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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
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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.
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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
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Atte-t:1: � A�� c �• _..1 By V.4.4*
:renda Armijo, City CI-r Nicholas A. Gra Isar, Mayor
CONTRACTOR: rr.J//
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Signature: 6.ec& GcS 04(4_4_,,eL)
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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:
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