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HomeMy WebLinkAbout12382RESOLUTION NO. 12382 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE PUEBLO HISTORICAL AIRCRAFT SOCIETY, A COLORADO NONPROFIT CORPORATION, FOR THE MANAGEMENT OF THE PUEBLO WEISBROD AIRCRAFT MUSEUM AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME SECTION 1. The Agreement between the City of Pueblo, a Municipal Corporation, and the Pueblo Historical Aircraft Society, a Colorado nonprofit corporation, dated April 22, 2012, (“Agreement”) relating to the management of the Pueblo Weisbrod Aircraft Museum, a 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 hereby authorized to execute the Agreement in the name and on behalf of the City, and the City Clerk is directed to affix the Seal of the City thereto and attest same. SECTION 3. This Resolution shall be effective upon passage and approval. INTRODUCED: April 23, 2012 BY: Leroy Garcia COUNCIL PERSON Background Paper for Proposed RESOLUTION DATE: AGENDA ITEM # M-5 APRIL 23, 2012 DEPARTMENT: OFFICE OF THE CITY MANAGER CITY MANAGER - JERRY M. PACHECO INTERIM DEPUTY CITY MANAGER – JENNY EICKELMAN TITLE: A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE PUEBLO HISTORICAL AIRCRAFT SOCIETY, A COLORADO NONPROFIT CORPORATION, FOR THE MANAGEMENT OF THE PUEBLO WEISBROD AIRCRAFT MUSEUM AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE: Should the City Council approve an agreement between the City of Pueblo and the Pueblo Historical Aircraft Society regarding the management of the Pueblo Weisbrod Aircraft Museum? RECOMMENDATION: Approval of this Resolution. BACKGROUND: The Pueblo Weisbrod Aircraft Museum has been managed by the Pueblo Historical Aircraft Society since 1989. Their current Management Agreement will expire on April 21, 2012. This Resolution will approve a new five-year agreement for the term of April 22, 2012, to April 21, 2017. FINANCIAL IMPACT: The Pueblo Historical Aircraft Society is required to submit a funding request to the City Manager by July of each year for consideration for the following calendar year. The budget request shall include all projected and available funds and revenues as well as expenditures. AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND PUEBLO HISTORICAL AIRCRAFT SOCIETY, A COLORADO NONPROFIT CORPORATION TO MANAGE THE PUEBLO WEISBROD AIRCRAFT MUSEUM THIS MANAGEMENT AGREEMENT ( "Agreement ") entered into as of April 22, 2012, by and between the City of Pueblo, a Municipal Corporation, hereinafter referred to as the "City ", and the Pueblo Historical Aircraft Society, a Colorado nonprofit corporation, hereinafter referred to as the "Society ". WITNESSETH: WHEREAS, the City now owns grounds and museum facilities open to the public and located on a portion of land at the Pueblo Memorial Airport, Pueblo, Colorado, known as the Pueblo Weisbrod Aircraft Museum described in attached Exhibit "A" (the "Museum "); WHEREAS, The Society is a nonprofit volunteer organization having as its members citizens who are dedicated to the preservation and development of the Museum; WHEREAS, the Society has managed, improved and expanded the Museum since 1989 and has principally financed, designed and managed the construction of a large new building for the display and protection of historical military aircraft and equipment either owned by City or currently on loan to the City by various agencies of the United States listed on the attached Exhibit "B" (the "City Historical Aircraft and Military Equipment ") and the historical artifacts owned by or under the control of the Society (the "Society Historical Artifacts "); WHEREAS, Society and City are desirous of entering into an agreement setting forth their respective rights and obligations with respect to the Museum and City Historical Aircraft and Military Equipment. NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein contained, the City and the Society agree as follows: A. City hereby appoints and retains the Society subject to and upon the terms and conditions herein set forth, as an independent contractor, to operate, manage, and promote the Museum commencing for a period of five (5) years from April 22, 2012, to April 21, 2017, unless sooner terminated as herein provided. The Society does hereby agree to perform all functions and obligations on its part to be performed under this Agreement in compliance with this Agreement and all applicable laws, ordinances, regulations, and resolutions now in effect or hereafter enacted. B. City does hereby delegate to the Society the authority to perform, and the Society agrees that during the term of this Agreement it shall perform the following functions: 1. Operate the Museum as a public museum for the use and benefit of the City and the general public. 2. Accept custody and control all City Historical Aircraft and Military Equipment and maintain custody and control of all Society property, including, without limitation, Society Historical Artifacts, tools, equipment and furniture ( "Society's Property "). 3. Designate the uses to which the Museum may be put including the authority to schedule all events at the Museum by individual or community groups, and conducting class, lectures, and other public functions subject to modification by resolution of the City Council. 4. Establish Museum operational times and operate Museum concessions and gate, including authority to charge reasonable fees subject to modification by resolution of the City Council. 5. Utilize employees or volunteers reasonably necessary to perform the Society duties, functions, and responsibilities under this Agreement. 6. Assist the City in obtaining all necessary licenses, accreditations, and permits for the operation of the Museum. 7. Assure compliance with TSA and FAA rules and regulations. 8. Provide routine janitorial services for the Museum and promptly notify the City of any damage to, destruction, breakdown or failure of the Museum or any part thereof. 9. Maintain and keep in force the following insurance: (a) Casualty and property damage insurance covering Society's Property owned by or under the control of Society. (b) Commercial liability insurance covering Society and all activities conducted by Society, its employees and volunteers in the Museum in an amount not less than $150,000 per person and $600,000 per occurrence for personal injury, death, or property damage, including contractual coverage (c) Workers' compensation and unemployment compensation insurance in amounts required by Colorado law. Society shall furnish certificates of such insurance to the Director of Aviation. 10. Include in all material and media promoting or advertising the Museum the wording "Sponsored in part by the City of Pueblo." C. The City agrees, subject to available funds being budgeted and appropriated for such functions, that during the term of this Agreement, it shall perform the following functions: 1. Provide police and fire protection to the Museum including telephone services related to those systems. 2. Furnish all utilities to the Museum except Society's telephone services and pay a reasonable premium for Society's liability insurance and casualty and property damage insurance related to the operation and management of Museum. 3. Include the Museum and contents under its casualty and property damage insurance except Society's Property owned by or under the control of Society. 4. Maintain the Museum in good repair, including roofs and doors. 5. Permit the Society to utilize, without charge, all equipment, accessories, parts, furniture, tools, and vehicles (City property) which are presently used at the Museum, as well, as to borrow equipment on a temporary basis which may be required for the operation of the Museum from the City's Department of Aviation when such equipment is available, subject to City of Pueblo liability and training requirements, and at the sole discretion of the Director of Aviation. 6. Replace City personal property as the City may determine in its sole discretion. 7. The Director of Aviation shall approve, maintain, terminate, and renew City Historic Aircraft and Military Equipment contracts with the U.S. Government agencies. 8. The Director of Aviation, as a member of PHAS, shall be appointed a voting member of the PHAS Management Team. 9. Except in cases of emergency, the City will give three (3) days notice to the Society of work or repairs to the Museum where such work or repairs will require the Society to interrupt its normal operations, (e.g. having to move aircraft or exhibits or requiring personnel after normal business hours). D. It is the intent of the parties hereto that a high quality Museum continues to be operated by the Society for the educational and recreational enjoyment of all citizens of the City, as well as attracting visitors to the City. In furtherance of this intent, the City will list Society in its routine budgetary process along with other non - departmental contractors and City shall appropriate and provide annually such sums as the City Council may, in its sole discretion, deem proper to operate, maintain, promote, and manage the Museum and fulfill its obligations under the terms and conditions of this Agreement. Funds appropriated annually to the Museum by the City shall be disbursed to Society quarterly and shall be expended by Society for the purposes indicated in the approved budget and consistent with this Agreement. E. It is the intent of the Society to seek financial contributions from the general public, private foundations and other sources to establish educational programs that will enable it to offer programs to all schools in the area. F. The Society shall keep in separate funds or accounts all gifts, endowments, bequests, or devises to the Museum together with income therefrom, and disburse said funds only by bank checks signed by its duly authorized officers or agents for the operation, management, promotion and maintenance of the Museum unless expenditures are inconsistent with the duties and obligation of the Society toward the donors of such gifts, endowments, bequests, or devises. G. The Society shall maintain proper books of account of all Museum revenues and expenditures (including monies held in trust) and properties, shall make an annual report to the City Manager of its acts and expenditures, and shall submit its books and records to whatever inspection or audit the City Manager may desire from time to time. For purposes of this Agreement, the terms "Museum revenues" and "properties" do not include Society's revenue from various activities not associated with Museum operation and management, members' dues, donations to Society, and Society Historical Artifacts. H. Each July, the Society shall submit to the City Manager a request for funding for the following calendar year. The requested Museum budget shall include all projected and available funds and revenues as well as anticipated expenditures and conform to City budget procedures which will be provided by City to Society. All monies and funds realized by the Society either from the operation of the Museum or concessions thereon, or from the City, or from grants, contributions, gifts, or donations to the Museum including funds and assets the Society, in its sole discretion, may elect to donate to the Museum (except those restricted in their use to purposes inconsistent herewith), shall be used exclusively for the improvement, operation, management, promotion, and maintenance of the Museum for the benefit of the general public. J. This Agreement may be terminated at any time by mutual agreement or by either party under circumstances and conditions as follows: 1. If either party is in default hereunder, the nondefaulting party may give written notice to the defaulting party specifying the default, and if such default shall continue for 30 days after receipt of such notice (unless such default cannot with due diligence be wholly cured within said 30 -day period, in which case the defaulting party shall have such longer period as shall be necessary to cure the default, so long as the defaulting party proceeds promptly to cure the default within such 30 -day period, prosecutes the cure to completion with due diligence, and advises the nondefaulting party from time to time, of the actions taken and progress made) the nondefaulting party may terminate this Agreement upon five (5) days prior written notice. 2. The City may terminate this Agreement at any time by first giving the Society notice in writing, served by mail or otherwise, notifying the Society that such action is contemplated by the City, and setting forth its specific reasons for the proposed termination of this Agreement. The Society shall be given an opportunity to be heard on the matter by City Council before such action is taken, if the Society so desires. If, after such notice and opportunity to be heard, the City shall nevertheless decide in its sole discretion that it is in the public interest that this Agreement be terminated, the City shall notify the Society thereof in writing, and this Agreement shall thereby be terminated and the Society shall thereafter as soon as the City is prepared to accept the management and control of the Museum and not exceeding sixty (60) days from the date of service of such notice, quit and surrender said Museum, City Historical Aircraft and Military Equipment and personal property to the City as provided in paragraph 1.4 below. 3. The Society may cancel and terminate this Agreement at any time after one hundred twenty (120) days written notice to the City. 4. In the event of the termination of this Agreement, all City Historical Aircraft and Military Equipment, equipment, supplies and property of all kinds owned by or on loan to the City or purchased in whole with City funds or nonrestricted gifts, contributions or grants received by Society during the term of this Agreement, and in possession or control of the Society shall be delivered to the City, except for such gifts, contributions or grants received by Society for its own purpose other than that of the Museum. All improvements to the Museum whether made at Society's expense or at the City's expense shall become on the date of termination the property of the City. All City provided funds and monies in possession of the Society and not expended for their intended purpose shall be delivered to the City. 5. Before expiration of the five (5) year term of this Agreement, the parties may by instrument executed by both parties extend this Agreement upon terms and conditions which are mutually agreeable. Upon expiration of the five (5) year term of this Agreement or any extended term, if extended, the Society shall quit and surrender the Museum and deliver to City all exhibits, funds, monies and property in accordance with the provisions of paragraph 1.4 of this Agreement within sixty (60) days. 6. In the event that either (i) the term of this Agreement is not renewed or extended, or (ii) this Agreement is terminated for any reason, Society shall have the right to store Society's Property in the Museum, at no cost to Society, for a period of six (6) months after the occurrence of either of such events. During said 6 -month period Society shall either (i) dispose of or otherwise remove Society's Property from the Museum, or (ii) make arrangements with the City satisfactory to Society for Society's Property to remain in the Museum K. No structural changes or alterations to the Museum nor new structures or improvements shall be made to or placed on the Museum premises without prior written approval of City. Any non - structural changes or alterations to the Museum that are discussed with and approved by the Director of Aviation will be followed with a letter of approval by the Director of Aviation within ten (10) days, at which time such non - structural changes may be commenced in compliance with said approval. Society shall notify City of such non- structural changes or alternations within thirty (30) days after completion thereof. It is the intent of the parties hereto to work together on capital improvement projects and in identifying sources of revenues, both public and private. The City agrees to review all capital improvement projects recommended by the Society and further agrees that in the event any proposed capital improvement project is to be financed solely by the Society from private funds, approval of such projects by the City shall not be unreasonably withheld. L. As part of this Agreement, the City transfers custody and control of all City Historical Aircraft and Military Equipment, exhibits, artifacts, and equipment presently at the Museum to the Society, with the authority to add to, maintain and improve such items. Said custody and control shall continue for the effective term of this Agreement. With respect to all City Historical Aircraft and Military Equipment, the Society agrees to assist the City in performing all obligations and requirements of City which exist under or by virtue of the terms of all City Historical Aircraft loan agreements, transfer documents, surplus personal property transfer and contract/work agreements, certificate of title and transfer agreements, and other instruments (collectively referred to as "display agreements ") which apply to any such City Historical Aircraft and Military Equipment, which are the property of the United States or any department or agency thereof or the Colorado Surplus Property Agency, or others having provided items to City under contractual arrangement. Copies of the display agreements are available for inspection at the office of the City's Director of Aviation during regular business hours. Society shall not be responsible for (i) any damage or deterioration to City Historical Aircraft and Military Equipment or (ii) for any noncompliance with display agreements except such damage or noncompliance caused by the gross negligent or willful acts of Society. For the purpose of improving the Museum, the Society shall have the authority to negotiate to sell or trade City Historical Aircraft and Military Equipment provided same is authorized by the City's Director of Aviation, is permitted under the terms of any applicable display agreement, and specific consent is first obtained from all entities holding an ownership, reversionary or contractual interest in such aircraft, artifacts, display or equipment. M. As a means of fostering communication and cooperation between the City and the Society, the Society may schedule annual appearances before City Council at work sessions to discuss matters concerning the Museum. Society agrees and understands that its operation and maintenance of the Museum is subject generally to use restrictions and limitations consistent with the general aeronautical purposes of the Airport and its operating certificate. Society shall meet with the Director of Aviation at least semi - annually to review the Society's operation, maintenance and administration of the Museum. N. The City shall at all times have access without restriction to all parts of the Museum while being aware that the Museum has an alarm system and that the City may be responsible for any charges that result from that access. The Society is authorized to enforce City ordinances, rules, and regulations (except those criminal in nature) affecting public use of the Museum as may be necessary to insure an orderly operation in the interest of public health and safety and the preservation of the City Historic Aircraft and Military Equipment. 0. The City shall maintain its present levels of insurance coverage relating to the Museum during the term of this Agreement. P. The relationship between City and Society is purely contractual. Society shall perform its duties hereunder as an independent contractor and not as an employee or agent of the City. Neither Society nor any officer, employee, agent, volunteer, or contractor of Society shall be, or be deemed to be, an employee or agent of the City. Society shall pay when due all required employment and withholding taxes before they become delinquent. Society shall have no authorization, express or implied, to bind the City to any agreement, liability or understanding. Society acknowledges and agrees that Society and its employees and volunteers are not entitled to unemployment insurance or workers' compensation benefits unless Society provides such coverage and benefits and that City does not pay for or otherwise provide such coverage and benefits. Q. The Society is prohibited from assigning this Agreement to any third persons without the prior consent of the City. Any assignment without the consent of the City shall be void. R. All functions and activities with respect to the administration and operation of the Museum not specifically delegated to Society by this Agreement are reserved and retained by the City. S. Society shall be solely and entirely responsible for its acts and omissions and the acts and omissions of its agents, employees, volunteers, and subcontractors. T. The Society covenants and agrees that no person on the grounds of race, creed, color, national origin, sex, religion, ancestry, sexual orientation, age, marital status, or mental or physical disability, shall be excluded from employment or application for employment, or from participation in, or denied the benefit of or be otherwise subject to discrimination in the use of the Museum or the furnishing of services thereon. U. If any provisions of this Agreement are declared invalid or unenforceable by a court of competent jurisdiction, the unaffected provisions hereof shall remain in full force and effect. V. This Agreement sets forth the entire understanding between the City and the Society. No change, modification, or amendment shall be valid or enforceable unless set forth in writing and signed by the City and the Society. W. Any notice required under this Agreement shall be in writing and personally served or sent by certified mail, postage prepaid, to: 1. If to City: City of Pueblo Attention: City Manager 200 S. Main Street Pueblo, CO 81003 2. If to the Society: Pueblo Historical Aircraft Society Attention: President 31001 Magnuson Avenue Pueblo, CO 81001 or to such other place as City or the Society may from time to time designate in a written notice given to the other party. X. Society and City mutually release and discharge each other from all claims, liability, or damage caused by or arising from any hazard or occurrence covered by casualty and property damage insurance, regardless of the cause of damage or loss. Y. This Agreement shall be governed by the laws of the State of Colorado and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and approved assigns. Z. Nothing in this Agreement, express or implied, is intended nor shall be construed to confer upon, or give to, any person or entity other than the City or Society any right, remedy, or claim under or by reason of the Agreement or any covenant, condition or provision hereof, and all covenants, conditions, provisions and agreements contained in the Management by or on behalf of City or Society shall be for the exclusive and sole benefit of City and Society. AA. No term or condition of this Management Agreement shall be construed or interpreted as a waiver, either express or implied, of any immunities, rights, benefits or protection provided or available to City under applicable law including without limitation those provided and available to City under the Colorado Governmental Immunity Act, §24 -10 -101, et seq., C.R.S., as amended or as same may be amended. The parties understand and agree that the City's and its officers', agents' and employees' liability for claims for injury to persons or property is controlled and limited by the provisions of §24 -10 -101, et seq., C.R.S. as amended: Executed the day and year first above written. [ SE At j CITY OF PUEBLO, A MUNI PAL CO O ' TION ATTEST: - �L! ....a.., y Clerk Pres'' nt •f t City Council Approved to as form: — T City Attorney PUEBLO HISTORICAL AIRCRAFT SOCIETY, A COLORADO NON - PROFIT CORPORATION / ATTEST: By vim/ reside t