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HomeMy WebLinkAbout09486ORDINANCE NO. 9486 AN ORDINANCE ESTABLISHING THE GREAT OUTDOORS COLORADO BESSEMER ACADEMY PLAY YARD PROJECT PL1904, BUDGETING AND APPROPRIATING $156,674 FOR THE SAID PROJECT, APPROVING A GRANT AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION, AND THE STATE BOARD OF THE GREAT OUTDOORS COLORADO TRUST FUND, AND APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND PUEBLO SCHOOL DISTRICT NO. 60. RELATING TO SAID PROJECT AND GRANT AND AUTHORIZING THE MAYOR TO EXECUTE SAME WHEREAS, the Great Outdoors Colorado Trust Fund has offered funds through the School Yard Initiative to complete the Bessemer Academy Play Yard Project; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Contract between the City of Pueblo, a Colorado Municipal Corporation, and the Great Outdoors Colorado Trust Fund (hereinafter referred to as the “Contract”), a copy of which is attached, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The Intergovernmental Agreement between the City of Pueblo, a Colorado Municipal Corporation, and Pueblo School District No. 60, (hereinafter referred to as the “IGA”), a copy of which is attached, having been approved as to form by the City Attorney, is hereby approved. SECTION 3. The Mayor is authorized to execute and deliver the Contract and the IGA in the name of the City and the Acting City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 4. Project PL1904 for the Great Outdoors Colorado Bessemer Academy Play Yard Project is hereby established. All funds received from the Great Outdoors Colorado Trust Fund and, if applicable grant partners, pursuant to the terms and conditions of the Contract are hereby budgeted and appropriated for the Project. SECTION 5. The officers and staff of the City are authorized and directed to perform any and all acts consistent with the intent of the Ordinance and Agreement to implement the policies and procedures described therein. SECTION 6. This Ordinance shall become effective immediately upon final passage and approval. Action by City Council: Introduced and initial adoption of Ordinance by City Council on June 10, 2019 . Final adoption of Ordinance by City Council on June 24, 2019 . President of City Council Action by the Mayor: ☒ Approved on June 26, 2019 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-1 BACKGROUND PAPER FOR PROPOSED ORDINANCE COUNCIL MEETING DATE: June 10, 2019 TO: President Dennis E. Flores and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Brenda Armijo, Acting City Clerk FROM: Steven Meier, Director of Planning and Community Development SUBJECT: AN ORDINANCE ESTABLISHING THE GREAT OUTDOORS COLORADO BESSEMER ACADEMY PLAY YARD PROJECT PL1904, BUDGETING AND APPROPRIATING $156,674 FOR THE SAID PROJECT, APPROVING A GRANT AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION, AND THE STATE BOARD OF THE GREAT OUTDOORS COLORADO TRUST FUND, AND APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND PUEBLO SCHOOL DISTRICT NO. 60. RELATING TO SAID PROJECT AND AUTHORIZING THE MAYOR TO EXECUTE SAME SUMMARY: This Ordinance establishes the Great Outdoors Colorado (GOCO) Bessemer Academy Play Yard Initiative Project, PL1904 and budgets and appropriates funds by approving a grant from the GOCO Trust Fund in the amount of $110,000 and approves an Intergovernmental Agreement between the City of Pueblo, a Colorado Municipal Corporation, and Pueblo School District No. 60, wherein, to the extent possible, the District assumes all other City liabilities, and binds itself to the City for and will undertake, assume and perform all the City’s obligations contained in the Grant Agreement. PREVIOUS COUNCIL ACTION: Resolution 14130 authorized the City of Pueblo to submit a grant application for the 2019 School Yard Initiative for the Bessemer Academy Play Yard Initiative Project to the State Board of Great Outdoors Colorado. BACKGROUND: GOCO requires schools to partner with an eligible local government to act as the sponsor for School Yard Initiative Grants and serve as the fiscal agent if the grant is awarded. Because of this, the City of Pueblo partnered with Pueblo City Schools, District No. 60, Bessemer Academy, in applying for a $110,000 grant through the GOCO Trust Fund. Bessemer Academy will introduce a thoughtfully designed inclusive play structure on the southern portion of the grass field. The play structure will include double-wide ramps, play huts, inclusive slide, crawl tube, and climbing components. Students from Bessemer Academy designed the play equipment so that children of all physical abilities will have the ability to utilize the equipment. FINANCIAL IMPACT: Matching funds in the amount of $46,674 are required throughout the various phases of the Project for receipt of the grant money. The matching funds have not been received by the City but are to be raised and administered pursuant to the terms and the timeline approved in the grant application. The IGA was entered into with the District 60 in part to relieve the City to the extent possible from any liability with respect to any claim under the Grant Agreement including claims for the matching funds. GOCO School Yard Initiative Funds $ 110,000.00 Bessemer Academy Fundraising Funds $ 12,000.00 Bessemer Academy In-Kind $ 34,674.00 TOTAL $ 156,674.00 BOARD/COMMISSION RECOMMENDATION: None. STAKEHOLDER PROCESS: Bessemer Academy worked with parents, students, and the community to plan the playground and raise matching funds. ALTERNATIVES: The Project will not go forward if the Ordinance is not approved. RECOMMENDATIONS: Approve the Ordinance. Attachments: Proposed Ordinance Grant Agreement, Approved Project Budget, and Intergovernmental Agreement with District 60 DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-B70E-B00AB5673610 GRANT AGREEMENT Project Name: Bessemer Academy Play Yard Initiative Project Completion Date: March 6, 2021 Great Outdoors Colorado Contract No.: 19451 PARTIES TO AGREEMENT Board/GOCO: The State Board of the Great Outdoors Colorado Trust Fund Address: 1900 Grant Street, Suite 725 Denver, CO 80203 Telephone: (303) 226-4520 Contact name: Matt Brady Grantee: City of Pueblo Address: 211 East D Street, Pueblo, CO 81003 Contact name: Beritt Odom Date: March 28, 2019 EXHIBITS Exhibit A Project Summary Exhibit B Ordinance Exhibit C Approved Budget Exhibit D Intergovernmental (or other) Agreement (if required) Page 1 of 15 Updated 1/2019 DocuSign Envelope ID. 7B8AFAAF-DBB6-43C2-B70E-B00AB5673610 RECITALS A. The State Board of the Great Outdoors Colorado Trust Fund ("GOCO" or"Board") is a political subdivision of the State of Colorado, created by Article XXVII of the Colorado Constitution, adopted at the November 1992 General Election, which article appropriates a portion of the net proceeds of the Colorado Lottery to GOCO and directs GOCO to invest those proceeds in the state's parks, wildlife, open space, and recreational resources. B. In 1994, GOCO created a statewide grant program pursuant to which eligible entities could apply for grants for local government parks and outdoor recreation projects. Grantee listed above ("Grantee") submitted a detailed project application ("Project Application") that contemplates the execution of the project entitled above and described in GOCO's project summary ("Project Summary"), attached and incorporated as Exhibit A ("Project"). GOCO approved Grantee's Project Application, which is incorporated into this Agreement by reference, on March 6, 2019, subject to the execution of a detailed grant agreement. GOCO and Grantee each have on file a copy of the Project Application. C. The parties intend this agreement to be the detailed grant agreement required by GOCO ("Agreement"). AGREEMENT NOW, THEREFORE, in consideration of the parties' mutual covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows: SECTION 1 —PROJECT 1. Incorporation of Recitals. The Recitals set forth above are incorporated into this Agreement. 2. Representations and Warranties of Grantee. Grantee is a Municipality, duly organized in accordance with the laws of Colorado and has full and lawful authority to enter into, and comply with the terms of, this Agreement. Grantee's governing body has authorized entering into this Agreement as evidenced by the resolution attached and incorporated as Exhibit B. 3. Grant and Project. GOCO awards to Grantee a grant in the amount not to exceed $1 10,000.00 ("Grant"), subject to the terms and conditions set forth in this Agreement. The Grant shall be used by Grantee solely to complete the Project in substantial conformity with the final plans, specifications, designs, and uses approved by GOCO. In the event of a conflict between the Project Application and the Project Summary, the parties shall resolve the conflict by mutual agreement. Page 2 of 15 Updated 1/2019 DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-B70E-BO0AB5673610 4. Project Scope. Grantee shall not materially modify the Project without the prior written approval of the Executive Director of GOCO ("Executive Director") or the Executive Director's designee, such approval to be in GOCO's sole discretion. Any material modification to the Project undertaken without GOCO's prior written consent may be deemed a breach of this Agreement, entitling GOCO to all remedies available under this Agreement. If Grantee determines with reasonable probability that the Project will not or cannot be completed as approved by the Board, Grantee will promptly so advise the Board and cooperate in good faith to seek a resolution before any further funds are advanced. 5. Grantee Efforts. Grantee agrees to use its best efforts to complete the Project in a timely fashion, in a good and workmanlike manner, and consistent with this Agreement and GOCO's approvals related to the Project. 6. Approved Budget. Grantee has completed a detailed budget that reflects all anticipated sources and uses of funds for the Project, including a detailed accounting of Grantee's anticipated direct costs associated with the Project, a copy of which is attached and incorporated as Exhibit C ("Budget"). Eligible costs are described in Paragraph 10 of this Agreement. The Project Application contains a budget that may not match the approved version attached as_ Exhibit C and which, therefore, shall not be relied upon by GOCO or Grantee. Where discrepancies exist, the approved Budget in Exhibit C shall control until such time as GOCO approves the final version. 7. Property Ownership. All properties on which GOCO-funded projects are located must be owned by or under the control of the grant recipient for the useful life of the project. Grantee warrants that it has good and sufficient title to the property or properties on which the Project is to be located (the "Property"). GOCO may require Grantee to provide evidence of its ownership of the Property and encumbrances against the Property satisfactory to GOCO in GOCO's discretion prior to funding.. 8. Waiver. Prior to the disbursement of funds, the Executive Director in his or her discretion may waive certain conditions set forth in this Agreement. Anything else to the contrary notwithstanding, the exercise by GOCO staff("Staff'), the Executive Director, or GOCO of any right or discretion reserved to them under this Agreement shall not be deemed a waiver. Furthermore, no waiver by them under this Agreement shall constitute a waiver of any other requirements, actions, or conditions, nor shall any waiver granted be deemed a continuing waiver. No waiver by the Staff, the Executive Director, or GOCO shall be effective unless in writing executed by them. Additionally, any failure by the Staff, the Executive Director, or GOCO to take any actions as set forth in this Agreement shall have no legal effect on the contractual duties of Grantee. Further, no waiver with respect to this Project, Grant, or Agreement shall constitute a waiver in any other GOCO-funded project. 9. Project Operation and Maintenance. A. Subject to annual appropriations, Grantee shall operate, manage, and maintain the Project in a reasonable state of repair for the purposes specified and for the useful life of the Project stated in the Project Application, in accordance with product warranties and/or the generally accepted standards in the parks/recreation community. Grantee has estimated a useful Page 3 of 15 Updated 1/2019 DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-670E-B00AB5673610 life of 25 years in the Project Application. Grantee also shall provide and maintain access to the Project and to the Property, regardless of the Property's ownership. Failure to comply with this paragraph may be deemed a breach by Grantee under Paragraph 20 below. B. GOCO shall not be liable for any cost of maintenance, management, or operation of the Project. C. Within 60 days of a reasonable request by the Board, Grantee will provide the Board with adequate records reflecting the operating and maintenance costs of the Project and provide the Board with such other information concerning the use of the Project by the public and the impact of the Project. D. Grantee's staff shall request during the Grantee's annual budget process an appropriation sufficient to meet the financial obligations of Grantee under this Agreement. Grantee will use its best efforts to fully consider such appropriation. The parties understand that the Board is relying upon fair and full consideration of annual appropriation in its decision to extend its resources and the Grant and to enter into this Agreement. In the event that Grantee fails to appropriate sufficient funds to meet the obligations of this Agreement, Grantee shall provide notice to the Board of the specific reason(s) for any decision not to appropriate funding. Grantee's staff shall notify the Board of any recommendation not to fund or to partially fund the annual appropriation necessary to fulfill Grantee's obligations under this Agreement. 10. Public Access. Grantee agrees, for itself and its successors in interest, to allow reasonable public access to the Project for the term specified in Paragraph 8.A. Grantee may temporarily close such public access for construction, maintenance, emergency situations, or other reasonable purposes. 11. Insurance. Grantee shall maintain general liability insurance or self-insure for the entire period of the Project for protection in the event of injury and/or damage. The insurance limits shall not be less than $1,000,000 per occurrence and $2,000,000 aggregate. If the Grantee contracts with another organization to complete the Project, it is the responsibility of the Grantee to ensure its contractor carries insurance that fulfills this requirement. 12. Future Funding. This Agreement and the Grant only apply to the Project specifically described in this Agreement. GOCO makes no representations regarding future funding for future phases of the Project, whether or not described in the Project Application, Project Summary, or otherwise. SECTION 2—GRANT PAYMENT 13. Eligible Costs. The Grant and all matching funds shall be used only for the cost of fixed assets, including construction of new facilities and enlargement or renovation of existing facilities; these costs are eligible for reimbursement on the basis of costs actually incurred by Grantee and supported by written documentation (receipts, bills, etc.). The Grant and all Page 4 of 15 Updated 1/2019 DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-670E-B00AB5673610 matching funds may not be used to pay for maintenance costs, administrative costs (such as salaries associated with administering the Grant, office supplies, telephone, or travel expenses), non-fixed assets (such as athletic or maintenance equipment), or any other costs deemed to be ineligible by the Board, at the Board's sole discretion. 14. Payment of Grant. A. Progress Payment. Grantee may opt to receive a portion of the Grant after starting but prior to completing work on the Project ("Progress Payment"). Grantee shall provide GOCO with a progress report detailing expenditures and progress made to date ("Progress Report"). The Progress Report must be submitted using GOCO's Progress Report form (available at_ www.goco.org or by contacting GOCO). GOCO may, in its discretion, request additional documentation to support making a Progress Payment. A Progress Payment shall not exceed 50%of the Grant or the maximum percentage of funds GOCO can expend for the project to date based on the program's matching requirements, whichever is less. A Progress Payment shall be considered a loan until the Project is complete and Final Payment (as defined below) has been made. B. Final Payment. Grantee shall submit a final report to GOCO detailing the accomplishments of and expenditures related to the Project and its completion ("Final Report"). The Project is "complete"when all facilities, trails, or other improvements included in the GOCO-approved Project scope have been built and are ready for their intended use. The Final Report must be submitted using GOCO's Final Report form (available at www.goco.org or by contacting GOCO). GOCO may, in its discretion, request additional documentation before its approval of the contents of the Final Report. Upon GOCO's review and approval of the Final Report, GOCO shall pay the outstanding balance on the Grant ("Final Payment"), subject to any reductions contemplated by any provision of this Agreement. C. GOCO Review. GOCO shall have 30 days to review any Progress Report and Final Report and respond to Grantee. D. Waivers of Liens and Claims. GOCO may, in its discretion, depending on the nature of the Project, require documentation of mechanics' lien waivers or waivers of claims to public project performance bonds as a precondition to any disbursement under this Agreement. E. Modifications. Payment of the Grant is subject to the Project being completed with no material modifications made, except as otherwise agreed to in advance by GOCO in accordance with this Agreement. The Grant will not be increased, but GOCO may reduce the Grant if the Project changes in any way that GOCO deems material. "Material modifications" may include, but are not necessarily limited to, a reduction in the total cost of the Project, a reduction in the size or number of recreational development components to be constructed, changes to the nature of the recreational development components to be constructed, or any other variance from the Project as presented in the Project Application. It is the sole responsibility of Grantee to inform GOCO of any such modifications to the Project. GOCO strongly encourages Grantee to contact GOCO in writing when it becomes aware of or wishes to make any such modifications, however seemingly minor, to the Project. Page 5 of 15 Updated 1/2019 DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-B70E-B00AB5673610 F. Net Lottery Proceeds. Payment of the Grant is also subject to GOCO's determination in its sole discretion that it has received and has available sufficient net lottery proceeds to fund the Grant. In determining the sufficiency of net lottery proceeds, GOCO may consider all facts and circumstances as it deems necessary or desirable, including but not limited to adequate reserves, funding requirements, and/or commitments for other past, current, and future grants, and past, current, and future GOCO operating expenses and budgetary needs. 15. Withdrawal of GOCO Funding; Termination of Agreement. Anything in this Agreement to the contrary notwithstanding, with prior notice to Grantee, GOCO reserves the right to withhold or withdraw all or a portion of the Grant, to require a full or partial refund of the Grant, and/or to terminate this Agreement if GOCO determines in its sole discretion that: A. Altered Expectations. Facts have arisen or situations have occurred that fundamentally alter the expectations of the parties or make the purposes for the Project or the Grant as approved by GOCO infeasible or impractical; B. Material Project Changes. Material changes in the scope or nature of the Project have occurred from that which was presented in the Project Application, approved by GOCO and reflected in the Project Summary, without prior written approval of the Executive Director; C. Inaccuracies. Any statement or representation made or information provided by Grantee in the Project Application, this Agreement, the Progress Report, the Final Report, or otherwise is untrue, inaccurate, or incomplete in any material respect; D. Reporting. The results of GOCO's review of the Progress Report or the Final Report are not acceptable to GOCO; E. Conditions Precedent Not Fulfilled or Unsatisfactory. Any of the conditions precedent to funding listed in Section 3 below is not fulfilled by Grantee or is unsatisfactory to GOCO, in its sole discretion; F. Delays. The Project will not or cannot be completed by the Completion Date or any extensions granted, or delays in the implementation of the Project have occurred that make the Project impracticable in the Board's judgment; G. Costs. The Project will not or cannot be completed within the Budget or any approved modifications, or the total Project cost and/or Grantee's matching funding are reduced; or H. Property. Title to or encumbrances against the Property are or become such that Grantee is unable to complete the Project, or the Project and/or the Property are or become unavailable for public use. Page 6 of 15 Updated 1/2019 DocuSign Envelope ID 7B8AFAAF-DBB6-43C2-B70E-B00AB5673610 SECTION 3—CONDITIONS PRECEDENT 16. Completion Date. Grantee shall complete the Project and submit its Final Report no later than March 6, 2021 ("Completion Date"), which is 24 months after the date of GOCO's approval of the Project. Grantee may request an extension of the Completion Date in compliance with GOCO's Overdue Grants procedure, as may be amended from time to time by GOCO in its sole discretion. GOCO may elect to terminate this Agreement and deauthorize the Grant in the event this Completion Date is not met and/or Grantee fails to comply with the Overdue Grants procedure. 17. Conditions Precedent to Funding. Anything else in this Agreement or otherwise to the contrary notwithstanding, the Grant is expressly conditioned upon Grantee's fulfillment of all terms and conditions of this Agreement to GOCO's satisfaction in its sole discretion, including but not limited to the following: A. Matching Funds. Matching funds in the minimum amount required by GOCO policy or procedure and as set forth in the approved Budget, or as modified and approved in compliance with GOCO procedures, must have been received by Grantee, or the status of efforts to secure matching funding was disclosed and has been deemed satisfactory by Staff. Grantee shall provide evidence of matching funds as GOCO may require in its reasonable discretion. B. GOCO Policies and Procedures. The Project must comply with all of GOCO's policies and procedures, which may be amended from time to time by GOCO in its sole discretion, and must meet any special Board conditions as listed in the attached Project Summary (Exhibit A). SECTION 4—OTHER PROVISIONS 18. Publicity and Project Information. GOCO has the right and must be provided the opportunity to use information gained from the Project; therefore, Grantee shall acknowledge GOCO funding in all news releases and other publicity issued by Grantee concerning the Project. If any events are planned in relationship to the Project, GOCO shall be acknowledged as a contributor in the invitation for the event. GOCO shall be notified of any such events 30 days in advance. Grantee shall cooperate with GOCO in preparing public information pieces, providing access to the Property for publicity purposes, and providing photos or other imagery of the Project from time to time, which GOCO reserves the right to use and duplicate in any print or electronic publication or platform for publicity, illustration, advertising, web content, and other purposes at any time without the need to seek pre-approval from Grantee. Grantee shall give timely notice of the Project, its inauguration, significance, and completion to the local members of the Colorado General Assembly and members of the board of county commissioners of the county or counties in which the Project is located, as well as to other appropriate public officials. At no time shall Grantee represent in any manner to the public or to any party that it is affiliated with GOCO or acting on behalf of GOCO. Page 7 of 15 Updated 1/2019 DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-870E-B00AB5673610 19. Signage. Grantee shall erect one or more signs at a prominent location(s) on the Project site acknowledging the assistance of Great Outdoors Colorado and the Colorado Lottery.GOCO will provide such signs at no cost to Grantee. Alternatively, GOCO will provide reproducible samples of its logo to Grantee for custom signs. GOCO shall approve in advance the design of any permanent sign materially varying from the signs provided by GOCO. To obtain such approval, Grantee shall submit to GOCO plans describing the number, design, placement, and wording of signs and placards prior to completion of the Project. The Board may withhold Final Payment pending evidence of placement of permanent signage. 20. Liability. A. Indemnity. To the extent allowed by law, Grantee shall be responsible for and shall indemnify, defend, and hold harmless GOCO, its officers, agents, and employees from any and all liabilities, claims, demands, damages, or costs (including reasonable attorneys' fees) resulting from, growing out of, or in any way connected with or incident to Grantee's performance of this Agreement. Grantee waives any and all rights to any type of express or implied indemnity or right of contribution from the State of Colorado, GOCO, its members, officers, agents, or employees for any liability resulting from, growing out of, or in any way connected with or incident to this Agreement. Grantee acknowledges that Grantee is the owner of the Project and the Property upon which it is located, or has control of the Project and the Property, and that GOCO neither possesses nor controls the Project, the Property, nor the operations of the Project. B. No CGIA Waiver. No term or condition of this Agreement shall be construed or interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits or protections provided to GOCO under the Colorado Governmental Immunity Act as amended or as may be amended in the future (including without limitation any amendments to such statute, or under any similar statute that is subsequently enacted) ("CGIA"). This provision may apply to Grantee if Grantee qualifies for protection under the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq. GOCO and Grantee understand and agree that liability for claims for injuries to persons or property arising out of the negligence of GOCO, its members, officials, agents, and employees may be controlled and/or limited by the provisions of the CGIA. The parties agree that no provision of this Agreement shall be construed in such a manner as to reduce the extent to which the CGIA limits the liability of GOCO, its members, officers, agents, and employees. C. Compliance with Regulatory Requirements and Federal and State Mandates. Grantee assumes responsibility for compliance with all regulatory requirements in all applicable areas, including but not limited to nondiscrimination; worker safety; local labor preferences; preferred vendor programs; equal employment opportunity; use of competitive bidding;permits; approvals; local, state, and federal regulations and environmental laws; and other similar requirements. To the maximum extent permitted by law, Grantee agrees to indemnify, defend, and hold harmless GOCO, Executive Director, and Staff from any cost, expense, or liability for any failure to comply with any such applicable requirements. Page 8 of 15 Updated 1/2019 DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-B70E-B00AB5673610 D. Nondiscrimination. During the performance of this Agreement, Grantee and its contractors, subcontractors, and agents shall not unlawfully discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, medical condition, marital status, age, sex, or any other basis prohibited by local, state, or federal law. Grantee and its contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. Further, Grantee and anyone acting on behalf of Grantee shall not engage in any unlawful discrimination in permitting access and use of the Project. 21. Audits and Accounting Records. Grantee shall maintain standard financial accounts, documents, and records relating to the use, management, operation, and maintenance of the Project. Grantee shall retain the accounts, documents, and records related to the Project for five years following the date of disbursement by GOCO of the Grant funds, and they shall be subject to examination and audit by GOCO or its designated agent during this period. While Grantee is not required to use GAAP(Generally Accepted Accounting Principles), Grantee shall use reasonable and appropriate accounting systems in maintaining the required records under this Agreement. 22. Inspection. Throughout the term of this Agreement, GOCO shall have the right to inspect the Project to ascertain compliance with this Agreement. 23. Breach. In addition to other remedies available at law or in equity, in the event that Grantee breaches any of the terms or conditions of this Agreement, GOCO shall have the following non-exclusive remedies: A. Prior to Payment of Grant. GOCO reserves the right to withdraw funding, terminate this Agreement, and/or deny Grantee eligibility for participation in future GOCO grants, loans, or projects. B. After Any Payment of Grant. GOCO reserves the right to seek specific performance of Grantee's obligations under this Agreement, receive reimbursement in full of any disbursements made under the Grant, including in the event that Grantee does not fulfill its obligations under Paragraph 8 due to lack of annual appropriations, and/or deny Grantee eligibility for participation in future GOCO grants, loans, or projects. In the event GOCO must pursue any remedy under this Agreement and is the substantially prevailing party, GOCO shall be awarded its costs and reasonable legal fees, including costs of collection. 24. GOCO Policies and Procedures. With regard to all named GOCO policies and procedures referenced in this Agreement, Grantee acknowledges it has received a copy of the policies and procedures or otherwise has access to the documents in connection with this Agreement and is familiar with their requirements. Page 9 of 15 Updated 1/2019 DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-B70E-B00AB5673610 25. Miscellaneous Provisions. A. Good Faith. Both parties have an obligation of good faith, including the obligation to make timely communication of information that may reasonably be believed to be of interest to the other party. B. Assignment. Grantee may not assign its rights or delegate its obligations under this Agreement without the express written consent of the Executive Director, who has the sole discretion to withhold consent to assign. Any assignment shall require that, at a minimum, the assignee is eligible to receive grants from the Board and assumes Grantee's ongoing obligations under this Agreement. C. Applicable Law. Colorado law applies to the interpretation and enforcement of this Agreement. Venue for any dispute under this Agreement shall lie exclusively in the state courts of the City and County of Denver. D. No Joint Venture. Nothing in this Agreement shall be construed to create a joint venture, partnership, employer/employee, or other relationship between the parties other than independent contracting parties. Except as permitted under the remedies provisions of this Agreement, neither party shall have the express or implied right to act for, on behalf of, or in the name of the other party. E. Status of Grantee. The parties acknowledge that GOCO lacks the power and right to direct the actions of Grantee. Grantee acts in its separate capacity and not as an officer, employee, or agent of GOCO or the State of Colorado. F. Time is of the Essence. Time is of the essence in this Agreement. G. Survival. The terms and conditions of this Agreement, including but not limited to Grantee's obligations, shall survive the funding of the Grant and the completion of the Project. H. Fax and Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original, but all of which when taken together shall constitute one agreement. In addition, the parties agree to recognize signatures to this Agreement made electronically and transmitted electronically or by facsimile as if they were original signatures. I. Third-Party Beneficiary. GOCO and Grantee acknowledge and agree that this Agreement is intended only to cover the relative rights and obligations between GOCO and Grantee and that no third-party beneficiaries are intended. J. Notice. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give the other shall be in writing and either served personally or sent by first class mail, postage prepaid, to the addresses shown on Page I of this Agreement. Page 10 of 15 Updated 1/2019 DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-B70E-B00AB5673610 K. Construction; Severability. Each party has reviewed this Agreement, and therefore any rules of construction requiring that ambiguities be resolved against a particular party shall not be applicable in the construction and interpretation of this Agreement. If any provision in this Agreement is found to be ambiguous, an interpretation consistent with the purpose of this Agreement that would render the provision valid shall be favored over any interpretation that would render it invalid. If any provision of this Agreement is declared void or unenforceable, it shall be deemed severed from this Agreement, and the balance of this Agreement shall otherwise remain in full force and effect. L. Entire Agreement. Except as expressly provided, this Agreement constitutes the entire agreement of the parties. No oral understanding or agreement not incorporated in this Agreement shall be binding upon the parties. No changes in this Agreement shall be valid unless made in writing and signed by the parties to this Agreement. M. Termination of the Board. If Article XXVII of the Colorado Constitution, which established GOCO, is amended or repealed to terminate GOCO or merge GOCO into another entity, the rights and obligations of GOCO under this Agreement shall be assigned to and assumed by such other entity as provided by law, but, in the absence of such direction, by the Colorado Department of Natural Resources or its successor. IN WITNESS WHEREOF, the parties by signature below of their authorized representatives execute this Agreement effective as of . STATE BOARD OF THE GREAT GRANTEE: OUTDOORS COLORADO TRUST FUND City of Pueblo By: By: 341441 x ' 0,44g Chris Castilian Title: *afoot__ Executive Director GOCO Program Staff: *NOTE* Signee should be the same Route Grant Agreement to individual authorized to sign the grant Executi - h' -ctor for signature: agreement per Grantee's resolution Page 11 of 15 Updated 1/2019 DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-B70E-B00AB5673610 EXHIBIT A Project Summary Rank: 1 Overall Score: 91 GOCO Staff Score: 92 Reviewer Average: 90 Applicant: City of Pueblo Project Title: Bessemer Academy Play Yard Initiative County: Pueblo Log#: 19451 Funding Summary: Applicant Funding Partner(s) Funding $34,675 GOCO Grant Amount $110,000 Total Project Cost $156,674 Project Description.: Bessemer Academy in partnership with the City of Pueblo are requesting GOCO funds to build a new all-inclusive playground. Improvements include upgrades to their existing garden, adding interactive play panels, accessible surfacing, ramps and decks, slides and climbing wall. $teff and Peer Reviewer Comments: This will be the first K-5 playground at Bessemer Academy. The school only has a preschool playground and older students use a district park across the street. Staff and reviewers were compelled by the need of a new playground located on school grounds. This project will increase access to outdoor recreation for students of all abilities and residents of the surrounding neighborhood who are currently not well served by local facilities The applicant made an impressive effort to identify partners, such as local occupational therapists and physical therapists, who will help activate the school yard. Page 12 of 15 Updated 1/2019 DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-B70E-B00AB5673610 EXHIBIT B Ordinance Page 13 of 15 Updated 1/2019 ORDINANCE NO. 9486 AN ORDINANCE ESTABLISHING THE GREAT OUTDOORS COLORADO BESSEMER ACADEMY PLAY YARD PROJECT PL1904, BUDGETING AND APPROPRIATING $156,674 FOR THE SAID PROJECT, APPROVING A GRANT AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION, AND THE STATE BOARD OF THE GREAT OUTDOORS COLORADO TRUST FUND, AND APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND PUEBLO SCHOOL DISTRICT NO. 60. RELATING TO SAID PROJECT AND GRANT AND AUTHORIZING THE MAYOR TO EXECUTE SAME WHEREAS, the Great Outdoors Colorado Trust Fund has offered funds through the School Yard Initiative to complete the Bessemer Academy Play Yard Project; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Contract between the City of Pueblo, a Colorado Municipal Corporation, and the Great Outdoors Colorado Trust Fund (hereinafter referred to as the "Contract"), a copy of which is attached, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The Intergovernmental Agreement between the City of Pueblo, a Colorado Municipal Corporation, and Pueblo School District No. 60, (hereinafter referred to as the "IGA"), a copy of which is attached, having been approved as to form by the City Attorney, is hereby approved. SECTION 3. The Mayor is authorized to execute and deliver the Contract and the IGA in the name of the City and the Acting City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 4. Project PL1904 for the Great Outdoors Colorado Bessemer Academy Play Yard Project is hereby established. All funds received from the Great Outdoors Colorado Trust Fund and, if applicable grant partners, pursuant to the terms and conditions of the Contract are hereby budgeted and appropriated for the Project. SECTION 5. The officers and staff of the City are authorized and directed to perform any and all acts consistent with the intent of the Ordinance and Agreement to implement the policies and procedures described therein. SECTION 6. This Ordinance shall become effective immediately upon final passage and approval. Action by City Council: Introduced and initial adoption of Ordinance by City Council on June 10, 2019 Final adoption of Ordinance by City Council on June 2, 2019 Pre •enfof City Council Action by the Mayor: SApproved on 4-014-Ag¢jy' ❑ Disapproved on based on the following objections: Mayor Action by City Council After Disapproval by the Mayor: ❑ Council did not act to override the Mayor's veto. ❑ Ordinance re-adopted on a vote of , on ❑ Council action on failed to override the Mayor's veto. President of City Council ATTEST City Clerk DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-870E-BOOAB5673610 EXHIBIT C Approved Budget Page 14 of 15 Updated 1/2019 Budget 74. `�`,c r,,, 3 tl. r*rt 6�� t s Et��+' + ., ,a 7.4LA3 < ' �" - *,44` v. ." p*io,"i'ercr J ,a 'x ru R x -pl °v4'i'f# �, Various Student Council Fundraisers 11/1/18 S 110,000.00 S 5,339.00 World's Famous Chocolate 1111/18 S 360.00 Business Donors 11/1/18 S 4,500.00 Individual Donors 11/118 5 1,634,00 T-Shirt Sales 11/1/18 5 167.00 Miracle Recreation Discount 10/18/18 S 28,899.60 Site Prep 12/18/18 S 2,500.00 Buddy Benches 10/1/18 5 775.00 - D-60 Fencint,Cameras Ke Card Access 10/18/18 S 2,500.00 $ 110,000.00 S 12,000.00 S 34,674.60 5 156,674.60 Deck Equipment 2.00 $3,358.00 $2,014.80 $1,343.20 $3,358.00_ Deck Equipment 10 $942.00 $565,20 $376.80 $942.00_ Deck Equipment 20 $2,504.00 $1,502.40 $1,001.60 $2,504 00 Deck Equipment 10 $941 00 $564.60 $37640 $941.00- PVC Ramp Inclusive Ramp 100 $6,171.00 $3,70320 $2460.80 $6,172.00_ PVC Ramp Inclusive Ramp 1.00 $5,866.00 $3,519.60 $2,341,40 $5,866.00 Post:106" Post 400 $960.00 $57600 $384.00 $960.00 Post:136" Post 6.00 51,746.00 $1,047.60 $698.40 $1,746.00_ Fencing and Panels Railing and Panels 2.00 $348.00 $208,80 $13920 $34800 Roof 572 Roof for play hut 10.00 52,880.00 $122.14 00 $1,152.00 $2,080 00 Steel Hexagon Roof Roof for p1ay hut 100 $3,317 00 $1,990.20 $1,326.80 $3,317.00_ Sleet Square Roof Roof fur play hut I 00 $3,410.00 52,046.00 $1,364.00 $3,410.00_ Ski Slide Small Slide 1.00 $69000 $41400 $276.00 $690.00 Boulder Ridge Section Rock Wall 1.00 $2,887.00 $1,732.20 $1,154.80 $2,887.00 Alta-Glider Inclusive Rocking Equiment 2-00 $15,471.00 $9,282.60 $6,18840 $15,471.00 Bongo Perch Stepping stone to get onto equipment 100 5191.00 $114 60 $7640 $191.00_ Deck ENCL Equipment 100 $43900 $26340 $17560 $43900 Inclinded Crawl Tube Tube used for slide 1.00 $2,343.00 $1,405.80 $93720 $2,343.00 Avalanche Slide Large,only inclusive slide 100 54,472.00 $2,683.20 $1,788.80 $4,472.00 Dome Climber Climbing Equipment 1.00 ¶2,536.00 $1,521.60 $1,014410 $2,536.00_ lax Rizer Climbing Equipment 100 ¶3,663.00 $2,197.80 $1,465.20 $3,663.00_ Interactive Panel Frame Various ramps,decks and structure equipment 1.00 $1,071.00 5642.60 $428 40 $1,071.00 Magical Music Insert Musical Panel 1.00 $1,607.00 $96410 $642.80 $1,607.00 A-Mazedng Insert Musical Panel 1.00 $653.00 $39180 $261 20 $653 00 Four-the-Win Matching Game Panel I-00 $824.00 $494 A0 $329.60 $824-00 Tic-Tac-Toe Panel Tic Tac Toe Game I 00 $1,965.00 $1,179,00 $786.00 $1,956.00 Kids'Perch with Wheel Play wheel 1.00 $993.00 $595 80 _ $39720 $993 00 Calypso Drum Drum 100 51,277.00 $766.20 $510.80 $1,277.00_ Total CoA of Egaipmest Total CoA of Equlpmaat $72,249.00 543,349.40 528,899.60 572,249.00_ Freight Shipping cost I.00 53,611.00 $3,611 00 $3,611.00_ Install Install equipment 1.00 518,700.00 $18,700.00 $18,700.00 PIP Surfacing Surfacing 2380.00 $27370.00 $27370.00 $27,370.00 Site Prep Site Prep tor Surtecmg 2380 00 $2500.00 52,500 00 52,500.00 Sub-Base Stone Base Prep 2180 00 $6.290.00 $6290.00 56,290.00 Permit Building Permits I.00 $1,500.00 $1,501L00 $1,500.00 Total CoA of Playground Total Cat at Playground $132,220.00 $100,820.40. $0.00 $31,399.60 5132,220.00 Buddy Benches Beaches for playground Benches for playground 3.00 $2,385.00 51,610.00 5775.00 $775.00 Trees Budget for trees 2.00 $500.00 500 00 $500.00_ Garden Materials Budget for garden 1 00 $1,315.00 $1,315.00 $1,315.00 Green Steel Tables Picnic Tables 3.00 T3,054.04 $3,854.04 53,854.04 Fencing and Camera Temporary Fencing until PIP dries and Camera 1.00 $2,500.00 52,500.00 52,500.00 Signage Sign for School Yard 1.00 3250.00 $250.00 $250.00_ Cost of InllatiotvUncxpected Cost Use if needed for trash,cost increases(3%after 12130/2018),etc $4,470.41 $4,470.41 $4,470.41 Total Cod of Extras Total Cost of ExtraI $15,274.45 50.00 $11,999.45 53,275.00 $15,274.45 7 ''''7'7.-';'1 �. , `1 $147,494.45 5100,820.40 511,999,45 534,674.60 5147,494.45 Budget s seµw+ ^*v�s�+s 4 tar7'as� ,.' R ✓xi: S x '`:+, t$a. A 4`al ��_ Xis . �� " s.,,."vh � " ats �8:' � <,rkm n sq D-60 Fencing,Cameras,Key Card $2,500 00 Buddy Benches Benches $77500 Miracle Discount Discount on Materials $28,899 60 Ground Prep Ground prep for PIP $2,500 00 S34,674.60 S110,000.00 512,000.00 $34,674.60 5156,674.60 CALCULATION OF MATCH REQUIREMENTS Item Explanation Requirement Actual Meets Requirement? Minimum Match 25'iTotal Costs S36,1114 546,615 Yes Minimum Cash Match 10°4-Total Costs 014)49 S12,000 so CALCULATION OF GOCO% (10x0 9a of Total Costs 10.2's, DocuSign Envelope ID: 7B8AFAAF-DBB6-43C2-670E-B00AB5673610 EXHIBIT D Intergovernmental (or other) Agreement (if required) Page 15 of 15 Updated 1/2019 AGREEMENT This agreement is made this xH 4-6- day of 4.40.1 42"9 by and between Pueblo, a municipal corporation ("City) and Pueblo School District No. 60; WITNESSETH: RECITALS A. City has made application to the State Board of the Great Outdoors Colorado Trust ("GOCO") as sponsor of the District for funding to construct, install and complete the project for playground improvements at Bessemer Academy ("Project") B. The District is an ineligible recipient of the grant and the parties intend by this agreement for the City to be the conduit through which the District will receive the benefit of the grant; C. The Grant Agreement is attached to this agreement as Exhibit"A"; D. The District intends to bind itself to the City for all of the City's obligations stated in the Grant Agreement; E. The District intends to convey to the City a limited interest in the real property described in Exhibit"B" which limited property interest shall he for the purposes of satisfying the terms and conditions of the Grant Agreement; NOW, THEREFORE, in consideration of the mutual promises stated below and other valuable consideration, the parties agree: 1. The City shall use its best efforts to fulfill all the conditions precedent to obtain the grant stated in the Grant Agreement. The District will cooperate with the City and provide all documents necessary for the City to fulfill the conditions precedent. To the extent permitted and as limited by Colorado law and subject to the approval and receipt of the grant for the City to fund the Project, the District further assumes all other City liabilities, and binds itself to the City for and will undertake, assume and perform all the City's obligations contained in the Grant Agreement ("Grantee Obligations"). 2. The City does not assume any obligation to the District to construct, operate, or maintain the improvements contemplated by the grant. 3. Unless a claim by GOCO arises out of the negligence or other wrongful act of the City and notwithstanding any provision of this Agreement to the contrary, the District shall be responsible to the City for any claim under the Grant Agreement, in the same manner and extent as the City may be responsible to GOCO. 'The District shall be liable to City for all costs and expenses incurred by City to perform any Grantee Obligations for which District fails to perform in a timely manner. In addition, it is expressly agreed that if GOCO grant funds are not paid to City pursuant to the Grant Agreement based upon any failure of District to perform any Grantee Agreement 1 Obligation, District shall reimburse City in full for all amounts advanced or paid by City pursuant to the Grant Agreement which are not reimbursed to City by GOCO. 4. The District shall construct, operate, and maintain the improvements contemplated by the Grant Agreement, in accordance with established District policy for playground maintenance. The City shall not be liable for any claim for personal injuries, property damage or wrongful death asserted as a result of the construction, operation, maintenance, or use of the improvements contemplated by the Grant Agreement. 5. To the extent not prohibited by law, the District will indemnify, defend, and hold harmless the City, its officers, agents and employees from any and all liabilities, claims, demands, damages or costs resulting from, growing out of, or in any way connected with or incident to this agreement or the Grant Agreement including but not limited to the operation and maintenance of Project, or the use thereof by any person, except for the gross negligence or willful and wanton conduct of the City, its officers, agents, or employees. The District hereby waives any and all rights to any type of express or implied indemnity or right of contribution from the City, its officers, agents, or employees, for any liability resulting from, growing out of, or in any way connected with or incident to this agreement or the Grant Agreement. 6. By executing this agreement the parties do not waive any immunity or limitation of liability provided under Colorado law, including but not limited to those contained in the Colorado Governmental Immunity Act. This agreement does not create a multi-year fiscal obligation; and does not create any other financial obligation not supported by a current appropriation. 7. This agreement does not create any rights in any individual not a party to this agreement. 8. This document, and exhibits, shall constitute the entire agreement of the parties. 9. The District hereby grants to the City a limited license in, and right of entry to, the property described in Exhibit"B" for the purposes stated in the Grant Agreement, Exhibit "A", and for no other purpose. Such license and right of entry may be exercised only in the event the District has failed to comply with the requirements of the Grant Agreement and, if exercised, shall include all rights reasonably necessary, as determined by the City, for the City to enter upon the property and perform its obligations to GOCO under the Grant Agreement at District's expense. This right includes the ability of the City to use its employees, agents or outside contractors. This license and right of entry further includes the right to enter upon the property with any equipment or vehicles. 10. This agreement, including the limited right of entry and license, shall terminate simultaneously with the termination of all Grantee Obligations under the Grant Agreement; provided, however, the provisions of this agreement pertaining to indemnification and liability shall survive termination and continue in effect for a period of five years following the termination and for such further time as it may take to completely and finally negotiate, settle, or litigate any claim or suit concerning the same. Agreement. 2 termination and for such further time as it may take to completely and finally negotiate, settle,or litigate any claim or suit concerning the same. 11. If any provision of this agreement,or the application thereof is found to be invalid, the remainder of the provisions of this agreement,or the application of such provision other than those as to which it is found to be invalid, shall remain in full force and effect. 12. The relationship between the parties is purely contractual. Each party is acting as an independent contractor in its separate capacity, and not as an officer,employee or agent of the other party. 13. Colorado law applies to the interpretation and enforcement of this agreement. ATTEST: PUE131:,0-. IDOL C'1'NO. 60 Geri Patrone 4 arbara lementi Secretary, Board of Education l'rErSident,Board of Education ATTEST: PUEBLO, A COLORADO MUNICIPAL CORPORATION, Brenda Armijo Nicholas A.Gradisar .Acting-City Clerk Mayor Approved as to form: Richard Bump Caplan and Earnest LLC Attorneys for Pueblo School District No. 60 4818-0195-9063,v. 1 Agreement 3