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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