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City Clerk’s Office Item # R-5
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: November 9, 2020
TO: President Dennis E. Flores and Members of City Council
CC: Nicholas A. Gradisar, Mayor
VIA: Brenda Armijo, City Clerk
FROM: Michael C. Sexton, Acting Parks and Recreation Director
SUBJECT: AN ORDINANCE APPROVING A COOPERATIVE AGREEMENT
BETWEEN THE CITY OF PUEBLO, THE PUEBLO ZOOLOGICAL
SOCIETY, AND THE STATE OF COLORADO DEPARTMENT OF
CORRECTIONS FOR LANDSCAPING SERVICES AT THE PUEBLO
ZOO, APPROVING A SECOND MODIFICATION AGREEMENT TO
THE CITY OF PUEBLO ZOO MANAGEMENT AGREEMENT
BETWEEN THE CITY OF PUEBLO AND THE PUEBLO ZOOLOGICAL
SOCIETY FOR THE CITY’S PARTICIPATION IN SAID COOPERATIVE
AGREEMENT, AND AUTHORIZING THE MAYOR TO EXECUTE THE
SAME
SUMMARY:
Attached is an Ordinance approving and authorizing the Mayor to sign a Cooperative
Agreement with the Pueblo Zoological Society and the State of Colorado Department of
Corrections for landscaping services at the Pueblo Zoo and a Second Modification
Agreement to the City of Pueblo Zoo Management Agreement between the City of
Pueblo and the Pueblo Zoological Society for the City’s participation in said Cooperative
Agreement.
PREVIOUS COUNCIL ACTION:
Not applicable to this Ordinance.
BACKGROUND:
The Pueblo Zoological Society has partnered with the Colorado Department of
Corrections (“CDOC”) in a cooperative work program for many years. Supervised
inmates provide valuable landscaping services to help the Pueblo Zoo effectively
maintain the 25 acres of City owned property. With its limited budget, the Pueblo
Zoological Society relies heavily on these free service hours to keep up with
landscaping needs. Without CDOC’s help, the maintenance and appearance of the
grounds would suffer without significant additional staffing and investment.
In 2020, CDOC revised its annual contract to include a new provision regarding liability
insurance. The Pueblo Zoological Society was unable to procure this liability coverage
through their insurance provider. Due to its status as a governmental entity, the City of
Pueblo is able to procure and provide this coverage at no additional charge. The City of
Pueblo owns the Pueblo Zoo property and has maintained a Management Agreement
with the Pueblo Zoological Society since 1998. The City is willing to provide the liability
coverage for this contract given the successful partnership with the Pueblo Zoological
Society and the City’s ownership of the property.
FINANCIAL IMPLICATIONS:
City shall not be liable for any additional costs due under the Cooperative Agreement.
The Pueblo Zoological Society shall be solely responsible for procuring all licenses and
permits and for payment of any and all taxes due under the Management Agreement
and Cooperative Agreement.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
If this Ordinance is not approved, the Pueblo Zoological Society will require additional
staff for maintaining the grounds, increasing its costs, and if its costs become too high it
will have to terminate management of the Pueblo Zoo.
RECOMMENDATION:
Approval of the Ordinance.
Attachments:
Ordinance
State of Colorado Cooperative Agreement
Second Modification Agreement
ORDINANCE NO. 9818
AN ORDINANCE APPROVING A COOPERATIVE
AGREEMENT BETWEEN THE CITY OF PUEBLO, THE
PUEBLO ZOOLOGICAL SOCIETY, AND THE STATE OF
COLORADO DEPARTMENT OF CORRECTIONS FOR
LANDSCAPING SERVICES AT THE PUEBLO ZOO,
APPROVING A SECOND MODIFICATION AGREEMENT
TO THE CITY OF PUEBLO ZOO MANAGEMENT
AGREEMENT BETWEEN THE CITY OF PUEBLO AND
THE PUEBLO ZOOLOGICAL SOCIETY FOR THE CITY’S
PARTICIPATION IN SAID COOPERATIVE AGREEMENT,
AND AUTHORIZING THE MAYOR TO EXECUTE THE
SAME
WHEREAS, the City and Pueblo Zoological Society entered into the City of
Pueblo Zoo Management Agreement dated September 1, 1998; and
WHEREAS, the parties entered into the Extension Agreement dated July 14,
2003, which extended the term of the Management Agreement to December 31, 2013;
and
WHEREAS, the parties entered into the Modification Agreement dated April 10,
2006, which allowed the society to sell or dispense alcoholic beverages within the Zoo
and in accordance with law; and
WHEREAS, the parties entered into the Second Extension Agreement dated July
29, 2013, which extended the term of the Management Agreement to December 31,
2018; and
WHEREAS, the parties entered into the Third Extension Agreement dated
December 31, 2018, which extended the term of the Management Agreement to
December 31, 2023; and
WHEREAS, Pueblo Zoological Society requests and City of Pueblo agrees to
enter into a Cooperative Agreement between the Society, City, and the State of
Colorado through its Department of Corrections for the provision of landscaping
services at the Pueblo Zoo; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Second Modification Agreement (“Modification”) dated November 23, 2020
by and between the City of Pueblo, a Municipal Corporation, and the Pueblo Zoological
Society, a Colorado nonprofit corporation, for the City’s participation in a Cooperative
Agreement between City, Society, and the State of Colorado through its Department of
Corrections, after having been approved as to form by the City Attorney, is hereby
approved.
SECTION 2.
The Cooperative Agreement (“Cooperative Agreement”) by and between the City
of Pueblo, a Municipal Corporation, the Pueblo Zoological Society, a Colorado nonprofit
corporation, and the State of Colorado through its Department of Corrections relating to
landscaping services at the Pueblo Zoo, after having been approved as to form by the
City Attorney, is hereby approved.
SECTION 3.
The Mayor is authorized to execute and deliver the Modification and the
Cooperative 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 4.
The officers and staff of the City are directed and authorized to perform any and
all acts consistent with the intent of this Ordinance, the Modification, and the
Cooperative Agreement to implement the policies and procedures described therein.
SECTION 5.
This Ordinance shall become effective on the date of final action by the Mayor
and City Council.
Remainder of page intentionally left blank
Signature page to follow
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on November 9, 2020.
Final adoption of Ordinance by City Council on November 23, 2020 .
President of City Council
Action by the Mayor:
☒ Approved on November 25, 2020 .
☐ 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
STATE OF COLORADO COOPERATIVE AGREEMENT
COVER PAGE
State Agency
Colorado Department of Corrections, Agreement Number 134877
La Vista Correctional Facility
Agency Agreement Performance Beginning Date
City of Pueblo and The Pueblo Zoological Society The later of the Effective Date or November 1,2020
Agreement Maximum Amount State fimds will not be expended in the execution of this Agreement.
Insurance
Agency shall maintain the following insurance if indicated by Initial Contract Expiration Date
a checked box,as further described in 18 October 31,2021
®Worker's Compensation®General Commercial Liability
Options
This agreement will automatically be extended for a period of one(I)additional year. Subsequent annual renewals will be on
the same basis and shall not exceed a total of five(5)years from effective date.
Agreement Purpose:Offender Labor Agreement between La Vista Correctional Facility and The City of Pueblo with The
Pueblo Zoological Society.
Principal Representatives
For the State: For Agency:
Stacy McQueen Abigail Krause
Colorado Department of Corrections Pueblo Zoological Society
1410 W las'St/PO BOX 3 3455 Nuckolls Ave
Pueblo,CO 81003 Pueblo,CO 81005
Staoy.mcqueen(a3state.co.us alcrause@pueblozoo.org
THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT
Each person signing this Agreement represents and warrants that he or she is duly authorized
to execute this Agreement and to bind the Party authorizing his or her signature.
Agency STATE OF COLORADO
The Pueblo Zoological Society Department of Corrections
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By. ' rfl Krause,Executive Director By:Rich Persons Warden,
La Vista Correctional Facility
Date: _II I1.1_/01.d Date: _. b2-a 3- 0 2.v
�.____ The City of Pueblo STATE OF COLORADO
Jared Polis,Governor
Department of Corrections
Dean illiam E ecutive Director
21:•
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BY:Nli las it
• rear,Mayor,/ By:Deb Goheen,Director of Finance and Administration
for the City of Pueblo,
a Municipal Corporation /
Date: /1-0/5".../0,240 Date: `4
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Cms l 34894
1. PARTIES
This Cooperative Agreement (the "Agreement") is entered into by and between The City of
Pueblo and The Pueblo Zoological Society named on the Signature and Cover Page for this
Agreement (the "CITY" & "ZOO"), and the STATE OF COLORADO acting by and
through the state agency named on the Signature and Cover Page for this Agreement (the
"State,""CDOC,").CITY & ZOO and the State agree to the terms and conditions in this
Agreement.
2. TERM AND EFFECTIVE DATE
A. Effective Date
This Agreement shall not be valid or enforceable until the Effective Date. The
State shall not be bound by any provision of this Agreement before the Effective
Date or after the expiration or sooner termination of this Agreement.
B. Initial Term
The Parties' respective performances under this Agreement shall commence on the
Agreement Effective Date, and shall remain in existence for one year from the day
and year written above. However, a thirty(30) day notice of termination must be
given by either Party prior to the end of the period or this agreement shall
automatically be extended for a period of one (1) additional year. Subsequent
annual renewals shall be on the same basis and shall not exceed a total of five (5)
years from effective date.
C. Termination of Agreement without Cause
Either Party shall have the right to terminate this Agreement without cause by
giving the other Party thirty(30) day written notice. If notice is so given, this
Agreement shall terminate on the expiration of the thirty(30) days, and the
liability of the Parties hereunder for the further performance of the terms of this
Agreement shall cease, but the Parties shall perform their obligations up to the date
of termination. Notwithstanding such termination, all terms and conditions of this
Agreement and any exhibits and attachments hereto which may require continued
obligation or compliance beyond the termination date of the Agreement shall
survive such termination. The requirement of written notice shall not apply if
CDOC, at its sole discretion, determines the cause for termination creates an
immediate threat to public or offender safety, health, or welfare.
D. Agreement modification
This Agreement may be modified or renewed only by written agreement, signed
by both the Parties.
3. PURPOSE
In order to benefit public welfare and provide a healthful, wholesome and educational
outdoor activity, task training, and development programs for offenders, the Parties desire
to utilize offender labor in projects on public lands in Pueblo County. CDOC seeks to
provide offender workers labor where and when possible and subject to correctional
requirements, public safety considerations, as well as weather.
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4. DEFINITIONS
The following terms shall be construed and interpreted as follows:
A. "AGREEMENT" means this Cooperative Agreement, including all attached
Exhibits, all documents incorporated by reference, all referenced statutes, rules and
cited authorities, and any future modifications thereto.
B. "Business Day" means any day other than Saturday, Sunday, or a Legal Holiday as
listed in §24-11-101(1), C.R.S.
C. "CDOC" means Colorado Department of Corrections
D. "CORA" means the Colorado Open Records Act, §§24-72-200.1, et. seq., C.R.S.
E. "Effective Date" means the date on which this Agreement is approved and signed
by the Colorado State Controller or designee, as shown on the Signature and Cover
Page for this Agreement.
F. "Initial Term" means the time period defined in §2.B.
G. "LVCF" means La Vista Correctional Facility.
H. "Party" means the State, CITY, or ZOO and "Parties" means both the State,
CITY, or ZOO.
I. "Principal Representative" means that person identified in cover page.
J. "Services" means the services to be performed by CDOC as set forth in this
Agreement.
K. "State Confidential Information" means any and all State Records not subject to
disclosure under CORA. State Confidential Information shall include, but is not
limited to, State personnel records not subject to disclosure under CORA.
L. "State Records" means any and all State data, information, and records, regardless
of physical form, including, but not limited to, information subject to disclosure
under CORA.
M. "Subcontractor" means third-parties, if any, engaged by CITY or ZOO to aid in
performance of the Work.
N. "Term" means the time period defined in §2.B.
O. "Work" means the execution of the Services performed pursuant to this
Agreement.
Any other term used in this Agreement that is defined in an Exhibit shall be
construed and interpreted as defined in that Exhibit.
5. STATEMENT OF WORK
A. Conditioned upon the CITY &ZOO's performance in accordance with the
provisions of this Agreement, the State shall complete the Work as described in
this Agreement and in accordance with the provisions of this Agreement. The State
shall have no liability to perform any services that are not specifically set forth in
this Agreement.
B. Work performed shall adhere to all safety rules of both the CITY &ZOO as well as
of CDOC.
C. Work performed shall not displace regular CDOC employees, impair Agreements
for services in existence during the course of the Agreement, exploit offender labor,
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or compete with free labor in the production of goods or services. Offenders shall
not perform any personal work for any individual or private business at any time.
D. The specific work to be performed under this Agreement shall be coordinated by the
Parties in a spirit of mutual cooperation.
E. Any resource developments or improvements under this agreement shall remain the
property of the CITY &ZOO.
F. Under no circumstance, will work crew offenders, be placed in any position of
authority over other work crew offenders.
G. This Agreement only authorizes use of offenders for general labor in Pueblo County.
CITY&ZOO and CDOC shall agree in writing on scope of work, compensation and
payment terms for any other service performed by CDOC offenders outside of the
scope of this Agreement.
H. CITY & ZOO shall use CDOC's classification policies for work assignments to
insure continuity of services.
I. Work performed shall be done adhering to safety rules of both CDOC and CITY &
ZOO.
J. LVCF or CITY & ZOO work crew supervisor shall provide leadership and
supervision only; he/she will not operate equipment or perform manual labor.
K. Offender crew members placed under this agreement are not CITY & ZOO
employees and do not have entitlement to any benefits, including insurance,
Workers' Compensation, retirement and leave.
L. Offender work crews shall not be used, without authorization, for fire suppression
under this Agreement.
M. CITY & ZOO may change its representative by notice with this Agreement without
the need for formal Agreement amendment as set forth in Section 9.
N. CDOC, LVCF Requirements are as follows:
i. To furnish work crew offenders in numbers agreed to from the LVCF that
shall be adequately clothed for the environment enabling them to perform
work on CITY & ZOO projects.
ii. LVCF shall make available to CITY&ZOO any relevant information
regarding CDOC policies and procedures.
iii. LVCF vehicles shall only be used for transporting offenders to and from
CITY &ZOO worksites. Any other use shall require the prior written
permission of the LVCF Head of Administration.
iv. LVCF shall be responsible for offender crew members housing, feeding,
medical and clothing.
v. CDOC, LVCF shall perform urine analysis ("UA's") on work crew
offenders on a continual basis. Breathalyzers shall also be utilized to test for
the presence of alcohol. Any positive UAs or positive breathalyzer tests
shall lead to the offender's termination from the work crew program.
vi. CDOC LVCF staff shall be responsible for the health and safety of all work
crew offenders; however, all supervisors including ZOO supervisors share in
this responsibility.
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vii. LVCF Work Crew Supervisor will notify the designated project coordinator
(Jim Pinelli) when the offender work crew is not available for work
assignment.
viii. LVCF Crew Supervisor (James Harrison and/or Tim Urenda) shall be
responsible for all work crew offenders assigned to this program. Supervision
means Crew Supervisor is responsible for keeping work crew offenders under
close observation at all times and to immediately notify the LVCF, local law
enforcement, or county dispatcher(any dispatcher available if any emergency
exists), if an offender is missing from the assigned work area. CITY & ZOO
crew supervisors shall not be responsible for the restraint of offenders or
retaking of escapees.
ix. CDOC LVCF, shall make offenders available to work in this work program
for up to 10 hours per day, though not to exceed 40 hours per week,to include
travel time.
x. CDOC Supervisor shall remain in contact with the CITY & ZOO Project
Coordinator for any day to day reports or updates.
xi. LVCF shall ensure that the CDOC and CITY &ZOO policies and procedures
are adhered to by all offenders at all times.
xii. CDOC LVCF, shall remove any work crew offender who is determined to be
unsatisfactory due to work activities or conduct at the work site.
xiii. CDOC may change its representative as set forth in Section 9, the notice provision to
this Agreement without the need for formal Agreement amendment.
O. ZOO Requirements are as follows:
i. ZOO shall assign qualified and experienced work crew supervisor to provide
technical direction for LVCF crew supervisors on all programs under the
terms of this Agreement.
a. Crew Supervisor shall give specific directions on how each project is to
be performed, make necessary corrections or changes, and give final
approval on project work.
ii. The Project Coordinator shall notify the LVCF work program supervisor(s),
(Major, Stacy McQueen) if Work is not being performed to ZOO standards.
iii. ZOO crew supervisor and LVCF crew supervisors shall supervise all work
crew offenders at all times.
iv. ZOO shall provide gasoline, tools, equipment safety, equipment, and all
necessary material to perform project Work.
a. ZOO shall maintain all equipment in safe and working conditions.
v. ZOO shall provide and document operational and safety training to any
offender assigned to operate equipment, other than hand held tools or small
power tools in accordance with CDOC.
a. ZOO shall maintain these records.
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vi. If a motor vehicle is furnished it shall be the responsibility of the ZOO to
maintain the vehicle in a safe and workable condition, to bear the cost of
gasoline, service, and maintenance of the vehicle provided
vii. ZOO shall inspect the production and work processes on an ongoing basis to
ensure satisfaction with the Work.
viii. There shall be no smoking, vaping, e-cigarettes or any other tobacco or
marijuana related products allowed on the work site.
ix. ZOO agrees that neither it nor its employees or subcontractors shall provide
offenders with access to or use of any cellular telephone, satellite phones,
land line phone, computers, tablets or other forms of electronic
communication while on the Work site.
x. In the event a hostage situation arises, the State will not negotiate the release
of any offender to secure the release of any person, including CITY &
ZOO's employees or Subcontractors' employees or agents. ZOO shall
notify all of its employees, agents, and Subcontractors of this policy prior to
working with offenders.
6. REPORTING - NOTIFICATION
If CITY & ZOO are served with a pleading or other document in connection with an action
before a court or other administrative decision making body, and such pleading or
document relates to this Agreement or may affect CITY & ZOO's ability to perform its
obligations under this Agreement, CITY & ZOO shall, within ten (10) days after being
served, notify the State of such action and deliver copies of such pleading or document to
the State's Principal Representative as set forth in Section 9 below.
7. CONFLICTS OF INTEREST
A. Actual Conflicts of Interest
CITY & ZOO shall not engage in any business or activities, or maintain any
relationships that conflict in any way with the full performance of the obligations
of CITY & ZOO under this Agreement. Such a conflict of interest would arise
when a CITY &ZOO or Subcontractor's employee, officer or agent were to offer
or provide any tangible personal benefit to an employee of the State or an offender,
or any member of his or her immediate family or his or her partner, related to the
award of, entry into or management or oversight of this Agreement.
B. Apparent Conflicts of Interest
CITY &ZOO acknowledges that, with respect to this Agreement, even the
appearance of a conflict of interest shall be harmful to the State's interests. Absent
the State's prior written approval, CITY &ZOO shall refrain from any practices,
activities or relationships that reasonably appear to be in conflict with the full
performance of CITY & ZOO's obligations under this Agreement.
C. Disclosure to the State
If a conflict or the appearance of a conflict arises, or if CITY & ZOO is uncertain
whether a conflict or the appearance of a conflict has arisen, CITY &ZOO shall
submit to the State a disclosure statement setting forth the relevant details for the
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State's consideration. Failure to promptly submit a disclosure statement or to
follow the State's direction in regard to the actual or apparent conflict constitutes a
breach of this Agreement.
D. In conformity with §24-18-201 C.R.S. and §24-50-507, C.R.S. the signatories aver
that to their knowledge:
i. No employee of the State has any personal or beneficial interest whatsoever
in the Work, Service, or property described in this Agreement.
ii. ZOO has no interest and shall not acquire any interest, direct or indirect, that
would conflict in any manner or degree with the performance of ZOO's
services and ZOO shall not employ any person having such known interests.
8. INSURANCE
CITY &ZOO shall obtain and maintain, and ensure that each Subcontractor shall obtain
and maintain, insurance as specified in this section at all times during the term of this
Agreement. All insurance policies required by this Agreement shall be issued by insurance
companies as approved by the State.
A. Workers' Compensation
The ZOO shall obtain and maintain Workers' compensation insurance as required
by state statute, and employers' liability insurance covering all ZOO or
Subcontractor employees acting within the course and scope of their employment.
B. General Liability
The CITY shall obtain and maintain Commercial general liability insurance
covering premises operations, fire damage, independent contractors, products and
completed operations, blanket contractual liability, personal injury, and advertising
liability with minimum limits as follows:
i. $1,000,000 each occurrence;
ii. $1,000,000 general aggregate;
iii. $1,000,000 products and completed operations aggregate; and
iv. $50,000 any one (1) fire.
C. Additional Insured
The State shall be named as additional insured on all commercial general liability
policies required of CITY and Subcontractors.
D. Primacy of Coverage
Coverage required of CITY & ZOO and each Subcontractor shall be primary over
any insurance or self-insurance program carried by CITY &ZOO or the State.
E. Cancellation
The above insurance policies shall include provisions preventing cancellation or
non-renewal, except for cancellation based on non-payment of premiums, without
at least thirty(30) days prior notice to CITY & ZOO and CITY & ZOO shall
forward such notice to the State in accordance with §9 within seven (7) days of
CITY & ZOO's receipt of such notice.
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F. Subrogation Waiver
All insurance policies secured or maintained by CITY & ZOO or its
Subcontractors in relation to this Agreement shall include clauses stating that
each carrier shall waive all rights of recovery under subrogation or otherwise
against CITY & ZOO or the State, its agencies, institutions, organizations,
officers, agents, employees, and volunteers.
G. Public Entities
If the CITY or ZOO is a "public entity" within the meaning of the Colorado
Governmental Immunity Act, §24-10-101, et seq., C.R.S. (the "GIA"), CITY or
ZOO shall maintain, in lieu of the liability insurance requirements stated above, at
all times during the term of this Agreement such liability insurance, by commercial
policy or self-insurance, as is necessary to meet its liabilities under the GIA. If a
Subcontractor is a public entity within the meaning of the GIA, CITY &ZOO
shall ensure that the Subcontractor maintains at all times during the terms of this
Agreement, in lieu of the liability insurance requirements stated above, such
liability insurance, by commercial policy or self-insurance, as is necessary to meet
the Subcontractor's obligations under the GIA.
9. NOTICES AND REPRESENTATIVES
Each individual identified as a Principal Representative on the Cover Page for this
Agreement shall be the Principal Representative of the designating Party. All notices
required or permitted to be given under this Agreement shall be in writing, and shall be
delivered (i) by hand with receipt required, (ii) by certified or registered mail to such
Party's Principal Representative at the address set forth below, or(iii)as an email with read
receipt requested to the Principal Representative at the email address, if any, set forth
below. If a Party delivers a notice to another through email and the email is undeliverable,
then, unless the Party has been provided with an alternate email contact, the Party
delivering the notice shall deliver the notice by hand with receipt required or by certified or
registered mail to such Party's Principal Representative at the address set forth below.
Either Party may change its Principal Representative or Principal Representative contact
information by notice without a formal amendment to this Agreement. Unless otherwise
provided in this Agreement, notices shall be effective upon delivery of the written notice.
10. GOVERNMENTAL IMMUNITY
Liability for claims for injuries to persons or property arising from the negligence of the
State, its departments, boards, commissions committees, bureaus, offices, employees and
officials shall be controlled and limited by the provisions of the GIA; the Federal Tort
Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State's risk
management statutes, C.R.S. §§24-30-1501, et seq. No term or condition of this
AGREEMENT shall be construed or interpreted as a waiver, express or implied, of any of
the immunities, rights, benefits, protections, or other provisions, of the Colorado
Governmental Immunity Act, C.R.S. §§24-10-101, et seq., or the Federal Tort Claims Act,
28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b).
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11. GENERAL PROVISIONS
A. No Displacement of Private Sector Workers
CITY & ZOO assures CDOC that the use of offender labor crews will not displace
any workers from the private sector, and no jobs will be taken away from the
community because of this Agreement.
B. Offender Labor Availability
CITY & ZOO understands that the offenders that are provided as laborers or
installers under this Agreement are all felons who may have been convicted of a
multiple range of crimes, except that no sex offenders will be used under this
Agreement, and that this offender labor is subject to availability, which can be
affected by the correctional environment, public safety requirements, weather, and
other issues.
C. Liability
CDOC will assume no liability for any deficiency that CITY & ZOO may incur
under this program at any time, including the unavailability of offenders for work
crews. CITY &ZOO agrees to hold harmless CDOC for any losses resulting from
delays that are beyond CDOC's control or from any action required by CDOC to
maintain the security and order of the prison housing the offenders or at the
worksite.
D. PREA
Prison Rape Elimination Act (PREA). Crew Supervisor and any employee, agent,
or visitor of ZOO shall comply with 42 U.S.C. §15601, CDOC AR 100-40 "Prison
Rape Elimination Procedure," CDOC AR 100-7, "Reportable Incidents," and
CDOC AR 100-41 "Incident Tracking System." ZOO shall be required to comply
with any PREA training and reporting requests by the Department of Corrections.
Any sexual contact with an Offender is grounds for termination of the Agreement
and may result in criminal charges.
E. Force Majeure
CDOC shall not be liable to CITY &ZOO for any delay in, or failure of
performance of, any covenant or promise contained in this Agreement, nor shall
any delay or failure constitute default or give rise to any liability for damages if,
and only to the extent that, such delay or failure is caused by "force majeure." As
used this Agreement, "force majeure" means acts of God, acts of the public
enemy, acts of any governmental entity in its sovereign or contractual capacity,
prison riots or disruptions, fires, flood, epidemic, quarantine restrictions, strikes or
other labor disputes, freight embargoes, or weather.
F. Assignment
CITY & ZOO's rights and obligations under this Agreement are personal and may
not be transferred or assigned without the prior, written consent of CDOC. Any
attempt at assignment or transfer without such consent shall be void. Any
assignment or transfer of CITY &ZOO's rights and obligations approved by the
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State shall be subject to the provisions of this Agreement. CDOC may not grant
approval for assignment unless all outstanding invoices are paid in full.
G. Subcontracts
CITY &ZOO shall not enter into any subcontract in connection with its
obligations under this Agreement without the prior, written approval of the State.
CITY &ZOO shall submit to the State a copy of each such subcontract upon
request by the State. All subcontracts entered into by CITY & ZOO in connection
with this Agreement shall comply with all applicable federal and state laws and
regulations, shall provide that they are governed by the laws of the state of
Colorado, and shall be subject to all provisions of this Agreement.
H. Binding Effect
Except as otherwise provided in §1 1.F., all provisions of this Agreement, including
the benefits and burdens, shall extend to and be binding upon the Parties'
respective successors and assigns.
I. Authority
Each Party represents and warrants to the other that the execution and delivery of
this Agreement and the performance of such Party's obligations have been duly
authorized.
J. Captions and References
The captions and headings in this Agreement are for convenience of reference
only, and shall not be used to interpret, define, or limit its provisions. All
references in this Agreement to sections (whether spelled out or using the §
symbol), subsections, exhibits or other attachments, are references to sections,
subsections, exhibits or other attachments contained herein or incorporated as a
part hereof, unless otherwise noted.
K. Counterparts
This Agreement may be executed in multiple, identical, original counterparts, each
of which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same agreement.
L. Entire Understanding
This Agreement represents the complete integration of all understandings between
the Parties related to the Work, and all prior representations and understandings
related to the Work, oral or written, are merged into this Agreement. Prior or
contemporaneous additions, deletions, or other changes to this Agreement shall not
have any force or effect whatsoever, unless embodied herein.
M. Jurisdiction and Venue
All suits or actions related to this Agreement shall be filed and proceedings held in
the state of Colorado and exclusive venue shall be in the City and County of
Denver.
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Cms 134894
N. Modification
Except as otherwise provided in this Agreement, any modification to this
Agreement shall only be effective if agreed to in a formal amendment to this
Agreement and signed by both parties.
O. Statutes, Regulations, Fiscal Rules, and Other Authority
i. Any reference in this Agreement to a statute, regulation, or other authority
shall be interpreted to refer to such authority then current, as may have been
changed or amended since the Effective Date of this Agreement.
ii. CITY&ZOO shall, at all times during this Agreement, strictly adhere to, and
CITY & ZOO shall ensure that all of its employees as well as all
subcontractors and their employees are informed of and abide by all applicable
federal, state of Colorado, and local law and regulations, including
discrimination and unfair employment practices, and CDOC site regulations,
regarding introduction of contraband and relationships between personnel and
offenders.
P. Licenses, Permits, and Other Authorizations
ZOO shall secure, prior to the Effective Date, and maintain at all times during the
Term of this Agreement, at its sole expense, all licenses, certifications, permits,
and other authorizations required to perform its obligations under this Agreement,
and shall ensure that all employees, agents and Subcontractors secure and maintain
at all times during the term of their employment, agency or subcontract, all license,
certifications, permits and other authorizations required to perform their
obligations in relation to this Agreement. ZOO shall indemnify the State for claims
by regulatory agencies or third parties.
Q. Order of Precedence
In the event of a conflict or inconsistency between this Agreement and any
Exhibits or attachments such conflict or inconsistency shall be resolved by
reference to the documents in the following order of priority:
i. The provisions of the main body of this Agreement.
R. Severability
The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect, provided that the Parties can continue
to perform their obligations under this Agreement in accordance with the intent of
this Agreement.
S. Survival of Certain Agreement Terms
Any provision of this Agreement that imposes an obligation on a Party after
termination or expiration of this Agreement shall survive the termination or
expiration of this Agreement and shall be enforceable by the other Party.
Page 11 of 12
Cms 134894
T. Taxes
The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C.,
Subtitle D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84-
730123K) and from Colorado state and local government sales and use taxes under
C.R.S. §39-26-704(1), et seq. (Colorado Sales Tax Exemption Identification
Number 98-02565). The State and the CITY shall not be liable for the payment of
any excise, sales, or use taxes, regardless of whether any political subdivision of
the state imposes such taxes on ZOO.
ZOO shall be solely responsible for any exemptions from the collection of excise,
sales or use taxes that ZOO may wish to have in place in connection with this
Agreement.
U. Third Party Beneficiaries
Except for the Parties' respective successors and assigns described in §11.F.,this
Agreement does not and is not intended to confer any rights or remedies upon any
person or entity other than the Parties. Enforcement of this Agreement and all
rights and obligations hereunder are reserved solely to the Parties. Any services or
benefits which third parties receive as a result of this Agreement are incidental to
this Agreement, and do not create any rights for such third parties.
V. Waiver
A Party's failure or delay in exercising any right, power, or privilege under this
Agreement, whether explicit or by lack of enforcement, shall not operate as a
waiver, nor shall any single or partial exercise of any right, power, or privilege
preclude any other or further exercise of such right, power, or privilege.
W. CORA Disclosure
To the extent not prohibited by federal law, this Agreement and the performance
measures and standards required under C.R.S. §24-106-107, if any, are subject to
public release through the CORA.
X. Choice of Law
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in
the interpretation, execution, and enforcement of this Agreement. Any provision
included or incorporated herein by reference which conflicts with said laws, rules,
and regulations shall be null and void. Any provision rendered null and void by the
operation of this provision shall not invalidate the remainder of this Agreement, to
the extent capable of execution.
Y. Binding Arbitration Prohibited
The State does not agree to binding arbitration by any extra judicial body or
person. Any provision to the contrary in this Agreement or incorporated herein by
reference shall be null and void.
The remainder of this page intentionally left blank.
Page 12 of 12
SECOND MODIFICATION AGREEMENT
THIS SECOND MODIFICATION AGREEMENT ("Modification") is entered into as of the
23"day of Novemb e , 2020 by and between the City of Pueblo, a Municipal Corporation ("City"),
and the Pueblo Zoological Society, a Colorado nonprofit corporation ("Society").
WHEREAS, City and Society entered into the City of Pueblo Zoo Management Agreement
dated September 1, 1998 ("Management Agreement"); and
WHEREAS, the parties entered into the Extension Agreement dated July 14, 2003, which
extended the term of the Management Agreement to December 31, 2013; and
WHEREAS, the parties entered into the Modification Agreement dated April 10, 2006, which
allowed the Society to sell or dispense alcoholic beverages within the Zoo and in accordance with
law; and
WHEREAS, the parties entered into the Second Extension Agreement dated July 29, 2013,
which extended the term of the Management Agreement to December 31, 2018; and
WHEREAS, the parties entered into the Third Extension Agreement dated December 31,
2018, which extended the term of the Management Agreement to December 31, 2023; and
WHEREAS, Society requests and City agrees to enter into a Cooperative Agreement
("Cooperative Agreement") between the Society, City, and the State of Colorado through its
Department of Corrections ("DOC") for the provision of landscaping services at the Pueblo Zoo.
NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained
herein, City and Society agree as follows:
1. Society shall remain fully responsible for all of its duties under the Management Agreement,
including but not limited to the maintenance of the Zoo's grounds and facilities, despite any
term in the Cooperative Agreement to the contrary. Society shall remain liable for all work
done and for the quality and upkeep of the Zoo, which shall continue to meet the standards of
the City.
2. City shall not be liable for any amount due under the Cooperative Agreement and Society shall
at its sole cost and expense pay any amounts due thereunder. Society shall be solely responsible
for procuring all licenses and permits and for the payment of any and all taxes due under the
Management Agreement and Cooperative Agreement.
3. Upon expiration or termination of the Management Agreement, at the City's discretion, Society
shall: (i) provide adequate notice to the DOC and terminate the Cooperative Agreement, (ii)
assign the Cooperative Agreement to Society's successor, as chosen by City, for the
continuation of services thereunder, (iii) agree to the amendment of the Cooperative Agreement
to remove Society as a party and reduce the Cooperative Agreement to a contract between the
City and DOC, or(iv) take such other action as the City may direct.
4. Society shall indemnify, defend, and hold harmless the City and its officers, employees, agents,
and independent contractors against any liability for any damages, attorneys fees, and
restitution that may be imposed by any court or tribunal in any suit, action, or proceeding in
law or equity filed by any person or entity based on tort, statute, violation of civil rights, or any
other legal theory, for any physical injury, psychological injury, death, property damage, or
loss, which is in any way related to the Cooperative Agreement, or any vehicle, object, thing,
or activity in any building or facility operated or controlled by Society.
5. The Society shall be named as an additional insured on the City's commercial general liability
policy required by the Cooperative Agreement.
6. Except as expressly modified by this Modification, the amended Management Agreement shall
remain in full force and effect. Any obligations remaining to be performed under the amended
Management Agreement by either party are not waived or excused in any manner but shall be
fully performed in accordance with the terms and conditions of the Management Agreement
and any amendments thereto. Unless otherwise stated, all terms shall be as defined in the
Management Agreement.
Executed in Pueblo, Colorado as of the day and year first above written.
CITY OF PUEBLO,
[SEAL] A MUNICIPAL CORPORATION
&Q�`
ATTEST 1CLa (LAIU_A.1.) BY:Waarae
City Clerk Nicholas A. Gradisar, Mayor
APPROVED AS TO FORM:
D Lnie C. Kogovsek, City Attorney
��ff PUEBLO ZOOLOGICAL SOCIETY
[SEAL]
1 igtAilA.,?
ATTEST: BY: '1/4'
Abbie Krause, Executive Director