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Home My WebLink About7464RESOLUTION NO. 7464 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND PUEBLO LOCOMOTIVE & RAIL HISTORICAL SOCIETY, INC. RELATING TO SANTA FE STEAM ENGINE LOCOMOTIVE NO. 2912, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME, AND REPEALING RESOLUTION NO. 1171 BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement dated September 9, 1994 between Pueblo, a Municipal Corporation and Pueblo Locomotive & Rail Historical Society, Inc. relating to the Santa Fe steam locomotive No. 2912, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute the Agreement in the name of the City and the City Clerk is authorized to affix the seal of the City thereto. SECTION 2. Resolution No. 1171' adopted June 8, 1959 is hereby repealed. INTRODUCED September 12, 1994 By CHARLES JONES Councilperson ATTEST: APPROVED: C Clerk Pr i ent f the City Council AGREEMENT Agreement entered into as of September 9, 1994 between Pueblo, a Municipal Corporation, 1 City Hall Place, Pueblo, Colorado (the "City ") and Pueblo Locomotive & Rail Historical Society, Inc., a Colorado nonprofit corporation, P. O. Box 322, Pueblo, Colorado, 81002 (the "Society "), and Whereas, the City is in possession of Santa Fe steam engine locomotive No. 2912 ( "Locomotive ") by donation and transfer from the Atchison, Topeka and Santa Fe Railway Company ( "Santa Fe ") as evidenced by the Memorandum of Donation dated September 1, 1994 attached hereto as Exhibit "A" (the "Memorandum "), and Whereas, Society desires that the City donate and transfer to Society all City's right and interest in the Locomotive and City is willing to so donate and transfer to Society all City's right and interest in the Locomotive upon the terms and conditions herein set forth. Now, Therefore, in consideration of the foregoing and mutual covenants contained herein, City and Society agree as follows: 1. Society represents, warrants and agrees that: (a) Society is and will remain a nonprofit corporation duly organized, existing, and in good standing under the laws of Colorado, is duly qualified to do business in the State of Colorado, has all necessary power and authority to enter into and perform and observe the covenants and agreements on its part contained in this Agreement, is possessed of full power and authority to own, possess and use the Locomotive, and by proper action has duly authorized the execution and delivery of this Agreement. (b) This Agreement constitutes a legal, valid and binding obligation of the Society enforceable in accordance with its terms. (c) Membership in Society is and will remain open to all interested persons. (d) All income generated or received by Society, directly or indirectly, by or through the use of the Locomotive, including all promotions and advertising associated therewith, will be used by Society in furtherance of its corporate purposes including but not limited to the restoring and maintaining the Locomotive in good repair, working order and condition. (e) Except when being used outside the City of Pueblo, Society will display the Locomotive within the City of Pueblo. 2. City does hereby donate and transfer, without restrictions, to Society all the right, title and interest of the City in and to the Locomotive, except to the extent of any use in any commercial transaction of any Santa Fe service mark or other identification contained thereon as reserved and excepted by Santa Fe in the Memorandum, and Society does hereby accept such donation and transfer. All other portions of this Agreement are contractual but shall not be deemed to affect the absolute nature of the transfer of the Locomotive to the Society. 3. Within thirty (30) days from date hereto, Society will remove or cause the Locomotive and surrounding fence to be removed from its present site and thereafter maintain and keep the Locomotive in good repair and condition. 4. Society shall keep and maintain comprehensive general public liability insurance insuring Society and its activities in amounts not less than $1 million single limits. THE LOCOMOTIVE IS DONATED AND TRANSFERRED BY CITY TO SOCIETY AND SOCIETY ACCEPTS THE LOCOMOTIVE "AS IS ". SOCIETY ACKNOWLEDGES AND AGREES THAT THE CITY HAS NOT MADE ANY REPRESENTATION OR WARRANTY, EITHER EXPRESSED OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION (ENVIRONMENTAL OR OTHERWISE), MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR ANY OTHER REPRESENTATION OF WARRANTY WITH RESPECT TO THE LOCOMOTIVE. 6. Neither the Locomotive, this Agreement nor any of the rights of Society hereunder may be assigned or transferred by Society without the prior written consent of the City Council of City, which consent will not be unreasonably withheld. 7. Society shall and hereby agrees to indemnify and save the City harmless against and from all claims by or on behalf of any person, firm, corporation or other legal entity arising, directly or indirectly, from the removal and relocation, possession, use or operation of the Locomotive by Society or from any work or thing done on the Locomotive or from the negligent acts or omissions of Society, its officers, employees, agents or contractors or from any violation of law by Society. 8. Time is of the essence hereof. If, during a period of ten (10) years from the date of this Agreement, Society shall fail to observe and perform any covenant, condition or agreement on its part to be observed or performed for a period of thirty (30) days after written notice, specifying such default and requesting that it be remedied shall be given to Society by City, City may institute appropriate proceedings to remedy such default or to otherwise specifically enforce the provisions of this Agreement. If not in default hereunder, this Agreement shall terminate at the end of such ten - year period, except that the unrestricted gift and transfer of the Locomotive to Society pursuant to paragraph 2 hereof shall not be affected by such termination and shall continue in full force and effect. 9. If any agreement or covenant of this Agreement is breached by Society and thereafter waived by City, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach by Society hereunder. 10. In the event of litigation arising out of this Agreement, the court shall award to the prevailing party its costs and expenses of litigation including reasonable attorney and expert witness fees. -2- 11. All notices or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by certified mail, postage prepaid, to the party at its address appearing on the first page of this Agreement or at such other address as either party shall designate in writing delivered to the other party. 12. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, subject however, to the limitations contained in paragraph 6. 13. This Agreement may only be amended or modified in writing signed by both parties hereto. 14. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Executed at Pueblo, Colorado and date first above written. [SEAL] ATTEST: Cit Clerk PUEBLO, A MUNICIPAL CORPORATION By ar �� P e dent of the City Council [SEAL] ATTEST: 4� R. LIJ Secretary PUEBLO LOCOMOTIVE & RAIL HISTORICAL SOCIETY APPROVED AS TO FORM: City Attorney SCE SEF- 6 -94 TUE 9:20 ALTMAN KEILBACK FAX H0. 7195459437 F.02 wx ear *manger VJM ALL BY W288 PRSSMVrS'- That THl6 ATCRTSM T*VW4 "D SWTA TZ PAZU t►Y C01tP#11Y, a Delavare Corporation, thereafter Santa Fa► j # does bareby d#tata and transfer, without restrictions, tQ the CIVY OF PMOW, COUMM, a municipal corporation thereafter Pttabld , all the right, title and interest of Santa Fe, it any, in the tallovirg paroonsl prgrty, to wits Alt item of movable equipment identified as steam Lacotrt+*ive or E nine too. aei2, - complete with tender, suph item to be removed by pueblo from the promises of Santa FAR• This instrument to +exaouted without any Warranty by or on the pact of Santa Fs of my kind, chavaotser or description whatsoever, *Xpraaaed or ImpHed to any party whatsoever and no covenant of, V ti"f'4V*T or quaranty shall be implied from tho use cf any word ,or word* heroin vonta lrW4. By this ftmotandus of Donation, Santa pe acknovIedq+es that it has no turther right.. title or iatV"st in Stearn LoeMot ive or Engine 2S12, a oe" to the extant of any use in any co=g4rcial any Santa Fe wmvia* math or otter identifier contained tbsrwm, and that Puable has the xlght to dispose of said IQC=MtlYqo Ili It seas tit, without the consent or authoxieati.on of Santa ft, To thv oxtellt applicatbls, this document spaultically SnpWOedes that Cert4iu rsasarand= of Donation, Gated ,duly 20, 1939, regarding StSM& LOOPPative Ho. 2911. IB 1/*'i' $5 WK1=t, Samto Fey teas Caused these presents to be executed by its autbmiaed ratpreatentative on this let day of Saegtember, 1914 . TM ATCHISM, TOPffiM MW SUTA $B M.tt,W&Y COMPANY xts: ,y gmidsnt - dnra *tl!< cammm micat.1ons t~rvWAAMWkfM." EXHIBIT "A"