Loading...
HomeMy WebLinkAbout12260RESOLUTION NO. 12260 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND LULAC NATIONAL EDUCATIONAL SERVICES CENTERS, INC., FOR THE USE OF CERTAIN PREMISES AT THE EL CENTRO RECREATIONAL FACILITY, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE THE SAME WHEREAS, the City of Pueblo owns and operates the El Centro Recreation Facility; and WHEREAS, LNESC wishes to utilize certain specific premises at El Centro to administer the Adelante America Youth Leadership Program; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement between the City of Pueblo and LULAC National Educational attached hereto, having been approved as to Services Centers, Inc., a copy of which is form by the City Attorney, is hereby approved. SECTION 2. The President of City Council is hereby authorized to execute and deliver the Agreement on behalf of the City, and the City Clerk is directed to affix the seal of the City hereto and attest same. INTRODUCED November 14, 2011 BY: Chris Kaufman COUNCILPERSON Background Paper for Proposed RESOLUTION DATE: November 14, 2011 AGENDA ITEM # M-5 DEPARTMENT: PARKS AND RECREATION CREIGHTON WRIGHT, DIRECTOR TITLE: A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND LULAC NATIONAL EDUCATIONAL SERVICES CENTERS, INC., FOR THE USE OF CERTAIN PREMISES AT THE EL CENTRO RECREATIONAL FACILITY, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE THE SAME ISSUE: Should City Council approve an agreement for the utilization of certain specific premises at the El Centro Recreation Facility by LULAC National Educational Services Centers, Inc. (“LNESC”), for the implementation of LNESC’s Adelante America Youth Leadership Program? RECOMMENDATION: Approval the Resolution. BACKGROUND: LNESC has requested permission to utilize certain specific premises within the El Centro Recreation Facility located at 609 N. Erie Avenue. The proposed Agreement permits LNESC to conduct the Adelante America Youth Leadership Program which is a leadership development program for underserved youth which encourages participants to conduct community service projects, meet with positive role models, and explore alternatives to violence and crime. This program will be offered during the school year and groups may meet several times per week. Youth are selected for the program based on referrals from school principals and counselors. The El Centro Board of Directors discussed this proposal at their last Board meeting on October 19, 2011 and did not object to the proposal. FINANCIAL IMPACT: None. AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND LULAC NATIONAL EDUCATIONAL SERVICES CENTERS, INC., FOR THE USE OF CERTAIN PREMISES AT THE EL CENTRO RECREATIONAL FACILITY This Agreement ( "Agreement ") is between the City of Pueblo, a municipal corporation, ( "City "), and LULAC National Educational Services Centers, Inc., a foreign nonprofit corporation in good standing with the State of Colorado ( "LNESC ") (collectively, "Parties ") RECITALS A. The City of Pueblo owns and operates the El Centro Recreation Facility ( "El Centro ") located at 609 N Erie, Pueblo, CO 81001 B LNESC wishes to utilize certain specific Premises at El Centro to administer the "Adelante America Youth Leadership Program " C LNESC's Adlante America Youth Leadership Program is a leadership development program for underserved youth which encourages participants to conduct community service projects, meet with positive role models and explore alternatives to violence and crime D This program will be offered during the school year and groups may meet several times per week. Youth are selected for the program based on referrals from school principals and counselors. E. LNESC will also begin to determine whether adult computer /software programs focusing on fob skills, resume building and software education are appropriate. These adults will be targeted at employment offices and through word -of -mouth campaigns. F The City wishes to permit LNESC to utilize the Premises for these purposes in accordance with the terms and conditions set forth in this Agreement. In consideration of the foregoing recitals, and the terms and conditions set forth herein, the Parties agree as follows. TERMS AND CONDITIONS 1 PREMISES AND USE OF PREMISES. (a) LNESC and its officers, directors, employees, agents, and guests may enter access, and use the upstairs "art room" at El Centro ( "Premises ') only during the following periods, on the following clays, and at the following times (1) Monday — 1 riday 1 00 p m — 8 00 p m and 1 (2) Such other days, times, and Premises as the City may agree in writing to provide, in the City's sole and absolute discretion, for exclusive or shared use by LNESC and its officers, directors, employees, agents, independent contractors and guests. (b) LNESC and its officers, directors, employees, agents, independent contractors and guests shall not enter, access, or use any areas within El Centro, except the Premises granted to them in this Agreement and during the time periods granted to them in this Agreement, without first obtaining the express written permission of the City (c) LNESC and its employees, agents, and guests may enter, access, and use the Premises only for furtherance of the above -cited purposes in the Recitals. LNESC and its officers, directors, employees, agents, independent contractors and guests shall not enter, access, use, or allow the use of the Premises for any other purposes whatsoever without first obtaining the written consent of the City (d) Use of the Premises by LNESC and its officers, directors, employees, agents, independent contractors, and guests shall at all times be subject to and limited by any rules that the City may create for El Centro in general or for LNESC's use of El Centro (e) Notwithstanding the above, LNESC and its officers, directors, and employees may enter the Premises at times not specifically designated above for the exclusive purpose of preparing for events and other administrative reasons. 2. CITY'S RiGIIT TO ACCESS PREMISES, PREEMPT LNESC USE OF PREMISES, EXCLUDE PERSONS, AND TERMINATE UNSAFE OR UNLAWFUL ACTIVITIES. (a) The City and its employees, agents, and independent contractors may at any time during the term of this Agreement, in City's sole and absolute discretion, and without any notice to LNESC, enter and access any part of the Premises at any time, including but not limited to any time that any LNESC event or activity is scheduled, being prepared, or occurring, to check LNESC activities and events, check the security of the Premises, inspect the Premises, perform maintenance, make alterations or repairs, or to prepare the Premises for activities and events that the City may be planning. (b) The City and its employees, agents, and guests, at any tine during non -LNESC program hours contained in Paragraph 1(a)(1), above, may access and use the Premises and equipment contained therein provided that the City is supervising all users. (c) The City may at any time during the term of this Agreement, in City's sole and absolute discretion, upon 14 days written notice by any City employee hand - delivered, e- mailed, or faxed to any LNESC officer director or employee, preempt all LNESC use of the Premises and any LNESC activity or event, deny LNESC and its officers, directors, employees, agents, independent contractors, and guests all use of the Premises, and exclude them from the Premises for so long as the City may deem necessary 2 (d) The City may, in its sole and absolute discretion, deny access to, or remove from the Premises any person, including but not limited to any LNESC officer, director, employee, agent, independent contractor, or guest who is disruptive, who fails, neglects, or refuses to obey any rule for the Premises, or who fails, neglects or refuses to follow the written or verbal instructions of any City employee. (e) The City may, in its sole and absolute discretion, permanently bar from entering El Centro and the Premises, any person, including but not limited to any LNESC officer, director, employee, agent, independent contractor, or guest who is disruptive, who fails, neglects, or refuses to obey any rule for the Premises, or who fails, neglects, or refuses to follow the written or verbal instructions of any City employee. (0 Notwithstanding any provision herein to the contrary, the City shall have the nght, at any time during the term of this Agreement, in City's sole and absolute discretion, and without any notice to LNESC, to terminate any LNESC event or activity for the safety of persons and property or to prevent the violation of any local state, or federal law or regulation. 3. TERM. This Agreement commences December 1, 2011 and remains in effect unless terminated as provided in Paragraph 16 4. IMPROVEMENTS AND ALTERATIONS TO THE PREMISES. LNESC shall not make any changes or alterations to the Premises without first obtaining the written consent of the City, provided however, that LNESC shall pay for "wiring" the Premises for computers and phones. 5. ADDITIONAL LNESC OBLIGATIONS. LNESC shall in addition to other duties and obligations provided 111 this Agreement, perform the following obligations (a) Operate the Premises and all LNESC events and activities at LNESC's sole expense. (b) Provide and pay for all employees, officials, marketing materials, and other labor and staff necessary to conduct and supervise all LNESC events and activities and preparation for events. (c) Provide reasonable security for all major LNESC events and activities. (d) Notify the City immediately of any accidents, injuries, or crimes that occur at the Premises, any damage to the Premises, and anything that poses a risk of damage to the Premises, including but not limited to weather fire hazards, flooding, water leakage electrical problems, plumbing problems, and vandalism (e) Keep the Premises and all equipment, supplies, buildings, and fixtures thereon in a clean, safe, orderly and well maintained condition at all times during the term of this Agreement. 3 (f) Pay for the cost of any damages to the Premises and equipment contained therein, caused by any of LNESC's officers, directors, employees, agents, independent contractor, or guests. (g) Conduct all LNESC activities and events in a safe and orderly manner 6. ADDITIONAL CITY OBLIGATIONS. The City shall, in addition to other duties and obligations provided in this Agreement, perform the following obligations. (a) Provide access to the Premises during those times outlined in Paragraph 1 (b) Pay for Internet usage on the Premises. (c) Reimburse LNESC for the cost of any damages to LNESC equipment contained on the Premises caused by the City and its employees, agents, and guests (d) Paint the Premises prior to December 1, 2011 7 INTELLECTUAL PROPERTY (a) LNESC shall not use any name, trademark, service mark, or logo of the City including the name "El Centro" or any similar name, for any purpose, without first obtaining the written consent of the City to such use. (b) LNESC shall not sell or license for sale, reproduction, publication, exhibition, broadcast, or distribution, any image, sound recording, photograph, video tape, or film of the Premises or any LNESC event or activity that occurs in the Premises unless LNESC first obtains a separate written agreement with the City authorizing such activities. 8. NON - TRANSFERABLE. LNESC shall not sublease, transfer or assign to any other party this Agreement or any rights hereunder without the prior written consent of the City Any attempt to sublease, transfer, or assign this Agreement, or any of LNESC's rights hereunder without the prior written consent of the City is void and shall constitute a material breach of this Agreement. In the event of any assignment, sublease or transfer LNESC shall not be released from any responsibility hereunder and shall remain liable and responsible to the City for such sublease, transferee, or assignee and its activities in accordance with the terms and conditions of this Agreement. 9 NO REPRESENTATION OR WARRANTY OF CONDITION OR FITNESS. The Premises are provided on an "as is" "with all its faults basis, and the City makes no representation or warranty as to the condition or fitness of the Premises for LNESC's activities and events or for any particular use or purpose LNESC shall be solely responsible for personally inspecting the Premises before execution of this Agreement and before admitting any officer, director, employee, agent, independent contractor or guest before each day ()leach LNESC activity or event. LNESC's commencement of any activity or event shall constitute an 4 express acknowledgement by LNESC that the Premises are safe and adequate for LNESC's activities and events. LNESC shall be responsible for all equipment and facilities located at the Premises during LNESC's use of Premises, and for adequate safeguards for the protection of LNESC, its officers, directors, employees, independent contractors, agents, and guests. Notwithstanding any provision in this Agreement to the contrary or which may be construed to the contrary, the City assumes no obligation or responsibility to keep or maintain the Premises in good, safe, or suitable condition, appearance or state of repair, regardless of cause of need for maintenance and repair LNESC's sole remedy if the Premises and its equipment are not maintained in good and safe condition, appearance, or state of repair, is to terminate this Agreement 10. RELEASE AND WAIVER OF LIABILITY (a) LNESC shall obtain from every person entering the premises, including every LNESC officer, director, employee, agent, independent contractor and guest, a signed Release in the form attached as Exhibit A (b) LNESC shall require that the Release attached as Exhibit A signed by any person under the age of 18 also be signed by one or more of the minor's parents. (c) LNESC shall provide all Releases described above to the City 11 INDEMNIFICATION LNESC shall defend, hold harmless, and indemnify the City and its officers, employees, independent contractors, and agents ( "indemnified Parties ") against any liability for any damages, costs, attorneys fees, or restitution that may be imposed by any court or tribunal in any suit, action or proceeding in law or equity filed by any person or entity, based on contract, tort, statute, violation of civil rights, or any other legal theory for any physical injury, psychological injury, death, or property damage or Toss that LNESC or any of its officers, directors, employees, agents, independent contractors, or guests may suffer related to or caused by the Indemnified Parties, other persons, the Premises, the El Centro facility or any object, thing, or activity in the Premises or the El Centro facility 12. CERTIFICATES OF INSURANCE. (a) Upon execution of this Agreement, LNESC shall provide the City a Certificate of Insurance showing evidence of liability coverage for (1) bodily injury death, and property damage to any person, (2) LNESC's liability for any breach of this Agreement, and (3) LNESC's obligation to indemnify the City and its officers, employees, agents, and independent contractors under the terms of this Agreement. (b) The insurance policy and certificate of insurance evidencing the policy shall have a combined single limit of not less than One Million Dollars ($1 000,000 00) per occurrence with a Two Million ($2,000,000 00) annual aggregate, and shall be endorsed to add as additional insureds the City and ifs officers, directors, employees, agents, and independent contractors. Such policy shall state that. the insurance is primary in coverage to any other insurance which may be available to the City 5 (c) LNESC shall also provide the City a Certificate of insurance showing evidence of statutory workers' compensation insurance and shall contain an endorsement waiving subrogation against the City of Pueblo Workers' compensation coverage shall be obtained notwithstanding that LNESC may have no employees as defined under said Act or that LNESC might otherwise avail itself of an exemption under the Act from any legal requirement to obtain such coverage. Such insurance shall cover all employees of LNESC performing work at the Premises irrespective of whether such employees may be shareholders, managers, partners, or owners of LNESC or exempt employees under the Act. LNESC may purchase, for non - statutory employees, a participant accident insurance policy which would include death, disability, dismemberment, and medical benefits. Any independent contractors of LNESC shall be covered under LNESC's workers' compensation insurance and /or participant accident insurance policy, or show evidence that said independent contractor is covered under its owin workers' compensation insurance policy LNESC shall have full and sole responsibility for ensuring compliance with this Section, including without limitation indemnification required under this Agreement. All insurance policies required hereunder shall provide that such policies not be cancelled or reduced without thirty (30) days advance written notice to the City Failure of LNESC to comply with the provisions of this Section shall constitute a material breach of this Agreement. Coverage and limits enumerated in this insurance provision represent only the minimum insurance required by the City and LNESC should rely on its expertise and that of its own risk management experts to obtain any additional insurance coverage needed for the City and LNESC in its performance under this Agreement. 13. CERTAIN PROVISIONS SURVIVE EXPIRATION OF TERM AND TERMINATION The provisions of this Agreement pertaining to insurance, indemnification, and liability shall survive the expiration of the term of this Agreement and termination of this Agreement and shall continue in effect for a period of five years following the termination of this Agreement and for such further time as it may take to completely and finally negotiate, settle, or litigate any claim or suit concerning the same 14 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. 15. JURISDICTION AND VENUE. This Agreement and all rights and obligations of the Parties shall be construed and governed in accordance with the laws of the State of Colorado With respect to any claims or litigation associated in any manner with or arising out of this Agreement, the Parties agree to submit to the exclusive personal _jurisdiction of the District Court in and for Pueblo County, Colorado Lxclusive venue for any such litigation shall he Pueblo County, Colorado 16. TERMINATION AND DEFAULT (a) If either party is in default hereunder the non - defaulting party may give written notice describing the default to the defaulting party if the defaulting party does not correct such default within twenty (20) days after receipt of said notice, or if the default cannot be corrected 6 within said 20 -day period and the defaulting party fails to commence action to correct the default within said 20 -day period and thereafter diligently pursues corrective action, the non - defaulting party may upon an additional five (5) days' notice given to the defaulting party terminate this Agreement. (b) Notwithstanding the foregoing, if LNESC commits a material breach as defined in this Agreement, the City may terminate this Agreement upon five (5) days' prior written notice to LNESC specifying the material breach and the date of termination Except for accrued nghts and liabilities and those covenants and provisions which survive termination hereunder, upon such termination each party shall be released from all future duties and obligations hereunder These remedies shall be in addition to any other remedies provided in this Agreement. (c) Notwithstanding the foregoing, a party may terminate this Agreement without cause on thirty days notice to the other party 17 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. 18. 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 19 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 20. NOTICES. (a) Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified mail or registered mail, postage and fees prepaid addressed to the party to whom such notice is to be given at the following address or at such other address as may be subsequently furnished in writing to the other party if to the City City Manager City of Pueblo 200 S Main Street Pueblo, CO 81003 7 With additional copies to City Parks and Recreation Director City of Pueblo 800 Goodnight Avenue Pueblo, CO 81005, and City Attorney City of Pueblo 503 N Main Street, Suite 203 Pueblo, CO 81003 If to LNESC LNESC 829 N Circle Dr Colorado Springs, CO 80909 (b) Such notices shall be deemed to have been given when deposited in the regular United States mail (c) Certified mail, registered mail and U S mail shall not he required when the City gives 72 hours notice of its intent to preempt all use of the Premises and exclude the LNESC under Section 2(b) of this Agreement. 21 SECTION CAPTIONS. The captions of the paragraphs 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. 22. 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. 23. 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 24 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 he construed as a waiver of any subsequent breach by either party 8 25. 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. 26. ATTORNEY'S FEES AND COSTS OF COLLECTION In the event that it becomes necessary for the City to bring any action or proceeding to collect unpaid damages, costs, or other sums due under this Agreement, to enforce any provision of this Agreement, to recover damages for LNESC's breach of this Agreement, or to seek specific performance of this Agreement, 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. DATED this /4 day of_ , 2011 CITY OF PUEBLO By , President o ity ouncil ATTEST City rk APPROVED AS TO FORM 72;s0 City Attorne LULAC NATIONAL EDUCATIONAL SERVICES CENTERS, INC By . Signature Printed name Title 9 EXHIBIT "A" On behalf of myself and my child, (if my child will enter the Premises)1 hereby release and waive any and all claims, known and unknown, presently existing or arising in the future, and any suit or action in law or equity against the City of Pueblo and its officers, employees, and agents ("Released Parties ") in any court or tribunal based on contract, tort, statute, violation of civil rights, or any other legal theory, for any physical injury, psychological injury, death, or property damage or loss that I or my child may suffer, related to or caused by the Released Parties, other persons, the Facility, or any object, thing, activity, or event in the Facility Signature Name 10