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HomeMy WebLinkAbout09604 ORDINANCE NO. 9604 AN ORDINANCE ACCEPTING THE DONATION OF A SCULPTURE AND PEDESTAL AND APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A MAINTENANCE AND REPAIR AGREEMENT BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The City of Pueblo hereby accepts the donation of a sculpture of renowned local dance instructor, Sarah Shaw. The sculpture will be placed near the City’s Memorial Hall, where Sarah Shaw’s students performed for many years. SECTION 2. The Maintenance and Repair Agreement dated November 11, 2019, a copy of which is attached hereto and incorporated herein by this reference, having been approved as to form by the City Attorney, is hereby approved. The Mayor is authorized to execute and deliver said agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3. The officers and staff of the City are authorized and directed to perform any and all acts consistent this Ordinance and the attached Maintenance and Repair Agreement, which are necessary or appropriate to implement the transactions described therein. SECTION 4. 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 November 11, 2019. Final adoption of Ordinance by City Council on November 25, 2019 . President of City Council Action by the Mayor: ☒ Approved on November 27, 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-10 BACKGROUND PAPER FOR PROPOSED ORDINANCE COUNCIL MEETING DATE: November 11, 2019 TO: President Dennis E. Flores and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Brenda Armijo, City Clerk FROM: Scott Hobson, Acting Director of Planning and Community Development SUBJECT: AN ORDINANCE ACCEPTING THE DONATION OF A SCULPTURE AND PEDESTAL AND APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A MAINTENANCE AND REPAIR AGREEMENT SUMMARY: Attached is an Ordinance accepting the donation of a sculpture of Sarah Shaw and approving and authorizing the Mayor to sign the attached repair and maintenance agreement. PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. BACKGROUND: The attached Ordinance accepts the donation of a bronze sculpture of renowned local dance instructor Sarah Shaw, to be placed near the City’s Memorial Hall where Sarah Shaw’s students performed for many years. The attached maintenance and repair and agreement places responsibility for the maintenance and preservation of the Sarah Shaw sculpture on Ms. Shaw’s family, friends and former students. FINANCIAL IMPLICATIONS: The acceptance of the Sarah Shaw statue will not result in any direct out-of-pocket expenses for the City. Ms. Shaw’s former students, family and friends have agreed to maintain the sculpture, to keep the statue insured and to make repairs, if necessary. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: If this Ordinance is not approved, the City will not honor Sarah Shaw, who deserves recognition for being an instructor and mentor to the City’s youth for many years. RECOMMENDATION: Approve the Ordinance. Attachments: Proposed Ordinance Maintenance and Repair Agreement Letter from Sarah Shaw Memorial Committee Sketch of Statue Map of Sculpture Location MAINTENANCE AND REPAIR AGREEMENT THIS MAINTENANCE AND REPAIR AGREEMENT ("Agreement") is hereby entered into this 25th day of November 2019, by and between the City of Pueblo, a Colorado Municipal Corporation ("City") and the persons listed as Contractor on the signature page of this Agreement (collectively "Contractor"). The City and Contractor may be individually referred to as "Party" or collectively referred to as "Parties." WITNESSETH: WHEREAS, the City has agreed to accept the donation of a bronze sculpture of renowned local dance instructor Sarah Shaw, to be placed near the City's Memorial Hall, where Sarah Shaw's students performed for many years; and, WHEREAS, the Parties wish to memorialize their agreement regarding the maintenance and preservation of the Sarah Shaw sculpture. NOW, THEREFORE, in consideration of the foregoing, the covenants contained herein, and other good and valuable consideration, the receipt and sufficiency ofwhich is hereby acknowledged,City and Contractor agree as follows: 1. The following terms as used in this Agreement shall have the following meanings: "Effective Date" means the date the statue and concrete base are accepted by the City as installed adjacent to Memorial Hall. "Maintenance and Repair Services" means, without limitation, removing dirt, grime, bird droppings, weeds and graffiti and repairing damage to the statute or its concrete base caused by weather, Acts of God, vandalism or any other cause, including damage by a motor vehicle. 2. During the period from the Effective Date hereof until December 31, 2029, the Contractor is authorized and Contractor, at its sole expense, shall maintain the Sarah Shaw bronze sculpture and its concrete base in the same or better condition as existed on the Effective Date, subject to all applicable City rules and regulations. Such Maintenance and Repair Services shall be performed by Contractor in compliance with the terms and conditions of this Agreement. 3. Contractor hereby agrees to indemnify, defend, save and hold harmless the City its respective agents, officers, directors, employees and representatives from and against any and all claims, suits, losses, injuries, damages, liabilities and expenses, including, without limitation, reasonable attorneys' fees and expenses occasioned in connection with, arising or alleged to arise from, wholly or in part, the Maintenance and Repair Services provided by Contractor under this Agreement. 4. No term or provision of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, benefits, rights, protections, or any other provision of the Colorado Governmental Immunity Act, sections 24-10-101 and 120, C.R.S., as amended, or any other law granting immunity to the City or Contractor and its respective officers and employees. 5. This Agreement sets forth all understandings and agreements between City and Contractor relating to the subject matter hereof. No modification or amendment to this Agreement shall be valid unless set forth in writing and approved by City and Contractor. No verbal representation, agreement or understanding by any officer or employee of City, either before or after execution of this Agreement, shall modify or amend any of the terms and provisions of this Agreement. 6. The provisions of this Agreement are for the benefit of City and Contractor only, and no third party shall have any right or remedy hereunder or the right to enforce any provision of this Agreement. 7. If Contractor defaults in its obligations under this Agreement ("Default"), the City may give written notice to the Contractor specifying the Default ("Notice"). If the Default is not corrected within thirty (30) days after date of the Notice, the Default shall be submitted to the City's Mayor for resolution. The Parties agree that the Mayor shall have the option of terminating this Agreement and requiring the Contractor, at Contractor's sole expense, to remove the sculpture and concrete base from City property. 8. Any notice required or permitted to be given or delivered under this Agreement shall be in writing and shall be given by personal delivery, or by the United States Postal Service, by registered or certified mail, postage prepaid, or by reputable national overnight courier service: (a) If to City: City of Pueblo Attn: Mayor One City Hall Place, Second Floor Pueblo, CO 81003 with a copy to: City Attorney 1 City Hall Place, Third Floor Pueblo, CO 81003 (b) If to Contractor, addressed to the persons at the addresses listed on the signature page of this Agreement or to such other person or address as either Party shall specify in written notice given to the other Party pursuant to the provisions of this Section 8. Any notice shall be deemed 2 delivered on the day on which personal delivery is made or three (3) days after deposit in the mail in the case of registered or certified mail, or one (1) business day in the case of overnight courier. 9. This Agreement shall be construed in accordance with and be governed by the laws of the State of Colorado without regard to conflict of law principles. 10. Time is of the essence hereof. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns, provided Contractor may not assign this Agreement or any interest herein without the express written consent of the City. 11. In no event shall City, its officers, agents or employees be liable to Contractor for damages, including without limitation, compensatory, punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Agreement or the performance or breach thereof by City or the failure or delay of City in the performance of any covenant or provision under this Agreement on its part to be performed. In consideration of City entering into this Agreement, Contractor hereby waives and discharges City, its officers, agents and employees from all claims for any and all such damages. No breach, default, delay or failure of City under this Agreement shall be or be construed to be a waiver, discharge or release of Contractor obligations under this Agreement. 12. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the other provisions of this Agreement which shall remain in full force and effect. 13. Each Party acknowledges that this Agreement was fully negotiated by the Parties and, therefore, no provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision. 14. This Agreement, and any amendments hereto, shall automatically be renewed for successive ten-year periods unless, prior to the expiration of the initial term or any ten- year extensions thereof, the Parties give Notice stating that an extension is not desired. In the event of non-renewal, the Parties agree that this Agreement may be terminated by the Mayor and the Contractor, at Contractor's sole expense, may be required to remove the sculpture and concrete base from City property. 15. In the event of any litigation arising under this Agreement, the court shall award to the prevailing Party its costs and reasonable attorney fees. Exclusive venue for any such litigation shall be Pueblo County, Colorado. All such litigation shall be filed in the District Court, County of Pueblo, State of Colorado and each Party submits to the personal and subject jurisdiction of such District Court. To the fullest extent permitted by law, the Parties hereby waive their right to a trial by jury. 3 16. With respect to the sculpture and concrete base, Contractor assumes all risks of loss resulting from an Act of God, vandalism or other casualty, such waiver of subrogation. 17. This Agreement may be executed in two (2) or more counterparts, and each such counterpart shall be deemed for all purposes to be an original, and all such counterparts shall together constitute but one and the same original. Executed at Pueblo, Colorado, the day and year first above written. [ SEAL ] CITY OF PUEBLO, a Colorado Municipal Corporation �� Atte-t:1: � A�� c �• _..1 By V.4.4* :renda Armijo, City CI-r Nicholas A. Gra Isar, Mayor CONTRACTOR: rr.J// Signature: �.�� Sac. , (;,�,�,Ir�tsd,- 7a�, , Print Nam . y 5.00,k/oire: � Print Street Address: /,Z/ &VcC - Dr: Print City, State & Zip Code: Q,P bt O Z/te3 Signature: 6.ec& GcS 04(4_4_,,eL) Print Name: j opr.c had! ea 36A SS Print Street Address: y,p Cey,'u 1.1/Jee'i/ alt/, Print City, State & Zip Code: pup moo, ('U 2760/ Signature: Print Name: Print Street Address: Print City, State & Zip Code: 4