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HomeMy WebLinkAbout11116ORDINANCE NO. 11116 AN ORDINANCE APPROVING A MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION, AND THE PUEBLO ZOOLOGICAL SOCIETY, A COLORADO NONPROFIT CORPORATION FOR THE MANAGEMENT AND OPERATION OF THE PUEBLO ZOO BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Management Agreement effective January 1, 2026 between the City of Pueblo, a Colorado Municipal Corporation and Pueblo Zoological Society, a Colorado nonprofit corporation, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. The Mayor 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 same. SECTION 2. The officers and staff of the City are authorized and directed to perform any and all acts consistent with this Ordinance and the attached Management Agreement which are necessary or desirable to effectuate the transactions described therein. SECTION 3. 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 January 12, 2026. Final adoption of Ordinance by City Council on January 26, 2026. ____________________________ President of City Council Action by the Mayor: Approved on _______________. 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 _____________ ____________________________ President of City Council ATTEST ________________________________ City Clerk City Clerk's Office Item # R5 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: January 26, 2026 TO: President Mark Aliff and Members of City Council CC: Mayor Heather Graham VIA: Marisa Stoller, City Clerk FROM: Carla Sikes, City Attorney SUBJECT: AN ORDINANCE APPROVING A MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION, AND THE PUEBLO ZOOLOGICAL SOCIETY, A COLORADO NONPROFIT CORPORATION FOR THE MANAGEMENT AND OPERATION OF THE PUEBLO ZOO SUMMARY: Attached is an Ordinance approving and authorizing the Mayor to execute a management and operation of the Pueblo Zoo. PREVIOUS COUNCIL ACTION: On November 23, 1998, by Resolution No. 8570, City Council approved a Management Agreement with the Pueblo Zoological Society for the management and operation of the Pueblo Zoo. On July 14, 2003, by Resolution No. 9898, City Council approved the first extension of the Management Agreement. On July 29, 2013, City Council approved a second extension of the agreement and then on December 26, 2018, by Resolution No. 14127, City Council approved the third extension of the original Management Agreement. BACKGROUND: The City owns the real property on which the Pueblo Zoo is situated along with all the capital improvements and fixtures on such property. Since at least 1998, the City has contracted with the Pueblo Zoological Society for the management and operation of the Pueblo Zoo. The parties desire to continue this mutually beneficial relationship. The proposed Agreement is for five (5) years from January 1, 2026 to December 31, 2030, unless sooner terminated by the parties. Thereafter, the Society may exercise two (2) five (5) year renewal options. The management fee paid to the Society is subject to annual review and appropriations by City Council. The Management Agreement provides for payment to the Society in 2026 of $944,000 to be used by the Society to operate, maintain, promote, and manage the Zoo and fulfill its obligations under the terms and conditions of the Agreement. This amount will be paid monthly in twelve equal installments. The amount paid by the City to the Society is only a portion of the money necessary to operate the Zoo. It is expected that the Society will aggressively fundraise seeking grants, gifts, endowments and other donations to sustain the Zoo. In addition, the Society may charge for admission, special events, and programs the funds from which are also expected to be used to fulfill the FINANCIAL IMPLICATIONS: A management fee of $944,000 will be paid to the Society in 2026 from the General Fund. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: If this Ordinance is not approved, it is unlikely the Society will be able to sustain the operation of the Zoo. RECOMMENDATION: Approve the Ordinance. ATTACHMENTS: 1. 2026 Zoo Management Agreement 2. Map of Zoo Boundary Exhibit to Management Agreement CITY OF PUEBLO ZOO MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT entered into as of the date last signed below by and between the City of Pueblo, a Colorado municipal corporation, hereinafter referred to as the "City", and the Pueblo Zoological Society, a Colorado nonprofit corporation, hereinafter referred to as the "Society". WITNESSETH: WHEREAS, the City now owns a Zoo open to the public and located on the premises commonly known as Pueblo City Park, Pueblo, Colorado, and WHEREAS, the Society is a nonprofit corporation having as its members citizens of the City of Pueblo, Colorado, who are dedicated to the preservation and development of the Zoo, and WHEREAS, the Society possesses the qualifications to operate, manage, maintain and promote the Zoo, and WHEREAS, City and Society entered into the City of Pueblo Zoo Management Agreement dated as of September 1, 1989, as extended by three Extension Agreements dated as of July 14, 2003, July 29, 2013, and December 31, 2018, and modified by a Modification Agreement dated as of April 10, 2006, and WHEREAS, the Society and the City are desirous of entering into a renewed agreement to supersede all previous agreements and pursuant to which the Society will continue to assume responsibility for the management, promotion, operation and maintenance of the Zoo, and WHEREAS, the Society and the City remain desirous of operating the Zoo and in the continued growth and improvement of the Zoo in a manner which is in the best interests of the citizens of the City. NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein contained, the City and Society agree as follows: Definitions. 1. As used herein, the following words and phrases shall have the following meaning: (a) "Zoomeans the real property owned by the City as shown on the attached Exhibit A" and improvements thereon. Appointment and Term. 2. City hereby appoints and retains Society subject to and upon the terms and Page 1of 13 conditions herein set forth, as an independent contractor, to operate, manage, maintain and promote the Zoo for a term of five (5) years from January 1, 2026 to December 31, 2030, unless sooner terminated as herein provided. Society does hereby accept such appointment and agrees 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. 3. If Society is not in default hereunder, Society may exercise two (2) five (5) year its option no later than one hundred eighty (180) days before the end of the then current Term or Extended Term. Society Obligations. 4. City does hereby delegatesto Society the authority to perform, and Society agrees that during the term of this Agreement it shall perform the following functions: (a) Operate the Zoo as a public zoo for the use and benefit of the City and the general public. (b) Manage and control all Zoo exhibits. (c) Designate the special uses to which the Zoo grounds and facilities may be put including the authority to schedule all events at the Zoo by individuals or community groups, including but not limited to educational classes, lectures, fundraising events, and community outreach functions. This authority is subject to modification by City Council by resolution. (d) Operate Zoo admissionsand offer zoo memberships, including authority to charge reasonable fees and admission charges. (e) Operate a gift shop on the premises for the benefit of the public and be responsible for all purchasing, promoting, sales, and inventory management related to the same. (f) Provide concessions for the benefit of the public, including but not limited to: i. a seasonal café, ii. vending machine concessions through contracts with third party vendors to supply year-round snack and entertainment options (i.e. beverages, candy, ice cream, photo booth, etc.), and iii. contracts with other food vendors such as food trucks and caterers as needed for special events or high-volume days. (g) Recruit, hire, employ, and train sufficient personnel reasonably necessary and required to perform Society's duties, functions and responsibilities under this Agreement. (h) Recruit and train volunteers to assist in educational programming, events, Page 2of 13 and grounds upkeep and maintain proper insurance to cover the same for accidents and injuries. (i) Obtain all necessary licenses, accreditations and permits for the operation of the Zoo. (j) Solicit financial contributions from the general public, private foundations and other sources. (k) (l) Regularly perform routine maintenance and repairs to the plumbing, electrical, and HVAC systems located on the Zoo grounds. (m) Weed, water, and maintain all flower beds, lawn areas, and vegetation for (n) Maintain all public walkways, restrooms, picnic areas, common areas, and other public areas. (o) Maintain all animal exhibits in good repair including but not limited to maintaining exhibit and guest fences. (p) Maintain all staff and employee areas including but not limited to walkways and roads. (q) Promptly notify the City, through the Director of Parks and Recreation Department, of any damage to, destruction, breakdown or failure of any building, facility, exterior fence, improvement or part thereof. Such notification shall be by phone and e-mail and provide at a minimum: i. the date of the damage, breakdown, or failure occurred, ii. a description of how the damage, breakdown or failure occurred, iii. the immediate action taken to protect the property, iv. any invoices or estimates for repair, and v. any other information deemed relevant. The Zoo shall provide whatever additional information and assistance requested by the City to assess and evaluate the damage, destruction, or breakdown, and to the extent required by this Agreement, repair the same. (r) in accordance and in compliance with all applicable state and City laws, rules, and regulations including, without limitation, Chapter 3 of title XI of the Pueblo Municipal Code after obtaining liability insurance for such activity meeting the requirements of Paragraph 15 hereof. Page 3of 13 City Obligations. 5. The City agrees, subject to available funds being appropriated and budgeted for such functions, that during the term of this Agreement, it shall perform the following functions: (a) Provide all police and fire protection to the Zoo. (b) Maintain and repair the exterior perimeter fence to ensure it is secure and keeping it clear of major vegetation and trees that have a trunk greater than 3 inches in diameter at one foot above ground. (c) Subject to appropriation of funds by City Council, replace or repair, as necessary, all buildings, facilities, zoo boundary perimeter fences (except exterior gates and all exhibit, interior, and guest fences are the responsibility of the Zoo), or other existing capital improvements on the Zoo grounds. Replacement or repair of any existing capital improvements on the Zoo grounds shall be determined on a case-by-case basis after considering the most recent capital needs report and all attendant circumstances. (d) Subject to appropriation of funds by City Council and available staffing, maintain, prune, and remove trees within the interior of the Zoo grounds. Whether available City staffing exists to perform this provision shall be within the sole and absolute discretion of the Director of Parks and Recreation. (e) Regularly inspect and assess all capital improvements on Zoo grounds at least every two years, including but not limited to buildings and facilities to develop a regular maintenance and repair schedule. (f) Subject to available funds or appropriation of funds by City Council, share in the cost of major repairs (repairs costing $5,000 or more) to all capital improvements on Zoo -by-case basis after considering the most recent capital needs report and all attendant circumstances. (g) Permit Society to use the equipment, accessories, parts, furniture, tools and vehicles which are presently used by Society and located at the Zoo (the "City's personal property"). Such usage shall be at no cost to the Society but the Society shall be obligated at all times to maintain City's personal property in operating condition and to exercise reasonable care during such usage. On or before December 31 each year, Society shall provide for City approval a written list and inventory of City's personal property used by Society. The list shall detail any property damaged or sold and whether the property was, or will be replaced. (g) Subject to appropriation of funds by City Council and availability of staff, maintain and repair the shared parking lot adjacent to the Zoo including performing snow removal. Whether available City staffing exists to perform this provision shall be within the sole and absolute discretion of the Director of Parks and Recreation. (h) May permit Society to obtain gasoline for City's personal property from Page 4of 13 storage facilities, if any, located within the Pueblo City Park and to have City's personal property repaired and maintained by City's Fleet Maintenance Department. The cost of such gasoline, maintenance and repairs will be billed to and paid by Society within thirty (30) days after date of billing. Finance and Accounting. 6. It is the intent of the parties hereto that a high-quality Zoo continue to be maintained and operated by Society for the recreational enjoyment of all the citizens of the City. In furtherance of this intent, the City agrees to appropriate and provide annually such sums as the City Council may in its sole discretion deem proper to operate, maintain, promote and manage the Zoo and fulfill its obligations under the terms and conditions of this Agreement. Funds appropriated annually to the Zoo by the City will be expended by the Society for the purposes indicated in the approved budget and consistent with this Agreement. Each month commencing with the month of January 2026, City will disburse to Society one-twelfth (1/12th) of the annual appropriation. Admission charges or fees or other funds received by Society in excess of receipts shown on the approved budget will not result in a reduction in disbursement of City's appropriated and approved funds. 7. The Society shall keep separate records of all gifts, endowments, requests or devises to the Society, together with income therefrom, and disburse said funds by traceable means such as online payments, credit card or bank checks authorized by its duly authorized officer or agent for the operation, management, promotion and maintenance of the Zoo unless such expenditures are inconsistent with the duties and obligations of the Society toward the donors of such gifts, bequests, endowments or devises. 8. The Society shall maintain proper books of account of all its monies and properties, shall make an annual report to the City Council and the Mayor of its accounts and expenditures, and shall submit itself and its books and records to whatever inspection, audit or check the City Council or Mayor may desire from time to time. 9. Annually, as requested by the City, the Society shall submit to the City Council and the Mayor for approval a proposed Zoo budget for the following calendar year. Each proposed Zoo budget shall include all projected and available funds, including unexpended balances from prior years, and revenues as well as anticipated expenditures and conform to City budget procedures. 10. All monies and funds received by the Society either from the operation of the Zoo or concessions thereon, including admission charges or fees, or from the City, or from grants, contributions, gifts or donations (except those restricted in their use to purposes inconsistent herewith), shall be the separate property of Society and be used exclusively for the operation, management, promotion and maintenance of the Zoo for the benefit of the general public. Termination. 11. This Agreement may be terminated at any time by mutual agreement, or by either Page 5of 13 party under circumstances and conditions as follows: (a) 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 35 days after receipt of such notice (unless such default cannot with due diligence be wholly cured within said 35- 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 35-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 seven (7) days prior written notice. (b) The City may terminate this Agreement at any time for any reason 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 the City Council before such action is taken, if the Society so desires. If terminated by the City, the Society shall, as soon as the City is prepared to accept the management and control of the Zoo, but in no event later than three hundred sixty (360) days after the date of written notice, quit and surrender said Zoo, exhibits and personal property to the City. (c) The Society may cancel and terminate this Agreement at any time for any reason after providing no less than three hundred sixty (360) days prior written notice to the City. (d) In the event of the termination of this Agreement, all exhibits, animals (other than leased animals) collections, equipment, supplies and property of all kinds owned by the City or purchased in whole or in part by Society with City funds or nonrestricted gifts, contributions or grants received by Society during the term of this Agreement or the 1990 and 1993 Agreements, and in possession or control of the Society shall be delivered to the City. All exhibits, animals, collections, equipment, supplies or property purchased by Society from funds other than those described in the previous sentence, shall be first offered to the City for purchase prior to any other use or disposition of the same by Society. All improvements to the Zoo 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 funds and monies in possession of the Society shall be delivered to the City, except such trust funds of Society which must be disbursed by the Society consistent with the duties and obligations of the Society toward the donors of such funds or monies. (e) In the event of the termination of this Agreement, the parties hereto shall cooperate to ensure all animals loaned or leased to Society by partner zoos or the Association of animals during the termination process. (f) Upon expiration of the term of this Agreement or any Extended Term, the Society shall quit and surrender the Zoo and deliver to City all exhibits, funds, monies and property in accordance with the provisions of paragraph 10(d) within sixty (60) days or such other Page 6of 13 mutually agreed upon timeframe. Facilities, Maintenance, and Capital Improvements. 12. If Society makes any minor change, alternation or improvement to the Zoo, exclusive of regular maintenance, Society shall give written notice thereof to the City (Director of Parks and Recreation) at least annually. Society shall not make any change, alternation or improvement to the Zoo having a cost of $25,000.00 or more without prior written approval of the City. It is the intent of the parties 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 Society from private funds, approval of such projects by the City shall not be unreasonably withheld. 13. The Society shall hereby have custody and control of all animals presently on exhibit at the Zoo. Said custody and control shall continue for the effective term of this Agreement. The Society agrees that it will treat, keep and care for said animals, in accordance with the highest standards applicable to up-to-date and modern zoos to the best of its ability. The Society shall have the authority to sell or trade animals for the sole purpose of improving the exhibits at the Zoo. The Society shall provide all care and maintenance for the animals and exhibit equipment at its expense. In addition, the Society shall maintain a high standard of Zoo operations which comports with the requirements of accreditation under the Standards of the American Zoo and Aquarium Association, and in the interest of public health and safety. 14. As a means of fostering communication and cooperation between the City and the Society, the Society may schedule periodic appearances before the City Council at work sessions to discuss matters concerning the Zoo. In addition, the City shall appoint two board members with full voting rights, and may appoint an additional two ex-officio non-voting board Parks and Recreation.. Society agrees and understands that its operation and maintenance of the Zoo is under the general administration of the Director of Parks and Recreation and in order to comply with City Charter provisions 13-2 and 13-3, the Society shall meet with the Director of Parks and Recreation at least twice a year to review the Society's operation, maintenance and administration of the Zoo. 15. The City shall at all times have access to all parts of the Zoo, though Society may . The Society is authorized to enforce City ordinances, rules and regulations (except those criminal in nature) affecting public use of the Zoo as may be necessary to ensure an orderly operation in the interest of public health and safety and the health and safety of the Zoo animals. Insurance and Indemnification. 16. compensation insurance policies meeting the minimum requirements below: Page 7of 13 (a) Commercial General Liability Insurance. Society shall secure and maintain during the period of this agreement and for such additional time as work on the project is being performed, Commercial General Liability Insurance issued to and covering the liability of Society with respect to all work performed by it and all its subcontractors under the agreement, to be written on a comprehensive policy form. This insurance shall be written in amounts not less than $1,000,000 for each occurrence and aggregate for personal injury including death and bodily injury and $1,000,000 for each occurrence and aggregate for property damage. This policy of insurance shall name the City of Pueblo, its agents, officers and employees as additional insureds. The policy shall also provide coverage for contractual liability assumed by Zoo under the provisions of the agreement. The policy shall also provide coverage for contractual liability assumed by Zoo (b) Comprehensive Automobile Liability Insurance. Society shall procure and maintain during the period of the agreement and for such additional time Comprehensive Automobile Liability Insurance. This insurance shall be written with limits of liability for and injury to one person in any single occurrence of not less than $350,000 and for any injury to two or more persons in any single occurrence of not less than $1,000,000. Alternate coverage of combined single limit, each accident, in an amount of not less than $1,000,000 may be accepted at the discretion of the Purchasing Director. This insurance shall include uninsured-underinsured motorist coverage and shall protect Society from any and all claims arising from the use both on and off the site of the project of automobiles whether owned, leased, hired or used by Society. (c) complying with statutory requirements in Colorado and in any other state or states where the work waiving subrogation against the City (d) Professional Liability Insurance. If any licensed professionals are engaged with coverage of not less than $1,000,000 must be provided in a form and with a deductible acceptable to the City. 17. Society forever releases and waives any and all claims, known and unknown, presently existing or arising in the future, and any suit or action in law or equity against City and its officers, employees, agents, and independent contractors ("Released Parties") in any court or tribunal, based on tort, statute, violation of civil rights, or any other legal theory, for any physical injury, psychological injury, death, property damage, or loss that Society may suffer, related to or caused by the Released Parties which are in any way related to the Zoo, or any vehicle, object, thing, or activity in any building or facility owned, operated, or controlled by the Released Parties; provided, however, that the foregoing release and waiver shall not apply to claims arising out of Agreement. 18. Society shall not file, pursue, or prosecute any suit, action, or proceeding, in law Page 8of 13 or in equity, in any court or tribunal, against the Released Parties, based on tort, statute, violation of civil rights, or any other legal theory, for any physical injury, psychological injury, death, property damage, or loss that Society may suffer related to or caused by the Released Parties which are in any way related to the Zoo or any vehicle, object, thing, or activity in any building or facility owned, operated, or controlled by the Released Parties; provided, however, that the foregoing covenant sh gross negligence, willful misconduct or breach of this Agreement. 19. Society shall indemnify, defend, and hold harmless the Released Parties 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 that Society may suffer, related to or caused by the Released Parties which are in any way related to the Zoo or this Agreement, or any vehicle, object, thing, or activity in any building or facility owned, operated, or controlled by the Released Parties; except to the extent such liability arises out of or relates to the Released Par negligence, willful misconduct or breach of this Agreement. 20. The City shall maintain its present levels of property insurance coverage relating to the Zoo during the term of this Agreement. Contact Persons and Notices. 21. Society shall designate two people (the primary contact and an alternate) responsible for performance of this contract. The names, addresses, and telephone numbers of such person(s) shall be provided to the City and shall be kept current at all times. 22. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if hand-delivered or sent by certified mail or registered mail, postage and fees prepaid, addressed to the party to whom such notice is to be given at the following address or at such other address as may be subsequently furnished in writing to the other party: If to City: Mayor City of Pueblo 1 City Hall Place Pueblo, Colorado 81003 With an additional copy to: City Attorney City of Pueblo 1 City Hall Place Pueblo, Colorado 81003 Page 9of 13 Parks Director City of Pueblo 1 City Hall Place Pueblo, Colorado 81003 If to Society: Executive Director Pueblo Zoological Society 3455 Nuckolls Pueblo, Colorado 81005, Miscellaneous. 23. The Society is managed by a Board of Directors consisting of 12-15 board members of which two shall be appointed by the City. In addition, the City may appoint an additional two ex-officio board members. The City appointed board members shall serve within six (6) months of the execution of this Agreement. 24. 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. 25. All functions and activities with respect to the administration and operation of the Zoo not specifically delegated to Society by this Agreement are reserved and retained by the City. 26. The relationship of the Society to the City is that of an independent contractor. No agent, employee or subcontractor of Society shall be or be deemed to be an agent, employee or subcontractor of the City. Society shall be solely and entirely responsible for its acts and omissions and the acts and omissions of its agents, employees and subcontractors. The Society shall indemnify, save and hold harmless City, its officers, employees and agents, against any and all claims, damages, liability and awards, including costs, expenses, expert witness fees and attorney fees incurred as a result of any act or omission by Society, or its employees, agents or subcontractors. 27. Pueblo Zoological Society certifies that it has complied with the United States Immigration Reform and Control Act of 1986. Pueblo Zoological Society represents and warrants that to the extent required by said Act, all persons employed by Pueblo Zoological Society for performance of this Agreement have completed and signed Form I-9 verifying their identities and authorization for employment. 28. Society covenants and agrees that no person on the grounds of race, creed, color, national origin, sex, sexual orientation, 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 Zoo or the furnishing of Page 10 of 13 services thereon. 29. In the event of any litigation arising out of this Agreement, the court shall award to the prevailing party all reasonable costs and expenses, including attorney fees. 30. If any provision of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction, the unaffected provisions hereof shall remain in full force and effect. 31. This Agreement sets forth the entire understanding between City and Society. No charge, modification or amendment shall be valid or enforceable unless set forth in writing and signed by City and Society. 32. 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. 33. This Agreement supersedes the City of Pueblo Zoo Management Agreement entered into on September 1, 1998, as amended and modified, between City and Society (the "1998 Agreement") and all subsequent amendments shall terminate and any remaining obligations under previous agreements shall be considered merged into the current Agreement. 34. No Multi-Fiscal Year Obligation on City. This Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor be deemed to constitute, the creation of a debt or multi-year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to Article X, §20 of the Colorado Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding any other provision of this Agreement, with respect to any financial obligation of City which may arise under this Agreement in any fiscal year, in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation, such failure shall not constitute a default by or breach of this Agreement, including any sub-agreement, attachment, schedule or exhibit thereto, by the City. City may in its sole and absolute discretion terminate this Agreement for reasons of non-appropriation immediately upon written notice without causing default or breach. 35. No Third-Party Beneficiaries;No Waiver of Immunities. Nothing in this Agreement is intended, nor should it be construed, to create any rights, claims, or benefits or assume any liability for or on behalf of any third party, or to waive any immunities or limitations conferred under federal or state law, including but not limited to the Colorado Governmental Immunity Act, § 24-10-101 et seq., C.R.S. 36. Waiver of Breach. A waiver by any party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party. 37. Electronic Signatures. This Agreement and all other documents contemplated hereunder may be executed using electronic signatures with delivery via facsimile transmission, Page 11 of 13 by scanning and transmission of electronic files in Portable Document Format (PDF) or other readily available file format, or by copy transmitted via email, or by other electronic means and in one or more counterparts, each of which shall be: (i) an original, and all of which taken together shall constitute one and the same agreement, (ii) a valid and binding agreement and fully admissible under state and federal law, and (iii) enforceable in accordance with its terms. CITY OF PUEBLO, PUEBLO ZOOLOGICAL SOCIETY A MUNICIPAL CORPORATION A COLORADO NON-PROFIT CORPORATION By By Heather Graham, Mayor Name________________________ Date: ______________________________ Title _________________________ Date: ________________________ Attest: By ________________________________ City Clerk Name _________________________ Title __________________________ APPROVED AS TO FORM: Date __________________________ City Attorney Page 12 of 13 EXHIBIT A That portion of the property legally described as ALL LOTS IN BLK 2 UPLANDS PK outlined in black on the attached map and commonly known as 3455 Nuckolls Ave, Pueblo, CO 81005. Page 13 of 13