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HomeMy WebLinkAbout11117ORDINANCE NO. 11117 AN ORDINANCE APPROVING A MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION, AND THE NATURE AND WILDLIFE DISCOVERY CENTER, A COLORADO NONPROFIT CORPORATION FOR THE MANAGEMENT AND OPERATION OF THE NATURE CENTER AND PUEBLO MOUNTAIN PARK 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 the Nature and Wildlife Discovery Center, 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 # R6 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 NATURE AND WILDLIFE DISCOVERY CENTER, A COLORADO NONPROFIT CORPORATION FOR THE MANAGEMENT AND OPERATION OF THE NATURE CENTER AND PUEBLO MOUNTAIN PARK SUMMARY: Attached is an Ordinance approving and authorizing the Mayor to execute a the management and operation of the Nature and Raptor Center and Pueblo Mountain Park. PREVIOUS COUNCIL ACTION: On April 14, 2008, City Council approved Ordinance No. 7791, approving a Management Agreement with the Mountain Park Environmental Association for management and maintenance relating to the Pueblo Mountain Park. On July 13, 2015, City Council approved Resolution No. 13266, approving a Management Agreement dated August 1, 2015 with the Nature and Raptor Center of Pueblo, Inc. relating to the management and maintenance of the Nature Center. After the Nature and Raptor Center of Pueblo merged with the Mountain Park Environmental Association, City Council approved Ordinance No. 9493 on July 8, 2019, approving addendums to the Management Agreements for both the Pueblo Mountain Park and Nature Center, reflecting management of both parks by the merged entity, the Nature and Wildlife Discovery Center. BACKGROUND: Since its formation in 2019, the Nature and Wildlife Discovery Center has contracted with City to manage both the Pueblo Mountain Park and the Nature Center. The parties desire to continue this arrangement through 2026 and potentially extend the agreement through 2027. The proposed Agreement would consolidate prior separate agreements for the management of the Mountain Park and management of the Nature Center into one agreement that would govern the management of both City resources. FINANCIAL IMPLICATIONS: The City does not pay a management fee to the Nature and Wildlife Discovery Center for the management of Pueblo Mountain Park or the Nature Center. Subject to appropriation, the City may provide funds necessary to repair and/or replace the physical facilities, fixtures, or equipment of the Nature Center or Mountain Park. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: If this Ordinance is not approved, the City will not retain the Nature and Wildlife Discovery Center to manage the Pueblo Mountain Park or the Nature Center. RECOMMENDATION: Approve the Ordinance. ATTACHMENTS: 1. Mountain Park and Nature Center Consolidated Agreement with exhibits A MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE NATURE AND WILDLIFE DISCOVERY CENTER, RELATING TO THE MANAGEMENT OF THE NATURE CENTER AND PUEBLO MOUNTAIN PARK THIS MANAGEMENT AGREEMENT (“Agreement”) entered into as of January 26, 2026 (“Effective Date”) by and between the City of Pueblo, a municipal corporation (“City”), and the Nature and Wildlife Discovery Center, a Colorado nonprofit corporation (“Manager”), WITNESSTH: DEFINITIONS: The following terms when used herein shall be defined as follows: (a) “Nature Center” shall refer to and include both the real property described in attached Exhibit “A” as leased from the State of Colorado, as well the real property described in Exhibit “B” owned by the City; and all improvements thereon, whether now existing or hereafter constructed or installed. (b) “Pueblo Mountain Park” or the “Mountain Park” shall refer to and include the approximately 608.834 acres of land described in Exhibit "C" and all systems, buildings and facilities located thereon, including, without limitation, the roads and road system, water system, individual sewage disposal systems, and the buildings and facilities listed and described in Exhibit “D.” (c) “Horseshoe Lodge” or “Lodge” shall refer to the two-story horseshoe building generally located within and adjacent to the east boundary of Pueblo Mountain Park. RECITALS WHEREAS, City is the lessee under lease agreement dated June 29, 2001 between City and the State of Colorado, acting by and through the Department of Natural Resources for the use and benefit of the Board of Parks and Outdoor Recreation as lessor of the real property described in Exhibit “A” and as owner of the real property described in Exhibit “B”. WHEREAS, City is the owner of Pueblo Mountain Park. WHEREAS, Manager continues to operate Nature Center pursuant to an agreement between the City and Manager’s predecessor-in-interest, Nature and Raptor Center of Pueblo, Inc., effective August 1, 2015. WHEREAS, Nature and Raptor Center of Pueblo, Inc. merged with the Mountain Park Environmental Association (“MPEA”), a Colorado nonprofit corporation effective January 1, 2018, and assumed obligations arising from MPEA’s contract with City for management of Mountain Park. WHEREAS, City and Manager entered into Addendum No. 1 effective July 8, 2019, reflecting merger of MPEA and Nature and Raptor Center, Incorporated, forming the Nature and Wildlife Discovery Center. WHEREAS, City and Manager are desirous of entering into a management agreement for the Nature Center and Mountain Park upon the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual recitals and covenants contained herein, City and Manager agree as follows: 1. Appointment. City hereby appoints and retains Manager to, and upon the conditions herein set forth, as an independent contractor, to develop, promote, operate, manage, and maintain the Nature Center and Mountain Park, and Manager does hereby accept such appointment. Manager and City agree to perform all assigned functions and obligations under this Agreement in compliance with the terms of this Agreement and agree to be bound by all applicable laws, ordinances, and regulations now in effect or hereafter enacted. Manager agrees and understands that the Nature Center and Mountain Park are under the general administration of the Director of Parks and Recreation (“Director”) and, in compliance with Sections 13-2 and 13-3 of the City Charter, Manager shall meet with the Director at least semi-annually to review Center’s operation, maintenance, and administration of the Nature Center and Mountain Park. 2. Term. 2.1 Initial Term. The initial term of the Agreement is one (1) year and zero (0) months, commencing January 1, 2026 and ending December 31, 2026, unless sooner terminated in accordance with Agreement terms. 2.2 Renewal. If not in default hereunder, Manager shall have the option to renew the Agreement for an additional term of one (1) year at the end of the initial term, or any subsequent renewal term, upon the same terms, covenants, and conditions. If Manager desires to renew the Agreement for an additional term, Manager must in writing notify City of such desire at least ninety (90) days prior to the end of the then-current term. Should Manager fail to provide such notice, this Agreement shall terminate at the end of the then-current term. At least sixty (60) days prior to the end of any term, City may notify Manager of its intent not to renew the Agreement, in which case it shall terminate at the end of the then-current term. 3. Use of Nature Center, Conditions. Manager shall continuously use the Nature Center solely for the purpose of developing, operating, and maintaining Nature Center. Management and use of Nature Center are subject to and conditioned upon the following covenants which Manager agrees to perform and comply with: 3.1 Manager shall comply with all applicable ordinances, laws, and regulations affecting the Nature Center and the use thereof by Manager, including, without limitation, environment, wetlands protection, and health and hazardous waste laws, ordinances, and regulations. 3.2 Manager acknowledges that this Agreement and all terms, covenants, and conditions herein and use of the Nature Center are in all respects subject and subordinate to the terms, covenants and conditions of the lease agreement between City and State of Colorado. Manager acknowledges receipt of a copy of the superior lease. If the superior lease with respect to the Nature Center is terminated for any reason, this Agreement shall terminate without liability to City. 3.3 Manager shall maintain the Nature Center in good condition, appearance, and state of repair, regardless of cause or need for maintenance and repairs, using reasonable care according to the highest standards in the industry. Manager shall be responsible, at its sole expense, for all routine maintenance of Nature Center, its physical facilities, fixtures, and equipment. Manager shall pay the first one thousand dollars ($1,000) per occurrence, to repair and/or replace the physical facilities, fixtures, or equipment. Manager’s cumulative financial responsibility for maintenance, repair, or replacement under this section shall not be expected to exceed the amount approved by City in its 2026 non-departmental allocation for such purposes. Thereafter, City, at its sole discretion and contingent upon availability of funds for such purposes, shall pay all remaining amounts necessary to repair and/or replace the physical facilities, fixtures, or equipment so long as the repair and/or replacement is not necessitated by the negligence of the Manager, its employees, agents, subcontractors, guests, or invitees. Should the repair or replacement be necessitated by the negligence of Manager, its employees, agents, subcontractors, guests, or invitees, Manager shall bear sole and exclusive liability for the repair or replacement. All invoices provided to Manager for maintenance, repair, and/or replacement of any portion of the Nature Center shall be paid within forty-five (45) days of the invoice. Manager shall, upon termination or expiration of the Agreement, deliver and surrender Nature Center in good condition, appearance, and state of repair. 3.4 Manager shall not permit, create, commit, or allow and shall protect Nature Center against: any loss, damage, dangerous condition, injury or waste, ordinary wear and tear, fire or other casualty not under its control, and acts of God excepted. Manager shall not set any portion of the Nature Center on fire; or use any incendiary or explosive devices without prior written approval of the Pueblo Fire Department and City, and after obtaining all required permits from the City. 3.5 City may enter Nature Center at any reasonable time to view the Property and examine the conditions thereof, and for any lawful purpose necessary to enforce applicable laws and ordinances and the provisions of this Agreement. If so directed by the City after inspection of the Property, Manager shall perform all necessary additional clean-up at its sole expense. 3.8 Manager shall keep and maintain accurate and complete accounts and records of all activities and transactions conducted by Manager on or from the Nature Center, including without limitation sales receipts, inventory lists, equipment logs, third-party agreements, purchase orders, payroll, financial records, tax returns, and bank statements, or any subcontractor contracted by Manager to work, manage, or operate all or a portion of the Nature Center, in accordance with generally accepted accounting principles, which accounts and records shall be available for inspection, copy, and audit by City during normal business hours. Manager shall retain all such accounts and records for a minimum period of three (3) years after termination of this Agreement. 4. Use of Nature Center, Activities. 4.1 The scheduling of permitted activities within the Nature Center and the conduct of such activities, including the frequency and type of activities, shall be the responsibility of Manager and within its discretion. 4.2 All activities conducted at the Nature Center shall be open to the general public and, if applicable, shall by sanctioned by an appropriate sanctioning body. Manager may charge a reasonable fee or admission charge, provided, that all such fees and charges shall be used in the development, management, and operation of the Nature Center and Manager shall submit to City at least annually an accounting of the revenue from such fees and charges including their expenditures. 4.3 All ordinances of the City of a regulatory or police nature, including without limitation, building codes and traffic ordinances, shall apply to and govern the Nature Center and activities conducted thereon the same as if the Nature Center were located within the City. Manager shall control all noise and fugitive dust from roadways and activities conducted within Nature Center. 4.4 Manager shall obtain prior written permission from Director prior to hosting any special or non-standard event. 5. Development of Nature Center. 5.1 The Nature Center shall only be used and developed in accordance with its current purpose and subject to the Master Lease. 5.2 All buildings and other improvements of a permanent nature which Manager plans to construct on Nature Center premises must receive preliminary written approval from Director. In addition, the plans must be designed by a professional engineer or architect and submitted to the Director for review and written approval prior to the commencement of construction. 5.3 All buildings and improvements presently existing on Nature Center premises or hereafter constructed and installed on premises shall be and remain the property of the City, except that, if Manager constructs or installs any building or improvement within Nature Center without written approval of the Director as provided in section 5.2 above, City may, at its option, require Manager to remove such building or improvement and restore the Nature Center to the condition existing prior to the construction or installation of such building or improvement. 5.4 Manager shall not cause or permit any lien or encumbrance to be placed on or asserted against the Nature Center or any building or improvement thereon. 5.5 Manager shall not raze, remove, structurally change, or substantially alter or modify any building, structure, or improvement within the Nature Center without first obtaining written approval of Director. 5.6 City shall maintain the lift station, force main septic line, gravity line, and leach field necessary to move sewage from the Nature Center. 5.7 The force main septic line, gravity line, and lift station contained on the Nature Center property shall remain the property of the City. 6. Nature Center Utilities and Roads. 6.1 Manager shall at its expense install, extend, and maintain all roads within the Nature Center and access roads to the Nature Center, except County Roads, and utility services to the Nature Center and pay all charges for all utilities serving the Nature Center. 6.2 Manager shall maintain and repair the, drains, and plumbing, at the Nature Center by performing at least the following maintenance and repairs: (a) At the nature center building: pumping, cleaning, and all pipes, elbows, baffles, and vents at least once annually; and (b) At the raptor center building: cleaning, repairing, and inspecting the plumbing and outflow to the gravity line at least annually. (c) Manager shall not install or operate a commercial kitchen on premises without prior written City approval. 6.3 Manager shall enter into and maintain in place throughout the term of this Agreement a continuing written contract with a firm, which is, in the City’s sole and absolute discretion, qualified to perform the maintenance and repairs required in Section 6.2. The contract shall expressly provide that the firm shall perform the maintenance and repairs required in Section 6.2. 6.4 Manager shall provide the City’s Wastewater Enterprise with a copy of the contract required in Section 6.3 within 60 days after this Agreement is executed by all parties and on the anniversary of such execution every year thereafter that this Agreement remains in effect. 6.5 Manager shall pay all costs associated with the repairs and maintenance required by Sections 6.1, 6.2, and 6.3. 6.6 Manager shall pay all electrical utilities necessary to provide power to the lift stations. 7. Use of Mountain Park, Conditions. 7.1 Manager shall, from Effective Date and during the effective period of the Agreement, at its expense, maintain the Mountain Park and all improvements and systems therein including, without limitation, City’s buildings and facilities and City’s personal property, in good, clean, and safe condition, appearance, and repair. City shall not be responsible for any repairs or maintenance to Mountain Park or its improvements or systems including, without limitation, City’s personal property, provided, however, that City will maintain the exterior of the Lodge, pavilion, and the two caretaker residences, provided further, however, that if the Lodge, pavilion, or any of the caretaker residences are damaged or destroyed by any act or casualty, City, in its sole discretion, without any obligation to do so, may or may not repair or rebuild same. Manager shall not conduct any waste on or within the Mountain Park or any improvements thereon and shall comply with all laws, ordinances, and regulations affecting Manager’s use of the Mountain Park and all activities conducted thereon. 7.2 Manager shall ensure the provision of water service to Mountain Park facilities through Pine Drive Water. Manager shall be responsible for maintenance, repair, replacement, and upgrading, if required, of the existing cisterns and individual sewer disposal systems. City shall not be responsible for the interruption or failure of any such service or other utilities regardless of the cause of such interruption or failure. 7.3 Manager shall not make any alteration, improvement, or remodeling to the Mountain Park or improvements thereon without adequate funds therefor and City’s prior written consent, which consent shall not be unreasonably withheld. All approved alterations, improvements, and remodeling to the Mountain Park or any improvement thereon shall be at Manager’s expense and become part of the Mountain Park and shall be designated, constructed, and installed in compliance with all applicable laws, codes, and ordinances including, without limitation, the U.S. Secretary of the Interior’s Standards of the Treatment of Historic Properties. Manager shall not cause or allow any mechanics’ liens to be filed against the Mountain Park or any part thereof and Manager shall cause any such mechanics’ liens to be discharged and released. 7.4 City shall at all times have access without restriction to all parts of the Mountain Park including, without limitation, City’s buildings and facilities and City’s personal property. Manager is authorized to enforce City’s ordinances, rules, and regulations (except those criminal in nature) affecting the use of the Mountain Park as may be necessary to accomplish an orderly operation in the interest of public health, welfare, and safety. 7.5 City may inspect all parts of Mountain Park at any time to determine if any cleaning is necessary, including but not limited to fluid spills, major debris, screws, and glass. If so directed by the City after inspection of the Mountain Park, Manager shall perform all necessary additional clean-up at its sole expense. 7.6 Manager shall not set any portion of the Mountain Park on fire, or use any incendiary or explosive devices without the prior written approval of the Pueblo Fire Department and Director, and after obtaining all required permits from the City. 7.7 Notwithstanding any provision in this Agreement to the contrary or which may be construed to the contrary, City assumes no obligation or responsibilities to keep or maintain the Mountain Park or any facility thereon in good and safe condition, appearance, or state of repair, regardless of cause of need for maintenance and repair. 7.8 Each July, Manager shall submit to the Mayor a proposed Pueblo Mountain Park budget for the following year. Each proposed annual budget shall include all projected and available funds, including unexpected balances from prior years, and revenues as well as expenditures and conform to the City’s budget procedures. 7.9 Manager shall obtain prior written permission from the Director prior to hosting any special or non-standard event. 8. Use of Mountain Park, Activities. City does hereby delegate to Manager the authority to perform, and Manager agrees that it shall perform, the following functions: 8.1 Operate the Mountain Park as a public park for the use and benefit of the City and general public; 8.2 Develop, implement, coordinate, and provide a variety of programs which allow students, as well as families and adults, the opportunity to learn about and enjoy the natural and cultural history of the Mountain Park; 8.3 Develop and maintain in the Lodge an environmental education center providing multi-day environmental education programs for area schools and groups; 8.4 Develop, implement, and maintain interpretive media at the Lodge and other locations in the Mountain Park which will increase the awareness and appropriateness of the uses of the Mountain Park; 8.5 Develop, implement, and continue programs for and to otherwise encourage individuals and groups to use the Mountain Park; 8.6 Develop, implement, and coordinate the public use of the Lodge as a retreat Lodge; 8.7 Designate the uses to which the Mountain Park may be put including the authority to schedule all events at the Mountain Park by individuals or groups, and conducting educational classes lectures, and other public functions, subject to the reserved usage of the Lodge and pavilion and further subject to modification by Resolution of the City Council; 8.8 Establish and charge reasonable fees for the use of the Mountain Park or any portion thereof, subject to modification by Resolution of the City Council 8.9 Obtain and/or continue in effect all licenses and permits necessary or required for the operation of the Mountain Park and all improvements and facilities located thereon; and 8.10 Solicit financial contributions and grants from the general public, private foundations and other sources. 9. Hazardous Materials. If the presence of Hazardous Materials on Nature Center premises or Mountain Park is caused or permitted by Manager, or for which the Manager is otherwise legally obligated, results in the contamination of the Nature Center or Mountain Park, then Manager shall immediately remove, clean up, and remediate the contamination. Manager shall indemnify, defend, and hold City and State of Colorado harmless from all claims, judgments, damages, penalties, fines, costs, liabilities, or losses, including all expenses and reasonable attorney fees, which arise, directly or indirectly, during Manager’s use and occupancy of the Property, or during or after the expiration or termination of the Agreement as a result of such contamination or failure of Manager to comply with applicable federal, state, and local environmental, wetlands protection, health, and hazardous waste laws, ordinances, and regulations. The term “Hazardous Materials” includes, without limitation, any material or substance that is (i) defined or designated as a “hazardous substance,” “hazardous waste,” or a “regulated substance” under applicable state or federal law or regulation, (ii) petroleum products, or (iii) asbestos. The indemnification provisions of this section and section __ shall survive the termination of this Agreement. 10. NO WARRENTIES OR REPRESENTATIONS, “AS IS” CONDITION. MANAGER ACKNOWLEDGES AND AGREES THAT CITY HAS NOT MADE NOR HEREIN MAKES ANY WARRANTIES OR REPRESENTATIONS WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, or otherwise, or with respect to the quality or condition of Nature Center or Mountain Park or any part thereof, including without limitation, city’s buildings and facilities and City’s personal property, environmental or otherwise. Manager acknowledges that it has had the opportunity to inspect the Nature Center and Mountain Park and agrees to retain possession and use thereof on effective date in their then condition on an “as is and with its faults” basis. 11. Manager’s Representations. Manager represents and warrants that: 11.1 Manager is a nonprofit corporation duly organized and existing under laws of the State of Colorado and an exempt organization described in section 501(c)(3) of the U.S. Internal Revenue Code. 11.2 Manager has approved and authorized by all necessary actions and approvals the Agreement and its execution and delivery by its undersigned officers. 11.3 This Agreement constitutes the valid and legally binding obligation of Manager and is enforceable against Manager in accordance with its terms. 11.4 Each person signing this Agreement on behalf of a party represents and warrants that he or she has the requisite power and authority to enter into, execute, and deliver this Agreement on behalf of such party and that this Agreement is a valid and legally binding obligation of such party enforceable against it in accordance with its terms. 12. Colorado Governmental Immunity Act. No term or condition of the 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, CRS § 24-10-101, et seq., as amended or 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 CRS § 24-10-101, et seq., as amended or may be amended. Any provision of the Agreement, whether or not incorporated herein by reference, shall be controlled, limited, and otherwise modified so as to limit any liability of the City, its officers, agents, and employees to the above-cited law. 13. Insurance and Liability. 13.1 Manager shall, at its expense, maintain and keep in force: (a) commercial general liability insurance, including contractual coverage naming the City as an additional insured with coverage amounts not less than $1 million single limit for property damage and personal injury; (b) automobile liability insurance with coverage amounts not less than $1 million; and (c) workers’ compensation insurance required by Colorado law. Manager shall furnish copies of certificates of such insurance to the Director. 13.2 Manager shall be in control and possession of the Nature Center and Mountain Park as provided herein, and City shall not, in any event whatsoever, be responsible or liable for any injury or damage to any property or person while on the Nature Center or Mountain Park premises, or arising out of the use of Nature Center or Mountain Park premises by Manager or activities conducted thereon. As to the City, Manager agrees to assume the risk of all injuries, including death resulting therefrom, to persons, and damage to and destruction of property, including loss of use thereof resulting from or arising out of, directly or indirectly, wholly or in part, any activities or prosecution of work undertaken by Manager or by the use of the Nature Center or Mountain Park by Manager, or use by others under Manager’s supervision, control, or permission. Manager shall indemnify, defend, and hold harmless City and its officers, agents, and employees from any and all claims of liability arising from operation of Nature Center or Mountain Park, including cost of defense and reasonable attorney fees. 14. Worker Authorization Required. Manager shall submit to the Purchasing Agent of City its certification that it does not knowingly employ or contract workers without authorization to lawfully work in the U.S. under this Agreement in compliance with the U.S. Immigration Reform and Control Act of 1986. Manager represents and warrants that, to the extent required by said Act, all persons employed by Manager for performance of this Agreement have completed and signed Form I- 9 verifying their identities and authorization for employment. 15. Colorado Open Records Act. Manager acknowledges that City is a governmental entity subject to the Colorado Open Records Act, CRS § 24-72-201, et seq., and that records provided or produced under this agreement, including those marked proprietary or confidential, may be subject to public disclosure. Manager agrees that it will fully cooperate with City in the event of a request or legal action arising from said statute. 16. Discrimination Prohibited. Manager shall not, in the use or operation of the Nature Center, Mountain Park, or activities conducted thereon, discriminate against any individual or group on the basis of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry. 17. Governing Law and Venue, Attorney’s Fees. In the event of any litigation arising out of this Agreement, the court shall award to the prevailing party all costs and expenses, including but not limited to, reasonable expert witness and attorney fees. This Agreement shall be governed by the laws of the State of Colorado. Venue for any such litigation shall be Pueblo County, Colorado. To the extent permitted by law, each party waives their right to a jury and consent to all litigation being tried to the court. 18. Entire Agreement, Severability, Amendments. This Agreement constitutes the entire agreement of the parties with regard to the subject matter hereof and supersedes all prior agreements and understandings, whether oral or written. This Agreement terminates all prior Agreements between City and Manager upon Effective Date. If any provision of this Agreement is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Agreement shall continue in full force and effect. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together constitute one and the same agreement. No amendment or modification of this Agreement shall be effective unless in writing and signed by both parties. 19. Miscellaneous Provisions. 19.1 No assent, express or implied, by City to any breach or default by Manager in the performance of any one or more of the covenants hereof shall be deemed or taken to be a waiver of any succeeding breach of or default in the same or different covenant. 19.2 This agreement shall inure to the benefit of, and be binding upon, the Parties, their respective legal representatives, successors, and assigns; provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. 19.3 Nothing in this Agreement, expressed or implied, is intended nor shall be construed to confer upon, or give to, any person or entity other than the City or Manager any right, remedy, or claim under or by reason of this Agreement or any covenant, condition, or provision hereof, and all covenants, conditions, provisions and agreements contained in this Agreement by or on behalf of City or Manager shall be for the exclusive and sole benefit of City and Manager. Nothing in this Agreement is intended, nor should it be construed, to waive any immunities or limitations conferred under federal or state law. 19.4 This Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor 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, Section 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 the City which may arise under this Agreement in any fiscal year after 2015, 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 or breach of this Agreement, including any sub-agreement, attachment, schedule, or exhibit thereto, by the City. 19.5 Manager shall not assign this Agreement or any of its rights thereunder or sublet all or any part of Nature Center or Mountain Park without prior written approval of the Director. 19.6 All water rights and all right, title, and interest in and to all minerals, ores, sand and gravel, metals of any kind and character, coal, asphalt, oil, gas, or like substances, in, on, or under the Nature Center or Mountain Park, including the right of surface entry thereto, are reserved by the City and Manager shall claim no rights thereof. 20. Requests to Director, Approval. Any request for approval of the Director required by this Agreement shall be deemed denied if such approval is not given by the Director in writing within thirty (30) days after receipt thereof by Director. Approval of Director may be withheld if, including by not limited to, Director deems any plan for construction or improvements to be not in compliance with Master Plan, or Manager has failed to comply with the requirements of this Agreement or any law, regulation, or ordinance, or Director has determined that the granting the request would not be in the best interests of the Nature Center, Mountain Park, City, State of Colorado, or any subsidiary thereof. 21. Notice. Any notice required or permitted herein shall be in writing and delivered personally or by first-class mail, postage prepaid, as follows: If to City: Director of Parks and Recreation City of Pueblo 800 Goodnight Avenue Pueblo, Colorado 81005; and Mayor City of Pueblo 1 City Hall Place Pueblo, Colorado 81003. If to Manager: Nature and Wildlife Discovery Center Attn: Executive Director 9112 Pueblo Mountain Park Rd P.O. Box 99 Beulah, CO 81023 Each party reserves the right to change its address provided notice of such change is given in accordance herewith. 22. Termination. 22.1 If Superior Lease with respect to Nature Center is terminated for any reason, this agreement shall terminate. 22.2 If Nature Center or Mountain Park shall be taken by right of eminent domain, in whole or in part, this Agreement shall terminate and all compensation and damages which may be awarded for such taking shall belong to and be the sole property of City. 22.3 This Agreement may be terminated by mutual consent. 22.4 If either party is in default hereunder, the non-defaulting party may give written notice describing the default to the defaulting party. If the defaulting party does not correct such default within thirty (30) days after receipt of said notice, or if the default cannot be corrected within said 30-day period and the defaulting party fails to commence action to correct the default with said 30-day period and thereafter diligently pursue corrective action to completion, the non-defaulting party may, up an additional ten (10) days notice, terminate this Agreement and, except for accrued rights and liabilities hereunder, upon such termination each party shall be released from all future duties and obligations hereunder. 22.5 City may, upon ninety (90) days written notice, terminate this Agreement at any time without cause. 22.6 Upon termination of this Agreement for any reason, all rights of Manager hereunder shall cease and terminate and Manager shall immediately and peacefully surrender and deliver possession of Nature Center and Mountain Park to City. CITY OF PUEBLO, NATURE AND WILDLIFE DISCOVERY CENTER A MUNICIPAL CORPORATION A COLORADO NON-PROFIT CORPORATION By By Heather Graham, Mayor Name_________________________________ Date: ______________________________ Title __________________________________ Date _________________________ Attest: By _______________________________________ City Clerk Name ________________________________ Title __________________________________ 203:03137 Date __________________________ APPROVED AS TO FORM: City Attorney Exhibit C The following described real property located in Pueblo County, Colorado: (a) Section 16, except the SE 1/4 of the SE 1/4 thereof, Township 23 South, Range 66 West of the 6th Principal Meridian, containing 600 acres, more or less. (b) 8.034 acres more or less conveyed to Pueblo, a municipal corporation, by deed from Lottie B. Slattery recorded May 24, 1943 as Instrument No. 702705 in Book 947, Page 583 in the records of the Pueblo County Clerk and Recorder. (c) .08 acres more or less conveyed t the City of Pueblo by deed from Wesley T. Klipfel recorded May 21, 1952 as Instrument No. 913261 in Book 1183, Page 356 in the records of the Pueblo County Clerk and Recorder. Subject to easements, rights-of-way, covenants, restrictions and reservations of record, apparent easements and rights-of-way. Exhibit D Pueblo Mountain Park Buildings Garage – Upper Garage/Toolroom Oil Storage Residence – Upper Shop Storage Storage Storage Storage – Log Cabin Storage – Root Cellar Storage Shed Well House Lodge Pavilion Residence – Caretaker Treatment Tank Structure Treatment Tank Structure Storage Ballfield Arena Office Archery Shed & Shelter Storage – Upper Fire Tower Lodge - Improvements