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HomeMy WebLinkAbout7156RESOLUTION NO. 7156 A RESOLUTION APPROVING A MANAGEMENT AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND THE PUEBLO ZOOLOGICAL SOCIETY RELATING TO THE MANAGEMENT, OPERATION AND MAINTENANCE OF THE PUEBLO ZOO AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: gPrTT(nN 1- The City of Pueblo Zoo Management Agreement dated June 28, 1993 between Pueblo, a Municipal Corporation and the Pueblo Zoological Society relating to the management, operation and maintenance of the Pueblo Zoo, a copy of which is attached hereto and incorporated herein, having been approved as to form by the City Attorney, is hereby approved. q PrT TC)NT The President of the City Council is authorized and directed to execute the Agreement in the name of and on behalf of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. ATTEST: i y Clerk ( 2-4j"- INTRODUCED: June 28, 1993 By MICHAEL OCCHIATO Councilperson APPROVED: Presid n of the City Council TJ 67.46 CITY OF PUEBLO ZOO MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT entered into this 28th day of June, 1993, by and between the City of Pueblo, a 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, the Society and the City are desirous of entering into an agreement 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 are 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: 1. As used herein, the following words and phrases shall have the following meaning: (a) "Zoo" means the property owned by the City as shown on the attached Exhibit "A" and improvements thereon including the maintenance building and the exhibits and education building. 2. (a) City hereby appoints and retains Society subject to and upon the terms and 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, 1994 to December 31, 1998, 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. (b) If Society is not in default hereunder, Society shall have the option to extend the term of this Agreement for five (5) years from January 1, 1999 to December 31, 2003 upon the same terms and conditions, provided Society gives written notice of the exercise of this option to extend to City not less than six (6) months prior to December 31, 1998. 3. City does hereby delegate to 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 uses to which the Zoo grounds and facilities may be put including the authority to schedule all events at the Zoo by individual or community groups, and conduct- ing class, lectures, and other public functions subject to modification by resolution of the City Council. (d) operate Zoo concessions and gate, including authority to charge reasonable fees and admission charges subject to modification by resolution of City Council. (e) employ sufficient personnel reasonably necessary and required to perform Society's duties, functions and responsibilities under this Agreement. (f) obtain all necessary licenses, accreditations and permits for the operation of the Zoo. (g) solicit financial contributions from the general public, private foundations and other sources. (h) maintain the Zoo's grounds and indoor facilities, including daily custodial services, and to promptly notify the City of any damage to, destruction, breakdown or failure of any building, facility, fence, improvement or part thereof. 4. The City agrees, subject to available funds being appropriated 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) replace or repair all buildings, facilities, fence or existing improvements on the Zoo when the need arises. (c) 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 -2- shall be obligated at all times property in operating condition an during such usage. On or before Society shall prepare and approve a City's personal property to be used this Agreement as Exhibit "B ". to maintain City's personal d to exercise reasonable care December 31, 1993, City and written list and inventory of by Society and attach same to (d) replace City's personal property as the need arises. (e) permit Society to obtain gasoline for City's personal property from 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 deducted from the amount appropriated to Society by City. 5. 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, the Society shall submit a request for disbursement of funds which sets forth anticipated expenditures consistent with the approved budget. Special requests for disbursement of funds may be made when needs arise. Upon receipt of each request for disbursement of funds, the City Department of Finance shall review such request and if it is consistent with the approved budget and this Agreement, disburse appropriated and available funds to the Society for such expenditures. 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. 6. The Society shall keep separate records of all gifts, endowments, requests or devises to the Society, together with income therefrom, and disburse said funds only by bank checks signed 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. 7. 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 City Manager of its acts and expenditures, and shall submit itself and its books and records to whatever inspection, audit or check the City Council or City Manager may desire from time to time. -3- 8. Each July, the Society shall submit to the City Council and the City Manager 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. 9. 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. 10. This Agreement may be terminated at any time by mutual agreement, or by either 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 30 days after receipt of such notice (unless such default cannot with due diligence be wholly cured within said 30 -day period, in which case the defaulting party shall have such longer period as shall be necessary to cure the default, so long as the defaulting party proceeds promptly to cure the default within such 30 -day period, prosecutes the cure to completion with due diligence, and advises the nondefaulting party from time to time, of the actions taken and progress made) the nondefaulting party may terminate this Agreement upon 5 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, after such notice and opportunity to be heard, the City Council shall nevertheless decide in its sole discretion that this Agreement be terminted, the City shall notify the Society thereof in writing, and this Agreement shall thereby be terminated and the Society shall thereafter as soon as the City is prepared to accept the management and control of the Zoo and not exceeding sixty (60) days from the date of service of such 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 one hundred twenty (120) days written notice to the City. MIC (d) In the event of the termination of this Agreement, all exhibits, 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 Agreement, and in possession or control of the Society shall be delivered to the City. 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 obliga- tions of the Society toward the donors of such funds or monies. (e) Upon expiration of the term of this Agreement or any extended term, if extended, the Society shall quit and surrender the Zoo and deliver to City all exhibits, funds, monies and property in accordance with the provisions of 10(d) within sixty (60) days. 11. No changes, alterations, structures or improvements shall be made to or placed on the Zoo without prior written approval of the City. It is 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. 12. As part of this Agreement, the City transfers custody and control of all animals presently on exhibit at the Zoo to the Society. 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 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 Association of Zoos and Aquariums, and in the interest of public health and safety. 13. 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 Society shall elect to its Board of Directors with full voting rights a member of the City Council or its designee so long as said designee is not employed with the City's Department of Parks and Recreation. Society agrees and understands that its operation and -5- 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 quarterly to review the Society's operation, maintenance and administration of the Zoo. 14. The City shall at all times have access without restric- tion to all parts of the Zoo. 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 insure an orderly opeation in the interest of public health and safety and the health and safety of the Zoo animals. 15. The City shall maintain its present levels of property insurance coverage relating to the Zoo during the term of this Agreement. The Society shall maintain and keep in force at its expense during the term of this Agreement comprehensive general public liability insurance including products liability and contractual coverage, against claims for personal injury, death or property damage arising out of the use or occupancy of the Zoo by Society, in amounts not less than those specified in X24 -10- 114(1) (a) and (b) C.R.S. or as same may be subsequently amended. The Society shall also provide its own insurance covering personal property which it owns and uses in conjunction with Zoo opera- tions. The Society shall further provide all workmen's com- pensation coverage which is required under law relating to its employees at the Zoo. To the extent permitted under its insurance or self- insurance program, the City agrees to waive any right of subrogation the City or its insurer may acquire as against the Society, its agents or employees for any insured or covered loss. 16. 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. 17. 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. 18. 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, emloyee 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 the result of any act or omission by Society, or its employees, agents or subcontractors. 19. Society covenants and agrees that no person on the grounds of race, creed, color, national origin, sex, age, marital status, or mental or physical handicap, shall be excluded from employment or application for employment, or from participation in, or denied the benefit of or be otherwise subject to discrimi- nation in the use of the Zoo or the furnishing of services thereon. 20. 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. 21. If any provisions 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. 22. This Agreement sets forth the entire understanding between City and Society. No change, modification or amendment shall be valid or enforceable unless set forth in writing and signed by City and Society. 23. Any notice required under this Agreement shall be in writing and personally served or sent by certified mail, postage prepaid, to: (a) if to the City: City Manager, City of Pueblo, 1 City Hall Place, Pueblo, Colorado, 81003; (b) if to the Society: Pueblo Zoological Society, 3455 Nuckolls, Pueblo, Colorado, 81005, or to such other place as City or Society may from time to time designate in a written notice given to the other party. 24. 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. 25. Effective January 1, 1994, this Agreement supersedes the City of Pueblo Zoo Management Agreement entered into October 22, 1990 between City and Society (the "1990 Agreement ") and the 1990 Agreement shall terminate, except that neither the City nor Society shall be released from any of their respective obligations under the 1990 Agreement existing on December 31, 1993. Executed the day and year first above written. CITY OF PUEBLO, [ S E A L] A MUNICIPAL CORPORATION ATTEST: / By ty Clerk Presi nt of th6 City Council -7- Approved as to form: City Att(tne [ S E A L ] ATTEST: By Secretary /Tr P sur r PUEBLO ZOOLOGICAL SOCIETY �� ) Nt-- 4 President TJ 67.7 -8-