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HomeMy WebLinkAbout09493ORDINANCE NO. 9493 AN ORDINANCE APPROVING FIRST ADDENDUMS TO MANAGEMENT AGREEMENTS BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE NATURE AND WILDLIFE DISCOVERY CENTER, A COLORADO NON-PROFIT CORPORATION RELATING TO THE MANAGEMENT AND MAINTENANCE OF THE MOUNTAIN PARK ENVIRONMENTAL CENTER AND THE NATURE AND RAPTOR CENTER OF PUEBLO AND AUTHORIZING THE MAYOR TO EXECUTE THE SAME WHEREAS, City and Mountain Park Environmental Association entered into a Management Agreement dated April 14, 2008 with respect to the management of the Pueblo Mountain Park; and WHEREAS, City and the Nature and Raptor Center of Pueblo, Inc. entered into a Management Agreement dated August 1, 2015 with respect to the management of the Nature Center; and WHEREAS, the Nature and Raptor Center of Pueblo, Inc. merged with the Mountain Park Environmental Association as of January 1, 2018, the merged entity being the Nature and Wildlife Discovery Center; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. Addendum No. 1 to the Management Agreement for Mountain Park dated June 24, 2019 by and between the City of Pueblo, a Municipal Corporation, and the Nature and Wildlife Discovery Center, after having been approved as to form by the City Attorney, is hereby approved. SECTION 2. Addendum No. 1 to the Management Agreement for the Nature Center dated June 24, 2019 by and between the City of Pueblo, a Municipal Corporation, and the Nature and Wildlife Discovery Center, after having been approved as to form by the City Attorney, is hereby approved. SECTION 3. The Mayor is hereby authorized to execute and deliver the said Addendums on behalf of the City of Pueblo, and the City Clerk shall affix the Seal of the City thereto and attest same. SECTION 4. The officers and staff of the City are authorized and directed to perform any and all acts consistent with this Ordinance and the attached Addendums, to implement the policies and procedures described herein. SECTION 5. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on June 24, 2019 . Final adoption of Ordinance by City Council on July 8, 2019 President of City Council Action by the Mayor: ☒ Approved on July 11, 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 24, 2019 TO: President Dennis E. Flores and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Brenda Armijo, City Clerk FROM: Steven Meier, Parks and Recreation Director SUBJECT: AN ORDINANCE APPROVING FIRST ADDENDUMS TO MANAGEMENT AGREEMENTS BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE NATURE AND WILDLIFE DISCOVERY CENTER, A COLORADO NON-PROFIT CORPORATION RELATING TO THE MANAGEMENT AND MAINTENANCE OF THE MOUNTAIN PARK ENVIRONMENTAL CENTER AND THE NATURE AND RAPTOR CENTER OF PUEBLO AND AUTHORIZING THE MAYOR TO EXECUTE THE SAME SUMMARY: This Ordinance approves first addendums to the Management Agreements with the Nature and Wildlife Discovery Center for the Mountain Park and the Nature Center facilities. PREVIOUS COUNCIL ACTION: On April 14, 2008, City Council approved Ordinance No. 7791, approving a Management Agreement with the Mountain Park Environmental Association for management and maintenance relating to Pueblo Mountain Park. On July 13, 2015, City Council approved Resolution No. 13266 approving a Management Agreement dated August 1, 2015 with the Nature and Raptor Center of Pueblo, Inc. relating to the management and maintenance of the Nature Center. BACKGROUND: On January 1, 2018, the Mountain Park Environmental Association merged with the Nature and Raptor Center of Pueblo, Inc., the merged entity being known as the Nature and Wildlife Discovery Center. FINANCIAL IMPLICATIONS: None. BOARD/COMMISSION RECOMMENDATION: None. STAKEHOLDER PROCESS: None. ALTERNATIVES: Denial of this Ordinance will result in the existing Management Agreements for both facilities to end at end of current terms resulting with the management and maintenance of the facilities ending up the responsibility of the City. RECOMMENDATION: Approval of the Ordinance. Attachments: Addendum No. 1 to the Management Agreement for Mountain Park Addendum No. 1 to the Management Agreement for the Nature Center ADDENDUM NO. 1 TO THE MANAGEMENT AGREEMENT FOR THE NATURE CENTER THIS ADDENDUM NO. 1 entered into as of 11•4 11 2 ,2019 ("Effective Date")by and between the City of Pueblo, a municipal corporation ("City"), and the Nature and Wildlife Discovery Center, a Colorado nonprofit corporation ("Manager"), WITNESSETH: WHEREAS, City and the Nature and Raptor Center of Pueblo, Inc., a Colorado nonprofit corporation ("Center"), entered into a Management Agreement dated August 1, 2015 with respect to the management of the Nature Center ("Agreement"); WHEREAS, Center merged with the Mountain Park Environmental Association, a Colorado nonprofit corporation ("Mountain Park"), as of January 1, 2018, the merged entity being the Nature and Wildlife Discovery Center; WHEREAS, the Manager by law assumed and is liable for all liabilities and obligations of the Center and Mountain Park; WHEREAS, City is the lessee under the Lease Agreement dated June 29, 2001 between the City and the State of Colorado, acting by and through the Department of Natural Resources("Lease"); WHEREAS, Lease requires the City to tender notice and gain permission for any assignment or sublease of the Nature Center property, and City has properly tendered that notice; and, WHEREAS, Manager is desirous of amending the Agreement with respect to the merger, to be effective on the Effective Date, and City is agreeable to such amendment subject to the terms, conditions and amendments herein contained. NOW THEREFORE, in consideration of the foregoing and mutual covenants herein contained, City and Manager agree as follows: 1. References to "Nature and Raptor Center of Pueblo, Inc.," or variation thereof, shall be amended to "Nature and Wildlife Discovery Center." 2. Section 3.2 of the Agreement shall be deleted in its entirety and replaced with the following: 3.2 Renewal. If not in default hereunder, Manager shall have the option to renew the Management Agreement for an additional term of five (5)years at the end of the initial term,or any subsequent renewal term, upon the same terms, covenants,and conditions. If Manager desires to renew the Management Agreement for an additional term, Manager must in writing notify City of such desire at least ninety(90)days prior to the end of the then current term. Should Manager fail to provide written notice, this Management Agreement shall terminate at the end of the then current term. At least thirty (30) days prior to the end of any term, City may notify Manager of its intent not to renew the Management Agreement, in which case it shall terminate at the end of the then current term. 3. The following language shall be added at the end of Section 4 of the Agreement: Manager shall obtain prior written permission from Director prior to hosting any special or non-standard event. 4. The following language shall be added at the end of Section 5.2 of the Agreement: Should the repair or replacement be necessitated by the negligence of Manager, its employees, agents, subcontractors, guests or invitees, Manager shall bear sole and exclusive liability for the repair or replacement. All invoices provided to Manager for maintenance, repair, and/or replacement of any portion of the Property, shall be paid within forty-five (45) days of the invoice. 5. The following language shall be added at the end of Section 5.3 of the Agreement: Manager shall not set any portion of the Property on fire; or use any incendiary or explosive devices without the prior written approval of the Fire Department and City, and after obtaining all required permits from the City. 6. Section 5.4 of the Agreement shall be deleted in its entirety and replaced with the following: 5.4 If the presence of Hazardous Materials on the Property caused or permitted by the Manager, or for which the Manager is otherwise legally obligated, results in contamination of the Property, then Manager shall immediately remove, clean up, and remediate the contamination. Manager shall indemnify, defend and hold the City and State harmless from any and all claims,judgements, penalties, fines, costs, liabilities, losses, expenses, and attorney's fees which arise, directly or indirectly, as a result of such contamination or failure to comply with federal, state and local environmental, wetlands protection,health and hazardous waste laws, ordinances and regulations. The term "Hazardous Material" includes, without limitation, any material or substance that is (i) defined or designated as a "hazardous substance," "hazardous waste," or a "regulated substance" under applicable state or federal law or regulation,(ii)petroleum products,or(iii)asbestos.The indemnification provisions of sections 5.4 and 12.2 shall survive termination of the Management Agreement. 7. The following language shall be added at the end of Section 5.5 of the Agreement: If so directed by the City after inspection of the Property, Manager shall perform all necessary additional clean-up at its sole expense. 8. The following language shall be added at the end of Section 5.6 of the Agreement: Notwithstanding any provision in this Management Agreement to the contrary or which may be construed to the contrary, City assumes no obligation or responsibility to keep or maintain the Property or any facility thereon in good and safe condition, appearance, or state of repair, regardless of cause of need for maintenance and repair. 9. A new Section 5.8 shall be added to read: 5.8 Manager shall keep and maintain accurate and complete accounts and records of all activities and transactions conducted by Manager on or from the Property, including without limitation sales receipts, inventory lists,equipment logs,third party agreements, purchase orders, payroll, financial records, tax returns and bank statements, or any subcontractor contracted by Manager to work, manage, or operate all or a portion of the Property, in accordance with generally accepted accounting principles, which accounts and records shall be available for inspection, copy and audit by City during normal business hours. Manager shall retain all such accounts and records for a minimum period of three (3) years after termination of this Management Agreement. 10. A new Section 13.5 shall be added to read: 13.5 City may upon sixty (60) days written notice terminate the Management Agreement at any time without cause. 11. A new Section 18.14 shall be added to read: 18.14 PERA Liability. Manager shall reimburse the City for the full amount of any employer contribution required to be paid by the City of Pueblo to the Public Employees' Retirement Association ("PERA") for salary or other compensation paid to a PERA retiree performing contracted services for the City under this Agreement. The Manager shall fill out the questionnaire attached as Exhibit D and submit the completed form to City as part of the signed Agreement. 12. The new Exhibit D attached hereto this Addendum No. 1,shall be attached to the Agreement. 13. Each person signing this Addendum No. 1 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 Addendum No. 1 on behalf of such party and that this Addendum No. I is a valid and legally binding obligation of such party enforceable against it in accordance with its terms. 14. The Agreement as amended by this Addendum No. I shall remain in full force and effect and be binding upon and inure to the benefit of the parties hereto and their respective successors and approved assigns. Executed in Pueblo, Colorado as of the date first above written. Board of Directorsrs /` Nature and Wildlife Discovery Center Byi�\1l.h.�.ci�2k. (-61)t i By: P /44 Title: Jcand 7 . t� t(.�� Title: eX<c4 /Jyt L2,aclo.. City of Pueblo Attest: // tt � Wil, l gy�.. �` ! lam' By: Glrr�' a � ��� J Nicholas A. radisar, May r ADDENDUM NO. 1 TO THE MANAGEMENT AGREEMENT FOR MOUNTAIN PARK THIS ADDENDUM NO. 1 entered into as of a" s, , 2019("Effective Date")by and between the City of Pueblo, a municipal corporation ("City"), and the Nature and Wildlife Discovery Center, a Colorado nonprofit corporation ("Center"), WITNESSETH: WHEREAS, City and Mountain Park Environmental Association("Association")entered into a Management Agreement dated April 14, 2008 with respect to the management of the Pueblo Mountain Park ("Agreement"); WHEREAS, Association merged with the Nature and Raptor Center of Pueblo, Inc., a Colorado nonprofit corporation ("Nature Center"), as of January 1, 2018, the merged entity being the Nature and Wildlife Discovery Center; WHEREAS, the Center by law assumed and is liable for all liabilities and obligations of the Association and Nature Center; and, WHEREAS, Center is desirous of amending the Agreement with respect to the merger, to be effective on the Effective Date, and City is agreeable to such amendment subject to the terms, conditions and amendments herein contained. NOW THEREFORE, in consideration of the foregoing and mutual covenants herein contained, City and Center agree as follows: 1. References to "Mountain Park Environment Association," or variation thereof, shall be amended to "Nature and Wildlife Discovery Center." 2. The following language shall be added at the end of Section 1 of the Agreement: Center shall obtain prior written permission from Director prior to hosting any special or non-standard event. 3. A new Subsection (k) shall be added to Section 2, to read: (k) not set any portion of the Pueblo Mountain Park on fire; or use any incendiary or explosive devices without the prior written approval of the Fire Department and Director, and after obtaining all required permits from the City. 4. Section 5 of the Agreement shall be deleted in its entirety and replaced with the following: 5. If not in default hereunder, Center shall have the option to renew this Agreement for an additional term of five (5) years at the end of the Extended Term, or any subsequent renewal term, upon the same terms, covenants, and conditions. If Center desires to renew the Agreement for an additional term, Center must in writing notify City of such desire at least ninety (90) days prior to the end of the then current term. Should Center fail to provide written notice, this Agreement shall terminate at the end of the then current term. At least thirty(30)days prior to the end of any term, City may notify Center of its intent not to renew the Management Agreement, in which case it shall terminate at the end of the then current term. 5. The following language shall be added at the end of Section 6 of the Agreement: Center shall maintain its accounts and records in accordance with generally accepted accounting principles, which accounts and records shall be available for inspection, copy and audit by City during normal business hours. Center shall retain all such accounts and records for a minimum period of three (3) years after termination of this Agreement. 6. A new Subsection (c) shall be added to Section 9,to read: (c) City may upon sixty(60) days written notice terminate this Agreement at any time without cause. 7. The following language shall be added at the end of Section 10 of the Agreement: Center shall perform these duties and its responsibilities herein with reasonable care according to the highest standards in the industry. 8. Section 15 of the Agreement shall be deleted in its entirety and replaced with the following: 15. If the presence of Hazardous Materials in or upon the Pueblo Mountain Park or any part thereof is caused or permitted by the Center,or the activities conducted thereon by Center, or for which the Center is otherwise legally obligated, results in contamination of the Pueblo Mountain Park or any part thereof, then Center shall immediately remove, clean up, and remediate the contamination. Center shall indemnify, defend and hold the City and State harmless from any and all claims, judgements, penalties, fines, costs, liabilities, losses, expenses, and attorney's fees which arise, directly or indirectly, during or after the expiration or termination of this Agreement as a result of such contamination or failure to comply with federal, state and local environmental, wetlands protection, health and hazardous waste laws, ordinances and regulations. The term "Hazardous Material" includes, without limitation, any material or substance that is (i) defined or designated as a "hazardous substance," "hazardous waste," or a "regulated substance" under applicable state or federal law or regulation,(ii)petroleum products,or(iii)asbestos.The indemnification provisions of this section 15 and section 14 shall survive termination of this Agreement. 9. The following language shall be added at the end of Section 16 of the Agreement: Notwithstanding any provision in this Agreement to the contrary or which may be construed to the contrary, City assumes no obligation or responsibility to keep or maintain the Pueblo Mountain Park or any facility thereon in good and safe condition, appearance, or state of repair, regardless of cause of need for maintenance and repair. 10. The following language shall be added at the end of Section 18 of the Agreement: The City may inspect all parts of Pueblo Mountain Park at any time to determine if any cleaning is necessary, including but not limited to fluid spills, major debris, screws, and glass. If so directed by the City after inspection of the Pueblo Mountain Park, Center shall perform all necessary additional clean-up at its sole expense. 11. A new Section 31 shall be added to read: 31. Center shall reimburse the City for the full amount of any employer contribution required to be paid by the City of Pueblo to the Public Employees' Retirement Association ("PERA") for salary or other compensation paid to a PERA retiree performing contracted services for the City under this Agreement. The Center shall fill out the questionnaire attached as Exhibit E and submit the completed form to City as part of the signed Agreement. 12. The new Exhibit E attached hereto this Addendum No. 1, shall be attached to the Agreement. 13. Each person signing this Addendum No. 1 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 Addendum No. 1 on behalf of such party and that this Addendum No. 1 is a valid and legally binding obligation of such party enforceable against it in accordance with its terms. 14. The Agreement as amended by this Addendum No. 1 shall remain in full force and effect and be binding upon and inure to the benefit of the parties hereto and their respective successors and approved assigns. Executed in Pueblo, Colorado as of the date first above written. Board of Directors � /' Nature and Wildlife Discovery Center BY: .....- 1,�.1.�;►�- V tx .t By: PagiA Title: 060-Ct '- - LCL)_ Title: E)4tc,,tai P i,e ►.' City of Pueblo Attest: •id LI t_ By: _7( • t' t k Nicholas A. Gra tsar, Mayor Exhibit D Colorado Public Employees Retirement Association Supplemental Questionnaire to be Answered by any Business Performing Services for the City of Pueblo Pursuant to section 24-51-1101(2), C.R.S., salary or other compensation from the employment, engagement, retention or other use of a person receiving retirement benefits (Retiree) through the Colorado Public Employees Retirement Association (PERA) in an individual capacity or of any entity owned or operated by a PERA Retiree or an affiliated party by the City of Pueblo to perform any service as an employee, contract employee, consultant, independent contractor, or through other arrangements, is subject to employer contributions to PERA by the City of Pueblo. Therefore, as a condition of contracting for services with the City of Pueblo, this document must be completed,signed and returned to the City of Pueblo: (a) Are you, or do you employ or engage in any capacity, including an independent contractor, a PERA Retiree who will perform any services for the City of Pueblo? Yes , No X . (Must sign below whether you answer "yes"or "no") (b) If you answered"yes"to(a)above, please answer the following question: Are you 1)an individual,2) sole proprietor or partnership, or 3) a business or company owned or operated by a PERA Retiree or an affiliated party? Yes , No . (If you answered"yes," please state which of the above listed entities (1, 2, or 3)best describes your business: (c) If you answered"yes"to both(a)and (b), please provide the name, address and social security number of each such PERA Retiree.(If more than two,please attach a supplemental list) Name Name Address Address Social Security Number Social Security Number If you answered "yes" to both (a) and (b), you agree to reimburse the City of Pueblo for any employer contribution required to be paid by the City of Pueblo to PERA for salary or other compensation paid to you as a PERA Retiree or paid to any employee or independent contractor of yours who is a PERA Retiree performing services for the City of Pueblo. You further authorize the City of Pueblo to deduct and withhold all such contributions from any moneys due or payable to you by the City of Pueblo under any current or future contract or other arrangement for services between you and the City of Pueblo. Failure to accurately complete,sign and return this document to the City of Pueblo may result in your being denied the privilege of doing business with the City of Pueblo. Signed J LA(y 22. ,20/7_ . P4 By: Name: fsHy K+.sls, Title: Ex.«.1;1.'t O%/*<ate,. For purposes of responding to question(b)above,an"affiliated party"includes(1)any person who is the named beneficiary or co-beneficiary on the PERA account of the PERA Retiree;(2)any person who is a relative of the PERA Retiree by blood or adoption to and including parents, siblings, half-siblings, children, and grandchildren; (3) any person who is a relative of the PERA Retiree by marriage to and including spouse, spouse's parents, stepparents, stepchildren, stepsiblings, and spouse's siblings; and (4) any person or entity with whom the PERA Retiree has an agreement to share or otherwise profit from the performance of services for the City of Pueblo by the PERA Retiree other than the PERA Retiree's regular salary or compensation.