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HomeMy WebLinkAbout12134RESOLUTION NO. 12134 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE PUEBLO ZOOLOGICAL SOCIETY FOR CONSTRUCTION OF A BLACK RHINOCEROS EXHIBIT, SIMULATED AFRICAN VILLAGE WITH PUBLIC RESTROOMS, FOOD CONCESSION, PICNIC AREAS, SITE WORK, AND A WILDLIFE LEARNING CENTER, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement between Pueblo, a Municipal Corporation, and the Pueblo Zoological Society for construction of a black rhinoceros exhibit simulated African Village with public restrooms, food concession, picnic areas, site work, and a wildlife learning center, 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: May 9, 2011 BY: Leroy Garcia COUNCILPERSON Background Paper for Proposed RESOLUTION DATE: May 9, 2011AGENDA ITEM # M-1 DEPARTMENT: Finance Department, Sam Azad, Director Law Department, Thomas J. Florczak, City Attorney TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE PUEBLO ZOOLOGICAL SOCIETY FOR CONSTRUCTION OF A BLACK RHINOCEROS EXHIBIT, SIMULATED AFRICAN VILLAGE WITH PUBLIC RESTROOMS, FOOD CONCESSION, PICNIC AREAS, SITE WORK, AND A WILDLIFE LEARNING CENTER, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council approve an Agreement with the Pueblo Zoological Society for the construction of a Black Rhinoceros Exhibit at the Pueblo Zoo? RECOMMENDATION Approve the Resolution. BACKGROUND The Pueblo Zoological Society plans to construct a black rhinoceros exhibit, simulated African village with public restrooms, food concession, picnic areas, site work, and a wildlife learning center with $350,000 in funds contributed by the City. FINANCIAL IMPACT The funding is available in Project CP1023. AGREEMENT AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE PUEBLO ZOOLOGICAL SOCIETY FOR CONSTRUCTION OF A BLACK RHINOCEROS EXHIBIT, SIMULATED AFRICAN VILLAGE WITH PUBLIC RESTROOMS, FOOD CONCESSION, PICNIC AREAS, SITE WORK, AND A WILDLIFE LEARNING CENTER This Agreement ( "Agreement ") is between the City of Pueblo, a Municipal Corporation ( "City ") and the Pueblo Zoological Society, a Colorado nonprofit corporation ( "PZS ") REC ITALS WHEREAS, PZS is willing to raise and commit funds to design and construct a black rhinoceros exhibit, simulated African village with public restrooms, food concession, site work, and picnic areas and a wildlife learning center (Projects ") at the City owned Pueblo Zoo, which PZS operates under a management agreement with the City WHEREAS, City is willing to contribute funds in the amount of $350,000 to aid in the design and construction of the Projects 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 PZS agree as follows TERMS AND CONDITIONS SECTION 1 PZS REPRESENTATIONS PZS warrants and represents that. 1 1 PZS 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 PZS has set a fund - raising goal of $2,500,000 for the design and construction of the Projects SECTION 2 GENERAL 21 PZS will cause the design and construction of the Projects to be completed in accordance with plans and specifications approved through the permitting processes of the Pueblo Planning and Zoning Department and Pueblo Regional Building and appropriate Federal, State and local regulatory agencies 2 2 This Agreement is subject to every term and condition contained in the Zoo Management Agreement between the parties, originally effective October 22, 1990, and extended on July 14, 2003 (approved by City Resolution #9898), 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 SECTION 3 CONTRACTS FOR DESIGN AND CONSTRUCTION, PAYMENTS 3 1 City will not enter into contracts for the design and construction of the Projects and City will not become obligated to make payments under any such contracts ( "Contract Payments ") PZS shall be the only party obligated under any design or construction contracts for the projects Only PZS Funds will be used to pay obligations under the construction contracts 3 2 The City shall contribute Three Hundred Fifty Thousand ($350,000) toward the design and construction of the Projects These funds shall be held by the City in a special account solely for this purpose As PZS incurs costs for the Projects, PZS shalt submit quarterly requests for payment to the City along with invoices and other documentation of the costs incurred Provided that the requests for payment are reasonable, well documented, and relate solely to the Projects, which the City shall determine in its sole and absolute discretion, City shall disburse the requested funds directly to PZS, which shall then become PZS funds PZS shall use these funds and all other PZS funds solely for the purpose of paying the costs associated with the Projects 3 3 PZS shall pay and disburse PZS funds for contract payments solely to such persons or entities as needed to complete the Projects SECTION 4 MISCELLANEOUS. 4 1 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 2 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 3 Assignment. This Agreement shall not be assigned by PZS without the prior written consent of the City, which consent may be granted, denied, or conditioned in City's sole and absolute discretion 4 4 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 materials, or other causes, similar or dissimilar, which are beyond the control of such party 4 5 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 6 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 7 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 8 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 9 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 10 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 11 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 412 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 PZS'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 day of `N , 2011 CITY OF PUEBLO, A MUNICIPAL CORPORATION iQ By President f th City Council ATTEST City Clerk Approved to as form City Attorerey PUEBLO ZOOLOGICAL SOCIETY, A COLORADO NON - PROFIT CORPORATION By Board Presiden ATTES •/i t g akc:ALk. 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