed such member. In the event of the death, resignation or removal of a member, the
Party or Parties who appointed such member shall promptly appoint a successor member to fill the
unexpired term of such member.
2.3 Four members of the HARP Board shall constitute a quorum. An affirmative vote of
at least four members is necessary to approve or authorize any action by the HARP Board. The
HARP Board shall annually elect a chairperson, vice - chairperson, secretary and treasurer from its
members and shall adopt its own bylaws, which shall not be inconsistent with any provision of the
Agreement.
2.4 The Assistant City Manager for Community Development shall be an ex- officio
member of the HARP Board without vote.
2.5 The HARP Board shall have the power and the authority to exercise all the powers of
the Authority.
2.6 All meetings of the HARP Board shall be conducted in accordance with the Colorado
Open Meetings Law, §24 -6 -401 et. seq. C.R.S., as amended or replaced.
2.7 Members of the HARP Board shall serve without compensation.
ARTICLE III — POWERS OF THE AUTHORITY
3.1 The Authority may exercise any and all powers in the furtherance of its function,
purpose, and obligation, which powers shall include, but shall not be limited to the following
powers:
(a) To make and enter into contracts that are in the furtherance of the function,
purpose and obligation of the Authority with the Parties to the Agreement (either jointly or
separately), the state of Colorado, the federal government, any other governmental body or unit, or
any private person, partnership or corporation or other private entity; provided, however, that (i)
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before the purchase of supplies, materials, services, or equipment ample opportunity be given for
competitive bidding, in accordance with an established HARP Authority Purchase Policy, and (ii)
contracts for improvements be awarded to the lowest and best bidder by competitive sealed bidding
after ample advertising. The Authority, however, may use design -build arrangements and contracts
with contractors and material suppliers when a donor's restrictions so limit the nature or scope of a
construction project or the installation of a public improvement is so singularly unique that it does
not lend itself to competitive sealed bidding procedures and requirements. The Authority shall,
however, use its best efforts to solicit proposals from companies and contractors who build or supply
materials for such unique projects before selecting any contractor or construction supplier for a
design build project or purchase.
(b) To have the management, control and supervision of all the business and
affairs of the Authority.
(c) To appoint, hire, and retain employees and independent agents, contractors,
engineers, and attorneys.
(d) To fix and from time to time increase or decrease fees, rates or charges for
services, programs, or facilities furnished by the Authority.
(e) To promote and market HARP and activities conducted thereon.
(f) To request proposals for, negotiate, and make recommendations to the City
Council of City with respect to contracts, leases and permits for the development, use, lease, sale or
other disposition of Private Land. Each recommendation shall be detailed and include, without
limitation, data and information in support of the recommendation, a copy of the request of
proposals and responses thereto by parties other than the party who is the subject of the
recommendation.
(g) To review and make recommendations to the City Council of City for the use,
development, construction, installation, removal and renovation of Public Land and disposition of
funds available therefore.
(h) To sue or be sued and to be a party to suits, actions, and proceedings.
(i) To obtain appropriate Iiability and casualty insurance.
0) To appropriate and expend funds in accordance with the Approved Annual
Plan and Budget adopted and approved as provided in Article IV hereof.
(k) To issue or reissue revenue bonds, notes or other obligations payable from the
revenue derived from the functions, services, or facilities of the Authority; provided, however, that
the term, conditions, details, sale and payment of such bonds, notes or other obligations, the
proceedings relating thereto, the pledge of revenue, and the refunding thereof shall be set forth in a
resolution approved by the governing body of each Party (except the Board).
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(1) To have and exercise all rights and powers necessary or incidental to or
implied from the specific powers hereby granted.
3.2 The Authority shall maintain in good repair, and renovate, rebuild, and replace all
public improvement within HARP including without limitation, all buildings, structures, waterways,
waterfalls, statuary and exhibits, and shall insure upon completion such improvements against
damage, injury, loss, theft, malicious mischief and vandalism in amount not less than their full
insurable value. For purposes hereof, "public improvements" include all improvements within
HARP that are owned by the City of Pueblo or contracted by, through or for the City of Pueblo or
works of art that the City of Pueblo has accepted. Public improvements exclude those owned by a
private person or entity. The City agrees to assign to the Authority any warranties provided by
contractors or artists for the public improvements covered by this agreement.
ARTICLE N —BUDGET
4.1 The HARP Board shall, after consultation with the appropriate officers of each Party,
prepare an annual operating plan and line item budget for the promotion, management, supervision,
maintenance, development, and operation of HARP specifically identifying all items of anticipated
revenues (including funds from each Party except the Board) and expenditures for the next calendar
year (the "Annual Plan and Budget "). The Parties acknowledge and agree that because the Board
has assumed the expense and responsibility of providing and furnishing water for HARP, the Board
shall be excluded from and not be responsible for appropriating any other funds for HARP. For
purposes of the Article IV, "appropriate officers of each Party" means and includes the chief
executive officer and financial officer of each Party.
4.2 The appropriate officers of each Party shall jointly meet with the HARP Board, or the
HARP Executive Director, no later than August 20 of each year to consult in the preparation of the
Annual Plan and Budget.
4.3 The Annual Plan and Budget shall be submitted to each Party on or before August 31
of each year, commencing August 31, 2008.
4.4 The appropriate officers of each Party (except the Board) shall cause the annual
budget prepared and submitted by such officers to the governing body of such Party to contain a
specific line item for an appropriation to the Authority based upon the Annual Plan and Budget
submitted by the HARP Board together with written recommendations, if any, of such officers. The
governing body of each Party shall, in its sole discretion, approve such budgeted specific line item
for appropriation to the Authority in an amount equal to, or greater or lesser than the amount
contained in HARP Board's Annual Plan and Budget. The funds budgeted and appropriated by a
Party may be disbursed to the Authority on such periodic basis during the calendar year as that Party
may determine. If, during any calendar year, Authority revenues are greater than revenues contained
in the Approved Annual Plan and Budget for that calendar year, each Party may proportionately
reduce its appropriation to the Authority for that calendar year.
4.5 The Parties, (except the Board) hereby declare their present intention and expectation
to annually appropriate and budget a pro -rata equitable share of the expenses in excess of revenues
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for the promotion, management, supervision, operation, development and maintenance of HARP as
follows: Beginning in the 2008 budget year, the Parties' share of expenses in excess of revenues
shall be as follows: 50% by City and 40% by County, with the balance to be shared as follows: (i)
URA -- $20,000, with the intent to be increased to a maximum of $50,000 per year, and (ii) District -
$50,000 per year in addition to any maintenance reimbursement. Provided however, that this
declaration shall not be construed as contractually obligating or binding on any Party. Provided
further, that the obligation of the Pueblo Conservancy District is further conditioned on the Pueblo
Conservancy District receiving funding from a proposed Maintenance Fee Assessment levied upon
property benefited by the Arkansas River Levy maintained by the Pueblo Conservancy District. It is
the further intent of the Parties, that the decision to budget and appropriate funds for the promotion,
management, supervision, operation and maintenance of HARP shall be made solely by the
respective governing body of each Party, and not by HARP Board or any officer of the Parties. Any
obligation of a Party to budget and appropriate funds for the promotion, management, supervision,
operation, development, and maintenance of HARP shall be from year to year only and shall not
constitute a mandatory payment obligation of the party in any fiscal year beyond a fiscal year during
which such funds are budgeted and appropriated. Neither this Agreement nor any provision hereof
shall be construed or interpreted as creating a general obligation or debt or indebtedness or multiple -
fiscal year direct or indirect debt or other financial obligation whatsoever of any Party within the
meaning of any constitutional, statutory or charter debt limitation.
4.6 The HARP Board, after adoption of the budgets of each Party, shall adopt the
Authority's Annual Plan and Budget including the amounts, if any, each Party has budgeted and
appropriated for the promotion, management, supervision, operation and maintenance of HARP for
the next calendar year (the "Approved Annual Plan and Budget ").
4.7 The HARP Board shall only commit and expend funds in accordance with the
Approved Annual Plan and Budget and shall not make any budgetary appropriation or encumbrance
or incur any debt or multiple - fiscal year financial obligation or initiate any purchase or construction
of any facility, improvement or equipment which will require an expenditure or payment in any
succeeding fiscal year unless the financial obligations of the Authority payable in any succeeding
fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise
made available.
4.8 All revenues derived from (a) the use or lease (but not the sale or other disposition) of
the Private Land, and (b) the use of, and activities conducted on the Public Land and facilities
located thereon (except facilities, including without limitation, parking areas and parking facilities,
constructed or installed on the Public Land by City funds other than the net proceeds of the Bonds;
provided, however, that City funds shall constitute a majority of the funds used for such construction
or installation and for such purpose "City funds" means and includes all grants and awards to the
City by the federal or state government or any agency thereof) shall be paid to, collected and held by
the Authority in a separate account and expended by the Authority solely for the maintenance and
operation of HARP. Authority will at least quarterly prepare and submit to each Party a financial
report showing by line item all such revenues and expenditures during the prior quarter, year -to -date,
and prior two years' actual revenues and expenditures.
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4.9 The HARP Board may appoint advisory committees consisting of such persons and
for such purposes as the HARP Board may determine.
ARTICLE V
5.1 The Land is owned by the City. As included within the Development Plan and
Subdivision, portions of land previously owned by the District (the "District Land ") and transferred
to the City are and will be used in compliance with and meet the flood control and recreational
purposes and responsibilities of District. City will hold, use and transfer District Land only in
compliance with the Development Plan and Subdivision.
5.2 The HARP Board shall deliver to City Council of City and to the other Parties its
written recommendations for the development, use, lease, sale or other disposition of all or any
portion of Private Land which shall be consistent and in conformity with the Development Plan and
Subdivision (the "Recommendations "). City Council of City will authorize and approve the
development, use, lease, sale or other disposition of Private Land in accordance with the
Recommendations, unless the City Council of City, for any reason, after public hearing held within
sixty (60) days after receipt of complete and detailed Recommendations, rejects, alters or modifies,
in whole or in part, the Recommendations (the "City Council Action "). In such event, the City
Council of City, in its discretion, may either (a) return the Recommendations with the City Council
Action to the HARP Board for reconsideration, or (b) direct that the Private Land be developed,
used, leased, sold or otherwise disposed of as the City Council of City may determine, provided such
determination is consistent and in conformity with the Development Plan and Subdivision. The
provisions of the Article 5.2 shall not prevent nor be construed to prevent the City Council from
acting with respect to such Recommendations earlier than said 60 -day period, provided, however,
that if the Recommendations or City Council Action relate to the sale of the Private Land, the City
Council of City may not act with respect thereto earlier than thirty (30) days after receipt of such
Recommendations. Notice of any public hearing provided for in the Article 5.2 shall be given to the
Authority at least ten (10) calendar days before the date of the public hearing.
5.3 Pursuant to the provisions of Section 7 -21 of the Charter of the City, City Council of
City shall create a Special Fund and will segregate and hold in the Special Fund and appropriate and
expend the net proceeds from the sale or other disposition of Private Land (but not the lease or use of
Private Land) for the improvement, maintenance, development, and renovation of HARP; provided
however, that prior to the City Council's appropriation of said funds for the stated purposes, the City
Council of City may consider any written recommendations of the HARP Board with respect to any
such appropriation received by the City Council of City prior to any specific appropriation.
5.4 On written recommendation of the HARP Board, the City Council of City will cause
to be placed on its agenda an appropriate resolution or ordinance setting forth needed rules,
regulations, fees, rates and charges for or with respect to the use of the Public Land and activities
conducted thereon, provided that any such resolution or ordinance and all provisions thereof shall be
subject to approval and adoption by the City Council of City in its sole discretion.
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5.5 No Disqualified Person shall acquire or hold any interest, direct or indirect, in any
contract, development agreement, lease, or permit for the development, lease, use, purchase, sale or
other disposition of Private Land (the "Development Project'), nor shall any Disqualified Person
have any interest, direct or indirect, in any contract or proposed contract for materials or services to
be famished or used in connection with any Development Project. Every contract, development
agreement, lease or permit made in violation of the Article 5.5 shall be voidable by the Authority,
unless a majority of the HARP Board determines that, in light of such interest, the participation of
the Disqualified Person in such Development Project would not be contrary to the public interest.
For purposes thereof "Disqualified Person" means and includes (a) a member of the HARP Board or
employee of the Authority, (b) an immediate member of the family (spouse, father, mother, son,
daughter, brother or sister) of any member of the HARP Board or employee of the Authority, and (c)
any corporation, limited liability company, partnership, sole proprietorship, trust or other person or
entity carrying on a business in which a person described in (a) or (b) above has a financial
ownership or employment interest, or in which such person is an officer, manager or director.
ARTICLE VI — BOND PROCEEDS
6.1 City will use the net proceeds of the Bonds to construct, acquire and improve HARP.
ARTICLE VII — WATER
7.1 The Board will make available and supply water to the HARP project in the quantities
set forth and subject to the conditions set forth below:
7.2 Non - Potable Water
(a) The Board is a party to a Real Property Lease with Utilicorp United, Inc., by
its Division, WestPlains Energy, dated September 9, 1996 and recorded September 30, 1996 in Book
2932, Page 991, Instrument No. 1140809 of the records of the Pueblo County Clerk and Recorder
(the "Lease ") under the provisions of which WestPlains is obligated to continuously divert,
transport, and store, through and in the WestPlains water facilities, the amount of water lawfully
available and reasonably necessary to accomplish the decreed beneficial uses under the WestPlains
Water Rights. The return flow from said water usage will be a portion of the water that the Board
will supply to the HARP project.
The Lease also provided for a right of first refusal to the Board to purchase both the
WestPlains Water Facilities and the WestPlains Water Rights. The Board is not obligated to
exercise said right of first refusal and may not do so.
(b) The Board received a decree in Case No. 93 CW 086 in the District Court,
Water Division No. 2 in Colorado, for conditional water rights and a plan of augmentation for the
HARP project. In Case No. 04CW014 in the District, Water Division No 2. in Colorado, the Board
received a decree making a portion of the HARP water right absolute and continuing the remaining
conditional rights in good standing.
The quantities of non - potable water to be furnished by the Board in connection with the
HARP project shall be limited to:
(1) those waters which pursuant to the Lease Agreement are obligated to be
diverted by Utilicorp, return flows from which will be utilized in the HARP project;
(2) the water derived from the rights of Utilicorp, if in fact they are eventually
purchased by the Board pursuant to the right of first refusal;
(3) the water decreed to the Board in Case No. 93 CW 086, District Court, Water
Division No. 2,
(4) such water of the Board from its other supplies not to exceed 90 acre -feet per
Annum.
In explanation, the HARP project has been designed so that it can function if necessary with
quantities of water smaller than the existing WestPlains diversions. By the closing of certain gates
and structures, the quantities of water flowing in the channel can be greatly reduced, while still
substantially maintaining the appearance of a flowing stream. The Board will promptly notify the
Authority of any changes in water supply available from the Lease Agreement or other sources that
will necessitate the closing of gates or structures in order to operate the HARP project.
The Board agrees to furnish from its HARP decree, and other water sources, a quantity of
water to the HARP project to augment, supplement or replace the WestPlains return flows as
necessary in a quantity not to exceed 90 acre -feet per annum.
7.3 The water to be furnished by the Board in connection with the HARP project shall be
limited to the existing boundaries of the project as they are described in the Development Plan. The
Board shall not be obligated without a further agreement to supply water to any expanded or
increased HARP project.
7.4 Potable Water Any potable water to be supplied by the Board to the HARP project
will be furnished in accordance with the Board's then existing policies concerning potable water
furnished to the City of Pueblo, its parks, buildings or facilities, except as set forth below. For the
purposes of the Board's existing policies, the irrigated areas of the HARP project shall be construed
to be and shall constitute a park 5 acres and larger. Potable water supplied for irrigation under
Article 7.4 of this Agreement shall not exceed 7.55 million gallons per annum and shall be supplied
by the Board without rates, fees or other charges. Potable water shall be supplied from existing
Board mains, and the Board shall not be responsible for extending said mains or service lines at its
cost. Any such costs of extended mains or service lines shall be at the expense of the HARP project.
Potable water use shall be metered and monitored by the HARP Authority in the same manner as
water furnished to City parks.
7.5 If the buildings are city- owned, leased or occupied, the Board will charge for water
furnished and the extension of water service in accordance with the Board's then existing policies
concerning potable water furnished to the City of Pueblo, its buildings or facilities.
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7.6 Small Structures Small entertainment or refreshment kiosks or structures may be
established within HARP, including those which may not be leased to private lessees, on land not
designated as building pad sites with the HARP project. The Board will charge for water furnished
and the extension of water service to any such structures in accordance with the Board's then
existing policies concerning portable water furnished to the City of Pueblo, its buildings or facilities.
7.7 Return Flows The return flows from all non - potable water furnished by the Board to
the HARP project shall not be recycled and shall be allowed to return to the Arkansas River. Any
fountains or water features of the HARP project served by potable water shall be recirculated insofar
as reasonably possible without the expenditure of excessive monies on engineering and recirculating
equipment.
7.8 Board Review of Fountains and Water Features The design of all fountains or water
features to be incorporated in the HARP project shall be submitted in a timely fashion to the Board
and the Board shall have the opportunity to examine and approve or disapprove said features in the
context of the adequacy of water supplies and the Board's existing water distribution system to serve
said fountains or water features. "Water feature" for purposed of this Agreement means a fountain,
waterfall or other structure, the use of which would significantly increase the loss of water by
evaporation or seepage beyond the loss which would normally occur in the HARP channel or lake
areas of the HARP project. If in the Board's opinion, the fountains or water features are not
appropriately designed for the use of the supplies of water and system available to the HARP project
to be furnished by the Board, the Board may approve or disapprove of such design of fountains or
water features. Approval shall not be unreasonably withheld or delayed, but if the Board
disapproves, then the Board shall not be obligated to furnish water, either potable or non - potable
under this Agreement for such water features or fountains, the plans for which the Board has not
approved, provided, however, that if the Board disapproves, any other Party to the Agreement may,
upon written notice given to the Board within thirty (30) days after its decision to disapprove,
request the Board to reconsider its decision.
ARTICLE VIII — LIABILITY. INDEMNIFICATION AND IMMUNITY
8.1 Neither the individual members of the HARP Board, nor any of the Parties, or their
governing bodies, officers, agents or employees, shall be liable or responsible for any act or
undertaking of Authority, contractual or otherwise, regardless of the procedure by which such act or
undertaking may be entered into, including the approval by any Party.
8.2 The Authority shall, to the extent permitted and within the limitations of the "Act ",
indemnify and defend each Board member, officer and employee of the Authority in connection with
any claim or actual threatened suite, action, proceedings in which he or she may be involved in his or
her official capacity by reason of his or her being or having been a Board member, officer or
employee of the Authority, or by reason of any action or omission by him or her in any such
capacity; provided, however, the Authority shall have no obligation to indemnify and defend any
such board member, officer or employee of the Authority for any suit, claim, action or proceedings
arising out of criminal offenses, willful and wanton acts or omissions, or gross negligence of such
councilmember, officer or employee. The Authority's obligations pursuant to this Section shall be
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limited to monies of the Authority available for such purpose, including, but not limited to, insurance
proceeds.
8.3 Immunity The Authority, the County, the City, the District, the URA and the Board,
and their respective board members, commissioners, council members, officers and employees shall
be entitled to all immunities, protections and limits on liability provided by the Act and all other
applicable laws in connection with the organization, operation and activities of the Authority and the
activities of the District, the URA, the Board, the County and the City in connection therewith.
None of such immunities, protections or limits on liability may be waived.
ARTICLE IX — DEFAULT. WITHDRAWAL AND TERMINATION
9.1 If a Party remains in default in the performance of any of its obligations hereunder for
a period of sixty (60) days after receipt of written notice from the HARP Board or any other Party
specifying such default, the HARP Board or any other Party may:
(a) remove such defaulting Party as a participating Party under this Agreement
(the "Removal "); and/or,
(b) institute appropriate legal action in law or equity, including specific
performance, to enforce the defaulting Party's obligations hereunder.
In the event of litigation under this Agreement, the court shall award the prevailing party its
costs and expenses, including reasonable expert witness and attorney fees.
9.2 Any Party may withdraw as a participating Party under this Agreement upon action
taken by its governing body delivered to Authority and each of the other Parties at least one hundred
eighty (180) days prior to December 31 of the year of withdrawal (the "Withdrawal ").
9.3 The term and position of any member of HARP Board appointed by a Removed or
Withdrawn Party shall automatically expire and vacate upon the effective date of such Removal or
Withdrawal.
9.4 Except as otherwise provided in Article 9.5, this Agreement shall remain in full force
and effect until terminated by the mutual consent of all Parties, except Removed or Withdrawn
Parties whose consent shall not be required.
9.5 The Withdrawal or Removal of any Party shall not terminate this Agreement or the
Authority. Upon the Withdrawal or Removal of any Party, the remaining Parties shall expeditiously
amend and modify this Agreement to continue the Authority upon such terms and conditions as such
other parties shall mutually agree; provided, however, that if the other Parties do not so amend or
modify this Agreement within ninety (90) days after the effective date of the Removal or
Withdrawal of any Party, this Agreement and Authority shall terminate and cancel.
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9.6 The provision and obligations of Articles 5.1 and 7 shall survive the Withdrawal or
Removal of any Party, the termination of this Agreement, and/or the dissolution of Authority for the
benefit of the City and District. Article 5.1 may be enforced by District and Article 7 may be
enforced by City.
9.7 In the event of the termination of this Agreement or the dissolution of Authority, all
assets of Authority shall be transferred to City to be used for the promotion, management,
supervision, operation, and maintenance of HARP. The term "assets of Authority" shall not include
the water rights or water leases owned by the Board.
ARTICLE X — MISCELLANEOUS
10.1 This Agreement shall become effective upon the date this Agreement is approved by
the governing bodies of all the Parties, and may be amended or modified in writing approved by the
governing bodies of all the Parties, except Removed or Withdrawn Parties.
10.2 This Agreement shall be governed by and construed in accordance with the laws of
the state of Colorado.
10.3 If any section, clause or provision of this Agreement shall for any reason be
determined to be invalid or unenforceable, such determination shall not affect any of the remaining
sections, clauses or provisions of the Agreement.
10.4 This Agreement may not be assigned in whole or in part by any Party. This
Agreement shall inure to the benefit of and be binding upon the Parties and their respective
successors.
10.5 Nothing in this Agreement expressed or implied is intended or shall be construed to
confer upon any person, firm or corporation other than the District, the Board, the County, the URA,
and the City any right, remedy or claim under or by reason of this Agreement, this Agreement being
intended to be for the sole and exclusive benefit of the District, the Board, the County, the URA, and
the City.
10.6 This Agreement may be executed in any number of counterparts, each of which,
when so executed and delivered, shall be an original; but such counterparts shall together constitute
but one and the same agreement.
10.7 Nothing in this Agreement shall be deemed or construed to limit, impair or restrain
any of the powers and authority of the City, the County, the District, the URA, or the Board,
conferred by constitution, statute, charter or other laws, including but not limited to, the lawful
exercise of their respective legislative powers.
10.8 Nothing in this Agreement shall be deemed to modify, amend or repeal any action
duly taken by the HARP Authority under and pursuant to the Original
Intergovernmental Agreement.
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Executed as of the day and year first above written.
BOARD OF COUNTY COMMISSIONS
"'OFPUEB COUNTY, COLORADO
E I m of the oard
Attest:
l/ -
r` ,�ttle V l l l ly l � �. m j ►11 S�' d { �)�
PUEBLO CONSERVANCY DISTRICT
Title: lies'�TiJ��
URBAN RE IEWAL AUTHORI Y OF PUEBLO
Title
Ti tl�� d • Gf+�
13
PUEBLO, A MUNICIPA CORPORATION
B
Presided of the City Council
Attestz
City Clerb
Approved as to form
City Attorney
BOARD OF WATER WORKS OF
PUEBLO, COLORADO
By (41 C' � �� ,,�
Title: G�V_ ro,t
Attest: v sae D. p U r ynv
Title: p� . (��
LE
TIC INTENT
1, Buildling Pad Sites 10, ® Service Awns ]9,
2. Access Tower ]I. Straetscape Improvements 20.
3, 0 Plan/Event Spaces 12. Bridge 21.
4, McJor
ater PArt ea Nod
ture e/ 13, Landscape Planting 22,
MV or
S. HARP Entry 14, RR�9 Navigable Channel 23,
6. H Entry lle 15' uuLLUl Pedestrian Promenade 24.
7. ® Bike Route, Roller 16. + Pedestrian Crossing 25. ._._
Blades, Skateboards Warning Signal ,
8, Pedestrian Paths 17, • Public Elevator 26.
i
9. ® Elizabeth ba Street 18, Joint Use Parking 27,
`Fro
\_mss
HISTORIC E3 —�
HISTORIC
ra.J atT HARP PROGRAT
-,IX RYl
rxm
3
eVX-MX arnica H%RT
Exhibit "A"
I