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HomeMy WebLinkAbout7844RESOLUTION NO. 7844 A RESOLUTION APPROVING A MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO. A MUNICIPAL CORPORATION AND THE SKY CORRAL R/C CLUB RELATING TO A RECREATIONAL MODEL AIRPLANE FACILITY AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME. BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1. The Management Agreement dated January 1, 1996 between Sky Corral R/C Club and Pueblo, a Municipal Corporation, relating to a recreational model airplane facility developed on a portion of the "Honor Farm" property, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of the City Council is hereby authorized and directed to execute said Agreement for and on behalf of the City, and the City Clerk is directed to attest same and affix the Seal of the City thereto. INTRODUCED: April 22 . 1996 By Al Curule Councilperson APPROVED: AT T EST: Presi ent of the Council City Clerk STATE OF COLORADO DIVISION OF PARKS AND OUTDOOR RECREATION Lake Pueblo State Park 640 Pueblo Reservoir Road Pueblo, Colorado 81005 Phone (719) 561 -9320 Fax (719) 564 -9455 March 28, 1996 Mr. Rich Zajac Director of Parks & Recreation 800 Goodnight Avenue Pueblo, CO 81005 Dear Rich: f �Ilt��l ►��'i Roy Roser Governor Laurie A. dathews Director I have reviewed the enclosed proposed Management Agreement between the City of Pueblo and the Sky Corral R/C Club for use of a portion of the Honor Farm property. I find the proposed Management Agreement to be in compliance with the lease agreement between the City of Pueblo and the State. Please accept this letter as State approval of this agreement per the Lease agreement between the City and the State. If you need further information or have any questions please contact me at (719) 561 -9320. Sincer r t, [D Michael French APR 0 3 19% Park Manager rays « " 081JO , xc: Dave Giger, Region Manager Depa ttwt Larry Kramer, Asst. Region Manager MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT entered into as of January 1, 1996 between Pueblo, a Municipal Corporation, City Hall, 1 City Hall Place, Pueblo, Colorado, 81003 (the "City ") and Sky Corral R/C Club (the "Manager "). RECITALS 1. City is the lessee under the Lease Agreement dated April 10, 1995 between City and the State of Colorado, acting by and through the Department of Natural Resources for the use and benefit of the Board of Parks and Outdoor Recreation as lessor (the "State ") (the "Lease ") for certain real property located in Pueblo County, Colorado, commonly known as the Honor Farm (the "Honor Farm ") 2. Manager is desirous of entering into a management agreement to develop, operate and maintain a recreational facility on a portion of the Honor Farm. 3. City is willing to enter into a management agreement with Manager upon the terms and conditions contained herein. NOW, THEREFORE, in consideration of the foregoing recital and mutual covenants contained herein, City and Manager agree as follows: 1. Grant City hereby grants to Manager, subject to the terms and conditions herein provided, the right and privilege to use, administer and manage that portion of the Honor Farm described in attached Exhibit A together with all improvements thereon, whether now existing or hereafter installed (collectively, the "Property "). Manager accepts such grant and agrees to use, administer and manage the Property in compliance with the terms and conditions of the Management Agreement. 2. Superior Lease The Management Agreement and all terms, covenants and conditions herein and use of the Property are in all respects subject and subordinate to the terms, covenants and conditions of the Lease. Manager acknowledges that it has received a copy of the Lease, has read the same, and understands its contents. 3. Term The term of the Management Agreement is five (5) years, commencing January 1, 1996 and ending December 31, 2000, unless sooner terminated as herein provided. If not in default hereunder, Manager shall have the right of first refusal to renew the Management Agreement upon such terms, covenants and conditions as Manager and City may then mutually agree upon. If Manager desires to renew the Management Agreement, Manager shall notify City in writing within six (6) months prior to December 31, 2000. If Manager and City are unable for any reason to mutually agree upon the terms, covenants and conditions for such renewal by December 31, 2000, Manager's right of first refusal hereby granted shall cease and terminate. 4. Use. Manager shall use the Property solely for the purpose of developing, operating and maintaining the following described recreational facility thereon: recreational model airplane facility. 5. Conditions of Use Manager and the use of the Property are subject to and conditioned upon the following covenants which Manager agrees to perform and comply with: 5.1 In the use, operation and development of the Property, Manager shall comply with the Lease and all applicable ordinances, laws and regulations affecting the Property and the use thereof by Manager, including without limitation, environmental and hazardous waste laws, ordinances and regulations. 5.2 Manager shall maintain the Property good condition, appearance and state of repair regardless of cause of need for maintenance and repairs except those necessitated by reasonable wear and tear. Manager shall upon the termination or expiration of the Management Agreement deliver and surrender the Property in good condition, appearance and state of repair. 5.3 Manager shall not permit or create waste upon the Property. 5.4 If the presence of Hazardous Materials on the Property caused or permitted by Manager or the activities conducted on the Property by Manager results in contamination of the Property, then Manager shall be responsible to remove, clean up and remediate such contamination and Manager shall indemnify, defend and hold the City and State harmless from all claims, judgments, damages, penalties, fines, costs, liabilities or losses, including all expenses and reasonable attorney fees which arise, directly or indirectly, during or after the expiration or termination of the Management Agreement as a result of such contamination or the failure of Manager to comply with applicable federal, state and local environmental and hazardous waste laws, ordinances and regulations. The term "Hazardous Material" includes, without limitation, any material or substance that is (1) defined or designated as a "hazardous substance," "hazardous waste" or a "regulated substance" under applicable state or federal law or regulation, (ii) petroleum products, or (iii) asbestos. 5.5 City may enter the Property at any reasonable time to view the Property and examine the conditions thereof, and for any lawful purpose necessary to enforce applicable laws and ordinances and the provisions of the Management Agreement. 5.6 Manager acknowledges and agrees that City makes no warranties or representations whatsoever with respect to the condition of the Property, environmental or otherwise. Manager acknowledges that it has had the opportunity to inspect the Property and agrees to take possession and use of the Property in its present condition "AS IS." 6. Manager's Representations Manager represents and warrants that: 6.1 Manager is a nonprofit corporation duly organized and existing under the -2- laws of the State of Colorado. 6.2 Manager has approved and authorized, by all necessary actions and approvals, the Management Agreement and its execution and delivery by its undersigned officers. 6.3 The Management Agreement constitutes the valid and legally binding obligations of Manager and is enforceable against Manager in accordance with its terms. 7. Activities 7.1 The scheduling of permitted recreational activities on the Property and the conduct of such activities, including the frequency and type of activities, shall be the responsibility of Manager and within its discretion. 7.2 All activities conducted on the Property shall be open to the general public and, if applicable, shall be sanctioned by an appropriate sanctioning body. Manager may charge a reasonable fee or admission charge, provided, that all such fees and charges shall be used in the development of the Property and Manager shall submit to City at least annually an accounting of the revenue from such fees and charges including their expenditures. 7.3 Manager shall not in the use or operation of the Property or activities conducted thereon discriminate on the basis of race, color, creed, national origin, handicap, sex or age. 7.4 All ordinances of the City of a regulatory or police nature, including without limitation, building codes and traffic ordinances shall apply to and govern the Property and activities conducted thereon the same as if the Property were located within the City. Manager shall control all noise and fugitive dust from roadways and activities conducted on the Property. 8. Development 8.1 The Property shall only be used and developed in accordance with a Master Plan submitted to and approved by the City Manager of City. The Master Plan for the use and development of the Property shall conform to and be consistent with the City's Management Plan for the Honor Farm approved by the State pursuant to the provisions of the Lease. 8.2 All buildings and other improvements of a permanent nature which Manager plans to construct on the Property must receive preliminary written approval from the State and City Manager. In addition, the plans and construction drawings for all building and other improvements on the Property must be designed by a professional engineer or architect and submitted to the State and City Manager for review and written approval prior to the -3- commencement of construction. If either the State or City Manager does not approve the plans and drawings in writing within 60 days after receipt thereof, the plans and drawings shall be deemed to have not been approved. 8.3 All buildings and improvements presently existing on the Property or hereafter constructed and installed on the Property shall be and remain the Property of the City, except, that if Manager constructs or installs any building or improvement on the Property without approval of the State or City Manager as provided in section 8.2 above, City may, at its option, require Manager to remove such building or improvement and restore the Property to the condition existing prior to the construction or installation of such building or improvement. 8.4 Manager shall not cause or permit any lien or encumbrance to be place on or asserted against the Property or any building or improvement thereon. 8.5 Manager shall not raze, remove, structurally change or substantially alter or modify any building, structure or improvement on the Property without first obtaining the written approval of City Manager of City and if necessary under the Lease, the State. Upon receipt of a written request for such approval, City Manager shall forward a copy thereof to State for its review and approval if required under the Lease. 9. Utilities and Roads Manager shall at its expense install, extend and maintain all access roads and utility services to the Property and pay all charges for all utilities serving the Property. 10. Taxes Manager shall pay, before same become delinquent, all taxes assessed, levied or imposed against the Property, Manager's personal property thereon, and all activities conducted on the Property. 11. City's Rights 11.1 City reserves the right to grant rights of way and easements on, over and across the Property which do not materially interfere with Manager's use of the Property. 11.2 City reserves the right to cross over the Property including the right to install, maintain, repair, remove and relocate utilities, roads, roadways, trails and trail systems over, under and across the Property at such location or locations as City may determine. 12. Insurance and Liability 12.1 Manager shall, at its expense, maintain and keep in force (1) comprehensive public liability insurance for the Property and all activities conducted thereon naming the City as an additional insured as its interests may appear, in amounts not less than $600,000 single limit for property damage and personal injury including contractual coverage, (ii) fire M and extended coverage insurance naming the City as loss payee insuring all buildings and improvements on the Property to not less than 80% of their insurable value, and (iii) workers' compensation insurance required by Colorado law. Manager shall furnish copies or certificates of such insurance to the City's Director of Parks and Recreation. All proceeds from fire and extended insurance shall be used to repair or rebuild the damaged property. Manager and City mutually release and discharge each other from all claims, liability or damage caused by or arising from any hazard covered by such fire and extended insurance, regardless of the cause of damage or loss. 12.2 Manager shall be in control and possession of the Property as provided herein, and City shall not, in any event whatsoever, be responsible or liable for any injury or damage to any property or any person while on the Property or resulting from or arising out of the use of the Property by Manager or activities conducted thereon. As to the City, Manager agrees to assume the risk of all injuries, including death resulting therefrom, to persons, and damage to and destruction of property, including loss of use thereof resulting from or arising out of, directly or indirectly, wholly or in part, any activities or prosecution of work undertaken by Manager on the Property or the use of the Property by Manager or the use of the Property by others under Manager's supervision or control or with the permission of Manager, and to indemnify and save harmless City and its officers, agents and employees from and against any and all such liability arising therefrom. 12.3 Notwithstanding any provision of the Management Agreement to the contrary, no term or condition of the Management Agreement shall be construed or interpreted as a waiver, either express or implied, of any immunities, rights, benefits or protection provided or available to City under applicable law including without limitation those provided and available to City under the Colorado Governmental Immunity Act, §24- 10 -101, et seq. C.R.S., as amended or as may be amended. The parties understand and agree that the City's and its officers', agents' and employees' liability for claims for injury to persons or property is controlled and limited by the provisions of §24 -10 -101, et seq., C.R.S. as amended or as may be amended. Any provision of the Management Agreement, whether or not incorporated herein by reference, shall be controlled, limited and otherwise modified so as to limit any liability of the City, its officers, agents and employees to the above cited law. 13. Termination and Default 13.1 Superior Lease. If the Lease with respect to the Property is terminated for any reason, the Management Agreement shall terminate. 13.2 The Management Agreement may be terminated by mutual consent and may be terminated by either party upon giving one (1) year prior written notice to the other party specifying the date of termination. 13.3 If either party is in default hereunder, the non - defaulting party may given -5- written notice describing the default to the defaulting party. If the defaulting party does not correct such default within thirty (30) days after receipt of said notice, or if the default cannot be corrected within said 30 -day period and the defaulting party fails to commence action to correct the default within said 30 -day period and thereafter diligently pursue corrective action, the non - defaulting party may upon an additional ten (10) days notice terminate the Management Agreement and, except for accrued rights and liabilities hereunder, upon such termination each party shall be released from all future duties and obligations hereunder. 13.4 Upon termination of the Management Agreement for any reason, all rights of Manager hereunder shall cease and terminate and Manager shall immediately and peacefully surrender and deliver possession of the Property to City. 14. Notice Any notice required or permitted herein shall be in writing and delivered personally or by first class mail, postage prepaid, as follows: (a) If to City, 1 City Hall Place, Pueblo, Colorado, 81003, Attention: City Manager. (b) If to Manager, at the address appearing under the signature of Manager on page 7 hereof. Each party reserves the right to change its address provided notice of such change is given in accordance herewith. 15. Eminent Domain If the Property shall be taken by right of eminent domain, in whole or in part, for public purposes, the Management Agreement shall terminate and all damages which may be awarded for such taking shall belong to and be the sole property of City. 16. Water and Mineral Rights All water rights and all right, title and interest in and to all minerals, ores, sand and gravel, metals of any kind and character, coal, asphalt, oil, gas, or like substances, in, on or under the Leased Premises, including the right of surface entry thereto, have been reserved by the State and are not part of the Property. 17. State Approval The Management Agreement is subject to State approval and shall not become effective until the date of such approval. 18. Miscellaneous Provisions 18.1 No assent, express or implied, by City to any breach or default by Manager in the performance of any one or more of the covenants hereof shall be deemed or taken to be a waiver of any succeeding breach of or default in the same or different covenant. 18.2 In the event of any litigation arising out of the Management Agreement, the court shall award to the prevailing party all costs and expenses, including but not limited to, W reasonable expert witness and attorney fees. 18.3 Time is of the essence. The Management Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and approved assigns. 18.4 Manager shall not assign the Management Agreement or any of its rights thereunder without the prior consent by resolution of the City Council of City. 18.5 No amendment or modification of the Management Agreement shall be effective unless in writing and signed by all of the parties hereto. 18.6 The Management Agreement constitutes the entire agreement of the parties with regard to the subject matter hereof and supersedes any and all prior agreements and understandings whether oral or written. 18.7 At all times during the performance of the Management Agreement, the parties shall adhere to and be bound by all applicable federal, state and laws, ordinances and regulations. 18.8 Nothing in the Management Agreement, expressed or implied, is intended nor shall be construed to confer upon, or give to, any person or entity other than the City, the State or Manager any right, remedy, or claim under or by reason of the Management Agreement or any covenant, condition or provision hereof, and all covenants, conditions, provisions and agreements contained in the Management Agreement by or on behalf of City or Manager shall be for the exclusive and sole benefit of City, the State and Manager. IN WITNESS WHEREOF, the parties have extended the Management Agreement in Pueblo, Colorado on the day and year first above written. ATTEST: City Clerk ATTEST: PUEBLO, a Municipal Corporation By 71�� 2 �d. egaLL Pre Si t of the City Council SKY CORRAL R/C CLUB I: -7- EXHIBIT "A" The East 1/2 of the SW -1/4 of the SW -1/4 and the West 1/2 of the SE -1/4 of the SW -1/4, all being located in Section 17, T -20 -S, R -65 -W, of the 6th Principal Meridian, Pueblo County, Colorado. ROADWAY EASEMENT TO SKY CORRAL A 40.00' wide Roadway Easement being 20.00' on each side of the following described line: Beginning at a point on the East -West centerline of Section 18, T -20 -S, R -65 -W, said point bearing N -88 °56'07" West and 521.38' from the E -1/4 corner of said Section 18, and assuming that the East line of said Section 18 bears due North; Thence South 32 °02'30" East, a distance of 123.78'; Thence South 88 °06'30" East, a distance of 520.06'; Thence South 29 °39'30" East to the North line of the East 1/2 of the SW -1/4 of the SW -1/4 of Section 17, Pueblo County, Colorado.