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HomeMy WebLinkAbout09431RESOLUTION NO. 9431 A RESOLUTION APPROVING A FACILITIES USE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND THE STATE OF COLORADO, DEPARTMENT OF HIGHER EDUCATION/ COLORADO HISTORICAL SOCIETY RELATING TO THE EL PUEBLO EVOCATION AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME WHEREAS, The City of Pueblo owns certain facilities as described in this agreement; and WHEREAS, The Colorado Historical Society desires to use those facilities for the purposes contained herein; BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. An Agreement dated November 26, 2001, between the City of Pueblo, a Municipal Corporation, and the State of Colorado, Colorado Historical Society, of which a copy is attached hereto and on file at the office of the City Clerk, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of the City Council is hereby authorized to execute and deliver said Agreement on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall affix the Seal of the City thereto and attest same. SECTION 3 This resolution shall become effective upon final passage. INTRODUCED: NOVEMBER 26, 2001 IM APPROVED: 7 SIDENT�)CITY COUNCIL ATTESTED BY: TY CLERK FACILITIES USE AGREEMENT THIS FACILITIES USE AGREEMENT (hereinafter "Agreement "), made by and between the City of Pueblo, Colorado (hereinafter "Licensor "), and STATE OF COLORADO, acting by and through the Department of Higher Education /Colorado Historical Society State of Colorado. (hereinafter "Licensee "), WITNESSETH: WHEREAS, Licensor owns certain facilities as described in this Agreement which it, from time to time, authorizes and licenses other parties to use; and WHEREAS, Licensee desires to use those facilities for the purposes contained herein; NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, Licensor and Licensee agree as follows: 1. Duties and Responsibilities: 1.1 Licensor hereby grants a revocable license to Licensee to use the following described facilities: The Colorado Historical Society will be granted a revocable license for the El Pueblo Evocation, Legal Description: An approximately .30 acre parcel of land with improvements situated in the City of Pueblo, shown in the site map and described below. Those portions of lots 1, 2, and 3 of Block 43 and portion of an alley adjacent thereto in the former Town of Pueblo, now a part of said City of Pueblo described as follows: BEGINNING at a point a distance of 24.0 feet from the most north westerly corner of lot 3 of Block 43 of the former Town of Pueblo; thence East a distance of 112.0 feet along the north line of Lots 1, 2, and 3 of Block 43 of the former Town of Pueblo; thence South 90 a distance of 120.0 feet; thence West a distance of 112.0 feet along South line of Lots 1,2 and 3 of Block 43 of the former Town of Pueblo to a point 24.0 feet East of the most south westerly corner of Lot 3 of Block 43 of the former Town of Pueblo; thence North a distance of 120.0 feet, to the POINT OF THE BEGINNING. (hereinafter "Facilities "), for the sole purpose of holding the following described event (hereinafter "Event'): The Licensee will have full management responsibilities concerning programming, hours of operation, educational focus, rentals, interpretive objectives and tours, special event schedule, and overseeing day to day management of the El Pueblo Evocation through the Colorado Historical Society's El Pueblo Museum Director. Authorized licensee staff will be provided keys and 24 hour access to the facility. All revenue generated from the site's operation will be the licensee's to support operations on -site. The licensee will have the right to contract with other parties concerning finance agreements concerning rentals, tours, special events or programs offered. The City of Pueblo's planning staff will review and approve in writing, within 30 calendar days of notification, any permanent physical changes to the structure and plaza initiated by the Licensee. All planned improvements initiated by the Licensor will be done in consultation with the Director of the El Pueblo and CHS Facilities Services Director to insure that the work does not interrupt operations and is appropriate to meet programming goals and objectives. The Colorado Historical Society will have the right to veto any work proposed that does not meet its programming or interpretive mission. 1.2 Licensor also agrees to provide for the benefit of Licensee the space, equipment, and /or services set forth in Exhibit A. 1.3 Licensee shall make all arrangements relating to the holding of the Event, except those specifically made the responsibility of Licensor by this Agreement. 2. Term: 2.1 Licensee shall be permitted to use the Facilities from 6:00 (ate.) m. on November 15 , 200 1 to 6:00 (a.p.) m. on September 25 , 200 6 , for the purpose stated above. 2.2 Time shall be of the essence of this Agreement, and the time granted for the occupancy or use of the Facilities and for set -up, preparation, clean up and the installation or removal of equipment shall not be extended without the written permission of the Pueblo City Manager (hereinafter referred to as " Licensor's Designee "). 3. Fees: Licensee shall pay to Licensor the sum of $ 1.00 annually $5.00 term Licensee agrees to pay all fees due under this Agreement in cash, certified check or bank cashier's check on or before October 25, 2001 Payment shall be delivered to Licensor at 241 E�Mxuxsxr"k XXWZI X Pueblo City Hall, 1 City Pall Place, Pueblo, Colorado, 81003. 4. Licensee's Staff: All persons connected with Licensee and /or provided by Licensee to facilitate the holding of the Event(s) shall not be deemed to be nor shall they be employees of Licensor. Licensee shall be responsible for supervising all such persons and assuring that such persons adhere to all rules and regulations as may be established by Licensor. Upon the request of the Licensor's Designee, Licensee shall immediately remove any such person not adhering to the rules and regulations of Licensor. 5. Condition of Premises: Licensee acknowledges that it has inspected Facilities and finds such Facilities suitable for its intended use. Notwithstanding the above, Licensee may propose alterations to the Facilities. Licensee shall not make any structural or non - structural changes or alterations to the Facilities without the prior written approval of Licensor. Licensor shall review such proposed changes and respond to Licensee within thirty (30) days of submittal of plans to Licensor. If a response is not received within such thirty -day period, approval of the proposed changes shall be deemed granted by Licensor. Any proposed alterations to the Facilities by Licensor will be performed in consultation with the Director of El Pueblo and the Colorado Historical Society Facilities Services Director to insure that the work does not interrupt operations and is appropriate to meet programming goals and objectives. Licensee reserves the right to veto any work proposed that does not meet its programming or interpretive mission. Licensee agrees to surrender Facilities immediately after the termination of this Agreement in the same condition as at the commencement of use of Facilities, ordinary wear and tear thereof excepted. 6. Insurance: Licensee agrees to obtain at its own cost and expense public liability insurance with limits of not less than $1 million ($1,000,000) per person and $3 million ($3,000,000) per accident for bodily injury (or $1,000,000 combined single limit) and $3 million ($3,000,000) per accident for property damage in which Licensor is named as an additional insured thereunder. Licensee shall furnish to Licensor, in a form satisfactory to Licensor, a copy of said policy or a certificate that such insurance has been issued which shall include an endorsement to the effect that no charge cancellation in the terms of the policy shall be effective unless at least ten (10) calendar days written notice thereof has been given to the Licensor's Designee. If the Licensee is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS 24- 10 -01, et seq., as amended ( "Act "), the Licensee shall at all times during the term of this Agreement maintain such liability insurance, by commercial policy or self- insurance, as is necessary to meet its liabilities under the Act. Upon request, the Licensee shall show proof of such insurance. 7. Liability: Notwithstanding any other provision of this lease to the contrary, no term or condition of this lease shall be construed or interpreted as a waiver of any provision of the Colorado Governmental Immunity Act, §24 -10 -101 et seq., C.R.S., as now or hereafter amended. The parties hereto understand and agree that liability for claims for injuries to persons or property arising out of the negligence of the State of Colorado, its departments, institutions, agencies, boards, officials and employees, or arising out of the negligence of the City of Pueblo, its departments, institutions, agencies, boards, officials and employees, is controlled and limited by the provisions of §24 -10 -101, et seq., C.R.S., as now or hereafter amended and §24 -30 -1501, et seq., C.R.S., as now or hereafter amended. Any provision of this lease, whether or not incorporated herein by reference, shall be controlled, limited and otherwise modified so as to limit any liability of the Lessee or Licensor to the above cited laws. 8. Licenses: Licensee agrees to pay promptly all taxes, excise or license fees of whatever nature applicable to the holding of Event and to take out all licenses, permits, municipal, state or federal, required for the usage herein permitted, and further agrees to furnish Licensor, upon request, duplicate receipts or other satisfactory evidence showing the prompt payment of all taxes and fees above referred to, and showing that all required licenses and permits are in effect. 9. Control and Management: It is understood and agreed that Licensor hereby reserves the right to control and manage 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 premises at any time to make inspections regarding Licensee's conformity with the terms of this Agreement. Licensor also reserves the right, but not the duty, through its duly appointed representatives, to eject any objectionable persons from the premises and Licensee hereby waives any and all claims for damages against Licensor and any and all of its agents or employees resulting from the exercise of this authority. 10. Time; Removal of Goods: Time is of the essence with reference to all payments and time of use. In the event any portion of Facilities hereby licensed to Licensee is not vacated at the end of the term of this Agreement, then Licensor shall be and is hereby authorized to remove from said premises and store, at the expense of Licensee, all goods, wares, merchandise and property of any kind or description which may be then occupying a portion of the Facilities on which the term of this Agreement has expired. All removal and /or storage charges must be paid to Licensor by Licensee before such goods, wares, merchandise or property will be released to Licensee. In any event, Licensor may dispose of any such goods, wares, merchandise and property as it sees fit after the expiration of thirty (30) calendar days from the end of Event or permitted use. Licensor shall riot be liable for any damage to or loss of such goods, wares, merchandise or property sustained either during the removal, storage or disposal of same and Licensor is hereby expressly released from any and all claims for such loss or damage. 11. Applicable Laws; Violation: Licensee shall use and occupy Facilities in a safe and careful manner and shall comply with all applicable municipal ordinances of the City of Pueblo and the County of Pueblo and the laws of the State of Colorado and of the United States of America, and all other rules of governmental authorities as may be in force and effect during the term of this Agreement. If at any time the use(s) of Facilities by Licensee violate said applicable ordinances or laws, Licensee shall either cease and desist from continuing such use(s) or shall surrender the premises upon demand of Licensor's Designee. 12. Additional Licensees: Licensee understands and agrees that during the term of this Agreement other events may be held in other parts of the Licensor facilities not included in this Agreement, and Licensee shall conduct its activities so as not to interfere with such other events. 13. Equipment: Licensee agrees that it will not use Licensor equipment, tools or furnishings located in or about Facilities without first seeking and receiving the approval of Licensor's Designee. 14. Nondiscrimination: In its use or occupancy of Facilities, Licensee shall comply with all applicable state, federal and local non - discrimination laws and regulations. 15. Successors /Assignment: This Agreement and all of its terms and conditions shall be binding on and insure to the benefit of the parties, their heirs, executors, administrators, personal representatives, successors and assigns. This Agreement may not be assigned or transferred without the written permission of Licensor. 16. Keys: Licensee will obtain any and all keys to Facilities from Licensor's Designee. All such keys are the property of Licensor, and Licensee will return them promptly and without notice or demand therefor at the end of Event or permitted use. If keys delivered to Licensee are lost or not returned, and Licensor deems it necessary to change locks or replace keys, Licensee shall pay Licensor a reasonable fee representing the cost of changing such locks or replacing such keys. 17. Termination: The parties shall have a right to terminate this Agreement by giving the other party ninty (90) days notice by certified or registered mail, return receipt requested, pursuant to the notice provisions of this Agreement. If notice is so given, this Agreement shall terminate on the expiration of the thirty days, and the liability of the parties hereunder for further performance of the terms of this Agreement shall there upon cease, but the parties shall not be released from the duty to perform their obligations up to the date of termination. 18. Miscellaneous: 18.1 Venue It is agreed that any lawsuits or causes of action arising out of the Agreement, the transactions contemplated herein, or arising out of the benefits established hereby, shall be venued in the courts of City and County of Pueblo, Colorado to the extent those courts are reposed with jurisdiction. Each of the parties hereto submits to the personal jurisdiction of those courts. 18.2 Governing Law This Agreement and the legal relations among the parties hereto shall be governed by and construed in accordance with the laws of the State of Colorado. 18.3 Amendment and Modification Subject to applicable law, this Agreement may be amended or supplemented only by written agreement of the parties hereto. 18.4 Severability All provisions of this Agreement are severable and no provision hereof shall be affected by the invalidity of any other provision. 18.5 Entire Agreement This Agreement, including the other documents referred to herein which form a part hereof, embodies the entire Agreement and understanding of the parties hereto with respect to the subject matter contained herein. There are no restrictions, promises, warranties, covenants or undertakings other than those expressly set forth or referred to herein. This Agreement supersedes all prior Agreements understandings between the parties with respect to such subject matter. 18.6 Notice Any notice to either party hereunder must be in writing signed by the party giving it, and shall be served either personally or by registered or certified mail addressed as follows: TO LICENSOR: City of Pueblo No. 1 City Hall Place Pueblo Colorado 81003 TO LICENSEE: Colorado Historical Society/El Pueblo Museum 324 West 1 st. Street Pueblo Colorado 81005 Attention: City Manager, Lee R. Evett Licensor's Designee Attention: Deborah Espinosa Licensee's Designee or to such other addressee as may be hereafter designated by written notice. All such notices shall be effective only when received by the addressee. 18.7 No Interest or Estate It is expressly agreed and understood that this Agreement shall not operate or be construed to create the relationship of landlord and tenant between the parties hereto under any circumstances whatsoever and no tenant remedies of a landlord /tenant relationship shall be available to Licensee. Licensee agrees that it does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in Facilities or any other facilities of Licensor by virtue of this license or its occupancy or use hereunder. 18.8 Fiscal Funding (A) As prescribed by State of Colorado Fiscal Rules, it is understood and agreed this Agreement is dependent upon the continuing availability of funds beyond the term of the State's current fiscal period ending upon the next succeeding June 30, as financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. Further, the parties recognize that the act of appropriation is a legislative act, and the Licensee hereby covenants to take such action as is necessary under the laws applicable to the Licensee to timely and properly budget for, request of and seek and pursue appropriation of funds of the Legislature of the State of Colorado which will permit Licensee to make all payments required under this Agreement during the period to which such appropriation shall apply. In the event there shall be no funds made available, this Agreement shall terminate at the end of the then current fiscal year, with no penalty or additional cost as a result thereof to the Licensee. (B) To make certain the understanding of the parties because this Agreement will extend beyond the current fiscal year, Licensee and Licensor understand and intend that the obligation of the Licensee to pay the annual fees due hereunder constitutes a current expense of the Licensee payable exclusively from Licensee's funds and shall not in any way be construed to be a general obligation indebtedness of the State of Colorado or any agency or department thereof within the meaning of any provision of Sections 1,2,3,4, or 5 of Article XI of the Colorado Constitution, or any other constitutional or statutory limitation or requirement applicable to the State concerning the creation of indebtedness. Neither the Licensee, nor the Licensor on its behalf, has pledged the full faith and credit of the State, or any agency or department thereof to the payment of the charges hereunder, and this Agreement shall not directly or contingently obligate the State or any agency or department thereof to apply money from, or levy or pledge any form of taxation to, the payment of the annual charges. (C) With such limitations in mind, Licensee contracts to for the use of the Facilities and has reason to believe that sufficient funds will be available for the full term of this Agreement. Where, for reasons beyond Licensee's control, Licensee's funding entity does not allocate funds for any fiscal period beyond the one in which this Agreement is entered into, or does not allocate funds to continue this Agreement from the then current fiscal period, such failure to obtain funds not resulting from any act or failure to act on the part of Licensee, Licensee will not then be obligated to make the payments remaining beyond Licensee's then current fiscal period. In such event, Licensee shall notify Licensor of such non allocation of funds by sending written notice thereof to the Licensor forty -five (45) days prior to the effective date of termination. (D) The parties hereto further understand and agree that the only funds that have or may be so appropriated and available for payment under this Agreement in any one particular fiscal year are for the purpose and in an amount sufficient only to pay the charges provided for above. Therefore, notwithstanding anything herein to the contrary, the payment by the Licensee of any other charges, liabilities, costs, guarantees, waivers, and any awards thereon of any kind pursuant to this Agreement against Licensee are contingent upon funds for such purpose(s) being appropriated, budgeted and otherwise made available through the said State of Colorado legislative process. 18.9 No Beneficial Interest The signatories aver that to their knowledge, no state employee has any personal or beneficial interest whatsoever in the service or property described herein. 18.10 No Violation of Law. The signatories hereto aver that they are familiar with §18- 8 -301, et seq., (Bribery and Corrupt Influences) and §18 -8 -401, et seq., (Abuse of Public Office), C.R.S., as amended, and that no violation of such provisions is present. 18.11 Controller's Approval This Agreement shall not be deemed valid until it has been approved by the State Controller, or such assistant as he may designate. 18.12 Licensor/Vendor Offsets Notice. Pursuant to §24 -30 -202.4 C.R.S., the state controller may withhold debts owed to state agencies under the vendor offset intercept system for: (a) unpaid child support debt or child support arrearages; (b) unpaid balance of tax, accrued interest, or other charges specified in Article 21, Title 39, C.R.S., (c) unpaid loans due to the student loan division of the department of higher education; (d) owed amounts required to be paid to the unemployment compensation fund; and (e) other unpaid debts owing to the state or any agency thereof, the amount of which is found to be owing as a result of final agency determination or reduced to judgment as certified by the controller. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. LICENSOR: City of Pueblo, Colorado city government ATTESTED BY: _ CLERK APPROVED: STATE OF COLORADO Ken Salazar, Attorney General M LICENSEE: STATE OF COLORADO Bill Owens, Governor Acting by and through The Department of Higher Education /Colorado Historical Society Al GftId___j Date President, City Council i f 710/ For tW Executive director J jbate APPROVED: STATE OF COLORADO DEPARTMENT OF PERSONNEL /GSS STATE BUILDINGS AND REAL ESTATE PROGRAMS B Y: For the Executive Director [APPROVED: STATE OF COLORADO Arthur L. Barnhart, State Controller LD _F_� t I - A Background Paper for Proposed RESOLUTION �&o ,d Q (�-31 AGENDA ITEM # 5 DATE: NOVEMBER 26, 2001 DEPARTMENT: COMMUNITY DEVELOPMENT /JIM MUNCH TITLE A RESOLUTION APPROVING A FACILITIES USE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND THE STATE OF COLORADO, DEPARTMENT OF HIGHER EDUCATION/ COLORADO HISTORICAL SOCIETY RELATING TO THE EL PUEBLO EVOCATION AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should the City Council approve a Facilities Use Agreement between the City of Pueblo and the State of Colorado, Colorado Historical Society relating to the El Pueblo Evocation? RECOMMENDATION Approval of this Resolution BACKGROUND The State of Colorado, Colorado Historical Society at El Pueblo Museum desires to use the City owned and reconstructed 1840's adobe evocation for their daily educational, interpretive and fund raising events and programming. This will also provide State liability insurance for the staff and visitors to the evocation. The State will have full management responsibilities concerning programming, hours of operation, education focus, rentals, interpretive objectives and tours, special events schedule, and overseeing day today management of the El Pueblo Evocation through the Colorado Historical Society's El Pueblo Director. All revenue generated from the site's operation will be the licensee's to support operations on -site. The City and State will have mutual control over any modification to the structure so that the City's interest and the State Historical Society's programming and interpretive mission. The State will be allowed the use of the facility for the term of five years. FINANCIAL IMPACT There is no Financial Impact.