HomeMy WebLinkAbout07725ORDINANCE NO. 7725
AN ORDINANCE APPROVING A MANAGEMENT AGREEMENT BETWEEN THE CITY OF
PUEBLO, A MUNICIPAL CORPORATION AND THE PUEBLO HISTORICAL AIRCRAFT
SOCIETY, A COLORADO NONPROFIT CORPORATION, RELATING TO THE MANAGEMENT
OF THE PUEBLO WEISBROD AIRCRAFT MUSEUM AND AUTHORIZING THE PRESIDENT OF
CITY COUNCIL TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Management Agreement dated April 22, 2007 between the City of Pueblo. A municipal
corporation and the Pueblo Historical Aircraft Society, a Colorado nonprofit corporation, relating to
the management of the Pueblo Weisbrod Aircraft Museum, a copy of which is attached hereto and
incorporated herein, having been approved by the City Attorney as to form, is hereby approved.
SECTION 2.
The President of the City Council is authorized to execute and deliver the Management
Agreement in the name of the City, and the City Clerk is directed to affix the seal of the City thereto
and attest the same.
SECTION 3
This Ordinance shall become effective upon final passage and approval.
INTRODUCED January 14, 2008
PASSED AND APPROVED: January 28. 2008
Ord. '1125
CD k
Background Paper for Proposed
ORDINANCE �5
AGENDA ITEM #
DATE: January 14, 2008
DEPARTMENT: CITY MANAGER'S OFFICE
DAVID J. GALLI, CITY MANAGER
DOUGLAS M. FITZGERALD, ASSISTANT CITY MANAGER
TITLE
AN ORDINANCE APPROVING A MANAGEMENT AGREEMENT BETWEEN THE CITY
OF PUEBLO, A MUNICIPAL CORPORATION AND THE PUEBLO HISTORICAL
AIRCRAFT SOCIETY, A COLORADO NONPROFIT CORPORATION, RELATING TO
THE MANAGEMENT OF THE PUEBLO WEISBROD AIRCRAFT MUSEUM AND
AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME
ISSUE
Should the City Council approve a management agreement between the City and the
Pueblo Historical Aircraft Society for the operation and maintenance of the Pueblo
Historical Aircraft Museum and allocate funding for the construction of a new hangar?
BACKGROUND
Since 1989 the Pueblo Historical Aircraft Society (PHAS) had managed and expanded
the Pueblo Weisbrod Aircraft Museum without a formal agreement with the City.
However, on August 12, 2002, the City entered into a management agreement with
PHAS to manage and operate the facility for five (5) years expiring on April 21, 2007.
Subsequently, the PHAS and the City have renegotiated a new management
agreement that includes the PHAS' managing and operating the aircraft museum and
the City annually contributing $100,000 for the capital construction of a new hangar for
current and future acquisition of historical military aircraft subject to annual budgeting
and appropriation. Therefore, the City will provide funding in the 2008, 2009, and 2010
fiscal years for a cumulative amount of $300,000 for said project over a three (3) year
period. This management agreement will be effective retroactively from April 22, 2007
and expire in five (5) years on April 21, 2012.
RECOMMENDATION
Approval of the Ordinance and Management Agreement.
FINANCIAL IMPACT
See BACKGROUND narrative.
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT ( "Agreement ") entered into as of April 22,
2007, by and between the City of Pueblo, a Municipal Corporation,
hereinafter referred to as the "City ", and the Pueblo Historical Aircraft
Society, a Colorado nonprofit corporation, hereinafter referred to as the
"Society ".
WITNESSETH:
WHEREAS, the City now owns grounds and museum facilities open to the
public and located on a portion of land at the Pueblo Memorial Airport,
Pueblo, Colorado, known as the Pueblo Weisbrod Aircraft Museum described
in attached Exhibit "A" (the "Museum ") and
WHEREAS, The Society is a nonprofit volunteer organization having as its
members citizens who are dedicated to the preservation and development of
the Museum, and
WHEREAS, the Society has managed, improved and expanded the Museum since
1989 and has principally financed, designed and managed the construction
of a large new building for the display and protection of historical
military aircraft either owned by City or currently on loan to the City
by various agencies of the United States listed on the attached Exhibit
"B" (the "City Historical Aircraft ") and the historical artifacts owned
by or under the control of the Society (the "Society Historical
Artifacts "), and
WHEREAS, Society and City are desirous of entering into an agreement
setting forth their respective rights and obligations with respect to the
Museum and City Historical Aircraft.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
herein contained, the City and the Society agree as follows:
A. City hereby appoints and retains the Society subject to and upon the
terms and conditions herein set forth, as an independent contractor,
to operate, manage, and promote the Museum commencing for a period
of five (5) years from April 22, 2007 to April 21, 2012, unless
sooner terminated as herein provided. The Society does hereby agree
to perform all functions and obligations on its part to be performed
under this Agreement in compliance with this Agreement and all
applicable laws, ordinances, regulations, and resolutions now in
effect or hereafter enacted.
B. City does hereby delegate to the Society the authority to perform,
and the Society agrees that during the term of this Agreement it
shall perform the following functions:
1. Operate the Museum as a public museum for the use and benefit
of the City and the general public.
2. Accept custody and control all City Historical Aircraft and
maintain custody and control of all Society property,
including, without limitation, Society Historical Artifacts,
tools, equipment and furniture ( "Society's Property ").
3. Designate the uses to which the Museum may be put including
the authority to schedule all events at the Museum by
individual or community groups, and conducting class,
lectures, and other public functions subject to modification
by resolution of the City Council.
4. Establish Museum operational times and operate Museum
concessions and gate, including authority to charge reasonable
fees subject to modification by resolution of the City
Council.
5. Utilize employees or volunteers reasonably necessary to
perform the Society duties, functions, and responsibilities
under this Agreement.
6. Assist the City in obtaining all necessary licenses,
accreditations, and permits for the operation of the Museum.
7. Solicit financial contributions from the general public,
private .foundations and other sources, including organizing
fund - raising events for general operating function of the
Museum and for capital construction funds for a new hangar to
be constructed on the Museum land according to plans and
specifications therefor approved by City ( "New Hangar "),
provided, however, Society may at its option defer soliciting
additional funds for the New Hangar until such time as City
commences appropriations of $300,000.00 or a minimum forty
percent (40 %) of the estimated planning and construction costs
for the New Hangar.
8. Provide routine janitorial services for the Museum and
promptly notify the City of any damage to, destruction,
breakdown or failure of the Museum or any part thereof.
9. Maintain and keep in force the following insurance:
(a) Casualty and property damage insurance covering
Society's Property owned by or under the control of Society.
(b) Commercial liability insurance covering Society and
all activities conducted by Society, its employees and
volunteers in the Museum in an amount not less than $150,000
per person and $600,000 per occurrence for personal injury,
death, or property damage, including contractual coverage
(c) Workers' compensation and unemployment compensation
insurance in amounts required by Colorado law.
Society shall furnish certificates of such insurance to the
Director of Aviation.
10. Include in all material and media promoting or advertising the
Museum the wording "Sponsored in part by the City of Pueblo."
C. The City agrees, subject to available funds being budgeted and
appropriated for such functions, that during the term of this
Agreement, it shall perform the following functions:
1. Provide police and fire protection to the Museum including
telephone services related to those systems.
2. Furnish all utilities to the Museum except Society's telephone
services and pay a reasonable premium for Society's liability
insurance and casualty and property damage insurance.
3. Include the Museum and contents under its casualty and
property damage insurance except Society's Property owned by
or under the control of Society.
4. Maintain the Museum in good repair.
5. Permit the Society to utilize, without charge, all equipment,
accessories, parts, furniture, tools, and vehicles (City
property) which are presently used at the
Museum as well as to borrow equipment on a temporary basis
which may be required for the operation of the Museum from the
City's Department of Aviation when such equipment is available
in the sole opinion of the City's Director of Aviation.
6. Replace City personal property as the City may determine in
its sole discretion.
7. Maintain and renew City Historic Aircraft contracts with the
U.S. Government agencies.
8. The City Manager of City is directed to include in the budget
proposal submitted to City Council of City for fiscal years
2008, 2009 and 2010, an item for $100,000.00 in each such
fiscal year for planning and capital construction of the New
Hangar. The decision whether to budget and appropriate the
$100,000.00 for each of the three (3) fiscal years shall be
made by the City Council in its sole and absolute discretion.
D. It is the intent of the parties hereto that a high quality Museum
continues to be operated by the Society for the educational and
recreational enjoyment of all citizens of the City, as well as all
visitors to the City. In furtherance of this intent, the City will
list Society in its routine budgetary process along with other non -
departmental contractors and City shall appropriate and provide
annually such sums as the City Council may, in its sole discretion,
deem proper to operate, maintain, promote, and manage the Museum and
fulfill its obligations under the terms and conditions of this
Agreement. Funds appropriated annually to the Museum by the City
shall be disbursed to Society quarterly and shall be expended by
Society for the purposes indicated in the approved budget and
consistent with this Agreement.
E. The society shall keep in separate funds or accounts all gifts,
endowments, bequests, or devises to the Museum together with income
therefrom, and disburse said funds only by bank checks signed by its
duly authorized officers or agents for the operation, management,
promotion and maintenance of the Museum unless expenditures are
inconsistent with the duties and obligation of the Society toward
the donors of such gifts, endowments, bequests, or devises.
F. The Society shall maintain proper books of account of all Museum
revenues and expenditures (including monies held in trust) and
properties, shall make an annual report to the City Manager of its
acts and expenditures, and shall submit its books and records to
whatever inspection or audit the City Manager may desire from time
to time. For purposes of this Agreement, the terms "museum revenue"
and "properties" do not include Society's revenue from various
activities it may conduct, members dues, donations to Society, and
Society Historical Artifacts.
G. Each July, the Society shall submit to the City Manager a request
for funding for the following calendar year. The requested Museum
budget shall include all projected and available funds and revenues
as well as anticipated expenditures and conform to City budget
procedures which will be provided by City to Society.
H. All monies and funds realized by the Society either from the
operation of the Museum or concessions thereon, or from the City, or
from grants, contributions, gifts, or donations to the Museum
including funds and assets the Society, in its sole discretion, may
elect to donate to the Museum (except those restricted in their use
to purposes inconsistent herewith), shall be used exclusively for
the improvement, operation, management, promotion, and maintenance
of the Museum for the benefit of the general public.
I. This Agreement may be terminated at any time by mutual agreement, or
by either party under circumstances and conditions as follows:
1. If either party is in default hereunder, the nondefaulting
party may give written notice to the defaulting party
specifying the default, and if such default shall continue for
30 days after receipt of such notice (unless such default
cannot with due diligence be wholly cured within said 30 -day
period, in which case the defaulting party shall have such
longer period as shall be necessary to cure the default, so
long as the defaulting party proceeds promptly to cure the
default within such 30 -day period, prosecutes the cure to
completion with due diligence, and advises the nondefaulting
party from time to time, of the actions taken and progress
made) the nondefaulting party may terminate this Agreement
upon five (5) days prior written notice.
2. The City may terminate this Agreement at any time by first
giving the Society notice in writing, served by mail or
otherwise, notifying the Society that such action is
contemplated by the City, and setting forth its specific
reasons for the proposed termination of this Agreement. The
Society shall be given an opportunity to be heard on the
matter by City Council before such action is taken, if the
Society so desires. If, after such notice and opportunity to
be heard, the City shall nevertheless decide in its sole
discretion that it is in the public interest that this
Agreement be terminated, the City shall notify the Society
thereof in writing, and this Agreement shall thereby be
terminated and the Society shall thereafter as soon as the
City is prepared to accept the management and control of the
Museum and not exceeding sixty (60) days from the date of
service of such notice, quit and surrender said Museum, City
Historical Aircraft and personal property to the City as
provided in paragraph I.4 below.
3. The Society may cancel and terminate this Agreement at any
time after one hundred twenty (120) days written notice to the
City.
4. In the event of the termination of this Agreement, all City
Historical Aircraft, equipment, supplies and property of all
kinds owned by or on loan to the City or purchased in whole
with City funds or nonrestricted gifts, contributions or
grants received by Society during the term of this Agreement,
and in possession or control of the Society shall be delivered
to the City, except for such gifts, contributions or grants
received by Society for its own purpose other than that of the
Museum. All improvements to the Museum whether made at
Society's expense or at the City's expense shall become on the
date of termination the property of the City. All City
provided funds and monies in possession of the Society and not
expended for their intended purpose shall be delivered to the
City.
5. Before expiration of the five (5) year term of this Agreement,
the parties may by instrument executed by both parties extend
this Agreement upon terms and conditions which are mutually
agreeable. Upon expiration of the five (5) year term of this
Agreement or any extended term, if extended, the Society shall
quit and surrender the Museum and deliver to City all
exhibits, funds, monies and property in accordance with the
provisions of paragraph I.4 of this Agreement within sixty
(60) days.
6. Society may upon ten (10) days prior written notice to the
City terminate this Agreement in any fiscal year that the City
Council of City does not appropriate $100,000 as provided in
paragraph C. 8. above.
7. In the event that either (i) the term of this Agreement is not
renewed or extended, or (ii) this Agreement is terminated for
any reason, Society shall have the right to store Society's
Property in the Museum, at no cost to Society, for a period of
six (6) months after the occurrence of either of such events.
During said 6 -month period Society shall either (i) dispose of
or otherwise remove Society's Property from the Museum, or
(ii) make arrangements with the City satisfactory to Society
for Society's Property to remain in the Museum
J. No structural changes or alterations to the Museum nor new
structures or improvements shall be made to or placed on the Museum
premises without prior written approval of City. Society may make
non - structural changes or alterations to the Museum without City's
prior approval. However, Society shall notify City of such non-
structural changes or alternations within thirty (30) days after
completion thereof. It is the intent of the parties hereto to work
together on capital improvement projects and in identifying sources
of revenues, both public and private. The City agrees to review all
capital improvement projects recommended by the Society and further
agrees that in the event any proposed capital improvement project is
to be financed solely by the Society from private funds, approval of
such projects by the City shall not be unreasonably withheld.
K. As part of this Agreement, the City transfers custody and control of
all City Historical Aircraft, exhibits, artifacts, and equipment
presently at the Museum to the Society, with the authority to add
to, maintain and improve such items. Said custody and control shall
continue for the effective term of this Agreement. With respect to
all City Historical Aircraft, the Society agrees to assist the City
in performing all obligations and requirements of City which exist
under or by virtue of the terms of all City Historical Aircraft loan
agreements, transfer documents, surplus personal property transfer
and contract /work agreements, certificate of title and transfer
agreements, and other instruments (collectively referred to as
"display agreements ") which apply to any such City Historical
Aircraft, which are the property of the United States or any
department or agency thereof or the Colorado Surplus Property
Agency, or others having provided items to City under contractual
arrangement. Copies of the display agreements are available for
inspection at the office of the City's Director of Aviation during
regular business hours. Society shall not be responsible for (i)
any damage or deterioration to City Historical Aircraft or (ii) for
any noncompliance with display agreements except such damage or
noncompliance caused by the gross negligent or willful acts of
Society. For the purpose of improving the Museum, the Society shall
have the authority to negotiate to sell or trade City Historical
Aircraft provided same is authorized by the City's Director of
Aviation, is permitted under the terms of any applicable display
agreement, and specific consent is first obtained from all entities
holding an ownership, reversionary or contractual interest in such
aircraft, artifacts, display or equipment.
L. As a means of fostering communication and cooperation between the
City and the Society, the Society may schedule annual appearances
before City Council at work sessions to discuss matters concerning
the Museum. Society agrees and understands that its operation and
maintenance of the Museum is subject generally to use restrictions
and limitations consistent with the general aeronautical purposes of
the Airport and its operating certificate. Society shall meet with
the Director of Aviation at least semi - annually to review the
Society's operation, maintenance and administration of the Museum.
M. The City shall at all times have access without restriction to all
parts of the Museum. The Society is authorized to enforce City
ordinances, rules, and regulations (except those criminal in nature)
affecting public use of the Museum as may be necessary to insure an
orderly operation in the interest of public health and safety and
the preservation of the City Historic Aircraft.
N. The City shall maintain its present levels of insurance coverage
relating to the Museum during the term of this Agreement.
0. The relationship between City and Society is purely contractual.
Society shall perform its duties hereunder as an independent
contractor and not as an employee or agent of the City. Neither
Society nor any officer, employee, agent, volunteer, or contractor
of Society shall be, or be deemed to be, an employee or agent of the
City. Society shall pay when due all required employment and
withholding taxes before they become delinquent. Society shall have
no authorization, express or implied, to bind the City to any
agreement, liability or understanding. Society acknowledges and
agrees that Society and its employees and volunteers are not
entitled to unemployment insurance or workers' compensation benefits
unless Society provides such coverage and benefits and that City
does not pay for or otherwise provide such coverage and benefits.
P. The Society is prohibited from assigning this Agreement to any third
persons without the prior consent of the City. Any assignment
without the consent of the City shall be void.
Q. All functions and activities with respect to the administration and
operation of the Museum not specifically delegated to Society by
this Agreement are reserved and retained by the City.
R. Society shall be solely and entirely responsible for its acts and
omissions and the acts and omissions of its agents, employees,
volunteers, and subcontractors.
S. The Society covenants and agrees that no person on the grounds of
race, creed, color, national origin, sex, age, marital status, or
mental or physical disability, shall be excluded from employment or
application for employment, or from participation in, or denied the
benefit of or be otherwise subject to discrimination in the use of
the Museum or the furnishing of services thereon.
T. If any provisions of this Agreement are declared invalid or
unenforceable by a court of competent jurisdiction, the unaffected
provisions hereof shall remain in full force and effect.
U. This Agreement sets forth the entire understanding between the City
and the Society. No change, modification, or amendment shall be
valid or enforceable unless set forth in writing and signed by the
City and the Society.
V. Any notice required under this Agreement shall be in writing and
personally served or sent by certified mail, postage prepaid, to:
1. If to City: City of Pueblo
Attention: City Manager
1 City Hall Place
Pueblo, CO 81003
2. If to the Society: Pueblo Historical Aircraft Society
Attention: President
31001 Magnuson Avenue
Pueblo, CO 81001
or to such other place as City or the Society may from time to time
designate in a written notice given to the other party.
W. Society and City mutually release and discharge each other from all
claims, liability, or damage caused by or arising from any hazard or
occurrence covered by casualty and property damage insurance,
regardless of the cause of damage or loss.
X. This Agreement shall be governed by the laws of the State of
Colorado and shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and approved assigns.
Y. Nothing in this Management Agreement, express or implied, is
intended nor shall be construed to confer upon, or give to, any
person or entity other than the City or Society any right, remedy,
or claim under or by reason of the Management Agreement or any
covenant, condition or provision hereof, and all covenants,
conditions, provisions and agreements contained in the Management
Agreement by or on behalf of City or Society shall be for the
exclusive and sole benefit of City and Society.
Z. No term or condition of this Management Agreement shall be construed
or interpreted as a waiver, either express or implied, of any
immunities, rights, benefits or protection provided or available to
City under applicable law including without limitation those
provided and available to City under the Colorado Governmental
Immunity Act, X24 -10 -101, et seq., C.R.S., as amended or as same may
be amended. The parties understand and agree that the City's and
its officers', agents' and employees' liability for claims for
injury to persons or property is controlled and limited by the
provisions of X24 -10 -101, et seq., C.R.S. as amended.
Executed the day and year first above written.
[ S E A L] CITY OF PUEBLO, A MUNICIPAL
CORPORATION
ATTEST:
ity Clerk
App roved t o as form:
City Attorney/
By
President of the City Council
PUEBLO HISTORICAL AIRCRAFT
SOCIETY, A COLORADO NON-
PROFIT CORPORATION
�
ATTEST t
r ry
By
Presi ent
EXHIBIT "A"
Aircraft Museum
Pueblo Memorial Airport
A parcel of land being a portion of the SW '/4 of the NW '/4 of Section 30, Township 20
South, Range 63 West, and a portion of the SE '/4 of the NE '/4 of Section 25, Township
20 South, Range 64 West of the 6 Principal Meridian, being more particularly described
as follows
All bearings of this description are based on the line from an aluminum monument
stamped P.L.S. No. 16128 in a standard City of Pueblo monument box found on the
centerline of Magnuson Avenue at its intersection with the centerline of Skyway Street,
and an aluminum monument stamped City of Pueblo found at the W '/4 corner of said
Section 30 to bear N -86 0 38'55 " -E.
Commencing at the aluminum monument located at the W '/4 corner of said Section 30;
thence N -84 0 56'27 " -E, a distance of 348.66 feet to a point on the Northerly right -of -way
line of Magnuson Avenue at its intersection with the Westerly right -of -way line of Keeler
Parkway and the point of beginning for this description; thence S -88 °27'39 " -W, a
distance of 323.68 feet; thence N -01 °33'32 " -W, a distance of 391.57 feet; thence S-
88 °27'49 " -W, a distance of 161.54 feet; thence N -01 °30'29 " -W, a distance of 278.08
feet; thence N -88 °27'49 " -E, a distance of 311.03 feet; thence S-01'32'13"-E, a distance
of 39.07 feet; thence S-46'25'1 8"-E, a distance of 246.99 feet to a point on the Westerly
right -of -way line of Keeler Parkway extended Northerly; thence S- 01 " -E along
said right -of -way line extended and the Westerly right -of -way line of Keeler Parkway, a
distance of 455.56 feet to the point of beginning.
Containing 5.50 acres more or less
EXHfBIT "B"
Pueblo Weisbrod Aircraft Museum Vehicles /Aircraft Displays
01 /18/08
Air Force loaned aircraft
Lockheed B -37 (RB), Serial #AF -311
North American F -1001) Super Sabre, Serial #55 -3503
Lockheed 17104 Starfighter, Serial #55 -2967
T -3713, Serial #67 -22253
F -86D, Serial #52 -3653
Navy loaned aircraft
Chance Vought F -8A Crusader, Serial #145349
Grumman F9F (F9F -8 or AF -9J) Cougar, Serial #Unknown
Grumman F1 IF-1 (F -11 F) Tiger, Serial #141853
Douglas A -4C Skyhawk, Serial #147702
Douglas R4D -5 (SC -47H) Skytrain, Serial #17217
Fairchild C-1 19F Packet (Flying Boxcar), Serial #131688
Boeing NB-47E Stratojet, Serial #53 -2104
Lockheed SP -21-1 (SP -2E or P -2V) Neptune, Serial # 128402
Lockheed T -33B Seastar (Shooting Star), Serial 4137939
North American T -28C Trojan, Serial #140064
North American RA -SC Vigilante, Serial #151629
Boeing B -29 Super Fortress, Serial #46 -2022
T -34B Mentor, Serial #144018
Lockheed F -80 Shooting Star, Serial #491872
Sikorsky SH -34J Helicopter, Serial #148002
City /PHAS owned aircraft & vehicles
Convair HC -131A Samaritan, Serial #52 -5794
Douglas F -6A, Serial #134936
Republic F -84 Thunderjet, Serial #71562
Douglas A -26 Invader, Serial #44 -35892
Vertol HC -21 Helicopter, Serial #5311347
Bell 47-G (OH13E) Helicopter, Serial #14941
Bell HU -1 Helicopter, Serial 472 -21508
Beacon Tower
Prototype Air Cushion Research Vehicle (PTACV) Rohr, TTC #3446
Prototype Tracked Air Cushion Research Vehicle (TACRV or TLRV) Grumman, TTC41341 -1600
Prototype Linear Induction Motor Research Vehicle (LIMRV) Garrett — on loan to Super Power
Conductors in Pennsylvania until March 2008
1942 Ford Refueler, VIN #98RWH305747
1942 Stearman
1945 Ford Jeep Snow Cab, VIN#273954 (donated by Pueblo County)
1952 Willys (M38) Jeep, VIN460839? (donated by Pueblo County)
Other
McDonnell Douglas F -1 OIA Voodoo, Serial #53 -2418 — loaned to museum by private owner