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HomeMy WebLinkAbout7065"As Amended 1/25/93" RESOLUTION NO. 7065 A RESOLUTION APPROVING A MODIFIED MANAGEMENT AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORA- TION AND THE GREENWAY AND NATURE CENTER OF PUEBLO, INC. RELATING TO THE MANAGEMENT OF THE NATURE CENTER AND AUTHORI7.ING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: QPOrrTnU i The Modified Management Agreement dated January 25, 1993 between Pueblo, a Municipal Corporation and the Greenway And Nature Center of Pueblo, Inc. relating to the management of the Nature Center, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. QR("TTCW fhe President of the City Council is authorized to execute and deliver the Modified 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. ATTEST: CT Clerk i INTRODUCED: January 25, 1993 By MICHAEL OCCHIATO Councilperson Pro Si ent of the City Council MODIF-TED MANAGEMENT AGREMWNT This Modified Management Agreement made and entered into this 25th day of January, 1993, by and between the City of Pueblo State- of Colorado, a Municipal corporation ( " the City ") and the Greenway and Nature Center of Pueblo, Inc., a Colorado nonprofit Corporation, Pueblo, Colorado ("the Center "), AITNESSETH THAT, WHER.Em the City holds a lease from the State of Colorado for certain real property described in Exhibit A and owns the real property described in Exhibit B and WHEREAS, the Canter has developed the property described in Exhibits A and B as a nature center, enhancing educational and recreational opportunities for members of the community, and WHEREAS, the Center is a Corporation having knowledge and expertise in the operation of a nature center, and WHEREAS, the Center is desirous or entering a relationship with the University of Southern Colorado, which would enhance the educational value of the center both to the community and to the University's students, and WHEREAS, it is desirable and necessary to consolidate the previous Management Agreement and modifications, and to further modify the Management Agreement to facilitate the University of Southern Colorado's involvement, NOW THEREFORE, for and in consideration of the mutual covenants hereinafter provided, the City and the Center hereby enter into this Modified Management Agreement for the development, operation and maintenance of a nature center on the real property located in Pueblo County, Colorado, particularly described on Exhibits A, B and C (parcels A -3, A -4, A -5 and A -6 only) and to the extent such parcels are included in the land leaned from the S"te of Colorado under the June 24, 1974 lease which are attached hereto and incorporated herein, said real property herein called "leaned premises." 1. MNAGEME A GRE_F:MEN T SUBJ TCL of SUPERIOR ASE. This Management Agreement and all the terms, covenants, and conditions herein and use of the leased premises described in Exhibits A and C (parcels A -3, A-4, A -5 and A -6 only) are in all renpects subject and subordinate to the Lase between the City, as Lessee, and the State of Colorado, Department of Corrections, Lessor, dated June 24, 1974. Center acknowledges that it has received a copy of said Lease, has read same, and understands its contents. 1. F 8 z5:01 Nou E6 -V -NVr IT. BERM OF - THKj4A tJAGEttE, L{ - - REEM ENT. If not sooner terminated as herein provided, Center shall have and hold the leased premises without limitation or interruption for a term commencing at 12100 o'clock noon on the 1st day of May, 1979 and terminating at 121UD o'clock noon on the 1st day of July, 2004. III. TE$MIR AN DFFA - T. Se ctj,on 3.1 t on: This Management Agreement may be terminated by mutual consent. If the Lease of June 24, 1974 between the City and the State of Colorado is terminated for any reason, thin Management Agreement shall terminate as to the leaned premises described in Exhibits A and C effective the date of termination of the Lease of June 24, 1974. City reserves the right to terminate this Management Agreement upon one (1) year's prior written notice specifying the date of termination given to Center any time after July 1, 1994. Se ction 3.2. be fam : If either party be in default hereunder, the nondefaulting party may give written notice specifying the default to the defaulting party. If the defaulting party shall not correct such default within ninety (90) days after receipt of said notice, or if said default is of such a nature that it cannot be corrected with said ninety (9o) day period, and the defaulting party shall fail to commence action to correct said default within said ninety (90) day period, or fail to thereafter diligently pursue such corrective action, the nondefaulting party may upon an additional ten (10) days prior written notice to the defaulting party terminate this Agreement and, except for accrued rights and liabilities hereunder, shall be relieved from all duty and obligation hereunder. Section 3.3. I ns olv ency: In the event the center becomes insolvent, or is declared bankrupt, then, in either event, city may declare this Agreement ended, and all rights of the Center hereunder shall immediately cease and terminate. In that event, the Center's subleasee, if any, may succeed to the Center's rights and obligations under this lease by providing written notice to the City of its intent to do so within 90 days of the termination of this agreement. Sect] n 3. 4. li r: No assent, expressed or implied, to any breach or default in the performance of any one or more of the covenants or agreements hereof shall be. deemed or taken to be a waiver of any succeeding or other breach or default. Iv. 9TIt.ITI AAiJD-MA-(ES. The Center agrees to pay for the construction of all required access roads to the leased premises, the extension of all utility 2 DIVA 99:01 NOW H -9e-W services to the leased premises required or requested by the Center, any and all utility charges (including electricity, water, telephone and gas) it may incur during the term of this Management Agreement, and all taxes and assessments which may be lawfully levied against the leased premises, improvements, fixtures and equipment thereon. V. CpNTRO AND MAINTENANCE Soctio,n 5.J, Pospes The City covenants that insofar as it is able it wail put the Center into control and possession of the leased premises and the center shall have the quiet enjoyment of the premises so long as Center complies with and performs the covenants herein. The Center warrants it is a Colorado nonprofit corporation And has been duly authorized to execute this Agreement and its empowered to perform same. The Center shall immediately perform all acts and execute all documents required to file for and obtain federal and state tax exempt organization %tat= and shall maintain such tax exempt status throughout the terns of this Agreement. Section 5. Wa an d 4hevjnq Law Center shall, at its sole expense, maintain and keep the leased premises and all improvements thereon in good condition, appearance and state of repair. Center shall not conduct any waste on the leased premises and shall comply with all valid laws, ordinances and regulations affecting its use of the leased premises and activities conducted thereon. To the extent authorized by law, the Center agrees to indemnify and save harmless, the City, its officers, agents and employees from all claims for and penalties incurred by any act or omission of the Center i.ta violation thereof. ect 5.3 _ �tl� The Center agrees to provide, at its sole expense, public liability insurance for the leased premises and all activities conducted thereon. The terms, provisions and amounts of liability insurance, shall be approved by the City's Director of Finance and name the City as an insured, as its interest may appear. The Center shall furnish copies o:f all policies for such insurance to the city. $c ctiori a.4. Liability for Tnj3i ry or Damage The Center_ shall be in control and possession of the premises as provided herein, and the City shall not, in any event whatsoever, be liable for any injury or damage to any property or to any person happehinq on the premises, nor for any injury or damage to the leased premises nor to any property of the Center while an the leased premises nor for any injury or damage resulting from the use of the. leased premises by the Center. As to the city, the center 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 directly or indirectly, wholly or in part, from the wrongful or negligent prosection or cn •a omission of any work or activities undertaken by the Center on the leased premises, or use thereof by Center or by others under the Center's supervision and control, or caused by or for which the Center may otherwise be held responsible, and to the extent authorized by law, to indemnify and save harmless the City, and its employees and agents. from and against any and all such injury and damage or liability arising therefrom. pppt 5 .5. A, The Center shall permit. the City or its authorized agent to enter the premises at all reasonable hours for the purpose of inspection. The City Will allow the Center reasonable access to the premises across other City property or property under its control it necessary. The City retains the right to cross the leased premises including the installation of roads and roadways if necessary in order to have access to other properties of the City or properties which the City controls and the right to extend its Trails system over and across the leased promises at such location or locations as the City may determine. Sec t�gn 5. b . 8urrexsder a nd Hol -STVer Perm T h e Center agrees it will peaceably surrender and deliver to the City the leasPA premises and all improvements thereon at the termination of this Management Agreement and that said improvements will be in as good order and condition as when the same were entered upon, loss by fire or ordinary wear excepted. 5QCtio •7• The Center agrees it will not allow liens or encumbrances to be placed on the premises or improvements thereon by its acts or defaults or as a result of its operations on the premises. Spaction 5.8. dper atio The Center shall establish and operate a Nature Center or the leased premises for environmental education and recreation and shall not use the leased premises for any other purpose. The scheduling of Nature Center activities and the conduct and operation of such activities, including frequency of activities and type of activities, shall be the responsibility of the Center and within its discretion. The Center shall be open to the general public and the Center may charge a reasonable admission fee. Center shall not In the use of the leased premises or operation of its Center discriminate on the basis of race, color, creed, national origin, sex or age. ect n 5 .9 Payments the Center shall be deposited by institution named by the Center. Payments by the City, if any, to the City in a bank or financial Vi. DFVFWPMr4 ,Sectio 6 Master Pla ns all improvements to the leased premises and buildings and structures constructed thereon 4 90 'd 69:01 NOW £6-9MVP and other development of the center shall be constructed and performer) by the Center at its sole cost and expense and only in accordance with a Master plan submitted to and approved by the City Manager of City prior to any such construction or development. No changes in the Master Flan shall be made without the prior written approval of the City Manager. Sec i o_n_¢ 2 t . No building or other improvement of a permanent nature, whether or not included in the Master plan, shall by constructed or placed upon the premises until after the Center shall have first given written notice to the City Manager describing the proposed building or other improvements and its location on the premises at least one hundred (100) days prior to the commencr_rent of construction of such building or improvement. No structure or improvement of a permanent nature shall be constructed without first obtaining prior written approval of the City's City Manager and Director of Parks and Recreation. �ection_6 a . ro rl ements C v t e Centi�w it is agreed that all improvements which the Center places in use or installs upon the leased premises shall upon termination of this management agreement become the property of the City, or, at the solo option of the City, set improvements shall be removed by the Center at it's cost and expense within thirty (30) days after termination. it is agreed that the Center has the right to sublease or assign the restaurant located on the leased premises for the term of this lease with written approval from the City, The Center shall submit to the city Manager a copy of the sublease or assignment proposal. The City Manager shall have thirty (30) days after receipt of sublease or assignment proposal to either approve or deny the sublease or assignment, The failure of the City Manager to respond within thirty days shall constitute an approval of the sublease or assignment by the City. it is expressly understood that the Center may pledge its interest in the sublease or assignment as collateral for loans obtained by the Center. Tt is also expressly agreed and understood that the Center may not mortgage the improvements on the leased premises or the leased premises themselves, and neither such sublease or assignment nor City's approval thereof shall be or construed to be a subordination of City's interest in such improvement or leased premises. ,SQpt.ion 6.4. Center shall not raze, remove, structurally change, or substAntially alter or modify any imprw,revent or structure locatorl on the leased p%7enises without first obtaining the written approval of the City Manager of City. Center shall submit to City Manager a written request for such approval describing in detail the work to be performed. The city Manager shall within n reasonable time after receipt of such request either approve or deny the request. The failure of the City Manager to so ronpond shall constitute a denial of such request. Section 6.4.1. Any request for changes, approval or consent required by Sections 6.1, 6.2 or 6.4 shall be deemed to be denied if such request is not responded to in writing within 30 days after receipt thereof by the City Manager. t_o a 00:1 NN U -9MVP sectio 6.5. The residence located on the property designated as Parcel A -4, Exhibit *C* shall be used and occupied only as a residence. The occupants of such residence shall act as caretakers of the Honor Farm adjacent to the leased premises and shall report activities of any person thereon which appears to be potentially destructive or damaging or which constitutes an abnormal use thereof. VII. AML ICAT=aN OF ORDINANC All ordinances of the City of a regulatory or police nature including traffic ordinances shall apply to and govern the leased premises and activities conducted thereon the same as if the leased premises were located within the City. All improvements on the leased premises shall be made and constructed in accordance with applicable ordinances of the City, however, the City ordinance and regulations as to construction of streets and roads shall not apply to the Center's development of the premises. Control of fugitive dust from roadways and activities conducted on the premises shall be the sole responsibility of the Center. VIII. Aas1G _ NT. The Center is authorized to assign this Agreement to the University of Southern Colorado (the "University ") subject to the University assuming Center's obligations hereunder and agreeing to be bound by the terms and conditions of this Agreement from and after the date of such assignment. In the event of such assignment, the University would be entitled to (i) operate the Nature Center as part of the University's campus including conducting educational activities for its students on the leased premises in addition to operating the Nature Center as herein provided, and (ii) sublease the restaurant facility located on the leased premises to a private enterprise. The assignment between Center and University shall require the University to appropriate and expend not less than $40,000 in 1993 for the operation of the Nature Center in addition to all funds generated by activities conducted on or with respect to the Nature Centex, special events, membership fees, gifts or donation to the Nature Center or to the University for the Nature Center, and restaurant sublease. If it fails to so appropriate, the City may terminate the assignment immediately upon written notice. Said failure to appropriate shall not be considered a default, and termination will be without penalty. Neither, the assignment, between the Center and the University nor the restaurant sublease shall become effective until approved in writing by the City Manager of City. Except as above provided, there shall be no assignment nor sublease, in whole or in part, of the leased premises or this Agreement without the prior written approval of the City. 0 611 10:11 NOW U -13z -Wr IX. NOTIC Any notice required under this lease shall be in writing and personally delivered or sent postage prepaid in the [7.s. Mail registered or certified, return receipt requested to: If to the City: City Manager, city of Pueblo, 2 City Hall place, Pueblo, Colorado, 81003. If to the Centex: Center of Pueblo, Inc., $200 Nest 11" Street, Pueblo, Colorado, 92.0031 or, to any address subsequently designated in writing by the parties. if to the University of Southern Colorador President, University of Southern Colorado, 2200 Bonforte Boulevard, Pueblo, CO 81002. The Center shall designate in writing the name and telephone number of a representative of Center who shall be available after normal workdays and weekends for contact by the City. If not in default hereunder, center shall have the night of first refusal to renew this Management Agreement upon such terms, covenants and conditions as Center and City may then mutually agree upon. The right of first refusal hereby granted shall extend to the leased premises described in Exhibits A and C only if the City has then renewed or extended its Lease of June 24, 1974 with the State of Colorado beyond July i 2004. If Center desires to lease the leased premises or enter into a Management Agreement therefor after the expiration of the original term hereof, center shall within six months prior to July 1, 2004 90 notify City. If Center and city are unable for any reason to mutually agree upon the term+, covenants and conditions for such renewal by July 1, 2004 or within 30 days thereafter, Center's right of first refusal hereby granted shall cease and terminate. XI. ZAR INSURANCE center shall insure and keep insured the improvements located upon the leased premises in an amount equal to got of their insurable value through fire and extended coverage insurance, with companies acceptable to the City. Center shall assign any policy of insurance, in whatever ammountissued, procured pursuant hereto, to the City as security for the repair or replacement of any building that may be destroyed. or damaged by any of the hazards Insured against heroin. All proceeds of such insurances shall be paid jointly to Center and City and shall be applied only for the repair or replacement of the damaged buildings on the leased premises. Center and the City and all parties claiming under thew hereby mutually release and discharge each other from any claims, liability, or damage, caused by or arising from any hazard cowered by insurance on the leased premises and improvements thereon, or covered by insurance in connection with any property on the leased premises, regardless of the cause of the damage or loss. 7 60'd 10 HOU Es -V -wr RII. BINDING MELT This Amended Management Agreement shall be binding upon the parties, their successors, and approved transferees and assigns and shall be governed by the laws of the State of Colorado. TN WITNESS WHEREOF, the City and the Center of Pueblo, Inc. have caused this Agreement to be duly approved and executed as of the date first above written. Executed at Pueblo, Colorado the day and year first above written. PUEBLO, a Municipal Corporation By F _sident, ity Council of Pueblo, Colorado GREENWAY AND NATURE CEN'T'ER, OF PUEBLO, INC. , a Colorado Nonprofit corporation J �dant ATTEST: 412141�14A(' qz ity Clerk of Pueblo, Co orado APPROVED AS TO FORM: CiW Attorney TTEST: Secretary 8 01 *4 20:11 NDA U -SMU A parcel in the E4 of the NA of Sec. 33, and in the E� of SA of Sec. 28, T -20 -S, R -65 -W, described as follows: Beginning at the W -1 /8 corner of said Sec. 33 & 28; thence S 01 28'43" W, a distance of 205.48 feet to true point of beginning; thence continuing S 01 28' -43" W, a distance of 414.80 feet; thence S 79 31' -49" E, a distance of 264.98 feet; thence S 68 19' -58" E a distance of 150.63 feet; thence N 89 ° - 28' -42" E, a distance of 263.98 feet; thence N e- 48' -13" E, a distance of 287.62 feet; thence N 89 11' -47" W a distance of 179 feet; thence N 0 48' -13" E a distance of 200 feet; thence S 89 11' -47" E a distance of 179 feet; thence N 0 -13" E a distance of 383.50 feet; thence S 74 42' -10" W, a distance of 278.16 feet; thence S 9 07' -47" E, a distance of 299.99 feet; thence N 88 07' -43" W, a distance of 445.60 feet to point of beginning. Said parcel contains 8.80 acrea. ALSO A parcel in the E4 of the 1 of Sec. 33, T -20 -S, R- GS -47, described as folloo;s: Beginning at the W 71/8 corner of said Sec. 33; thence S O1 28' -43" W, a di:aance of 31.35 feet; thence N 74 42' -10" E, a distance of 685.70 feet; thence S 0 48' -13" 1-7 a distance of 503.50 feet; thence N 46 55' -13" E a distance of 41.69 feet to the true point of beginning; thence N 0 ° 48' -13" E a distance of 91.15 feet; thence N 86 22' -08" E a distance of '338.80 feet; thence N 87 59' -11" E a distance of 200.15 feet; thence N 82 19'01" E a distance of 199.92 feet; thence S 25 42' -11" E a distance of 79.55 feet; thence S 3 28' -21" 14 a distance of 126_10 feet; thence S 37 00' -35" W a distance of 61.83 feet; thence S 56 54' -02" 1-7 a distance of 206.47 feet; thence S 40 56' -36" W a distance of 77.81 feet; thence S 59 -01 11 a distance of 49.93 feet; thence S 66 -53" it a distance of 97.29 feet; thence N 74 -57" Y7 a distance of 67.63 feet; thence N 36°- 41' -42" W a distance of 65.97 feet; thence N 69 41' -53" W a distance of 244.03 feet; thence 11 11 42' -01" w a distance of 185.07 feet to the point of beginning. Contain: 5.93 acres. — EXHIBIT A All that portion of land in the NEk of the NWti and the NW of the WWI of $cc. 33, T -20 -S, R -65 -W as conveyed to the City of Pueblo by the deed recorded at Number 561999, in Page 105, Book 1915, in the office . �f the County Clerk and Recorder, Pueblo County, Colorado, subject to an easement 20 feet in width for bicyclo and nature trail, the centerline of said casement being described as follows: Beginning at a point: on the east -west centerline of Sec. 33, T -20 -S, R -65 -W, said going being 974.60 feet easterly of the Eft corner of said Sec.; thence deflecting from said centerline to the northeast 50 -18' for a distance of 135.04 feet; thence deflecting to the left through an angle of 26 a distance of 132.85 feeL; thence deflecting to the right through an angle of 20 07' -30" a distance of 135AB feet to a point of terminus on the west line of the E� of the NA of said Sec. 33; and, also a continuation of said easement described a5 beginning at a point on the North right of way line of the Pueblo 4 Arkansas Valley RR from which the terminus point above described bears South 44 54' -29" West a distance of 176.53 feet; thence through a deflection angle to the right of 163 16' -31" a distance of 48.20 feet; thence through a deflection angle to the r =ght of 36 14'-30" a distance of 80.90 foot; thence at n deflection angle to the right of 22 -02' a distance of 52.24 feet to the point of terminus on the easterly property line of said parcel. — EXHIBIT B f. EXHIBIT "C"