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HomeMy WebLinkAbout8467RESOLUTION NO. 8467 A RESOLUTION APPROVING A. FUNDING AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND THE HISTORIC ARKANSAS RIVERWALK OF PUEBLO AUTHORITY FOR FISCAL YEAR 1998 AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME a WHEREAS, the City has budgeted and appropriated $100,000.00 to be expended during fiscal year 1998 for the operation and maintenance of HARP (the "City Funds "), and WHEREAS, the City Funds are to be made available to the Historic Arkansas Riverwalk of Pueblo Authority (the "Authority ") as City's pro -rata equitable share of Authority's expenses in excess of its revenues for the promotion, management, supervision, operation and development of HARP pursuant to the provisions of the Intergovernmental Agreement creating the Authority, and WHEREAS, it would be in the best interest of the City and Authority that City Funds be made available pursuant to a Funding Agreement between the City and the Authority. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Funding Agreement dated July 1, 1998 between Pueblo, a municipal corporation and the Historic Arkansas Riverwalk of Pueblo Authority, 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 and deliver the Funding Agreement in the name of the City and the City Clerk is authorized and directed to affix the seal of the City thereto and attest same. SECTION 2 Funds in the amount of $100,000.00 are authorized to be expended out of Account No. 001- 190 -0861 and made available to the Authority for use in compliance with the terms and provisions of the Funding Agreement. INTRODUCED: July 27, 1998 ATTEST: City Cle By Rich Golenda Councilperson APPROVED: President of e City ouncil -2- PAUL J. WILLUMSTAD ATTORNEY AT LAW 1401 COURT STREET PUEBLO, COLORADO 81003-2715 MAILING ADDRESS P. O. BOX 872 PUEBLO, CO 81002 -0872 July 13, 1998 TELEPHONE AREA CODE 719 543 -3422 Mel Murray, Coordinator HARP Authority 201 S. Victoria Street Pueblo, CO 81003 RE: HARP Authority Funding Agreement with the City of Pueblo Dear Mel: As requested, I reviewed the proposed funding agreement prepared by the City Attorney that you received for funding for the HARP Authority. I reviewed the agreement, met with Tom Jagger on July 7, 1998, and asked that some suggested revisions be made to the agreement. Some were accepted by the City Attorney and some were not. The more important that I requested were accepted. Therefore enclosed are duplicate originals of the proposed funding agreement between the HARP Authority and the City of Pueblo. I believe this now is legally sufficient and may be approved and executed by the HARP Authority at its next meeting. A resolution to approve the agreement on behalf of the City will be presented to the City Council at its meeting on July 27, 1998. Please let me know on that date if you or the HARP Council members have any questions concerning the agreement. Thank you for your time and assistance. Y ery truly, Pau umstad PJW:krd Enclosure FUNDING AGREEMENT THIS AGREEMENT entered into as of July 1, 1998 between Pueblo, a municipal corporation ( "City ") and the Historic Arkansas River of Pueblo Authority created and operating under Colorado law as an agency and instrumentality of the state of Colorado ( "Authority "). RECITALS 1. Pursuant to the provisions of Article IV of the December 1, 1997 Intergovernmental Agreement creating the Authority ( "Intergovernmental Agreement "), Authority has adopted an Approved Annual Plan and Budget for the promotion, management, supervision, operation and development of the Historic Arkansas Riverwalk Project ( "HARP ") during its current fiscal year ( "Approved Budget "). 2. Authority has submitted to City a request for funding of a pro -rata equitable share of Authority's expenses in excess of its revenues as shown in the Approved Budget. 3. City is willing to make City funds available to Authority subject to and contingent on the provisions of this Agreement. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and Authority agree as follows: A. Representations and Warranties of Authority Authority represents and warrants that: 1. Authority has adopted the Approved Budget in compliance with the requirements of the Intergovernmental Agreement. 2. Authority has all necessary powers and authority to enter into and perform the covenants and agreements on its part to be performed in this Agreement and by proper action has duly authorized the execution and delivery of this Agreement. 3. This Agreement constitutes a legal, valid and binding obligation of Authority enforceable in accordance with its terms. 4. Authority is not in breach of or default under any of the provisions and covenants of the Intergovernmental Agreement. B. Terms and Termination 1. The term of this Agreement begins upon date hereof and ends December 31, 1998 unless renewed as provided in Article G., or terminated as provided in Article B.(2). 2. If Authority fails to fulfill, in a timely and proper manner, its duties and obligations under the Intergovernmental Agreement or this Agreement, or breaches any of the agreements, covenants, provisions, or ternis of the Intergovernmental Agreement or this Agreement, then City shall thereupon have the right to terminate this Agreement by giving written notice thereof to Authority specifying the failure or default. If the specified failure or default is not cured or corrected by Authority within thirty (30) days after receipt of City's notice, this Agreement shall automatically terminate and each party shall be released from all future obligations hereunder. C. City Funding 1. In consideration of Authority satisfactorily performing its duties and obligations under the Intergovernmental Agreement and this Agreement, City shall make available to Authority during City's current fiscal year a sum not to exceed $100,000.00 ( "City Funds "). 2. City Funds shall be disbursed quarterly in advance to Authority upon request received by the City's Director of Finance. Such request shall be made upon forms approved by the City's Director of Finance. The Chairman of the HARP Council shall certify on each request that the Authority is in compliance with the terms, provisions and conditions of the Intergovernmental Agreement and this Agreement and that the City Funds have been or will be expended only in compliance and accordance with the Approved Budget for the fiscal year for which City Funds are requested. 3. If the City determines that Authority has failed to perform in a timely and satisfactory manner any term, provision or condition of the Intergovernmental Agreement or this Agreement, City may withhold the disbursement of City Funds to Authority. 4. If this Agreement involves the expenditure of state funds, this Agreement is subject to and contingent upon the continued availability of those funds for disbursement pursuant to this Agreement. If those funds, or any part thereof, become unavailable, as determined by City, then the City may immediately terminate this Agreement. 5. Financial obligations of the City payable after the City's current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. D. Authority's Obligations 1. Authority shall only spend or commit City Funds for City's share of Authority expenses in excess of its revenues in compliance and in accordance with the Approved Budget for the promotion, management, supervision, operation and development of HARP. 2. Authority shall perform and fulfill in a timely and proper manner its duties and obligations under this Agreement and the Intergovernmental Agreement, including without limitation, quarterly preparing and submitting to City a financial report showing by line item all -2- Authority's revenues and expenditures during the prior quarter, year -to -date, and prior two years' actual revenues and expenditures. 3. Authority shall comply with all applicable laws, rules, ordinances and regulations of the state, City and federal government. Authority shall not discriminate against any employee or applicant for employment or any person receiving or applying for services or activities provided by Authority because of race, color, religion, sex, age, disability, or national origin. 4. Authority shall permit the City, at City's option, upon reasonable notice, to perform an evaluation of Authority's performance of Authority's duties and obligations under the Intergovernmental Agreement and this Agreement, including but not limited to an on -site review. 5. Authority shall maintain complete and accurate books, documents, and records of all its activities, including without limitation, the receipt and expenditure of moneys, in accordance with generally accepted accounting principles. Authority shall permit City, or its authorized agents, upon reasonable notice, access to and the right to inspect the Authority's books, documents, and records. Authority shall retain all such books, documents, and records for a period of six (6) years. 6. Authority shall cause an annual audit to be performed by an independent certified public accountant and shall furnish City with a copy of the audit report within thirty (30) days after its issuance but in no event later than nine (9) months after the end of the Authority's fiscal year. E. Relationship 1. The relationship between that of Authority and City is contractual. Authority shall perform its duties hereunder as an independent contractor. Neither the Authority nor any agent or employee of the Authority shall be or be deemed to be an agent or employee of the City. Authority has no authorization, expressed or implied, to bind the City to any agreement, debt, liability or understanding. 2. Authority shall be solely and entirely responsible for its acts and the acts of its agents, employees and subcontractors and shall indemnify and hold City harmless therefrom. 3. Authority shall provide and keep in force workers' compensation insurance in form and amounts required by Colorado law and shall be responsible for and timely pay all federal and state income, social security, unemployment, withholding, and other taxes attributable to Authority, its agents or employees, and shall indemnify and hold City harmless therefrom. F. _ Indemnification 1. As to City, Authority agrees to assume the risk of all injuries, including death -3- resulting therefrom, to persons, and damage to and destruction of property, including loss of use thereof, caused by, or sustained, in whole or in part, in connection with or arising out of this Agreement or by the conditions created hereby, or based upon any violation of any statute, ordinance or regulation by Authority. 2. Authority shall hold harmless, defend and indemnify City, its officers and employees from and against any and all liability, injury, damage, claim and expense, including reasonable attorney fees, arising, directly or indirectly, out of the intentional or negligent acts or omissions of Authority, its officers and employees. G. Renewal 1. The City may renew this Agreement for additional fiscal years through an Addendum, a sample of which is attached as Exhibit "A ". To be effective an Addendum must be approved by the City Council of City and the HARP Council of Authority and signed by the authorized officers of each party. Upon proper approval and execution, an Addendum shall become an amendment to this Agreement and attached hereto. The Addendum may be used only for the purposes of providing funds for subsequent fiscal years and may not otherwise be used to amend or modify this Agreement. H. Miscellaneous 1. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to conflict of law principles. Venue for any action arising out of this Agreement shall be Pueblo County, Colorado. 2. No provision of this Agreement shall constitute, or be construed to be a waiver of any immunity or provision of the Colorado Governmental Immunity Act. 3. This Agreement contains the entire agreement between City and Authority with respect to the subject matter hereof and may not be modified or amended except by written instrument signed by both City and Authority. 4. This Agreement shall be binding on the parties and their respective successors and assigns, provided, that Authority may not assign this Agreement. 5. This Agreement and all rights and actions relating thereto are strictly reserved to City and Authority and nothing contained herein shall give or allow any claim or right of action to or by any third party. 6. The waiver of a breach of a term or provision of this Agreement shall not be construed as a waiver of a breach of any other term or provision of this Agreement or as a waiver of a breach of the same term or provision upon subsequent breach. 0 7. If any provision of this Agreement should be held invalid or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. I. Notices 1. Any notices required or permitted to be given undr this Agreement shall be deemed given when delivered or mailed by certified or registered mail, postage prepared, as follows: (a) If to City: City of Pueblo, Colorado, 1 City Hall Place, Pueblo, Colorado, 81003, Attention: City Manager. (b) If to Authority: Historic Arkansas Riverwalk of Pueblo Authority, 201 S. Victoria, Pueblo, Colorado, 81003, Attention: Mel Murray; or to such other person or address as either party may designate in writing given to the other party. Executed as of July 1, 1998 in Pueblo, Colorado. HISTORIC ARKANSAS RIVERWALK PUEBLO, A MUNICIPAL CORPORATION OF PUEBLO AUTHORITY By By Chairper n of he HARP Coulp(cil president of We City Council Attest: Attest:_ Secretary City Ci6k -5- ADDENDUM This Addendum entered into as of between the City of Pueblo (the "City ") and the Historic Arkansas Riverwalk of Pueblo County (the "Authority "), Witnesseth: In accordance with Article G of the June 1, 1998 Funding Agreement between the City and the Authority (the "Funding Agreement "), the City and Authority agree that Section C.l of the Funding Agreement shall be amended to read as follows: C. Citv Funding 1. In consideration of Authority satisfactorily performing its duties and obligations under the Intergovernmental Agreement and this Agreement, City shall make available to Authority during City's current fiscal year a sum not to exceed S ( "City Funds "). City and Authority further agree that the Funding Agreement as herein amended is renewed for the period from January 1, through December 31, , and that the terms and conditions of the Funding Agreement as herein amended are hereby reaffirmed and shall continue in full force and effect through the renewal period and be binding upon and inure to the benefit of City and Authority and their respective successors and assigns. This Addendum is intended to and shall become effective January 1, Executed in Pueblo, Colorado as of the day and year first above written. HISTORIC ARKANSAS RIVERWALK OF PUEBLO AUTHORITY PUEBLO, A MUNICIPAL CORPORATION By Chairperson of the HARP Council Attest: Secretary By President of the City Council Attest: City Clerk EXHIBIT "A"