HomeMy WebLinkAbout08295ORDINANCE NO. 8295
AN ORDINANCE APPROVING A CONSTRUCTION AND
MAINTENANCE AGREEMENT BETWEEN THE CITY OF
PUEBLO AND THE URBAN RENEWAL AUTHORITY OF
PUEBLO, COLORADO FOR THE LAKE MINNEQUA
URBAN RENEWAL PROJECT AND AUTHORIZING THE
PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Construction and Maintenance Agreement dated December 27, 2010
between the City of Pueblo, a Municipal Corporation and the Urban Renewal Authority
of Pueblo, Colorado for the Lake Minnequa Urban Renewal Project, 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
Construction and Maintenance 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.
This Ordinance shall become effective upon final passage and approval.
INTRODUCED: December 13, 2010
BY: Chris Kaufman
COUNCILPERSON
PASSED AND APPROVED: December 27, 2010
Background Paper for Proposed
ORDINANCE
DATE: December 13, 2010 AGENDA ITEM # R-2
DEPARTMENT: Law Department
Thomas J. Florczak, City Attorney
TITLE
AN ORDINANCE APPROVING A CONSTRUCTION AND MAINTENANCE AGREEMENT
BETWEEN THE CITY OF PUEBLO AND THE URBAN RENEWAL AUTHORITY OF PUEBLO,
COLORADO FOR THE LAKE MINNEQUA URBAN RENEWAL PROJECT AND AUTHORIZING
THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
ISSUE
Should City Council approve the Construction and Maintenance Agreement with the Urban Renewal
Authority for the Lake Minnequa Project?
RECOMMENDATION
Approve the Agreement.
BACKGROUND
On August 13, 2007, the City Council approved the Urban Renewal Plan for the Lake Minnequa
Urban Renewal Project by Ordinance No. 7630.
Under the Plan, the Authority will upgrade public facilities and infrastructure within and along Lake
Avenue from Lakeview Avenue to Pueblo Boulevard, including roadway realignment, stormwater
improvements, utility undergrounding, streetscape and landscaping.
The Authority intends to issue bonds or other credit instruments to finance the project work, which
will be repaid through tax increment financing revenues as provided in the Plan and the Urban
Renewal Law.
Under the Agreement before City Council, the City will, at City's expense, provide staff assistance
and construction contract administration services for Authority on the Project
work, including review of plans, assistance with bidding, and construction observation services. The
City will also provide access over City roads and rights of way, and upon completion, will take over
maintenance of the Project, except for landscaping and landscape irrigation which will be the
responsibility of the Authority over the next 21 years. Additionally, through its stormwater utility
enterprise, the City will pay for the cost of drainage and stormwater facilities in the portion of the
Project between Highland Avenue and Indiana Avenue.
FINANCIAL IMPACT
Though there will be staff costs to the City, the amounts are difficult to estimate. The Stormwater
Utility Enterprise will also pay approximately $411,000 for certain stormwater improvements in a
portion of the Project (Segment 3).
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CONSTRUCTION AND MAINTENANCE AGREEMENT
for
Lake Avenue Reconstruction Project
Pueblo, Colorado
THIS CONSTRUCTION AND MAINTENANCE AGREEMENT (the "Agreement ") is
made and entered into as of December 27, 2010, by and between the City of Pueblo, a Municipal
Corporation (the "City ") and the Urban Renewal Authority of Pueblo, Colorado, a body
corporate and politic of the State of Colorado (the "Authority ") The City and Authority are
sometimes referred to herein collectively as the "Parties" and each individually as a "Party"
RECITALS
A. On August 13, 2007, pursuant to Ordinance No 7630, the City Council of the
City approved the urban renewal plan for the Lake Minnequa Urban Renewal Project (the
"Plan ") The Plan is being carried out by the Authority in cooperation with the City and in
furtherance of the objectives of the Colorado Urban Renewal Law (the "Act ")
B In furtherance and implementation of the Plan, the Authority has caused a Master
Plan to be developed by Design Studios West, Inc and design drawings and specifications to be
prepared by Matrix Design Group, Inc for upgrading the public facilities and infrastructure,
access, traffic, public utilities, and drainage within and along Lake Avenue from approximately
Lakeview Avenue to Pueblo Boulevard (the "Lake Avenue Restoration Project" or "Project ")
The Project generally includes roadway realignment, stormwater improvements, utility
undergrounding, streetscape and landscaping.
C In furtherance of the Plan and Act, the Authority also intends to issue bonds or
other credit instruments, in an as yet to be determined amount, the net proceeds of which will be
made available for and used, to the extent necessary, to construct the Project. In accordance with
the Act, the Authority also intends to apply that portion of property taxes levied after the
approval of the Plan in excess of the base amount as defined in the Plan (the "TIF Revenues ") to
payment of the principal of, the interest on and any premiums due in connection with such bonds
or other credit instruments.
D Lake Avenue within the City of Pueblo is a public roadway and major traffic
arterial in the southeast part of the City Its reconstruction during the Project must be carefully
coordinated by Authority and City in order to maintain traffic flows and minimize disruption to
the public
E. The Authority and City desire to enter into a construction and maintenance
agreement for implementation of the Lake Avenue Reconstruction Project, setting forth each
Party's role and responsibilities.
F Sections 18 (2)(a) and (2)(b) of Article XIV of the Colorado Constitution, section
29 -1 -203, C.R.S (2010), and section 31 -25 -112 of the Act authorize the Parties to contract and
cooperate with one another to provide any function, service, or facility lawfully authorized to
each of the cooperating or contracting government units, including the sharing of costs.
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G City and Authority have full authority and capability to perform as set forth in this
Agreement and intend to cooperate in the design, construction and cost - sharing of
implementation of the Project in accordance with the terms of this Agreement.
NOW THEREFORE, in consideration of the foregoing Recitals and the mutual covenants
set forth below, the Authority and City agree as follows
ARTICLE I — Definitions and General Provisions
For purposes of this Agreement.
1 1 All terms defined in the Recitals shall have the meanings therein provided.
1.2 The Project is comprised of four Segments located as follows
Segment 1 - Lake Avenue and adjacent land from the centerline of Pueblo
Boulevard to the south right of way line of Elko Avenue.
Segment 2 - Lake Avenue and adjacent land from the south right of way line of
Elko Avenue to an area approximately 100 feet south of Highland Avenue
Segment 3 - Lake Avenue and adjacent land from approximately 100 feet south of
Highland Avenue to the south right of way line of Indiana Avenue
Segment 4 - Lake Avenue and adjacent land from the south right of way line of
Indiana Avenue to the centerline of Lakeview Avenue
1.3 The term "roadway" shall mean a public road, street or right of way including any
bridge
1 4 The term "public right of way" shall mean the entire width of property and right
of way in Lake Avenue and cross streets which is held by the City of Pueblo for transportation
and utility purposes, including the unpaved portions thereof. The term "right of way" shall not
include any property held by City in fee ownership for park purposes, fire stations or other public
facilities.
1 5 The term "functional portions of a Segment" or "functional portions of the
Project" shall mean a portion of the Project or Segment that has been completed to the
satisfaction of the City and is suitable for tender to the City for operation and maintenance in
advance of completion of the entire Segment or the entire Project. For a portion of a Segment to
be suitable for tender, the Director of Public Works of City must find, and notify the Executive
Director of Authority in writing, that the portion has been completed, can function independently
and for a useful purpose, and is satisfactory to the City to assume operation and maintenance If
any outstanding minor items for repair or completion, or so- called "punch list" items, remain
with respect to such portion, such items shall be noted by the Director in the notice to the
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Executive Director (or an attachment thereto) and thereafter shall be repaired or completed by
Authority or Authority's contractors in an expeditious manner
1 6 The term "Stormwater Enterprise" shall mean the City's Stormwater Utility
Enterprise The term "Stormwater Enterprise Funds" shall mean monies held by the Stormwater
Enterprise derived from stormwater user fees which are appropriated and available for use in
constructing certain stormwater infrastructure facilities for the Project.
1 7 The term "streetscape" shall mean. street furniture, including benches and bike
racks, trash cans, recycling bins, tree grates, planters and planting bed surrounds, landscaping,
including trees, shrubs, perennials and annuals and non - living landscape materials, and irrigation
systems for landscaping.
ARTICLE II — Functions and Responsibilities of the Authority
2 1 Authority will engage the services of a competent engineer or engineers, and a
landscape architect or architects, as well as such other consultants as it shall deem necessary or
desirable to perform engineering and design services for all Segments of the Project. In
consultation with City, Authority may design the Project in phases or for phased construction
based upon funding availability and to ensure an orderly construction sequence As used herein,
"engmeermg and design services" means and includes designs, plans and specifications,
construction documents, bidding, and design consultant participation during construction for all
Segments of the Project.
2.2 During the preliminary design process for the Project, Authority will consult with
City to assure that the Project is designed in a manner consistent with City's Storm Drainage
Design Criteria and Drainage Policies (date), Standard Construction Specifications and Standard
Details (date) and Traffic Plan.
2.3 Prior to completion of final design and again prior to bid solicitation of any
Segment or portion of a Segment, Authority will submit the draft final design or draft bid
documents, as applicable, to City's designated representatives for review and comment. City
shall be afforded a reasonable time, but in any event not less than 10 days, to review the draft
final design or bid documents, as the case may be, and to submit City's comments and
requirements to Authority After receiving same, Authority shall cause the final design or
bidding documents to be revised to incorporate such requirements and address the comments to
the reasonable satisfaction of the City In the event Authority disagrees with such requirements
or desires not to address such comments, it shall promptly advise the City and thereafter the
Parties' representatives shall meet and confer regarding same In the event the Parties should fail
to thereafter agree to a resolution of the issue or issues, the matter shall be referred to the Project
Coordination Team established under Article VI of this Agreement.
2 4 The bid documents used for the Project, including general provisions, special
provisions, forms of contract, forms of bonds, and standard specifications shall, to the extent
feasible, and with appropriate modifications to be agreed upon by Authority and City, be the
City's standard forms therefor except that the name of the Authority shall be substituted for the
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name of the City The bid documents shall provide that the Authority's design engineer may be
consulted regarding design intent, but that the Director of Public Works of City shall retain
authority on behalf of Authority to determine performance by Authority's contractor and reject
defective or non - compliant work.
2.5 Except as provided in Article IV, Section 4 5 of this Agreement, Authority will, at
its expense, construct and install the Project in accordance with the approved final design and
bidding documents. Construction and installation may be phased, provided, however, that it is
the Parties' intent that Segment 3 shall be constructed first.
2 6 Construction costs of the Project, which shall include design, bidding,
construction contract payments, approved change orders, geotechnical investigation, surveying,
and materials testing, shall be the responsibility of Authority City shall be responsible, at City's
expense, for performing construction oversight, observation, drafting of change orders for
presentation to Authority and its contractors, and preparation of payment requests to be
submitted to Authority, as provided in Article III, Section 3.3
2 7 Authority shall contractually require its contractors to obtain all permits and
licenses including excavation permits, required for the Project work under the City's ordinances,
provided, however that the City agrees that it shall, at City's option, either (I) waive any permit
fees applicable thereto, or (II) refund the permit fees to Authority City will make its election to
waive or refund fees with respect to each construction contract for the Project prior to bid
solicitation for each construction contract in order that this is made clear for the bidders.
2.8 With respect to each construction contract awarded by the Authority, Authority
represents to City that it has budgeted and appropriated funds for such contract, including
contingencies, and that sufficient and adequate unexpended funds are available therefor In the
event Authority makes any construction contract award contingent upon issuance of bonds or
other credit instruments and receipt of the net proceeds thereof as described in Recital C, above,
it shall notify City and the contractor of such contingency, and the work thereunder shall not
proceed until the contingency has been satisfied.
ARTICLE III — Functions and Responsibilities of City
3 1 City shall provide timely access to Authority and Authority's contractors over and
upon the roadways and rights of way associated with the Project, and will cooperate with
Authority in granting access to other property held by City in fee to the extent necessary for the
work. Due to the use of public roads, all access shall be subject to the requirements of traffic
control plans to be filed before commencement of any portion of Project work, which plans must
be approved by City's Traffic Engineer Nothing in this section shall be construed to make City
responsible for compliance with Article 1 5 of Title 9 Colorado Revised Statutes (2010), and
such responsibility shall remain upon Authority's contractors.
3.2 City will review and comment upon Project plans and specifications as requested
by Authority, and will furnish to Authority and its consultants statements of requirements and
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standards applicable to City roadways, sanitary sewers, storm sewers, sidewalks, inlet structures
and other facilities in order to assist in Project design being compatible with City's facilities.
3.3 As and when requested, City will provide the following contract administration
services for and on behalf of the Authority.
(a) advertising requests for bids for construction work and administratively
handling the bid solicitations for and on behalf of Authority through bid opening and tabulation,
and making non - binding recommendations to Authority regarding award,
(b) observation of the work to the extent deemed reasonable by the Director of
Public Works of City, making timely determinations as to compliance by contractors with the
contract documents, and rejection of defective work,
(c) review and timely processing of shop drawings, reports for clarification,
progress and final pay requests, attend periodic construction meetings, respond to clarification
requests or transmit same to design engineer for response, attend periodic meetings with
Authority's staff, attend periodic meetings with principal contractors, and perform project close-
out requirements on behalf of Authority
3 4 City's performance of the administrative services set forth in this Article shall not
make City responsible for superintendence of the construction site conditions, safety, safe
practices or unsafe practices or conditions, operation, equipment, or personnel other than
employees of the City Authority's contractors shall, at all times, be responsible for supervision
of the contractor's work and be solely responsible for safety and for maintaining safe practices
and avoiding unsafe practices and conditions. City shall not have authority or responsibility to
supervise, direct or control any contractor's work or contractor's means, methods, techniques,
sequences, or procedures of construction.
3 5 Upon acceptance by City of any infrastructure constructed as Project work, except
for streetscape, landscaping and landscape irrigation systems, said infrastructure shall become
the property of City or, in the case of sanitary sewer or storm sewer facilities, the City's
applicable Enterprise, and City shall thereafter maintain such infrastructure
ARTICLE IV — Cost Sharing
4 1 Authority will be responsible for payment of all costs for design, professional
engineering services and construction of Project work, except as provided herein.
4.2 During the period from completion of any streetscape, landscaping and landscape
irrigation systems to and until December 31, 2031 ( the end of the fiscal year 25 years after date
of approval of the Plan), Authority will be responsible for maintenance of all streetscape,
landscaping and landscape irrigation systems constructed as part of any Segment or the Project.
4.3 City will be responsible for payroll costs for its own employees engaged in
construction administration and observation.
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4 4 City will be responsible for maintenance of Project improvements involving
streets, drainage improvements and sanitary sewers after acceptance by City, except as noted in
the acceptance documents
4 5 City, through its Stormwater Enterprise, will be responsible for reimbursement to
Authority for the construction costs of drainage and storm water facilities within Segment 3 of
the Project.
ARTICLE V — Land Acquisition
5 1 City will perform all functions necessary or desirable to acquire additional private
lands necessary, if any for public right of way; provided however, that's costs of acquisition,
including purchase price, recording fees, appraisal costs, environmental inspection and
characterization, expert witness fees and condemnation expenses shall be promptly reimbursed
by Authority, provided, that the costs thereof do not exceed funds budgeted and reserved from
proceeds of the bonds or other credit instruments issued by the Authority for such costs.
ARTICLE VI — Project Coordination Team
6 1 To provide consistent and effective communication, the City and Authority, not
later than thirty (30) days after the effective date of this Agreement, shall each appoint named
senior representatives to a Project Coordination Team. Thereafter, the Project Coordination
Team shall meet regularly until the conclusion of the Project construction for all Segments. The
Executive Director of the Authority and a City employee designated by City's City Manager
shall co -chair the Project Coordination Team.
6.2 The Director of Public Works of City shall, during and after construction, keep
the Project Coordination Team informed concerning the progress of the work and of significant
pending issues and actions, and shall seek the views of the Project Coordination Team.
6.3 The Project Coordination Team shall not have authority to modify or waive any
provisions of this Agreement; however, it may offer recommendations to City and Authority
regarding issues related to design, plans and specifications, scheduling; real property acquisition
requirements, contract awards and modifications, contract costs, final inspection of Segments or
functional portions of the Project; maintenance, repair, replacement and rehabilitation, and other
related matters.
ARTICLE VII — Dispute Resolution
7 1 As a condition to a Party bringing any suit for breach of this Agreement, that
Party must first notify the other Party in writing of the nature of the purported breach and seek in
good faith to resolve dispute through negotiation. If the parties cannot resolve the dispute
through negotiation, they may agree to a mutually acceptable method of non - binding alternative
dispute resolution with a qualified third party acceptable to both Parties. The Parties shall each
pay 50 percent of any costs for the services provided by such third party as such costs are
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incurred. The existence of a dispute shall not excuse the Parties from performance pursuant to
this Agreement.
ARTICLE VIII — Miscellaneous Provisions
8 1 Notices. Any notice required or permitted by this Agreement shall be in writing
and shall be deemed to have been sufficiently given for all purposes if personally served or if
sent by certified mail or registered mail, postage and fees prepaid, addressed to the Party to
whom such notice is to be given at the address set forth below
(a) if to City City Manager, City of Pueblo, 200 S Main Street, Pueblo, CO, 81003,
with a copy to City Attorney, 503 N Main Street, Suite 203, Pueblo, CO,
81003,
(b) if to Authority John R. Batey, Executive Director, Urban Renewal Authority of
Pueblo, 126 N Mechanic Street, Pueblo, CO 81003
with a copy to Paul Benedetti, Esq , 2710 Iliff Street, Boulder, CO 80305
, or at such other address as may hereafter be furnished in writing to the other Party Such notice
shall be deemed to have been given if hand delivered, or when deposited, delivery or postage
charges prepaid, with an overnight courier service or by certified mail with the United Stated
Postal Service
8.2 Delays. Any delays in or failure of performance by any Party of its obligations
under this Agreement shall be excused if such delays or failure are a result of acts of God, fires,
floods, strikes, labor disputes, accidents, regulations or order of civil or military authorities,
shortages of labor or materials, or other causes, similar or dissimilar, that are beyond the control
of such Party
8.3 Default. Time is of the essence, subject to Section 8.2, above If any condition,
obligation, or duty is not timely made, tendered, or performed by either Party, then this
Agreement, at the option of the Party who is not in default, may be terminated by the non -
defaulting Party, in which case, the non - defaulting Party may seek the equitable remedies of
specific performance or injunction. The Parties hereby waive any rights to money damages.
8 4 Section Captions. The captions of the Sections are set forth only for the
convenience and reference of the Parties and are not intended in any way to define, limit, or
describe the scope or intent of this Agreement.
8 5 Additional Documents or Action. The Parties agree to execute any additional
documents or take any additional action that is reasonably necessary to carry out this Agreement.
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8 6 Integration and Amendment. This Agreement represents the entire agreement
between the Parties with respect to the subject matter and there are no oral or collateral
agreements or understandings with respect to the subject matter This Agreement may be
amended only by an instrument in writing signed by the Parties. If any other provision of this
Agreement is held invalid or unenforceable, no other provision hereof shall be affected by such
holding, and all of the remaining provisions of this Agreement shall continue in full force and
effect.
8 7 Waiver of Breach. A waiver by any Party to this Agreement of the breach of any
term or provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either Party
8 8 Governing Law; Attorney Fees, Venue This Agreement shall be governed by the
laws of the State of Colorado In the event of any litigation arising under this Agreement, the
court shall award to the prevailing party its costs together with all reasonable and out -of- pocket
expenses of any kind relating to the litigation including, but not limited to, reasonable attorney
fees. Venue for any such litigation shall be Pueblo County, Colorado All such litigation shall
be filed in the District Court, County of Pueblo, State of Colorado, and each party submits to the
jurisdiction of such District Court. To the extent allowed by law, each party waives its right to a
jury trial.
8 9 Binding Effect. This Agreement shall inure to the benefit of and be binding upon
the Parties and their respective legal representatives, successors, heirs, and assigns, provided that
nothing in this Section shall be construed to permit the assignment of this Agreement.
8 10 Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall constitute but one
and the same instrument.
8 11 No Third -party Beneficiaries. This Agreement is intended to describe the rights
and responsibilities only as to the Parties hereto This Agreement is not intended and shall not be
deemed to confer any rights on any person or entity not named as a Party hereto
8 12 No Presumption. The Parties to this Agreement and their attorneys have had a
full opportunity to review and participate in the drafting of the final form of this Agreement.
Accordingly, this Agreement shall be construed without regard to any presumption or other rule
of construction against the Party causing the Agreement to be drafted.
8 13 Severability If any provision of this Agreement as applied to any Party or to any
circumstance shall be adjudged by a court to be void or unenforceable, the same shall in no way
affect any other provision of this Agreement, the application of any such provision in any other
circumstances or the validity, or enforceability of the Agreement as a whole
8 14 Minor Changes. The Parties executing this Agreement are authorized to make
non - substantive corrections to this Agreement and attached exhibits, if any, as the Parties
mutually consider necessary
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8 15 Good Faith of Parties. In the performance of this Agreement or in considering
any requested approval, acceptance, or extension of time, the Parties agree that each will act in
good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold,
condition, or delay any approval, acceptance, or extension of time required or requested pursuant
to this Agreement.
8 16 Parties Not Partners. Notwithstanding any language in this Agreement or any
other agreement, representation, or warranty to the contrary, the Parties shall not be deemed to be
partners or point venturers, and no combination of Parties shall be deemed to be partners or point
venturers, and no combination of Parties shall be responsible for any debt or liability of any
other Party
IN WITNESS WHEREOF, this Agreement is executed by the Parties hereto in their
respective names as of the date first above written.
CITY
PUEBLO, A MUNICIPAL CORPORATION
ATTEST
B y' / u cux.c ki . `� ?- % Ze-e.0
President of the City Council
City Jerk
AUTHORITY
THE URBAN 'ZEN L AUTHORITY OF PUEBLO,
COLORADO,
ATTEST /'
/ By _Zivi� ��rllsi _
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S- retary
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