HomeMy WebLinkAbout08967RESOLUTION NO. 8967
A RESOLUTION APPROVING ADDENDUM NO. 1 TO THE
MOUNTAIN VIEW CEMETERY MANAGEMENT AGREEMENT
BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND
MOUNTAIN VIEW CEMETERY, LLC AND AUTHORIZING THE
PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
Addendum No. 1 dated April 10, 2000 between Pueblo, a Municipal Corporation and
Mountain View Cemetery, LLC modifying the June 12, 1995 Mountain View Cemetery
Management Agreement, a copy of which is attached hereto, having been approved as to form by
the City Attorney, is hereby approved.
SECTION 2
The President of the City Council is authorized to execute and deliver Addendum No. 1 in
the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest
same.
ATTEST:
Citv rk
INTRODUCED: April 10, 2000
By Al Gurul e
Councilperson
APP VED:
resident of the City Counci
ADDENDUM NO. 1
This Addendum No. 1 (the "Addendum") entered into as of April 10, 2000 between the City
of Pueblo, a municipal corporation (the "City ") and Mountain View Cemetery, LLC, a Colorado
limited liability company (the "Manager ").
RECITALS
A. City and Manager entered into the Mountain View Cemetery Management Agreement
dated June 12, 1995 relating to the management and operation of the Mountain View Cemetery (the
"Management Agreement ").
B. Manager has requested City to amend certain provisions of the Management
Agreement and City is wiling to amend the Management Agreement upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing Recitals and mutual covenants
contained herein, City and Manager agree as follows:
Paragraph 6(b) of the Management Agreement is amended to read as follows:
(b) Except as hereinafter provided, maintain and keep the Cemetery in good
repair and in a clean, safe and orderly condition and in furtherance thereof, develop and
implement efficient maintenance programs for the maintenance of the Cemetery including
without limitation (i) custodial, repair and maintenance of all buildings, (ii) repair and
maintenance of all interior roads and streets, walls, and fences, and (iii) maintenance of trees,
grass and landscaped areas including watering, fertilizing, mowing, seeding, reconditioning
and reseeding, and weed control and elimination programs. Manager's obligation under this
Agreement includes the maintenance, repair and replacement of the Cemetery water and
irrigation system, except that during the term of this Agreement, City shall repair, maintain
and replace Cemetery water mains. For purpose of this provision, "water mains" means any
water line servicing the Cemetery two inches (2 ") in diameter or larger.
2. Paragraph 6(1) of the Management Agreement is amended to read as follows:
(1) Pay, before same become delinquent, all charges for utilities used or
consumed in the operation of the Cemetery including without limitation water, sewer,
electrical, gas and telephone, except that during the term of this Agreement, City will pay all
reasonable and necessary charges for water and sewer.
Paragraph 9 of the Management Agreement is amended to read as follows:
9. City Preneed Fund
(a) City has established a separate fund for payments received by City on
account of the sale of preneed Cemetery Services (the " Preneed Fund "). City has
held, controlled and managed the Preneed Fund which as of March 1, 2000 was
$127,501.45. All preneed contracts for Cemetery Services sold by City are listed in
Exhibit "C" attached to the Management Agreement. Manager acknowledges receipt
of copies thereof and assumes and agrees to perform all obligations of City
thereunder and to indemnify and hold City harmless therefrom until or unless the
Management Agreement is terminated. In the event of termination, Manager shall
have no future obligations of performance or indemnity on preneed contracts to be
performed after the date of termination. Notwithstanding the foregoing, Manager
shall not be released from its obligations for performance and indemnity related to
acts or omissions in the performance of preneed contacts to be performed on or prior
to the date of termination.
(b) City will transfer the Preneed Fund to a trustee selected by Manager
to be held in trust and invested, controlled and managed by the trustee pursuant to the
terms of a trust instrument between Manager and the trustee approved by the City
Attorney of City. The trust instrument shall provide that,
(i) upon termination of the Management Agreement, all right,
title and interest of the Manager in the trust instrument and trust fund shall
terminate and be automatically transferred and assigned to City or its
designee;
(ii) the trustee may invest the trust funds in accordance with the
standards for investment by trustees set forth in C.R.S. §10 -15 -108, as
amended;
(iii) upon Manager's performance of a preneed contract and filing
an affidavit with the trustee setting forth such performance, the trustee will
disburse to the Manager the amount paid by the purchaser for the preneed
Cemetery Services;
(iv) the term "excess trust funds" be defined to mean the amount
of trust funds in excess of all funds paid by the purchasers for preneed
Cemetery Services, and authorize the trustee to disburse excess trust funds to
Manager on a periodic basis, at least annually;
(v) Manager shall be responsible for all taxes, if any. imposed
upon the income or earnings of the trust fund;
(vi) if as a result of the transfer of the Preneed Fund and its
disbursement as provided in this paragraph 9, the Preneed Fund and /or City's
contracts for preneed Cemetery Services shall become subject to the
provisions of Article 15 of Title 10, C.R.S., Manager shall take and complete
at its expense all actions required to comply therewith, and City, without
expense or liability, will cooperate with Manager in such compliance; and
(vii) the trust instrument may not be modified, amended or
cancelled without the prior written approval of the City's Director of Finance.
4. City will, subject to appropriation thereof by the City Council of City, make available
out of the income from the City Endowment Fund the amount of $250,000.00 for installation of an
automated sprinkler system in the old portion of Mountain View Cemetery and the replacement of
certain of the City's equipment as mutually agreed by the Manager and Director. Immediately after
appropriating the $250,000.00 by the City Council of City, City will commence the procurement and
installation of the automated sprinkler system and acquisition of the equipment. Upon acquisition
and delivery of the equipment to Manager, the equipment shall be deemed to be added to Exhibit B
attached to the Management Agreement and subject to the provisions of the Management
Agreement, and in the event of termination of the Management Agreement for any reason, the
equipment will be returned to City by Manager free of liens and encumbrances.
5. The provisions of this Addendum are incorporated in the Management Agreement,
and the Management Agreement as amended by this Addendum shall remain in full force and effect,
binding upon and inuring to the benefit of the parties and their respective successors and approved
assigns. In the event of a conflict between the provisions of this Addendum and the provisions of
the Management Agreement, the provisions of this Addendum shall control to the extent of any such
conflict.
CITY OF PUEBLO,
A MUl` IPAL CORP RATION
By G l
t1tt,
President of the City Council
Attest:. e+. L 1 � a k
City Cl
MOUNTAIN VIEW CEMETERY
OF PUEBLO, LLC
By &Ulu,,
Manager
By
Mana
P'. CITY` PARK &REC.CEVIETERY -I I. WPD �-�
RECITALS
The City of Pueblo (the "City ") has sold preneed cemetery services ( "Preneed Services ")
under contract with various purchasers ( "Preneed Contracts ") with respect to interment at the
Mountain View Cemetery, Pueblo, Colorado, which is managed by Mountain View Cemetery,
LLC, a Colorado limited liability company (the "Manager ") under the Mountain View Cemetery
Management Agreement dated June 12, 2000 (the "Management Agreement "). The City has on
deposit as of August 1, 2000 from the sale of Preneed Contracts the sum of $123,474.45 (the
"Preneed Fund "). City will transfer the Preneed Fund to The Forethought Federal Savings Bank
(the "Trustee ") to be held, managed and disbursed pursuant to The Forethought Group Funeral
Planning Master Trust Agreement (the "Trust Agreement ") as amended hereby. In consideration
of the foregoing, and mutual covenants contained herein, the parties hereto agree as follows:
AGREEMENT
1. City will transfer the Preneed Fund to Trustee, and Trustee will accept from City
the Preneed Fund and hold, manage, invest and distribute the Preneed Fund in accordance with
the Trust Agreement as amended in section 2 hereof.
2. The Trust Agreement is hereby amended by the addition of the following
provisions:
(a) Upon termination of the Management Agreement, all right, title and interest of the
Manager in the Preneed Fund shall terminate and be automatically transferred and
assigned to Pueblo or its designee who shall have the right to withdraw the then
balance of the Preneed Fund;
(b) The Trustee may invest the Preneed Fund in accordance with the standards for
investment by trustees set forth in CRS Sec. 10 -15 -108, as amended.
(c) Upon Manager's performance of a Preneed Contract and filing an affidavit with
the Trustee setting forth such performance, the Trustee will disburse to Manager
the amount paid by the purchaser for the Preneed Services.
(d) The term "excess trust funds" shall be defined to mean the amount of the Preneed
Fund in excess of all funds paid by the purchasers for Preneed Services, and the
Trustee is authorized to disburse excess trust funds to Manager on a periodic
basis, at least annually.
(e) Manager shall be responsible for all taxes, if any, imposed upon the income or
earnings of the Preneed Fund.
(g) If as a result of the transfer of the Preneed Fund and its disbursements as provided
herein, the Preneed Fund and /or Pueblo's Preneed Contracts for Preneed Services
shall become subject to the provisions of Article 15 of Title 10, CRS, Manager
shall take and complete at its expense all actions required to comply therewith,
and Pueblo, without expense or liability, will cooperate with Manager in such
compliance.
(h) The foregoing amendments to the Trust Agreement may not be modified,
amended or canceled by Manager or Trustee without prior written approval of
City's Director of Finance.
Approved and accepted the day and year following the signatures of the parties hereto.
Mountain View Cemetery, LLC
By
/1
Title
City of Pueblo
By 6 4 , t
Title: Directo of Finance
Date: g 3 d
Date: 0 U U
Forethought Federal Savings Bank
By_ -e .
Title f VAC- f G' i
Date: 9 ' 7 ' O O
-2-
Council Agenda
TITLE: A RESOLUTION APPROVING ADDENDUM NO. 1 TO THE AGENDA ITEM # yZ
MOUNTAIN VIEW CEMETERY MANAGEMENT AGRI]T BETWEEN PUEBLO, A MUNICIPAL CORPORATION
AND MOUNTAIN VIEW C'EMET'ERY, LLC AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL
TO EXECUTE SAME
DEPARTMENT:
DATE:
ISStiE:
Should City Council approve Addendum No. 1 to the June 12, 1995 Mountain View
Cemetery Management Agreement with Mountain View Cemetery, L.L.C.
BACKGROUND:
The attached Resolution approves Addendum No. 1 to the June 12, 1995 Mountain View
Cemetery Management Agreement between the City and Mountain View Cemetery, LLC
(the "Manager "). Manager requested various changes to the Management Agreement
which were presented to the City Council at work session. Addendum No. 1 incorporates
the following changes to the Management Agreement.
(a) City will pay all water and sewer charges and will undertake the repair of water mains
(water lines 2 inches in diameter or more) for the effective period of the Agreement
(20 years with two -year options) instead of the initial 6 years of the Management
Agreement.
(b) The Preneed Fund (but not the Endowment Fund) will be managed by a trustee and
the excess trust funds will be periodically paid to Manager.
FINAirCIAL IMPACT:
The water. /sewer utility and the irrigation repair accounts for the Mountain View
Cemetery Management Agreement are line items in the operating budget of the Parks &
Recreation Department's Southside Division. The average yearly costs, since approval of
the agreement, for these two items are:
•
water, sewer utility charges 37,868 /year
irrigation repair/replacement 6,822 /year
S 44,690 /year
�CD < �',
These two accounts would need to be continued as yearly budgeted line items by the City
for the term of the management agreement should Addendum No. 1 be approved.
There will be no financial impact to the City to have a trustee manage the Preneed Fund.
The Preneed Trust instrument may not be modified, amended or canceled without the
prior written approval of the City's Director of Finance.
RECOMMENDATION:
Approval of the Resolution.
RECITALS
The City of Pueblo (the "City ") has sold preneed cemetery services ( "Preneed Services ")
under contract with various purchasers ( "Preneed Contracts ") with respect to interment at the
Mountain View Cemetery, Pueblo, Colorado, which is managed by Mountain View Cemetery,
LLC, a Colorado limited liability company (the "Manager ") under the Mountain View Cemetery
Management Agreement dated June 12, 2000 (the "Management Agreement "). The City has on
deposit as of August 1, 2000 from the sale of Preneed Contracts the sum of $123,474.45 (the
"Preneed Fund "). City will transfer the Preneed Fund to The Forethought Federal Savings Bank
(the "Trustee ") to be held, managed and disbursed pursuant to The Forethought Group Funeral
Planning Master Trust Agreement (the "Trust Agreement ") as amended hereby. In consideration
of the foregoing, and mutual covenants contained herein, the parties hereto agree as follows:
AGREEMENT
1. City will transfer the Preneed Fund to Trustee, and Trustee will accept from City
the Preneed Fund and hold, manage, invest and distribute the Preneed Fund in accordance with
the Trust Agreement as amended in section 2 hereof.
2. The Trust Agreement is hereby amended by the addition of the following
provisions:
(a) Upon termination of the Management Agreement, all right, title and interest of the
Manager in the Preneed Fund shall terminate and be automatically transferred and
assigned to Pueblo or its designee who shall have the right to withdraw the then
balance of the Preneed Fund;
(b) The Trustee may invest the Preneed Fund in accordance with the standards for
investment by trustees set forth in CRS Sec. 10 -15 -108, as amended.
(c) Upon Manager's performance of a Preneed Contract and filing an affidavit with
the Trustee setting forth such performance, the Trustee will disburse to Manager
the amount paid by the purchaser for the Preneed Services.
(d) The term "excess trust funds" shall be defined to mean the amount of the Preneed
Fund in excess of all funds paid by the purchasers for Preneed Services, and the
Trustee is authorized to disburse excess trust funds to Manager on a periodic
basis, at least annually.
(e) Manager shall be responsible for all taxes, if any, imposed upon the income or
earnings of the Preneed Fund.
(g) If as a result of the transfer of the Preneed Fund and its disbursements as provided