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HomeMy WebLinkAbout10512RESOLUTION NO. 10512 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND PEDCO FOUNDATION RELATING TO THE PROFESSIONAL BULL RIDERS, INC. PROJECT AND CONSTRUCTION OF A BUILDING AND PARKING STRUCTURE THEREFOR, APPROVING A SPECIAL WARRANTY DEED, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE AGREEMENT AND SPECIAL WARRANTY DEED, AND ALLOCATING $7.7 MILLION APPROVED AND TRANSFERRED BY RESOLUTION NO. 10487 WHEREAS, the City Council by Resolution No. 10487 approved the job creating capital improvement project for the Professional Bull Riders, Inc. and authorized the transfer of up to $7.7 million from the 1992 -2006 Sales and Use Tax Capital Improvement Fund therefor, and WHEREAS, the City and PEDCO Foundation will enter into the Agreement with respect to the construction of the approximately 44,000 square foot building ('Building ") and approximately 180 space parking structure ( "Parking Structure "), and WHEREAS, the $7.7 million will be paid and disbursed as provided in this Resolution. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Agreement dated as of September 12, 2005 between the City of Pueblo ( "City ") and PEDCO Foundation ( "Foundation ") relating to the construction of the Building and Parking Structure, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute and deliver the Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 2 The $7.7 million approved and authorized to be transferred by Resolution No. 10487 is allocated and shall be paid and disbursed as follows: (a) $5,000,000 for all soft and hard costs incurred in the construction of the Building to be paid and disbursed as provided in Section 3 hereof; (b) $2,000,000 for all soft and hard costs incurred in the construction of the Parking Structure to be paid and disbursed as provided in Section 3 hereof; (c) $207,000 for the purchase price of Lot 2, Historic Arkansas Riverwalk Project, Filing One, Pueblo County, Colorado, to be paid and disbursed to the City and held in the Special Fund created by Article 5.3 of the Intergovernmental Agreement creating HARP for the improvement, maintenance, development and renovation of HARP; (d) $150,000 as and for capitalized and prepaid maintenance and repair expenses associated with the Parking Structure to be paid and disbursed to the City; (e) $204,600 as and for capitalized and prepaid HARP Common Area Maintenance fees for five years starting October 1, 2007 to be paid and disbursed to the City. City will, subject to annual appropriation, include in its share of operating expenses as part of HARP Authority's approved annual budget, $3,417 for each calendar month during such 5 -year period; and (f) $138,400 for contingencies and expenses incurred by Foundation and City in the construction of the Building and Parking Structure to be paid to the City and disbursed by the Director of Finance at the direction and upon approval of the City Manager. SECTION 3 The $5 million allocated for the Building and the $2 million allocated for the Parking Structure shall be disbursed and paid by the Director of Finance to or for the benefit of the PEDCO Foundation after receipt by the Director of Finance of written requests for payment and other documents required by Paragraphs 2 and 9 of the Agreement between the City and PEDCO Foundation attached hereto. SECTION 4 The Special Warranty Deed conveying title to Lot 2, Historic Riverwalk Project, Filing One, Pueblo County, Colorado to PEDCO Foundation, attached hereto, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute and deliver the Special Warranty Deed and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 5 This Resolution shall become effective upon final approval and passage. APP PRES1DENT 9F CITY CPWCIL • A, t INTRODUCED September 12, 2005 BY Michael Occhiato Councilperson )(14x _t to sla D �1 I ' D �I � Background Paper for Proposed RESOLUTION AGENDA ITEM # 413 DATE: September 12, 2005 DEPARTMENT: Law Department TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLOAND PEDCO FOUNDATION RELATING TOTHE PROFESSIONAL BULL RIDERS, INC. PROJECTAND CONSTRUCTION OFA BUILDINGAND PARKING STRUCTURE THEREFOR, APPROVING A SPECIAL WARRANTY DEED, AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE AGREEMENT AND SPECIAL WARRANTY DEED, AND ALLOCATING $7.7 MILLION APPROVED AND TRANSFERRED BY RESOLUTION NO. 10487 ISSUE Should City Council approve an agreement with PEDCO Foundation with respect to the construction of a building and parking structure for the Professional Bull Riders, Inc. project? RECOMMENDATION Approve the Resolution and Agreement. BACKGROUND City Council by Resolution No. 10487 approved the job creating capital improvement project for the Professional Bull Riders, Inc. ( "Company ") and authorized the transfer of up to $7.7 million from the 1992 -2006 Sales and Use Tax Capital Improvement Fund therefor ( "Funds "). The agreement between the City and PEDCO Foundation provides that the Foundation will construct the approximately 44,000 square foot building ( "Building ") and, if requested by City, will construct the approximately 180 space parking facility (`Parking Facility "). It is anticipated that the Building and Parking Facility will be constructed by the same general contractor who will be selected by the Foundation and Company, and approved by the City, after competitive bidding which allows qualified local contractors to participate in the competitive bidding procedure. The Building and Parking Structure will be designed by an architect selected by Foundation and Company, and approved by the City, after competitive proposals. The $7.7 million of Funds is allocated as follows: $5 million for the Building; $2 million for the Parking Structure; $207,500 for the purchase of Lot 2, Historic Arkansas Riverwalk Project, Filing One ( "Lot 2 "); $150,000 for capitalized and prepaid Parking Structure maintenance; $204,600 for capitalized and prepaid HARP Common Area Maintenance fees for five years; and $138,400 for contingencies and expenses incurred by Foundation and the City. The Resolution also approves the conveyance of Lot 2 to Foundation by special warranty deed. The Building will be constructed on Lot 2. FINANCIAL IMPACT See Background. -2- AGREEMENT THIS AGREEMENT entered into as of September 12, 2005 between Pueblo, a municipal corporation, 1 City Hall Place, Pueblo, Colorado, 81003 ( "City") and PEDCO Foundation, Inc., a Colorado nonprofit corporation, 301 N. Main Street, Pueblo, Colorado, 81003 ( "Foundation "), WITNESSETH: WHEREAS, Foundation through Pueblo Economic Development Corporation has made application for funds out of the 1992 -2006 Sales and use Tax Capital Projects Fund ( "Funds ") with respect to the Professional Bull Riders, Inc. project, a job creating capital improvement project ( "Project "), and WHEREAS, the City Council by Resolution No. 10487 has approved such application and will make Funds available to Foundation for the Project subject to and upon the terms, conditions and covenants of this Agreement. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and Foundation agree as follows: 1. City will convey title to Lot 2, Historic Arkansas Riverwalk Project, Filing One, Pueblo County, Colorado ( "Land ") to Foundation by special warranty deed in form and content approved by the City Attorney. 2. City will advance to or for the benefit of Foundation, Funds in an amount not to exceed $5,000,000 ( "Building Funds ") to be paid and used for the costs of constructing (as defined in Paragraph 10(d) hereof) the second, third and fourth floors of an approximately 44,000 square foot building to be constructed by the Foundation on the Land ( "Building ") upon Foundation filing with City's Director of Finance written request for payment certified to be true and correct by an officer of Foundation, or its representative that the amounts included in the request for payment have not been included in any prior request for payment and are for the actual cost of constructing the Building, identifying the construction work and /or materials for which payment is sought, including certificates of the architect or contractor that the construction work for which payment is sought has been completed and mechanics' lien waivers signed by the contractor and supplier of materials included in the request for payment. All Building Funds disbursed directly to Foundation shall be deposited in a separate account and held in trust by Foundation for the sole and only purpose of paying the cost of constructing the Building. 3. Prior to transfer of title to the Land and disbursement of any Building Funds to Foundation, Foundation will enter into a 10 -year lease for the Land and Building with Professional Bull Riders, Inc. in form and content approve by the City Attorney ( "Lease ") and record a disburser's notice as provided in Section 38 -22 -126, C.R.S. 4. Foundation shall construct the Building in accordance with the Building construction provisions of the Lease. The Land and Building will be developed as a condominium pursuant to the condominium provisions of the Lease. 5. Foundation shall not, voluntarily or involuntarily, sell, encumber, lease or otherwise transfer the Land or Building except as provided and set forth in the Lease. Any such sale, encumbrance, lease or transfer shall be void and unenforceable. 6. Foundation shall perform all covenants and conditions on the part of the Lessor to be performed under the Lease, and shall enforce all covenants and conditions on the part of the Lessee to be performed under the Lease. Foundation shall timely give written notice to City of any of Lessee's defaults under the Lease. 7. All rent and other payments received by Foundation under the Lease shall be held in trust by Foundation for the benefit of the City and, immediately after receipt thereof by Foundation, Foundation shall deliver and pay the rent and other payments to City. Foundation shall be entitled to reimbursement out of any such rents or other payments for all out -of- pocket expenses incurred by Foundation in the performance of this Agreement and the Lease upon submitting certified statements to City's Director of Finance itemizing such expenses with the delivery to the City of such rents or other payments. 8. If Foundation defaults in the performance of any covenant or provision of this Agreement or Lease, Foundation shall within ten (10) days after written demand is given to Foundation by City no later than fifteen (15) years after date hereof, convey title to the Land and Building to City by special warranty deed free of liens and encumbrances, except the Lease and liens and encumbrances existing at the time Foundation acquired title to the Property and assign the Lease to the City. The provisions of this paragraph may be specifically enforced. 9. If requested by the City, Foundation shall also construct on property designed by City adjacent to the Land a parking structure consisting of approximately 180 parking spaces ( "Parking Structure ") and for the cost of constructing the Parking Structure, City will advance and pay to or for the benefit of Foundation an amount up to $2,000,000 ( "Parking Funds "). The Parking Funds will be paid to or for the benefit of Foundation by the City's Finance Director in the same manner and upon the same procedures as Building Funds are advanced and paid for the Building under Paragraph 2 hereof. 10. The Parking Structure shall be designed and constructed as follows: (a) In accordance with plans and specifications thereof prepared by an architect selected by Foundation and approved by City after competitive proposals ( "Architect Plans ") which shall be in compliance with the standards and requirements of Section 17 -4 -51 (12.2) of the Pueblo Municipal Code, and the construction contract documents with the General Contractor ( "Construction Documents "). The Architect Plans and Construction Documents shall be approved in writing by Foundation and City and be incorporated herein by reference, as if set out in full. (b) By a general contractor selected by Foundation and approved by City after competitive bidding which allows qualified local contractors to participate in the competitive bidding procedures ( "General Contractor "). The General Contractor shall to the extent feasible use local subcontractors and suppliers. The term "local" means companies having their principal place of business in the County of Pueblo, Colorado. It is intended by the parties, that if City requests -2- Foundation to construct the Parking Structure, the General Contractor would be the same for both the Building and Parking Structure. (c) Foundation and City shall cooperate in good faith to cause the Parking Structure to be completed and ready for occupancy and use by October 1, 2007. (d) All changes in the approved Architect Plans and Construction Documents shall be approved by Foundation and City in writing. No change in the approved Architect Plans and Construction Documents shall be made which results in the construction costs thereof to exceed $2 million. For purposes of this Agreement, "cost of constructing" means all hard and soft costs, including, but not limited to, design fees, architectural and engineering services, cost and expense of insurance, bidding, permitting, materials, labor, contractors and subcontractors. (e) The Parking Structures shall not exceed two (2) floors or have a cover that blocks views from the second floor of the Building unless agreed by Professional Bull Riders, Inc. The first floor of the Parking Structure will be the ground floor River-walk level and the second floor thereof will be at street level. 11. This Agreement expresses the entire understanding of the parties and supersedes any and all prior dealings and commitments with respect to the subject matter of this Agreement and may not be amended except in writing signed by City and Foundation. 12. This Agreement shall be construed in accordance with and governed by the laws of the State of Colorado, without regard to conflict of law principles. 13. Notices. Any notices hereunder shall be sufficiently given if given personally or mailed by certified mail, postage prepaid, addressed: 81003, or President, (a) if to City, City Manager, City of Pueblo, 1 City Hall Place, Pueblo, Colorado, (b) if to the Foundation, 301 N. Main Street, Pueblo, Colorado, 81003, Attention: or to such other address as either parry shall specify in written notice given to the other party. 14. Representations of Foundation. (a) The persons signing this Agreement in the name of and on behalf of Foundation represent and warrant that they and Foundation have the requisite power and authority to enter into, execute, and deliver this Agreement, and that this Agreement is a valid and legally binding obligation of Foundation enforceable against Foundation in accordance with its terms. (b) Foundation represents and warrants that, to the best of its knowledge, no person, entity, or organization has been employed or retained or will receive or be paid, directly or !911 indirectly, any commission, percentage, contingent fee or any other remuneration, payment or receipt of which is contingent upon approval of this Agreement or City's advancement of Building Funds or Parking Funds to Foundation hereunder. For breach or violation of this warranty, City shall have the right to terminate this Agreement, or recover the full amount of such commission, percentage, contingent fee or other remuneration, or to seek such other remedies legally available to City, which remedies shall be cumulative. 15. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 16. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the other provisions of this Agreement which shall remain in full force and effect. 17 The provisions of this Agreement are and will be for the benefit of City and Foundation only and not for the benefit of any third party, and accordingly, no third party shall have any right or remedy hereunder or the right to enforce any provision of this Agreement. 18. Time is of the essence hereof. This Agreement shall be binding up and inure to the benefit of the City and Foundation and their respective successors and assigns, provided Foundation may not assign this Agreement or any of its rights hereunder without the prior written consent of City. Executed at Pueblo, Colorado, the day and year first above written. PUEBLO, A MUNICIPAL CORPORATION /�A! _ / 71!x! % � � e' PEDCO FOUNDATION By President Attest: Secret Approved as to form: Ile, � City Attor G:\CITY� evWro Bull llideo, lncWVr mein- City &PEDCO. wpd —4 III II II II III II II IIII IIIIII IIII IIII I II III 0645629 Chris C. Munoz Puebl OCtyC)k8.Reo WD R S.00 D 0.00 SPECIAL WARRANTY DEED THODRED,dated ,kp(Pw Got+.. / e21 , 2005 between Pueblo, a Municipal Corporation oflhe •cmm,,,f Pueblo and State of Colorado iag ,pamor(s)and PEDCO Foundation, a a Colorado nonprofit corporation where legal ad&= is 301 N. Main Street, Pueblo, Colorado 81003 Of the county of Pueblo and state of Colorado ,waetee(eg WUNESS, that the grantor(s), for and in consideration of the bum of $10 and other good and valuable consideration x the receipt and saBedency ofwhich a hereby adomwkdpd, ha granted, barpmed, sold and conveyed, and by three pmmb does pant, been, sell, convey and confirm unto thepantee(s),its succe s af�,on all the rml property, together with empsvemeata, ifany, siwate, bmw and being ee the County of Pueblo and State ofca mado, described as fdlowa: Lot 2, Block 1, Historic Arkansas Riverwalk Project, Filing One, subject to taxes, easements, rights -o£ -way, covenants, conditions, restrictions, reservations and limitations of record Documentary Fee: None, consideration less than $500.00 dm lmownby street and number ate N /A. assences acbedule or Bared member. N/A TOGETHER with RU and sininlarihe heredatammta and awafteea ees thereunto belaapm, or in anywise appertm a. reverdon and svnrdona remainder and remai iden, mints, ewes and profits thereof, and all the e state, right, title, brown, dais and demand whatsoever, ofthe pants(,), either in law crequity, of in and to &a above barpmed premism, with the hereditaments and appurtenance; TO HAVE AND TO HOLD flis si id Premise, abm bargained and described, with the appurteoannm, now the grantee(,). - a succes f�cevep'L'he grantor(s), for it self its �9fE ka ad and epee that It dull will WARRANT AND FOREVER D&eEND the its succ above "� fed geaaabie yam d the pantre(s). ��e,igas, a.net dl and every 'me Part thereo(M, thsughor andcr thepantm(s). geaWO a)pa `., executed ove. vtedthis deed on the date set forth above. ' E .vend - yT'.. - k - A RAnAWTEDP COLORADO coveetY of Pueblo stnemam was admoMedged before me this /Y« day of ,J'10 . 2005 Schilling as President of the City Council and Gina Dutcher rk of Pueblo, a Municipal Corporation. Wimen my hand and official soul. > hay commeneon sperm: segtyas, wagge[nv INCED nnemN PubliMing 1743 Wu Sr., Deeyw, CO Sohn —( 303) 292 -25M— www.Geafwelpublhhing.eom -4-02