HomeMy WebLinkAbout12119RESOLUTION NO. 12119
A RESOLUTION APPROVING AN AGREEMENT
BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND
THE MOUNTAIN PARK ENVIRONMENTAL CENTER FOR
REMODELING OF THE EAST WING OF THE
HORSESHOE LODGE
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Agreement between Pueblo, a Municipal Corporation, and the Mountain
Park Environmental Center for remodeling of the East Wing of the Horseshoe Lodge, a
true copy of which is attached hereto, having been approved as to form by the City
Attorney, is hereby approved.
SECTION 2.
The President of City Council is authorized and directed to sign the Agreement in
the name and on behalf of the City, and the City Clerk shall attest the same.
INTRODUCED: April 11, 2011
BY: Larry Atencio
COUNCILPERSON
Background Paper for Proposed
RESOLUTION
DATE: AGENDA ITEM # M-5
April 11, 2011
DEPARTMENT:
Finance Department
Sam Azad, Director
Law Department
Thomas J. Florczak, City Attorney
TITLE
A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL
CORPORATION, AND THE MOUNTAIN PARK ENVIRONMENTAL CENTER FOR
REMODELING OF THE EAST WING OF THE HORSESHOE LODGE
ISSUE
Should City Council should approve the proposed Agreement?
RECOMMENDATION
Approve the Resolution.
BACKGROUND
The Mountain Park Environmental Center plans to remodel the East Wing of the
Horseshoe Lodge at the Pueblo Mountain Park using $160,208 in privately donated
funds and $147,000 in funds contributed by the City.
FINANCIAL IMPACT
The City will contribute $147,000 toward the design and remodeling.
AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND MOUNTAIN
PARK ENVIRONMENTAL CENTER FOR REMODELING OF THE EAST
WING OF THE HORSESHOE LODGE
This Agreement ( "Agreement ") is between the City of Pueblo, a Municipal Corporation
( "City ") and Mountain Park Environmental Center, a Colorado nonprofit corporation ( "MPEC ").
RECITALS
WHEREAS, MPEC is willing to commit funds to design and remodel the East Wing of
the City owned building known as Horseshoe Lodge ( "East Wing "), which is located on City
owned land at Pueblo Mountain Park, Beulah, Colorado ( "Park "), and
WHEREAS, City is willing to contribute funds in the amount of $147,000 to aid in the
design and remodel of the East Wing on the terms and conditions set forth in this Agreement;
WHEREAS, MPEC is willing to construct the East Wing through its procurement and
contracting procedures, independent of any City contracting.
NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained
herein, City and MPEC agree as follows.
TERMS AND CONDITIONS
SECTION 1. MPEC REPRESENTATIONS MPEC warrants and represents that:
1 1 MPEC is duly organized and validly exists in good standing under the laws of the
State of Colorado, has all necessary power and authority to enter and perform the covenants and
agreements on its part to be performed under this Agreement, and by proper action has duly
authorized the execution and performance of this Agreement.
1.2 MPEC has funds in the amount of $160,208 committed for the design and
remodel of the East Wing ( "MPEC Funds ") MPEC Funds are held by the institutions
( "Accounts ") described in attached Exhibit A.
SECTION 2. GENERAL.
2.1 MPEC will cause the design and remodel of the East Wing to be completed in
accordance with plans and specifications approved in writing by the City and appropriate
Federal, State and local regulatory agencies in a reasonable and expeditious manner
2.2 The East Wing and its furnishings shall remain the property of City
2.3 This Agreement is subject to every term and condition contained in the
Management Agreement between the parties dated April 14, 2008 and approved by City
Resolution #7791, the terms and conditions of which are incorporated as a part of this
Agreement. In the event that a term or condition of the Management Agreement directly and
irreconcilably conflicts with an express term of this Agreement, this Agreement shall control.
2.4 The City hereby consents to the design and remodel of the East Wing as required
in Section 12 of the Management Agreement between the parties dated April 14, 2008 and
approved by City Resolution #7791, but MPEC shall not sign any contract for any construction
or other work to be performed on the remodel until the plans for the same have been submitted to
the City and the City Manager has approved the design and specifications for the construction in
writing.
SECTION 3. CONTRACTS FOR DESIGN AND REMODEL, PAYMENTS.
3 1 City will not enter into contracts for the design and remodel of the East Wing and
City will not become obligated to make payments under any such contracts ( "Contract
Payments ") MPEC shall be the only party obligated under any design or construction contracts
for the design and remodeling project. Only MPEC Funds will be used to pay obligations under
the construction contracts.
3.2 The City shall contribute up to One Hundred Forty Seven Thousand Dollars
($147,000) toward the costs of designing and remodeling the East Wing. These funds shall be
held by the City in a special account solely for this purpose As MPEC incurs costs for the design
and remodel of the East Wing, MPEC shall from time to time submit requests for payment to the
City along with invoices and other documentation of the costs incurred in the design and
remodel. Provided that the requests for payment are reasonable, well documented, and releate
solely to the design and remodel of the East Wing, which the City shall determine in its sole and
absolute discretion, City shall disburse the requested funds directly to MPEC, which shall then
become MPEC funds. MPEC shall use these funds and all other MPEC funds solely for the
purpose of paying the costs of the design and remodel of the East Wing.
3.3 MPEC shall pay and disburse MPEC Funds for contract payments solely to such
persons or entities as needed to complete the design and remodel of the East Wing.
3 4 If excess MPEC Funds remain after paying all costs and expenses of the design
and remodel of the East Wing ( "Excess Funds "), the Excess Funds will be used to purchase
furnishings for the interior spaces of the East Wing.
SECTION 4. MISCELLANEOUS.
4 1 Notices. Any notice, demand or request provided in this Agreement shall be in
writing and sent by certified mail, return receipt requested to the other Party at the addresses
listed below or at such other address as each party may provide the other by notice as provided in
this section. Such notice shall be deemed to have been given when deposited in the regular
United States mail.
If to City.
City Manager
City of Pueblo
One City Hall Place
Pueblo, CO 81001
With an additional copy to
City Attorney
City of Pueblo
503 N Main St. Suite 203
Pueblo, CO 81003
If to MPEC MPEC, PO Box 99, Beulah, CO 81023, Attention. Executive Director;
Or to such other place as City or MPEC may from time to time designate in a written
notice given to City
4.2 Relationship. Nothing in this Agreement is intended to, or shall be deemed to
constitute, a partnership or joint venture between the Parties, or to create any agency or partner
relationship between the Parties. Neither Party shall hold itself out as a partner, joint venture,
agent, or representative of the other under this Agreement.
4.3 Additional Documents or Action. The Parties agree to execute any additional
documents or take any additional action that may be necessary to carry out this Agreement.
4 4 Assignment. This Agreement shall not be assigned by MPEC without the prior
written consent of the City, which consent may be granted, denied, or conditioned in City's sole
and absolute discretion.
4 5 Force Majeure. Any delays in or failure of performance by any party of its
obligations under this Agreement shall be excused if such delays or failure are a result of acts of
God, fires, floods, storms, lightning strikes, labor strikes, labor disputes, accidents, regulations or
orders of civil or military authorities, shortages of labor or matenals, or other causes, similar or
dissimilar, which are beyond the control of such party
4.6 Binding Effect. This Agreement shall inure to the benefit of, and be binding
upon, the Parties, their respective legal representatives, successors, and assigns, provided,
however, that nothing in this paragraph shall be construed to permit the assignment of this
Agreement except as otherwise expressly authorized herein.
4 7 Section Captions. The captions of the Sections in this Agreement are set forth
only for the convenience and reference of the Parties and are not intended in any way to define,
limit or describe the scope or intent of this Agreement.
4.8 Integration, Severability, Amendment, and Counterparts. This Agreement
represents the entire agreement between the Parties and supersedes all prior discussions and
written agreements or understandings. This Agreement may be amended only by an instrument
in writing signed by the Parties. If any provision of this Agreement is held invalid or
unenforceable, no other provision shall be affected by such holding, and all of the remaining
provisions of this Agreement shall continue in full force and effect. This Agreement may be
executed in multiple counterparts, each of which shall be deemed an original, and all of which
together constitute one and the same agreement.
4 9 No Third Party Beneficiaries, No Waiver of Immunities. Nothing in this
Agreement is intended, nor should it be construed, to create any rights, claims, or benefits or
assume any liability for or on behalf of any third party, or to waive any immunities or limitations
conferred under federal or state law, including but not limited to the Colorado Governmental
Immunity Act, § 24 -10 -101 et seq., C.R.S
4 10 Waiver of Breach. A waiver by any party to this Agreement of the breach of any
term or provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party
4 11 Governing Law and Venue This Agreement shall be governed by the laws of the
State of Colorado Venue for any action arising under this Agreement or for the enforcement of
this Agreement shall be in a state court with jurisdiction located in Pueblo County, Colorado
4 12 No Multi -Year Fiscal Obligation on City This Agreement is expressly made
subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor
deemed to constitute, the creation of a debt or multi -year fiscal obligation or an obligation of
future appropriations by the City Council of Pueblo, contrary to Article X, § 20 Colorado
Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding any
other provision of this Agreement, with respect to any financial obligation of the City which may
arise under this Agreement in any fiscal year after 2011, in the event the budget or other means
of appropriations for any such year fails to provide funds in sufficient amounts to discharge such
obligation, such failure shall not constitute a default or breach of this Agreement, including any
sub - agreement, attachment, schedule, or exhibit thereto, by the City
4 13 Authority of Signers. Each person signing this Agreement on behalf of a party
represents and warrants that he or she has the requisite power and authority to enter into, execute,
and deliver this Agreement on behalf of such party and that this Agreement is a valid and legally
binding obligation of such party enforceable against it in accordance with its terms.
4 14 Attorney's Fees and Costs of Collection. In the event that it becomes necessary
for the City to bring any action or proceeding to enforce any provision of this Agreement, to
recover damages for MPEC's breach of this Agreement, or to seek specific performance, the City
shall be entitled to collect its reasonable attorneys fees, costs of suit, and costs of collection as
part of the judgment in such action or proceeding, including but not limited to costs of in -house
counsel and legal staff.
Executed this I ■ day of A ? RS L , 2011
CITY OF PUEBLO,
A MUNICIPAL CORPORATION
By
President oft e ity Council
ATTEST _
City Clerk
Approved to as form.
C i ty Attome 9/1
MOUNTAIN PARK ENVIRONMENTAL CENTER, A
COL9RADOHON- PROFIT CORPORATION
By )
Director (pp,; &XS) JNS)
ATTEST(,1w— Cry I ( .---
c
Executive Director
Exh %it A
Horseshoe Lodge Account held at Edward Jones, $59,551.56
MPEC Main Account held at Pueblo Bank & Trust, $1,250 00
Special Account held at Stifel Nicolaus, $ 30,406 49
Alex & Kathy Martinez, $30,000 00
Challenge Grant by Gates Family Foundation, $39,000 00
Total MPEC Funds allocated to East Wing: $160,208 05