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Home My WebLink Aboutresolution.council.116-01 "'" RESOLUTION NO. II fp Series of 2001 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE CITY MANAGER TO EXECUTE, ON BEHALF OF THE CITY OF ASPEN, AN AGREEMENT BETWEEN THE CITY OF ASPEN, PITKIN COUNTY AND THE ASPEN/PITKIN COUNTY ANIMAL SHELTER CAPITAL CAMPAIGN, FOR THE JOINT DEVELOPMENT AND OPERATION OF THE ASPEN/PITKIN COUNTY ANIMAL SHELTER. WHEREAS, there has been submitted to the City Council a proposed Agreement between the City of Aspen, Pitkin County, and the Aspen/Pitkin County Animal Shelter Capital Campaign for the joint development and operation of an animal shelter in Pitkin County; and WHEREAS, after due deliberation and consideration the City Council has determined that it is in the best interest of the City of Aspen to approve said agreement and authorize the City Manager to execute same on behalf of the City of Aspen. NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, that the City manager is hereby authorized to execute on behalf of the City of Aspen the Agreement appended hereto as Exhibit A. Dated: I11ut~A) II ,2001. I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held /'~ ~ 10 , 2001. ~~:o form and correc. . ~: , , EsqUIre STATE OF COLORADO) ) COUNTY OF PITKIN ) The , 2f\()\ by . Co-;;;;;tsione County. . Pub ic ~'\~'2~ My Commissions Ex }res: . Attest: ~ tJ. By: D.M..d wu Secretary ANIMAL SHELTER N STATE OF COLORADO) ) COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this /'2771 day of:5j;-t/ ,2 0:;:f2..- by 5<r7h1 -s::.J(Jd/lsa"v and ~~ ~?y;T,'President and Secretary, respectively, of AspenIPltkin Animal Shelter Capital Campaign, a Colorado corporation, on behalf of AspenlPitkin Animal Shelter Capital Campaign. By: ~ ~~~ Signature . N Publlc .,< ';~..~h_-- _ _ _ "<,. My S::smT~fspion~EJ(pires: l~~Y -----_--;;t.i~f~.--.--:~:-:-~,_-;~..:. MY(;oMM~ exPel ~"":.'\ MAYZ42OOD' ~~Z;:::,=~.~:>: ;.,~ Page 29 AGREEMENT FOR JOINT DEVELOPMENT AND OPERATION OF THE ASPEN/PITKIN COUNTY ANIMAL SHELTER IN PITKIN COUNTY, COLORADO between PITKIN COUNTY, COLORADO and THE CITY OF ASPEN, COLORADO and ASPEN/PITKIN ANIMAL SHELTER CAPITAL CAMPAIGN, a Colorado Not-For-Profit Corporation ARTICLE 1. Section 1.01 Section 1.02 Section 1.03 ARTICLE 2. Section 2.01 Section 2.02 Section 2.03 Section 2.04 ARTICLE 3. Section 3.01 Section 3.02 Section 3.03 ARTICLE 4. Section 4.01 Section 4.02 Section 4.03 Section 4.04 ARTICLE S. Section 5.01 Section 5.02 Section 5.03 Section 5.04 Section 5.05 ARTICLE 6. Section 6.01 Section 6.02 Section 6.03 TABLE OF CONTENTS DEFINITIONS Definitions...................................................................................................... 0 1 Use of Words and Phrases .............................................................................02 Colorado Statutes............................... ........................................... ............... .02 PURPOSE, PROPOSED PROJECT AND MUTUAL COOPERATION Purpose of Agreement.................................................... ............................... .03 Proposed Project.......................................................................................... ..03 Cooperation of the Parties..~.......................................................................... .03 Formation of Advisory Board........................................................................04 REGULATORY PROCESS Land Use Regulations ...................................................................................04 Development Approvals and Permits ............................:.................~.............04 Not a Site Specific Development Plan or Application...................................05 PROJECT DEVELOPMENT Ownership of Project Site .............................................................................05 Project Site ............................................................................... ...... ............. ..05 Proj ect Developer.......................................................................................... 0 5 Proj ect Schedule............................................................................................ 05 PROJECT FINANCING AND LAND CONTRIBUTION Overiew of Financing and Land Contribution ...............................................06 Estimated Construction Costs.............................. ........... ....... ....................... .06 ASCC Fundraising ............. ................................ .................................. ........ ..06 City Donation of Land and Funds..................................................................08 County Donation of Land; No County Financing..........................................08 PROJECT CONSTRUCTION City is Project Manager .................................................................................08 Architectural Plans.................................... ................ .................. ...................09 ASCC and County Required Approvals ........................................................09 Section 6.04 County Not in Privy ........................................................,..............................09 ARTICLE 7 Section 7.01 Section 7.02 Section 7.03 Section 7.04 Section 7.05 ARTICLE 8. Section 8.01 Section 8.02 Section 8.03 ARTICLE 9. ANIMAL SHELTER OPERATION General Operations...................................................................................... ..09 Operation Costs.... ...... ... ... ... ... ...... ...... ......... ... ...... ... ..... ...... .... ... ... ....... ... ..... '" 09 No Fees for City or County Animals .............................................................09 Cooperation.... .... ..... ... ... .... .......... ..... ...... ... ... ...... ............. .... .... ... .......... ..... ... ..09 Operational Policies ...................................................... ................ ............... ...1 0 INDEMNIFICATION Indemnification by the City ..........................................................................10 Indemnification by the County ......................................................................10 Limitation of Indemnification......................... .............................................. .11 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEVELOPER Section 9.01 Representations and Warranties..................................................................... I 1 Section 9.02 Covenants..................................................... ......... .................. ...... ............ .....13 ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY AND COUNTY Section 10.01 Representations and Warranties ..............................................................,.....14 Section 10.02 Covenants................................................................................................. .....15 ARTICLE 11. CONDITIONS PRECEDENT Section 11.01 ASCC to Raise Funds Equal to 90% of the Estimate Construction Costs...... 16 Section 11.02 Land Use Approvals ......................................................................................16 Section 11.03 Responsibilities of the Parties for Conditions Precedent...............................16 ARTICLE 12. Section 12.01 Section 12.02 Section 12.03 Section 12.04 Section 12.05 DEFAULT; TERMINATION Default by ASCC ..........................................................................................16 Default by the City or County.......................................................................17 Obligations, Rights and Remedies Cumulative ............................................19 Non-Action or Failure to Observe Provisions of this Agreement.................19 Termination.................................................................................................. .19 ARTICLE 13. Section 13.01 Section 13.02 Section 13.03 Section 13.04 Section 13.05 Section 13.06 Section 13.07 $ection 13.08 Section 13.09 Section 13.10 ARTICLE 14. Section 14.01 Section 14.02 Section 14.03 Section 14.04 Section 14.05 Section 14.06 Section 14.07 Section 14.08 Section 14.09 Section 14.10 Section 14.11 Section 14.12 Section 14.13 Section 14.14 Section 14.15 ARBITRATION Agreement to Arbitrate ..................................................................................20 Appointment of Arbitrators........................................................ ............ ....... .20 General Procedures........................................................................... .......... ...21 Majority Rule ......................... ........................................ .................. ............ ..21 Replacement of Arbitrator .............................................................................21 Decision of Arbitrators..................................................................................22 Expense of Arbitration................................................................................. ..22 Accelerated Arbitration......... .... ... ............... ..... ... ....... ...... .... ...... ... ............ '" ..22 Applicable Law....................................................................... .......................23 Arbitration Proceedings and Records ............................................................23 MISCELLANEOUS Assignments..... ..... .... '" ....... ............ ...... ......... .......... ... ... ... ........... ... ....... .:... ..23 Successors and Assigns.. .................................. ........................................... ..24 Notices ..........................................................................................................24 Applicable Law and Construction ................................................................25 Venue; Submission to Jurisdiction ...............................................................25 Complete Agreement; Amendments...................... ........... .......................... ..26 Captions ... ... .... ...... ...... .... ...... '" ... ......... ...... ..... ... ........... ... .... ..... ..... ......... ... ...26 Holidays. ........... ..... ....... ... ...... ...... ... ...... .... ...... ....... ..... ... ....... ... ....... ....... ..... ..26 Exhibits. ... ... ....... ... ... .... ... ... ... ... .,. ... ... ... ... ... '" ... ..... ........ ... .... ..... ..... ....... ..... ...26 Not an Agent of City........................................................................ .............26 Public Purpose................... ..................... ............... ..................................... ..27 No General Obligation...................... ............... ............................ ......... ...... ..27 Technical Amendments; Survey Corrections ...............................................27 Effective Date....... ......................................... ............................................. ..27 Approvals Not Unreasonably Withheld........................................................27 EXHIBITS Project Site Map........................................................... ...................... ....................................... ...... ...Exhibit A Proj ect Schedule..... ... ...... ....... ...... .... .... ... '" .... ... .... ... ...... ... ...... ... .... ..... ... ... ... ... ... .... ...... ....... ... ..... ... .....Exhibit B Facilities, Portions of Facilities, and Fixtures List...................................................................................Exhibit C Guidelines..... ... ... ... '" ... ... ...... .... ... .... ...... ... ..... ... .... ... ............ ... ... ... ... ... ... ... ... ... ... .... ............. ....... ...... ..Exhibit D This Agreement for Joint Development and Operation of the AspenlPitkin County Animal Shelter in Pitkin County, Colorado (the "Agreement") is made as of this day of , 2001, by and between PITKIN COUNTY, COLORADO, a home rule county and political subdivision of the State of Colorado (the "County"), THE CITY OF ASPEN, COLORADO, a municipal corporation and political subdivision of the State of Colorado (the "City"), and AspenlPitkin Animal Shelter Capital Campaign, a Colorado not-for-profit corporation ("AScc"). WITNESSETH: WHEREAS, the City and County have embarked on a public partnership to develop and operate a new animal shelterlboarding facility (the "Animal Shelter") on a parcel of land contributed by the City and County located in the jurisdiction of Pitkin County; and WHEREAS, AScc is organized as an IRS Code 501(c)(3) tax exempt organization and is incorporated in the State of Colorado as a not-for-profit corporation, its purpose being private fund raising to pay for the majority of the design and construction ofthe Animal Shelter; and WHEREAS, at a duly called public meeting on , the Board of County Commissioners approved this Agreement, and authorized and directed its execution by the appropriate officials of the County; and WHEREAS, at a duly called public meeting on , the City Council approved this Agreement, and authorized and directed its execution by the appropriate officials ofthe City; and WHEREAS, the Board of Directors of AScc has approved this Agreement and has authorized its President to execute this Agreement on its behalf. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby agree as follows: ARTICLE 1. DEFINITIONS. 1.01. Definitions. The terms defined in this Article I shall have the following meanings except as herein otherwise expressly provided: 1. "Agreement" means this Agreement for Joint Development and Operation ofthe AspenlPitkin County Animal Shelter in Pitkin County, Colorado including any Exhibits and any amendments thereto. 2. "Animal Shelter" means the new animal shelter/boarding facility. Page 1 3. "Board of County Commissioners" means the governing body of the County. 4. "City" means the City of Aspen, Colorado, a Colorado municipal corporation. 5. "City Council" means the governing body of the City. 6. "Developer" means, for the purpose of this Agreement, the City. 7. "Effective Date" means the date of approval and execution ofthis Agreement as provided in Section 18.18. . 8. "Exhibits" means those agreements, diagrams, drawings, specifications, instruments, forms of instruments, and other documents attached hereto and designated as exhibits to, and incorporated in and made a part of, this Agreement. 9. "Permits" means all land development approvals and consents required to be granted, awarded, issued, or given by any governmental authority in order for construction ofthe Project, or any part thereof, to commence, continue or be completed. 10. "Project" means, collectively, the concept of development proposed by ASCc as described in Sundesigns Architects' schematic plan. 11. "Project Site" means the land area generally located as shown on the survey provided by the City which is more particularly described on Exhibit "A" (s'ee Section 4.02). 1.02.. Use of Words and Phrases. Words ofthe masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, the singular shall include the plural as well as the singular number, and the word "person" shall include corporations and associations, including public bodies, as well as natural persons. "Herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words refer to this Agreement and not solely to the particular portion thereof in which any such word is used. 1.03. Colorado Statutes. All references herein to the Colorado Statutes are to the 2001 Colorado Revised Statutes, as amended from time to time. ,Page 2 ARTICLE 2. PURPOSE AND PROPOSED PROJECT. 2.01. Purpose of Agreement. The purpose ofthis Agreement is to set forth the obligations, rights and remedies of the County, City and AScc with respect to the development and ongoing operation of the Animal Shelter, all in accordance with and in furtherance ofthe public health, safety and welfare, and as authorized by and in accordance with the provisions of the Colorado Statutes. 2.02. Proposed Project. a. Project Description. The project is the proposed development of an Animal Shelter adjacent to the Pitkin County Public Works Campus. The Animal Shelter is proposed as an approximately 10,000 square foot facility with animal shelter and boarding facilities and veterinarian clinic, and two associated employee housing units on the second floor of the facility. The housed employees shall preferably be animal shelter employees. In the event that the housing units are not occupied by animal shelter employees, preference shall be given to City and County employees that live with animals. In any event, the housing units shall be occupied by persons who live with animals. As more specifically set forth herein, the City and County have each agreed to donate the land necessary for the Animal Shelter, and the City has agreed to fund $500,000.00 toward the project. ASCC is responsible for raising funds for the remainder of the cost of the Animal Shelter. b. Project Benefits and Public Interest. The proposed Project, specifically including the donation ofland by the City and County and the design, construction, completion and operation ofthe Animal Shelter, and each part thereof, is hereby found by the parties hereto: (1) to be consistent with and in furtherance of all applicable master plans; (2) to conform to the provisions of Colorado law; (3) to be in the best interests of the citizens of the City and County; (4) to further the purposes and objectives of the City and County; and (6) to further the public interest and purpose of providing care, shelter and control of animals within the City and County. 2.03. Cooperation ofthe Parties. The City, County and AScC recognize that the successful development of the Project and each component thereof is dependent upon continued cooperation ofthe City, County and ASCC, and each agrees that it shall act in a reasonable manner hereunder, provide the other party with complete and updated information from time to time, with respect to the conditions such party is responsible for satisfying hereunder and make its good faith reasonable efforts to ensure that such cooperation is continuous, the purposes of this Agreement are carried out to the full extent contemplated hereby and the Project is designed, constructed, completed and operated as provided herein. Page 3 2.04. Formation of Advisory Board. The City/County will appoint an advisory board that will be made up of members of the animal welfare community and the community at large. The details of the advisory board and its duties will be finalized before the Animal Shelter is ready for occupancy. ARTICLE 3. REGULATORY PROCESS. 3.01. Land Use Regulations. a. Zoning. The Project Site is designated as Public in the Pitkin County Land Use Code and Zoning Map. b. Required Land Use Approvals. Prior to the commencement of construction ofthe Animal Shelter, land use approvals shall be obtained from the County. These approvals likely will include a number of different reviews, including but not limited to: 1041 environmental hazard review; special review; scenic overlay review; growth management allotments or exemptions review; and subdivision or subdivision exemption review. Additionally, fair share requirements and/or development exactions may be required. 3.02 Development Approvals and Permits. a. Applications for Development Approval. The City shall prepare and submit to the appropriate governmental authorities, including the County, applications for all necessary Permits for the Project, and shall bear all costs of preparing such applications, applying for and obtaining such permits, including payment of any and all applicable regulatory and impact fees or charges. The County will consider waiver of road fees and will not charge any land use fees. A traffic generation analysis shall be included in any land use application. The City and County as the owners of the land on which the Animal Shelter is to be constructed must consent to all land use applications. b. Waiver of Development Application Fees. The County shall not charge ASCC any County/County Community Development Department planning fees associated with the Animal Shelter. c. City and County Cooperation and Assistance. The City and County shall cooperate in obtaining all necessary Permits required for the construction, completion and opening for business ofthe Project. Page 4 d. City and County Authority Preserved. The City and County's duties, obligations, or responsibilities under any section of this Agreement, specifically including, but not limited to, this Section 3.02, shall not affect the City or County's right, duty, obligation, authority and power to act in its governmental or regulatory capacity in accordance with applicable laV::s, ordinances, codes or other building regulations. Notwithstanding any other provision of this Agreement, any required permitting, licensing or other regulatory approvals by the County shall be subject to the established procedures and requirements of the County with respect to review and permitting of a project of a similar or comparable nature, size and scope. In no event shall the County, due to any provision of this Agreement, be obligated to take any action concerning regulatory approvals except through its established processes and in accordance with applicable provisions of law. 3.03. Not a Site Specific Development Plan or Application. The City, County and ASCc hereby acknowledge, agree and represent that this Agreement is not intended to be and should not be construed or deemed to be a "site specific development plan" or an "application" within the meaning of those terms in C.R.S., ~ 24-68-101, et seq., and this Agreement shall not confer any vested rights either in common law or pursuant to the Colorado Statutes. ARTICLE 4. PROJECT DEVELOPMENT. 4.01. Ownership of Project Site. The City and County shall be the joint owners of the Project Site. ASCc agrees that it will not claim any title, equitable or otherwise, in any personal or real property, associated with the Animal Shelter, or any other related facilities. 4.02. Project Site. The Project Site consists of two properties donated by the City and County adjacent to the Pitkin County Public Works Site, as more particularly described in Exhibit A. 4.03. Project Developer. The City shall be the Project developer, and as set forth in Article 6, shall be responsible for all construction management, including but not limited to: contracting with architects and contractors to construct the Animal Shelter; supervision of the construction of the Animal Shelter; and payment of all invoices related to the construction of the Animal Shelter, subject to the Project Financing provisions set forth in Article 5. The County shall have no obligations with respect to the construction of the Animal Shelter. 4.04. Project Schedule. The City Council has directed its staff to begin the process for designing and building the Animal Shelter. To date, the City has hired Sundesigns Architects to design the Animal Shelter. The City's current project schedule for the completion of the Animal Shelter is contained in Exhibit B. The schedule may change Page 5 with time, but the exhibit does represent the City's current best estimate of the project schedule. ARTICLE 5. PROJECT FINANCING AND LAND CONTRIBUTIONS. 5.01. Overview of Financing and Land Contribution. The Project shaIi be financed primarily through private donations garnered through ASCC's fundraising efforts. The City has committed to contribute a sum not to exceed $500,000.00 for the design and construction of the project. The City shall also commit to proceed with the construction . ofthe Project by seeking bids upon ASCc's ability to raise ninety percent (90%) of the estimated cost ofthe Project (not including the City's $500,000.00 contribution). The City and County have agreed to donate the land necessary for the construction of the Project. 5.02. Estimated Construction Costs. The City shall prepare an estimate of construction costs for the Project, which shall be the basis for the fundraising obligations of ASCC as set forth in paragraph 5.03 and the City's commitment offunds as set forth in paragraph 5.04. 5.03. ASCC Fundraising. AScc shall be primarily responsible for raising funds sufficient for the construction of the Project. In connection with its fundraising obligations, ASCC agrees: a. ASCC to Raise 90% of Estimated Construction Costs. ASCc agrees to attempt to raise 90% of the estimated construction costs for the Project. The raising of90% of the estimated construction costs shall be a condition precedent to the City's commitment to proceeding to a bid for constcution and ultimate construction of the Animal Shelter. b. Definition of "Raise." The term "raise" as used in section 5.03(a) shall mean funds that are immediately available for use by the City, evidenced by a bank account containing the appropriate sums, legally binding and irrevocable pledges from donors which are immediately accessible, or a combination of such documentation. The City, through its City Attorney, shall have sole discretion in determining whether sufficient funds have been "raised" as contemplated by section 5.03(a) and as otherwise referenced in this Agreement. The City agrees to notify the County of its determination of whether sufficient funds have been raised within five (5) days of such determination. c. Naming Rights. The City and County agree that AScC may choose to offer naming rights for certain amenities or fixtures within the Animal Shelter as an Page 6 inducement to potential donors. The City and County commit to honoring such naming rights provided that the following procedures are followed: 1) The facility or fixture is listed in the appended document as Exhibit C that lists certain. facilities, portions of facilities, and fixtures that the City and County have pre-approved for sale for naming rights. 2) The City and County are given an opportunity to approve the name chosen for the facility or fixture to ensure good taste and compatibility with t)1e overall design of all the contemplated facilities; provided, however, that the City and County shall not unreasonably withhold their approval of the names chosen by individual donors. 3) The City and County approve in writing any portion of a facility or fixture that is not listed in Exhibit C for which an offer has been made by a potential donor. The City and County shall have the right to approve the portion of the facility or fixture proposed to be named by a potential donor, the name chosen, and the actual sign design chosen to be placed on, or near, the portion ofthe facility or fixture chosen to be named. 4) All signs selected to be placed on, or near a facility, portion of a facility or fixture shall be pre-approved by the City and County and shall be in compliance with all sign regulations of Pitkin County. The City and County shall not unreasonably withhold their approval in this regard, but shall determine the appropriateness of the design and text of a particular sign in the context of good taste and the overall design of the Animal Shelter. d. Miscellaneous Funds. ASCC may choose to accept donations from the public that are not specifically associated with the Animal Shelter, but may have some tangential relationship to the overall design and operation of the Animal Shelter. In the event that AScC receives such' donations, the City and County agree to establish separate funds for such donations and agree to expend such funds for the specific purpose for which they are donated; provided, however, that the City and County have an opportunity to review and accept such donations for their intended purpose, and the amount of the donation shall not be included in the funds referred to in section 5.03(a). e. Monthly Reports. ASCC agrees to provide the City and the County with quarterly reports detailing the total amount of contributions along with copies of the minutes from all meetings held by the Board of Directors of AScC. Page 7 5.04. City Donation of Land and Funds. The City Council has authorized the donation of land and funds for the Project as follows: a. City Land Donation. The City agrees to donate .09 acres of land for the Project Site located adjacent to the Pitkin County Public Works Campus. Such donation of land shall be made within thirty (30) days of confirmation that AScC has raised the funds specified in section 5.03(a). b. City Donation of Funds. The City has authorized the. expenditure of up to $500,000.00 in connection with the construction of the Project, provided that ASCC raises at least 90% of the estimated construction costs for the Project as set forth in section 5.03(a). 5.05. County Donation of Land; No County Financing. a. County Land Donation. The County agrees to donate the major site for the Project Site, .92 acres, located adjacent to the Pitkin County Public Works Campus. The donation of land by the County shall be for the express purpose of providing land for the construction and operation of the Animal Shelter, and shall reserve the right of the County to construct deed restricted affordable housing on site. The County's right to construct Animal Shelter shall not confer any obligations on the City or ASCC. This housing shall not be considered mitigation for the employees generated by the Animal Shelter. The donation of land shall be made within thirty (30) days of confirmation that AScC has raised the funds . specified in section 5.03(a). b. No County Funding. Other than the contribution of land set forth in section 5.05(a) and the continuing operating obligations set forth in Article VII, the County shall have no financial obligations with respect to the construction of the Project, either pursuant to this Agreement or due to any unanticipated shortfalls. ARTICLE 6. PROJECT CONSTRUCTION. 6.01. City is Project Manager. The City shall be the project manager for the construction of the Animal Shelter. The City shall be responsible for all construction management, including but not limited to: contracting with architects and contractors to construct the Animal Shelter; the preparation of construction documents; supervision of the construction of the Animal Shelter; and payment of all invoices related to the construction of the Animal Shelter. The County shall have no obligations with respect to the construction of the Project. REVISED Development Agreement DRAFT dated 11/27/01 Page 8 6.02. Architectural Plans. The City shall engage the architect to complete all associated work necessary to complete design work for the Animal Shelter and supervise the work of the architect; provided, however, that the City may use funds donated by AScc to pay for any additional architectural fees associated with the Animal Shelter over and above the $500,000.00 committed by the City as set forth in section 5.04. Any additional costs for architectural work shall be included and identified in any bid that is accepted by the City in accordance with secfion 6.03. The City and County commit to working cooperatively with ASCc and its potential donors to finalize the design for the Animal Shelter. 6.03. ASCC and County Required Approvals. AScc and the County shall have the right to review and approve the architectural plans, land use application, construction documents and construction bids for the Animal Shelter. The City agrees not to 'accept any construction bids, including bids for architectural services, for the Animal Shelter unless ASCC and the County have first approved such bids. 6.04. County Not in Privity. The County shall not be deemed to be in privity of contract with any contractor or provider of services with respect to the construction of any part of the Project. ARTICLE 7. ANIMAL SHELTER OPERATION. 7.01. General Operations. The Animal Shelter. shall be jointly operated by the City and County. It is the intention of the City and County to cover the general operating expenses of the Animal Shelter by leasing the facilities to a qualified person(s) or business(es). 7.02. Operation Costs. To the extent that the operational costs of the Animal Shelter exceed the revenues generated by any lessees, the City and County shall equally contribute to pay for those costs; provided, however, that the County shall not be obligated to contribute more than $10,000 for any fiscal year. The County will budget $10,000 annually and establish a sinking fund to pay these operational costs. Funds not expended in any fiscal year will be accumulated for eventual capital replacement items. The County agrees to contribute limited snowplowing of the facility as long as it is providing its own plowing for the Public Works Facility. If the County stops plowing, it will become a joint obligation of the City and County as set forth and limited in this.article. 7.03. No Fees for City or County Animals. The Animal Shelter, through the City, County or their lessee, shall not charge the City or cOlmty any fees of any kind for animals that the City or County deposit in the Animal Shelter. Page 9 7.04. Cooperation. The City and County, their agents or lessees that will operate the Animal Shelter, agree to consult with ASCc (or any other support group, which may include an advisory board) on a continuing basis, in all matters relating to the operation of the Animal Shelter, including: the formulation and implementation of operating guidelines, policies and procedures, personnel hiring and performance review system, annual operating budget, appropriate reviews, capital improvements and maintenance program for the facility. The City and County further agree to cooperate with AScC to finalize a procedural manual for the operation ofthe Animal Shelter. 7.05. . Operational Policies. The City, County and ASCC agree that the Animal Shelter will operate as a no-kill animal shelter in perpetuity in accordance with the guidelines contained in Exhibit D, that all animals will be neutered and vaccinated before adoption, that all regulations of the American Humane Society will be respected, that the advisory board described in section 2.04 will have the right to inspect the premises and records when necessary and, above all, that the welfare of the animals will always be paramount. ARTICLE 8. INDEMNIFICATION. 8.01. Indemnification by the City. a. To the extent permitted by law, the City agrees to indemnify, defend and hold harmless, ASCc and the County, their respective agents, officers; officials, or employees from any and all liabilities, damages, penalties, judgments, Claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of, any act or omission of the City, its respective agents or employees arising out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performarice of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such services. b. The City shall indemnify, defend and hold harmless ASCC and the County, their respective agents, officers, officials, or employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the City, as the case may be, of any representations or warranties contained in Section 10.01, or covenants contained in Section 10.02. 8.02. Indemnification by the County. Page 10 a. To the extent permitted by law, the County agrees to indemnify, defend and hold harmless, ASCC and the City, their respective agents, officers, officials, or employees from any and all liabilities, damages, penalties, judgments, claims, demands, costs, losses, expenses or attorneys' fees through appellate proceedings, for personal injury, bodily injury, death or property damage arising out of, or by reason of, any act or omission of the County, its respective agents or employees arising out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with or by reason of, the performance of any and all services covered by this Agreement, or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such services. b. The County shall indemnify, defend and hold harmless AScC and the City, their respective agents, officers, officials, or employees from any and all liabilities, damages, costs, penalties, judgments, claims, demands, losses, or expenses (including, but not limited to, actual attorneys' fees and engineering fees) arising from or attributable to any breach by the County, as the case may be, of any representations or warranties contained in Section 10.01, or covenants contained in Section 10.02. 8.03. Limitation of Indemnification. Notwithstanding anything to the contrary contained herein, with respect to the indemnification obligations, the following shall apply: a. the indemnifying party shall not be responsible for damages that could have been, but were not, mitigated by the indemnified party; b. the indemnifying party shall not be responsible for that portion of any damages caused by the negligent or willful acts or omissions of the indemnified party; and c. there shall be no obligation to indemnify hereunder in the event that the indemnified party (1) shall have effected a settlement of any claim without the prior written consent of the indemnifying party, or (2) shall not have subrogated the indemnifying party to the indemnified party's rights against any third party by an assignment to the indemnifying party of any cause or action against such third party. ARTICLE 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ASCC. 9.01. Representations and Warranties. ASCC represents and warrants to the City and County that each of the following statements is currently true and accurate and agrees the City and County may rely upon each ofthe following statements: Page 11 a. ASCC promises and warrants that it will not make any representations or promises to any donors, or any person or entity, which are not authorized by this Agreement. ASCc fHrthar agrees it 'Nill give a eej'l)' ef this i\graell1Cflt tel c. ery eeaer aRe eetaia a wntteFl aGknewleegemellt from the dellOr that ilia !,greement has eeeR reeeivsa. b. AScC is organized as an IRS Code 501(c)(3) tax exempt organization and is incorporated in the State of Colorado as a not-for-profit corporation. ASCC agrees to maintain such status until the Animal Shelter is completed. ASCc is duly organized and validly existing under the laws of the State of Colorado, has all requisite power and authority to carry on its business as now conducted, to own or hold its properties and to enter into and perform its obligations hereunder and under each document or instrument contemplated by this Agreement to which it is or will be a party, is qualified to do business in the State of Colorado, and has consented to service of process upon a designated agent for service of process in the State of Colorado. c. This Agreement and, to the extent such documents presently exist in a form accepted by the City, County and AScc, each document contemplated or required by this Agreement to which ASCc is or will be a party have been duly authorized by all necessary action on the part of, and have been or on the date of this Agreement will be duly executed and delivered by ASCc, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof: (i) requires the approval and consent of any other party, except . such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on ASCc, (iii) contravenes or results in any breach of, default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of AScC under any indenture, mortgage, deed of trust, bank loan or credit agreement, AScC's Articles of Incorporation, or, any other agreement or instrument to which AScC is a party or by which ASCc may be bound. d. This Agreement and, to the extent such documents presently exist in a form accepted by the City, County and ASCc, each document contemplated or required by this Agreement to which AScc is or will be a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of ASCc enforceable against ASCC in accordance with the terms thereof, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws from. time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. . Page 12 e. There are no pending or, to the knowledge of ASCC, threatened actions or proceedings before any court or administrative agency against AScC, or against any controlling, officer, employee or agent of AScC, which question the validity of this Agreement or any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of ASCc. f. ASCC has filed or caused to be filed all federal, state, local and foreign tax returns, if any, which were required to be filed by AScC, and has paid, or caused to be paid, all taxes shown to be due and payable on such returns or on any assessments levied against ASCC. g. All financial information and other documentation, including that pertaining to the Project or AScC, delivered by ASCC to the City and County was, on the date of delivery thereof, true and correct. h. The principal place of business and principal offices of AScC are in Pitkin County, Colorado, and ASCC will keep records concerning the Project (such as construction contracts, financing documents and corporate documents) and all contracts, licenses and similar rights relating thereto at an office in Pitkin County. 9.02. Covenants. AScC covenants with the City and County that: a. AScC shall timely perform or cause to be performed all of the obligations contained herein which are the responsibility of ASCC to perform. b. During each year that this Agreement and the obligations of AScC under this Agreement shall be in effect, ASCC shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals, and shall cause to occur those events contemplated by this Agreement that are applicable to, and that are the responsibility of ASCc. c. AScC shall assist and cooperate with the City and County to accomplish the development of the Project in accordance with this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts or agreements that are or will be applicable thereto. d. AScC shall promptly cause to be filed when due all federal, state, local and foreign tax returns required to be filed by it, and shall promptly pay when due any tax required thereby. e. ASCC shall maintain its existence, will not dissolve or substantially dissolve all of its assets and will not consolidate with or merge into another corporation, Page 13 limited partnership, or other entity or permit one or more other corporations or other entity to consolidate with or merge into it without the prior approval of the City and County. ASCc will promptly notify the City and County of any changes to the existence or form of the corporation or any change in officers or directors of ASCC. ARTICLE 10. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CITY AND COUNTY. 10.01. Representations and Warranties. The City and County represents and warrants to ASCC that each of the following statements is currently true and accurate and agrees that ASCC may rely on each ofthe following statements: a. The City and County are respectively validly existing municipal and home rule governments of the State of Colorado, and both have all requisite corporate power and authority to carry on their business as now conducted and to perform their obligations hereunder and under each document or instrument contemplated by this Agreement to which they are or will be a party. b. This Agreement and, to the extent such documents presently exist in form accepted by the City, the County and AScc, each document contemplated or required by this Agreement to which the City and the County are or will be a party have been duly authorized by all necessary action on the part of, and have been or will be duly executed and delivered by the City and the County, and neither the execution and delivery thereof, nor compliance with the terms and provisions thereof or hereof (i) requires the approval and 'consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, govemmental rule, regulation or order applicable to or binding on the City or County, (iii) contravenes or results in any breach of, or default under or, other than as contemplated by this Agreement, results in the creation of any lien or encumbrance upon any property of the City or County under any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions or, on the date of this Agreement, any other agreement or instrument to which the City or County is a party, specifically including any covenants of any bonds, notes, or other forms of indebtedness of the City or County. c. This Agreement and, to the extent such documents presently exist in a form accepted by the City, the County and AScc, each document contemplated or required by this Agreement to which the City or County is or will be a party constitute, or when entered into will constitute, legal, valid and binding REVISED Development Agreement DRAFT dated 11/27/01 Page 14 obligations of the City or County enforceable against the City or County in accordance with the terms thereof, except as such enforceability may be limited by public policy or applicable bankruptcy, insolvency or similar laws from time to time in effect which affect creditors' rights generally and subject to usual equitable principles in the event that equitable remedies are involved. d. There are no pending or threatened actions or proceedings before any court or. administrative agency against the City or County, or against any officer of the City or County, which question the validity of this Agreement or any document contemplated hereunder, or which are likely in any case, or in the aggregate, to materially adversely affect the consummation of the transactions contemplated hereunder or the financial condition of the City or County. 10.02. Covenants. The City and County covenant with AScC and each other that: a. The City and County .shall timely perform, or cause to be performed all of the obligations contained herein which are the responsibility of the City or County to perform. b. During each year that this Agreement and the obligations of the City and/or County under this Agreement shall be in effect, the City and/or County shall cause to be executed and to continue to be in effect those instruments, documents, certificates, permits, licenses and approvals, and shall cause to occur those events contemplated by this Agreement that are applicable to and are the responsibility of the City and/or County. c. The City and/or County shall assist and cooperate with ASCC to accomplish the development of the Project in accordance with this Agreement, will carry out its duties and responsibilities contemplated by this Agreement, and will not violate any laws, ordinances, rules, regulations, orders, contracts, or agreements that are or will be applicable thereto, and, to the extent permitted by law, the City and/or County . will not enact or adopt or urge or encourage the adoption of any ordinances, resolutions, rules, regulations or orders or approve or enter into any contracts or agreements, including issuing any bonds, notes, or other forms of indebtedness, that will result in any provision of this Agreement to be in violation thereof. ARTICLE 11. CONDITIONS PRECEDENT. Page 15 11.01. ASCC to Raise Funds Equal to 90% of the Estimate Construction Costs. The obligations of the City and County set forth in this Agreement are subject to the fulfillment of AScC's agreement to attempt to raise at least 90% of the estimated construction costs of the Project as set forth in section 5.02. 11.02. Land Use Approvals. The obligations set forth in sections 3.01 and 3.02 are subject to the issuance of all necessary development approvals. 11.03. Responsibilities of the Parties for Conditions Precedent. The parties hereto shall not, , individually or collectively, knowingly, intentionally or negligently prevent any condition precedent from occurring; provided, however, nothing in this Section is intended or shall be deemed to deny any party the right to reasonably exercise its discretion to the extent permitted by law or this Agreement. ARTICLE 12. DEFAULT; TERMINATION. 12.01. Default by ASCC. a. Provided the City or County is not then in default under section 12.02, there shall be an "event of default" by ASCC under this Agreement upon the occurrence of anyone or more of the following: 1. AScc shall fail to perform or comply with any material provision of this Agreement applicable to it within the time prescribed therefor, after receipt of a notice from the City or County pursuant to section 14.03. 2. ASCC shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts as they become due or Shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation or shall file an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of ASCC or any material part of such entity's properties; or 3. Within sixty (60) days after the commencement of any proceeding by or against AScc seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed or otherwise terminated, or if, within sixty (60) days after the Page 16 b. appointment without the consent or acquiescence of AScC of any trustee, receiver or liquidator of any of such entities or of any material part of any of such entity's properties, such appointment shall not have been vacated. 1. If an event of default by ASCc described in subsection (a) above shall occur, the City or County shall provide written notice thereof to ASCc, and, if such event of default shall not be cured by ASCC within thirty (30) days after receipt of the written notice from the City or County specifying in reasonable detail the event of default by ASCc, or if such event of default is of such nature that it cannot be completely cured within such time period, then if AScc shall not have commenced to cure such default within such thirty (30) day period and shall not diligently prosecute such cure to completion within such reasonable longer period of time as may be necessary (provided, however, if ASCC is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding six (6) months without any approval or consent of the City or County being required, but such approval will be required if the curative period is to be extended beyond six (6) months). 2. Any attempt by the City or County to pursue any of the above referenced remedies will not be deemed an exclusive election of remedy or waiver of the City's or County's right to pursue any other remedy to which either may be entitled. 3. Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to .cure any event of default hereunder if such event affects AScC's or the City's or County's ability to perform by such deadline or the expiration of such period. 12.02. Default by the City or County. a. Provided ASCC is not then in default under section 12.01, there shall be an "event of default" by the City or County under this Agreement upon the occurrence of one or more of the following: 1. The City or County shall fail to perform or comply with any material provision of this Agreement applicable to it; provided, however, that suspension of or delay in performance by the City or County during any period in which ASCc is in default of this Agreement as provided in section 12.01 hereofwill not constitute an event of default by the City or County under this subsection 12.02(a). Page 17 b. 2. The City or County shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation or shall file an answer admitting, or shall fail reasonably to contest, the material allegations of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the City or County or any material part of such entity's properties; or 3. Within sixty (60) days after the commencement of any proceeding by or against the City or County seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed or otherwise terminated, or if, within sixty (60) days after the appointment without the consent or acquiescence of the City or County of any trustee, receiver or liquidator of any of such entities or of any material part of any of such entity's properties, such appointment shall not have been vacated; 1. If an event of default by the City or County described in subsection 12.02(a) shall occur, ASCC shall provide written notice thereof to the City and County, and, after expiration of the curative period described in paragraph (2) below, may terminate this Agreement, institute an action to compel specific performance of the terms hereof by the City or County or pursue any and all legal or equitable remedies to which ASCC is entitled, provided however that monetary damages shall be specifically excluded as a remedy. 2. AScC may not terminate this Agreement or institute an action described in paragraph (1) above if the City or County cures such event of default within thirty (30) days after receipt by the City or County of written notice from ASCC specifying in reasonable detail the event of default by the City or County, or if any such event of default is of such nature that it cannot be completely cured within such period, then within such reasonably longer period of time as may be necessary to cure such default, provided however, if the City or County is proceeding diligently and in good faith, the curative period shall be extended for a period of not exceeding six (6) months without any approval or consent of ASCC being required, but such approval will be required if the curative period is to be extended beyond Page 18 six (6) months after the notice of default has been given by AScc to the City or County if the City or County has commenced to cure such default within such thirty (30) day period and is diligently prosecuting such curative action to completion. The City or County shall within said thirty (30) day period or such longer period promptly, diligently and in good faith proceed to cure such event of default after receipt of the notice from ASCC and shall succeed in curing such event of default within said period of time, provided, however, if the City or County shall fail to cure such event of default within said thirty (30) day or longer period or ceases to proceed diligently to timely cure such event of default, then AScC may proceed with its available remedies without providing any additional notice to the City and County. 3. Any attempt by AScc to pursue any of the remedies referred to in paragraphs (1) and (2) above will not be deemed an exclusive election of remedy or waiver of ASCc's right to pursue any other remedy to which it might be entitled. 4. Any time periods or deadlines provided in this Agreement shall be tolled or extended by the amount of time to cure any event of default hereunder if such event affects ASCC's, the City's or County's ability to perform by. such deadline or the expiration of such period. 12.03. Obligations, Rights and Remedies Cumulative. Unless specifically stated herein to the contrary, the specified rights and remedies to which either the City, the County or ASCc are entitled under this Agreement are not exclusive and are intended to be in addition to any other remedies or means of redress to which the City, the County or AScC may lawfully be entitled and are not specifically prohibited by this Agreement. 12.04. Non-Action on Failure to Observe Provisions of this Agreement. The failure of the City, the County or ASCc to promptly or continually insist upon strict performance of any term, covenant, condition or provision of this Agreement, or any Exhibit hereto, or any other agreement, instrument or document of whatever form or nature contemplated hereby shall not be deemed a waiver of any right or remedy that the City, the County or ASCC may have, and shall not be deemed a waiver of a subsequent default or nonperformance of such term, covenant, condition or provision. 12.05. Termination. a. This Agreement shall terminate upon the completion of the Animal Shelter. Page 19 b. This Agreement may be terminated upon an event of default as set forth in sections 12.01 and 12.02. ARTICLE 13. ARBITRATION 13.01. Agreement to Arbitrate. Only as specifically provided in this Agreement and only if . any judicial or administrative action or proceeding has not been commenced with regard to the same matter and, if so', the party hereto commencing such action has not dismissed it, any disagreement or dispute between the parties may be arbitrated in the manner set forth in this Article 13. All parties hereby agree such arbitration, once commenced, shall be the exclusive procedu,e for resolving such disagreement or dispute and agree to be bound by the result of any such arbitration proceeding unless all parties mutually agree to terminate such proceeding prior to decision. If any arbitration proceeding under this part adversely affects the performance of any party hereunder, then any time periods provided herein for such performance by that party shall be tolled during the pendency of the arbitration proceeding affecting such performance. 13.02. Appointment of Arbitrators. a. 1. Unless accelerated arbitration as provided in Section 13 hereof is invoked, any party invoking arbitration herewith shall, within five (5) days after giving notice of impasse in the dispute resolution process or upon following the expiration of the time period for such dispute resolution occurrence of the event permitting arbitration to be invoked, give written notice to that effect to the other parties, and shall in such notice appoint a disinterested person who is on the list of qualified arbitrators maintained by the American Arbitration Association or a disinterested person not on such list to whom an objection is not made by any other party hereto within five (5) days of receipt of the notice of such appointment as the arbitrator or, if more than one (1) arbitrator is to be appointed, as one of the arbitrators. 2. Within ten (10) days after receipt of the notice described in paragraph (1), the other parties shall by written notice to the original party acknowledge that arbitration has been invoked as permitted by this Agreement, and shall either accept and approve the appointment of such individual set forth in the original notice as a sole arbitrator or shall appoint one (1) disinterested person per party ofrecognized competence in such field as an arbitrator. Page 20 b. 1. If two (2) arbitrators are appointed pursuant to subsection (a) above, the arbitrators thus appointed shall appoint a third disinterested person who is on the list of qualified arbitrators maintained by the American Arbitration Association, and such three (3) arbitrators shall as promptly as possible determine such matter. 2. If the second arbitrator shall not. have been appointed as provided in subsection (a), the first arbitrator shall, after ten (10) days notice to the parties, proceed to determine such matter. 3. If the two (2) arbitrators appointed by the parties pursuant to subsection (a) shall be unable to agree within fifteen (15) days after the appointment of the second arbitrator upon the appointment of a third arbitrator, they shall give written notice of such failure to agree to the parties, and, if the parties then fail to agree upon the selection of such third arbitrator within fifteen (15) days thereafter, then within ten (10) days thereafter each of the parties upon written notice to the other parties hereto may request the appointment of a third arbitrator by the office in or for the State of Colorado (or if more than one office, the office located closest to the City) of the American Arbitration Association (or any successor organization thereto), or, in its absence, refusal, failure or inability to act, request such appointment of such arbitrator by the Pitkin County District Court. . 13.03. General Procedures. In any arbitration proceeding under this part, those parties appointing arbitrators shall each be fully entitled to present evidence and argument to the sole arbitrator or panel of arbitrators. The arbitrator or panel of arbitrators shall only interpret and apply the terms of this Agreement and may not change any such terms, or deprive any party to this Agreement of any right or remedy expressed or implied in this Agreement, or award any damages or other compensation to any party hereto. The arbitration proceedings shall follow the rules and procedures of the American Arbitration Association (or any successor organization thereto) unless specifically modified by this Agreement, or as then agreed to by the parties hereto. 13.04. Majority Rule. In any arbitration proceeding under this part, the determination of the majority of the panel of arbitrators, or of the sole arbitrator if only one (1) arbitrator is' used, shall be conclusive upon the parties and judgment upon the same may be entered in any court having jurisdiction thereof. The arbitrator or panel of arbitrators shall give written notice to the parties stating his or their determination within thirty (30) days after the conclusion of the hearing or final submission of all evidence or argument. 13.05. Replacement of Arbitrator. In the event of the failure, refusal or inability of any arbitrator to serve as such, promptly upon such determination being made by the affected Page 21 arbitrator, the affected arbitrator, shall give notice to the other two (2) arbitrators (if applicable) and to the parties hereto, and then a new arbitrator shall be promptly appointed as a replacement, which appointment shall be made by the party or the arbitrators who appointed the affected arbitrator in the same manner as provided for in the original appointment of the affected arbitrator in Section 14.02 hereof. 13.06. Decision of Arbitrators. a. If any decision reached by arbitration as provided in this part requires performance by AScc, AScc covenants and agrees to comply with any decision of thearbitrator(s) promptly after the date of receipt by ASCC of such decision, and to continue such performance to completion with due diligence and in good faith. b. If any such decision requires performance by the City or the County, the City and County covenant and agree to comply promptly with any decision reached by arbitrators) promptly after the date of receipt by the City and/or County of such decision, and to continue such performance to completion with due diligence and in good faith. c. Nothing in this part, nor in any arbitration decision rendered under this part, shall be construed to require any payment by any party not otherwise provided for herein. 13.07. Expense of Arbitration. The expenses of any arbitration proceeding pursuant to this part shall be borne equally by the parties to such proceeding, provided, however, for the purpose of this section 13.07, "expenses" shall include the fees and expenses of the arbitrators and the American Arbitration Association with respect to such proceeding, but shall not include attorneys' fees or expert witness fees, or any costs incurred by attorneys or expert witnesses, unless (and to the extent) agreed to by the piJrties to such proceeding, which in the absence of such Agreement shall be the responsibility of the party incurring such fees or costs. 13.08. Accelerated Arbitration. a. 1. If any of the parties to any arbitration proceeding under this part determines the matter for arbitration should be decided on an expedited basis, then after an initial election to invoke arbitration pursuant to section 13.02 hereof has been made, either party to such proceeding may invoke accelerated arbitration by giving notice thereof to the other parties no later than three (3) days after arbitration has been initially invoked and the other parties do not object within three (3) days thereafter. Page 22 2. Accelerated arbitration, for purposes of this section 13.08, shall be accomplished by either party notifying the American Arbitration Association (or any successor organization thereto) that the parties have agreed to a single arbitrator, qualified to decide the matter for arbitration, to be appointed by the American Arbitration Association (or any successor organization thereto) with the consent of the parties to such proceeding within three (3) days after receipt of the request and to decide such matter within five (5) days after such appointment. 3. If an arbitrator is not so appointed with consent of the parties to the proceeding within three (3) days after the notice referred to in paragraph (2) is received by the American Arbitration Association, the accelerated proceeding under this section 13.08 shall terminate and the procedures otherwise set forth in this Article 13 shall apply, unless the parties mutually agree to an extension of such time period. b. All parties hereby agree to use such accelerated procedure only when reasonably necessary, to not contest the appointment of the arbitrator or his or her decision except as may be permitted by law, and that all other provisions of this part, except as are in conflict with this section 13.08, remain in effect and applicable to an accelerated arbitration proceeding. 13.09. Applicable Law. To the extent not inconsistent with this article, any arbitration proceeding under this article shall be governed by the Colorado Arbitration Code, Section 13-22-201 C.R.S. 13.10. Arbitration Proceedings and Records. Any arbitration hearing under this article shall be considered a meeting subject to Section 24-6-402 of the Colorado Statutes, and shall be open to any member of the public. Unless otherwise rendered confidential pursuant to or by the operation of any applicable law or order (other than an order by a sole arbitrator or panel of arbitrators acting under this part), the record of such proceedings shall be a public record under Section 24-6-402 C.R.S. ARTICLE 14. MISCELLANEOUS 14.01. Assignments. a. By ASCC. 1. ASCC may sell, convey, assign or otherwise dispose of any or all of its right, title, interest and obligations in and to the Project, or any part Page 23 thereof, only with the prior written consent of the City and County, to another party provided that such party (hereinafter referred to as the "assignee") shall be bound by the terms of this Agreement the same as ASCC is subject to such sale, conveyance, assignment or other disposition. 2. If the assignee of ASCC's right, title, interest and obligations in and to the Project, or any part thereof assumes all of ASCC's obligations hereunder for the Project, or that part subject to such sale, conveyance, assignment or other disposition, then ASCC shall be released from all such obligations hereunder which have been so assumed by the assignee, and tl:te City and County agree to execute an. instrument evidencing such release, which shall be in recordable form. b. City and County's Right to Assign Rights. ASCC agrees that the City and County shall have the unqualified right to assign its rights under this Agreement only to each other, subject only to applicable laws in regard to the disposition of an interest in real property. 14.02. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the City and the County, and its successors and assigns, and ASCC, and its successors and assigns, except as may otherwise be specifically provided herein. 14.03. Notices. a. All notices, demands, requests for approvals or other ' communications given by either party to another shall be in writing, and shall be sent by registered or certified mail, postage prepaid, return receipt requested or by courier service, or by hand delivery to the office for each party indicated below and addressed as follows: To ASCC: To the City: To the County: PO Box 985 Aspen, CO 81612 Steve Barwick City Manager 130 S Galena Street Aspen, CO 81611 Hilary Smith County Manager 530 E Main Street Aspen, CO 81611 with copies to: with copies to: with copies to: Al Dietsch John Worcester John Ely Page 24 PO Box 128 Woody Creek, CO 81656 City Attorney 130 S Galena Street Aspen, CO 81611 County Atty 530 E Main Street Aspen, CO 81611 b. Notices given by courier service or by hand delivery shall be effective upon delivery and notices given by mail shall be effective on the third (3rd) business day after mailing. Refusal by any person to accept delivery of any notice delivered to the office at the address indicated above (or as it may be changed) shall be deemed to have been an effective delivery as provided in this section 14. The addresses to which notices are to be sent may be changed from time to time by written notice delivered to the other parties and such notices shall be effective upon receipt. Until notice of change of address is received as to any particular party hereto, all other parties may rely upon the last address given. 14.04. Applicable Law and Construction. The laws of the State of Colorado shall govern the validity, performance and enforcement of this Agreement. This Agreement has been negotiated by the City, County and ASCC, and the Agreement, including, without limitation, the Exhibits, shall not be deemed to have been prepared by the City, the County or ASCC, but by all equally. 14.05. Venue; Submission to Jurisdiction. a. For purposes of any suit action, or other proceeding arising out of or relating to this Agreement, the parties hereto do acknowledge, consent, and agree that venue thereofis Pitkin County, Colorado. b. Each party to this Agreement hereby submits to the jurisdiction of the State of Colorado, Pitkin County and the courts thereof, for the purposes of any suit, action, or other proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of a motion as a defense or otherwise that such action is brought in an inconvenient. forum or that the venue of such action is improper or that the subj ect matter thereof may not be enforced in or by such courts. c. If at any time during the term of this Agreement ASCC is not a resident of the State of Colorado or has no office, employee, officer, agent thereof available for service of process as a resident of the State of Colorado, or if any permitted assignee thereof shall be a foreign corporation, partnership or other entity or shall have no officer, employee, agent available for service of process in the State of Colorado, ASCC hereby designates the Secretary of State, State of Colorado, its Page 25 agent for the service of process in any court action between it and the City and the County, or both, arising out of or relating to this Agreement and such service shall be made as provided by the laws of the State of Colorado for service upon a non- resident; provided, however, that at the time of service on the Colorado Secretary of State, a copy of such service shall be delivered to ASCC at the address for notices as provided in section 14.03. 14.06. Complete Agreement; Amendments. a. This Agreement, and all the terms and provisions contained herein, including without limitation the Exhibits hereto, constitute the full and complete agreement between the parties hereto to the date hereof, and supersedes and controls over any and all prior agreements, understandings, representations, correspondence and statements, whether written or oral. b. Any provision of this Agreement shall be read and applied in para materia with all other provisions hereof. c. This Agreement cannot be changed or revised except by written amendment signed by all parties hereto. 14.07. Captions. The article and section headings and captions of this Agreement and the table of contents preceding this Agreement are for convenience and reference only and in no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any way affect this Agreement or construe any article, section, subsection, paragraph or provision hereof. 14.08. Holidays. It is hereby agreed and declared that whenever a notice or performance under the terms of this Agreement is to be made or given on a Saturday or Sunday or on a legal holiday observed in the City or County, it shall be postponed to the next following business day. 14.09. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not physically attached hereto shall be treated as if they are part of this Agreement. 14.10. Not an Agent of City. During the term of this Agreement, ASCC shall not be an agent of the City or County with respect to any and all services to be performed by ASCC (and any of its agents, assigns, or successors) with respect to the Project. Page 26 14.11. Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills and is pursuant to and for a public purpose and municipal purpose and is in the public interest, and is a proper exercise of the City and County's power and authority. 14.12. No General Obligation. In no event shall any obligation of the City or County under this Agreement be or constitute a general obligation or indebtedness of the City or County, a pledge of the ad valorem taxing power of the City or the County or a general obligation or indebtedness of the City or the County, but shall be payable solely from legally available revenues and funds. Neither ASCC nor any other party under or , beneficiary of this Agreement shall ever have the right to compel the exercise of the ad valorem taxing power of the City or County, or any other governmental entity or taxation in any form on any real or personal property to pay the City's or the County's obligations or undertakings hereunder. 14.13. Technical Amendments; Survey Corrections. In the event that due to minor inaccuracies contained herein or any Exhibit attached hereto or any other agreement contemplated hereby, or due to changes resulting from technical matters arising during the term of this Agreement, the parties agree that amendments to this Agreement required due to such inaccuracies, unforeseen events or circumstances which do not change the substance of this Agreement may be made and incorporated herein. The City Manager and County Manager are authorized to approve such technical amendments on behalf of the City and County, respectively,.. and are authorized to execute any required instruments, to make and incorporate such amendment to this' Agreement or any Exhibit attached hereto or any other agreement contemplated hereby. 14.14. Effective Date. Upon execution of this Agreement (and such of the Exhibits as are contemplated to be executed simultaneously with this Agreement) by the authorized officers of the City and County and by authorized representatives of ASCC following approval hereof by the City and County and the Board of Directors of ASCC, this Agreement (and any executed Exhibits) shall then be in full force and effect in accordance with its terms and the date of such execution shall be the Effective Date. 14.15. Approvals Not Unreasonably Withheld. The parties hereto represent that it is their respective intent as of the Effective Date and do covenant and agree in the future that all approvals, consents, and reviews will be undertaken and completed as expeditiously as possible, in good faith, and will not be arbitrarily or unreasonably withheld, unless otherwise expressly authorized by the terms of this Agreement. Page 27 I I I I 1 IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals affixed as of this ~ day of ~2001. THE CITY OF ASPEN, COLORADO ~:"fb ~~/d' By City CJerk ~or Approved as to form and correctness: ~/)~ ,Esquire C orn . STATE OF COLORADO ) ) COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this ~~f JJ.Pe,olA\hPl ' 2...QQJ. by J<A--n\-1" J..{ IJ IC.o <.1-\ and ~-N ~1:\02UQMayor and City Clerk, respectively, for the City of Aspen, Colorado, on behalf of the City. Signature of Notary Public BY~' , c?,(pi,~ 4/rr/b3 , My'Commissions Expires: P BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY Attest. By: By~attC/~-Ca~ (~) Chair, Board of County Commissioners Page 28 ~\ e as to form and correc - /'~,. -- , Esquire STATE OF COLORADO) ) COUNTY OF PITKIN ) The , 2f\()\ by Co-;;;;;tsione County. ~'\~'2~ My Commissions Ex }res: r". ASPEN/PITKIN ANIMAL SHELTER CAPITAL CA N Attest: ~ rJ' By: OAd wu Secretary STATE OF COLORADO ) ) COUNTY OF PITKIN ) ~ The foregoing instrument was acknowledged before me this /'2771 day ofS....u/ , 2 0:;:f2..- by 5<r7h1 -::;.J(Jd/lSa"v and ~~(? ~?Y;T,' President and Secretary, respectively, of AspenIPltkin Animal Shelter Capital Campaign, a Colorado corporation, on behalf of AspenlPitkin Animal Shelter Capital Campaign. By: ~~ Signature. ~ Pub"uc -,~.1 ,:,-~~ '.... My C9rn:furs~ion~Expiies: :a~"~/ ,~?1.::/F~, ~\ "';:' MVCoMM&lOO~PlR!S %~."~'_ MAya;_ ~~iit2).~~J:::;P;> Page 29 ~~ Exhibit A D to Ag evelopme reement f p' nt and or th Hkin C Operat' e Joint . ounty A . lon of In Pitk' nlmal Sh the As / In Count elter pen ,. C.,.,.,. ~ I, (t.1 ~ - lLl~c I- .. " ...I ;:" \l ' WIIr. ~ I <.. U)~c 'll ,... ...I in! <~ :z: :L ifi ti Z' 0 . I < < d~ ;z. 3~ _ C'- " \l >- ""- .".:z: I- Ill"' 0...1 ~ t , '- 0 .... ",..I lI..lZi- 0 ~ c c" [L ;;; ~ ~ Ifl ~ ;z; lQ ...... .. "'''' ..... 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'- ~ I I i ,j 1//\\/ \1.,' . , ". . 9:L3f:<.V C'-<:\ COUNIY rUbllC WUkK: ,'V : .. . \. ~~y , . ",.,;' J z o i= .0( > UJ ...l UJ" o :t:., ;-.'1'- ::>.' .. 01::: ~- :\l.i, I~ I D % o ~I > UJ ..I UJ. ~9 ;-.:" oc " O:? z.:: " ~~ ~r~ u..1,,, 1-[1::: ....l ~ III ~ ~I* ,lU ....l C < 5 1: I III -I Z lU <I ~ x Z II.. }- ':lL ffi I-i ( 0.. 3 '- ~ Z -lU III C C 0..1;;; ~ ,n ,c_ UII.....lJ1 <Io~ I . 9:L~;"V ~,K:N CUUNI! UCLI~ IV"~~ I QI 1-1 <I ?il ...ll- L1J'? ..1'- tJ);1 <I~ LIJI:: i III i I~V, I' I iJ ;z: Q I- < > LIJ ...l\:) L1J., ..~ 1J):1 L1J:!! s::: v .. ~ OC~ LU 1>- l-~ .....l~ LU III :I: :: \'l ill iii Ul ..l () ..{ Z => ~ III Z Ul 0( ~ ::: Z I\. ':J.. >- :: Ul l- ~ IL ..1 "- Ul ~Z > . ,.-w LU 0 () IL ~:: ill o:!l 'Ill 0(11~~ Exhibit B to Agreement for Joint Development and Operation of the Aspen/Pitkin County Animal Shelter in Pitkin County, Colorado Based upon preliminary plans for the new animal shelter, the following project completion schedule is currently projected: 1. Construction will begin in the Spring of2002 and will take twelve months to complete. In the event construction does not begin at such time, construction costs may increase and time of completion will be extended beyond the estimated twelve-month period. 2. A more precise estimate of the project schedule will be prepared after complete plans and specifications are available and the project has been bid. Exhibit C to Agreement for Joint Development and Operation of the Aspen/Pitkin County Animal Shelter in Pitkiu County, Colorado The following facilities, portions of facilities and fixtures that the City and County have approved for naming rights, and the amounts currently projected to be raised by the naming of such facilities and fixtures, are as follows: Facility/Fixture Amount Building Dog Dormitory Area Cat Condominiums Area Welcoming Area Road Administration Area Dog Atrium Dog Yard I Cat Atrium Education Room Mezzanine CareIFeedinglKitchen Area Dog Protection Area Cat Protection Area Visiting Room Dog Yard 2 Dog Yard 3 Dog Yard 4 Canine Care & Cleanup Area Dog Kennels (each) Cat Kennels (each) Dog Protection Kennels (each) Cat Protection Kennels (each) Outside Benches (each) Memorial Wall Plaques (each) Outside Bricks in Walks (each) $1,000,000 500,000 250,000 250,000 250,000 100,000 100,000 100,000 100,000 100,000 75,000 50,000 50,000 50,000 50,000 50,000 50,000 25,000 10,000 5,000 5,000 2,500 2,500 2,500 500 250 I I " Exhibit D to Agreement for Joint Development and Operation of the Aspen/Pitkin County Animal Shelter in Pitkin County, Colorado The Animal Shelter shall operate as a "no-kill" facility, providing sanctuary for homeless dogs, cats and other domestic animals found within Aspen and Pitkin County until owners can be found. No animal in the Animal Shelter will be destroyed except for the following: I. .An animal has been determined by a licensed veterinarian to suffer an incurable or painful disease, injury or condition, and the veterinarian recommends euthanasia. 2. In the opinion of the operator ofthe Animal Shelter, the animal poses a threat to persons due to behavior that cannot be corrected by reasonable care and training. 3. The presence of the animal in the Animal Shelter creates an uninsurable liability to the operator of the Animal Shelter. 4. An animal, in an unprovoked' attack, has bitten a person and drawn bJood. I