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HomeMy WebLinkAbout08382ORDINANCE NO. 8382 AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO ROTARY 43 TO PROVIDE $36,000 TOWARDS THE CITY PARK SHELTER ENHANCEMENT PROJECT NO. PL1004, APPROPRIATING AN ADDITIONAL $36,000 TO THE PROJECT, INCREASING THE PROJECT BUDGET TO $438,799, AND AUTHORIZING THE PRESIDENT OF COUNCIL TO EXECUTE SAME WHEREAS, on December 13, 2010, the City of Pueblo approved the City Park Shelter Enhancement Capital Improvement Project No. PL1004 totaling $402,799 to construct various shelters in City Park; and; WHEREAS, Pueblo Rotary 43 wishes to partner with the City of Pueblo and provide $36,000 towards the Project, subject to the execution of the Agreement. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. An Agreement between the City of Pueblo, a Municipal Corporation, and Pueblo Rotary 43 to provide $36,000 in funds to Project PL1004, a copy of which is attached hereto having been approved as to form by the City Attorney, is hereby approved. SECTION 2. Funds in the amount of $36,000 are appropriated to Project No. PL1004. SECTION 3. Capital Project No. PL1004 is increased from $402,799 to $438,799. SECTION 4. The President of City Council is hereby authorized to execute and deliver said Grant Agreement in the name of and on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. INTRODUCED August 8, 2011 BY: Chris Kaufman COUNCILPERSON PASSED AND APPROVED: August 22, 2011 Background Paper for Proposed ORDINANCE DATE: AUGUST 8, 2011 AGENDA ITEM # R-3 DEPARTMENT: PARKS AND RECREATION CREIGHTON WRIGHT, DIRECTOR PLANNING & COMMUNITY DEVELOPMENT JERRY M. PACHECO, DIRECTOR TITLE AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO ROTARY 43 TO PROVIDE $36,000 TOWARDS THE CITY PARK SHELTER ENHANCEMENT PROJECT NO. PL1004, APPROPRIATING AN ADDITIONAL $36,000 TO THE PROJECT, INCREASING THE PROJECT BUDGET TO $438,799, AND AUTHORIZING THE PRESIDENT OF COUNCIL TO EXECUTE SAME ISSUE Should the City Council approve an agreement with Pueblo Rotary 43 to provide $36,000 towards the City Park Shelter Enhancement Project No. PL1004, appropriate said funds to the project and increase the project budget to $438,799? RECOMMENDATION Approval of the Ordinance. BACKGROUND The Pueblo Rotary 43 organization wishes to partner with the City of Pueblo in celebration of their 100 year anniversary. Rotary is proposing to contribute $36,000 to be used to enhance the new large picnic shelter that is estimated to cost $100,000 and is currently being planned as part of the City Park Enhancement Project (PL1004). Rotary will also provide an entry way sign, plaques depicting events that have taken place in the 100-year history of Rotary 43 and a weathervane on the roof bearing the Rotary logo. The project will be constructed by March 31, 2012. On December 13, 2010, the City approved Ordinance No. 8293 which created City Park Shelter Enhancement Capital Improvement Project No. PL1004 and entered into an agreement with GOCO to provide funding for the project. The complete project includes the construction of five (5) small picnic structures and one large picnic structure, described above in partnership with Rotary 43. The entire project will also include four or five freestanding fabric sail-type structures located in the kiddie ride area of the Park. The shelters will include walkways, landscaping, picnic tables and trash cans. FINANCIAL IMPACT The following is a breakdown of the funds for the "City Park Shelter Enhancement," Project No. PL1004. Great Outdoors Colorado Grant $ 197,799 BH Transfer ( 200,000 Substituted for Pueblo ) County 1A Funds Xcel Energy Sponsorship 5,000 Pueblo Rotary 43 36,000 Total Project $438,799 AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND PUEBLO ROTARY 43 FOR CONSTRUCTION OF A LARGE PICNIC SHELTER AT CITY PARK This Agreement ( "Agreement ") is between the City of Pueblo, a Municipal Corporation ( "City ") and Pueblo Rotary 43, a Colorado nonprofit corporation ( "Rotary 43") RECITALS WHEREAS, Rotary 43 wishes to contribute to the City $40,000 in funds less the costs of designing, fabricating, and installing an entry way sign, Rotary plaques, and a weathervane, all of which in the aggregate will not exceed $4,000, to design and construct a large picnic shelter ( "Large Shelter ") at City Park designed for approximately 100 people to be located between the existing concession building and the Pueblo Zoo, as shown on Exhibit A, and WHEREAS, City is willing to permit Rotary 43 to install at the Large Shelter, at Rotary 43's sole expense, a sign above the entryway bearing the Rotary logo and the inscription "Rotary 43 Centennial Pavilion," plaques on each column of the Large Shelter depicting events that have taken place in the 100 -year history of Rotary 43, and a weathervane on the roof bearing the Rotary logo, WHEREAS, it is the intention of Rotary 43 that the Large Shelter be completed by March 31, 2012 so that it may be incorporated into Rotary 43's Centennial Celebration, and WHEREAS, the parties presently intend that the Large Shelter remain within Pueblo City Park for its useful life, provided that if the City determines that the use of the Park requires relocation of the Large Structure, the parties will discuss the relocation in a reasonable effort to agree on an alternate location. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and Rotary 43 agree as follows TERMS AND CONDITIONS SECTION 1 ROTARY 43'S OBLIGATIONS 1 1 Within thirty (30) days of execution of this Agreement, Rotary 43 shall pay to and contribute Forty Thousand Dollars ($40,000) in cash to the City to design and construct the Large Shelter, minus the costs for the design, fabrication, and installation of a sign above the entryway bearing the Rotary logo and the inscription. "Rotary 43 Centennial Pavilion," plaques on each column of the Large Shelter depicting events that have taken place in the 100 -year history of Rotary 43, and a weathervane on the roof bearing the Rotary logo ( "Rotarian Items "), the cost of which, including all such Rotarian Items, shall not exceed $4,000 The Rotarian Items shall be designed, fabricated and installed as graffiti and vandalism resistant to the maximum extent possible These funds shall be contributed to the City before the City commences any work for or awards any contract for design, materials or construction of the Large Shelter The sums contributed by Rotary 43 shall be in addition to the City funds identified on the Project Budget. See Exhibit B attached hereto 1.2 Rotary 43 shall submit to the City an initial proposed design for the Rotarian Items. The City shall have sole and absolute discretion to approve or disapprove Rotary 43's design of the Rotarian Items. None of the Rotarian Items may be fabricated or installed until the City has approved the design of each Rotarian Item in writing. After the City has approved the design of all such Rotarian Items in writing, Rotary shall fabricate and install the same at the Shelter, and gift the same to the City as the City's sole property The funds necessary for the design, fabrication, and installation of the Rotarian Items shall be deducted from the $40,000 cash contribution. The cost for the design, fabrication, and installation of the Rotarian Items shall be incurred by Rotary 43, and shall not exceed a total of $4,000, giving the City a cash contribution of no less than $36,000 1 3 The size, materials, placement, and design of the Rotarian Items shall be subject to the City's sole and absolute discretion to approve or disapprove the same Rotary 43 shall provide the City with the proposed initial design of the Rotarian Items no later than one month after the City has completed the design for the Large Shelter The City shall review Rotary 43's proposed initial design and shall approve or disapprove the same within a reasonable time, but not more than 60 days. Rotary 43 shall not fabricate or install the Rotarian Items until the City has approved the design for each Rotarian Item in writing. 1 4 In the event that the Rotarian Items are damaged by weather, fire, accident, vandalism, or other sources, Rotary 43 shall repair or replace the item to the City' satisfaction within a reasonable time after being notified of the same If Rotary does not promptly repair the item, or the repair or replacement is not satisfactory to the City, the City may remove the damaged item. SECTION 2. CITY'S OBLIGATIONS 2 1 City shall construct the Large Shelter, which shall be completed by March 31, 2012, subject to reasonable extension of time for delays which may be caused by adverse weather, non - delivery of properly ordered materials, labor disputes, fire, acts of God, transportation delay, delay caused by contractors, and other delays not the fault of City 2.2 Rotary 43 may submit ideas and proposals for design of the Large Shelter, but the City shall have sole and absolute authority over the final design of the Large Shelter and the Rotarian Items 2.3 City shall permit Rotary 43 to install the Rotarian Items subject to City's approval of size, design, materials, and placement. 2.4 Picnic tables and benches, which shall provide seating for approximately 100 persons, as well as electricity, walkways, landscaping and other details provided for in Exhibit B, Project Budget, shall be included as components of the Large Shelter SECTION 3. MISCELLANEOUS. 3 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 Street, Suite 203 Pueblo, CO 81003 or to such other address or addresses as City may from time to time designate in a written notice to Rotary If to Rotary 43 Rotary 43 President 120 N Dayton Avenue Pueblo, CO 81003 or to such other place as City or Rotary 43 may from time to time designate in a written notice given to City 3.2 Relationship Nothing in this Agreement is intended to, or shall be deemed to constitute, a partnership or point 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. 3.3 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. 3 4 Assignment. This Agreement shall not be assigned by ROTARY 43 without the prior written consent of the City, which consent may be granted, denied, or conditioned in City's sole and absolute discretion. 3 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 3 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. 3 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. 3 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. 3 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 3 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 3 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 3 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 approprations 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 3 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. 3 14 Attorney's Fees and Costs of Collection. In the event that it becomes necessary for either party to bring any action or proceeding to enforce any provision of this Agreement, or to seek specific performance, said party 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 2 2 day of u s 4 , 2011 CITY OF PUEBLO, A MUNICIPAL CORPORATION By President 1114 f the City Council ATTEST City ...P.VA„cp-Srl-zieSkiLk. rk Approved to as form. 7 A 4 m V■e City Attorn ROTARY 43, A COLORADO NON - PROFIT CORPORATION By - /.— EST , 1 " ...AdL.. . of Small Picnic Shelters Existing Swing 4‘ 1 � k Y Existing r restrooms , 4 j \ r t \ i•die ` / - t I. R . tarry 43 �Picnic Shelt r .;\ \ \\ w, f t µ / , Pueblo Horseshoe Zoo 1 Lake mall -� � Shelter D • A EXHIBIT A ;r . ` O O N Y • , s• O O O O O O O O O O O O 4 . 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