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HomeMy WebLinkAbout08305ORDINANCE NO. 8305 AN ORDINANCE APPROVING A DESIGN AND CONSTRUCTION AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO FOR REMODELING AND RESTORING HISTORIC MEMORIAL HALL AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Design and Construction Agreement dated January 24, 2011 between the City of Pueblo, a Municipal Corporation and the Urban Renewal Authority of Pueblo, Colorado for Remodeling and Restoring Historic Memorial Hall (the "Agreement"), 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. This Ordinance shall become effective upon final passage and approval. INTRODUCED: January 10, 2011 BY: Larry Atencio PASSED AND APPROVED: January 24, 2011 Background Paper for Proposed ORDINANCE DATE:AGENDA ITEM # R-2 January 10, 2011 DEPARTMENT: Law Department Thomas J. Florczak, City Attorney TITLE AN ORDINANCE APPROVING A DESIGN AND CONSTRUCTION AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO FOR REMODELING AND RESTORING HISTORIC MEMORIAL HALL AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council approve the Design and Construction Agreement with the Urban Renewal Authority for Remodeling and Restoring Historic Memorial Hall? RECOMMENDATION Approve the Agreement. BACKGROUND On November 2, 2010, the electors of the City approved Ordinance No. 8196, amending Section 14- 4-17 of the Pueblo Municipal Code, and authorizing the City to use a portion of the 3.3% of sales and use tax revenue known as the "Vendors Fee" for the purpose of remodeling, restoring and maintaining Memorial Hall, including paying the principal and interest on revenue bonds to be issued by the Urban Renewal Authority of Pueblo, Colorado ("Authority") in an amount up to $10 million. Because there exist (a) funds in an account known as the Excess Vendor Fee Account which are not needed for the payment or interest on the 2005 Convention Center bonds, nor for maintenance of the Convention Center, and (b) funds which may be released to City from the Redemption Account Fund established in connection with the 2005 Convention Center bonds, there is an expectancy that approximately $12.2 million, less costs of bond issuance and reserves (estimated at $1 million), or a total of $11.2 million, will be available for design and construction of the improvements. This Ordinance approves an intergovernment agreement between the City and Authority under which the City will contract for and manage the design and construction of the Memorial Hall Improvements, including bidding and contract administration. It provides for the Authority to consult on the design and construction work, and to pay the costs thereof from the new bond proceeds as well as funds made available from the Excess Vendor Fee Account and Redemption Fee Account. FINANCIAL IMPACT See Background. Rev 1/3/2011 DESIGN AND CONSTRUCTION AGREEMENT for Remodeling and Restoring Historic Memorial Hall Pueblo, Colorado 1 0 PARTIES This Agreement (the "Agreement ") is made and entered into as of January 24, 2011, 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" 2 0 DEFINITIONS Unless a contrary meaning is clearly stated, capitalized terms in this Agreement shall be defined as follows. All references to section numbers mean section numbers in this Agreement unless otherwise specified. "Act" means the Colorado Urban Renewal Law, Part 1 of Article 25 of Title 31, C R.S , as amended. "Agreement" means this agreement as it may be amended or supplemented in writing. "Authority" means the Party defined in Section 1 0, and its successors and assigns. "Available Revenue" means the revenue available to the Parties for the uses and purposes described in this Agreement pursuant to Section 3 6 "City" means the Party defined in Section 1 0, and its successors and assigns. "Excess Vendor Fee Account" means the account defined in Section 3 5 "Memorial Hall Bonds" means the revenue bonds to be issued by the Authority pursuant to Ordinance 8196 "Ordinance 8196" means the City ordinance described in Section 3.2 "Plan" means the urban renewal plan described in Section 3 1 "Project" means all of the work involved in remodeling, restoring and maintaining Memorial Hall as authorized by Ordinance 8196 "Redemption Account Funds" means the revenue described in Section 3 4 held by American National Bank as Trustee "2005 Bonds" means the outstanding bonds of the Authority described in Section 3 4 "2005 Indenture" means the indenture securing the 2005 Bonds. "2007 Phase One Cooperation Agreement" means the cooperation agreement between the Parties described in Section 3.5 "Vendor Fee Revenue" means the revenue produced by the 3.3% of the City's sales and use tax revenue allocated for the remodeling, restoring, and maintenance of Memorial Hall. 3 0 RECITALS The following Recitals are incorporated in and made a part of this Agreement. 3 1 The Urban Renewal Plan. On March 22, 2004, pursuant to Ordinance No 7113, the City Council of the City approved the urban renewal plan for the Pueblo Expanded Urban Renewal Project, as modified pursuant to Ordinance No 7186 dated August 9, 2004 (as modified, 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 ") 3.2 Ordinance No. 8196 On November 2, 2010, the electors of the City approved Ordinance No 8196, amending Section 14 -4 -17 of Chapter 4, Title XIV of the Pueblo Municipal Code, authorizing the City to use a portion of the 3 3% of the City's sales and use tax revenue previously retained by the retailers who collect such tax (the "Vendor Fee Revenue ") for the purpose of remodeling, restoring and maintaining the historic Memorial Hall, including, without limitation, paying the principal, premium, if any, and interest on revenue bonds (the "Memorial Hall Bonds ") to be issued by the Authority for such purpose or any bonds issued to refinance the Memorial Hall Bonds. 3 3 Memorial Hall. Memorial Hall is a historic building owned by the City which is located in the Urban Renewal Area described in the Plan, and the Parties desire to enter into this Agreement for the City of Pueblo to provide services relating to the design, construction, remodeling, and restoring Memorial Hall as intended by the electors of the City Such services are consistent with the goals and purposes of the Plan. At all times contemplated by this Agreement, Memorial Hall shall be and remain the property of the City, and shall not be encumbered as security for the Memorial Hall Bonds. 3 4 The Redemption Account Funds. Pursuant to an Indenture of Trust by and between the Authority and American National Bank as Trustee, dated February 15, 2005 (the "2005 Indenture "), securing certain Urban Renewal Authority of Pueblo, Colorado, Refunding Revenue Bonds (Phase One Urban Renewal Project), Series 2005, issued in the original aggregate principal amount of $7,310,000 (the "2005 Bonds "), the Trustee is holding approximately $1,279,244 in the Series 2005 Bond Redemption Account (the "Redemption Account Funds "), which funds, at the written request of the City, may be returned to the City and transferred to the Authority for the uses specified in this Agreement. Within ten (10) days after execution of this Agreement by the City, the City Manager shall request in writing that American National Bank, Trustee for the 2005 Bonds, return to the City all of the Redemption Account Funds held by the Trustee in the Series 2005 Bond Redemption Account pursuant to the 2005 Indenture Upon receipt of the Redemption Account Funds, they shall be transferred by the City to the Authority for deposit into the Memorial Hall Account for uses in accordance with this Agreement. 2 3 5 The Excess Vendor Fee Account. Pursuant to the Amended and Restated Phase One Project Cooperation Agreement by and between the Parties dated as of March 26, 2007 (the "2007 Phase One Cooperation Agreement "), the Authority is holding approximately $913,986 in an Excess Vendor Fee Account, all or a portion of which funds not required for extraordinary maintenance and replacement expenses of the Pueblo Convention Center may be applied to the uses specified in this Agreement. 3 6 Available Revenue. The Parties have determined that a total of $2,193,230 (the "Available Revenue ") from the Redemption Fee Account and the Excess Vendor Fee Account, which, pursuant to Ordinance No 8196, is available (along with the proceeds of the Memorial Hall Bonds) for remodeling, restoring, and maintaining Memorial Hall and for design, engineering, and other work incidental thereto 4 0 TERMS AND CONDITIONS In consideration of the mutual covenants and promises of the Parties contained herein, and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as set forth in this Agreement. 5 0 DESIGN AND CONSTRUCTION SERVICES The Parties agree to cooperate to design and construct improvements to Memorial Hall (the "Project ") as set forth in this Agreement. The Parties agree that an amendment of this Agreement or a separate agreement will be required in the future to provide for the ongoing maintenance and operation of Memorial Hall. 6 0 DUTIES OF THE PARTIES The Parties shall have the following functions, duties and responsibilities under this Agreement. 6 1 Design and Engineering Services. The City will engage the services of a competent architect and engineer and such other consultants (collectively, the "Consultants ") as it shall deem necessary or desirable to perform design and engineering services for the Project. The City is in the process of designing a City Hall facility adjacent to Memorial Hall. It is economical and in the public interest that the City Hall and Memorial Hall buildings share certain utilities and other infrastructure improvements for the efficient operation of both buildings. The Authority shall consult with and cooperate with the City and its Consultants in the design of the Project based upon funding from Available Revenue and the net proceeds of the Memorial Hall Bonds to ensure orderly and efficient design and construction procedures. As used herein, "design and engineering services" means and includes designs, plans and specifications, construction documents, bidding, and design consultant participation during construction for the Project. 6.2 Preliminary Design. During the preliminary design stage of the Project, the Authority will consult with the City on the design. The Project shall be designed in a manner consistent with any applicable historic requirements and the City's design of the City Hall and coordinate use of common facilities to serve both buildings. 3 6 3 Approval of Documents. Prior to completion of final design and again prior to bid solicitation of any portion of the Project, the City will submit the draft final design or draft bid documents, as applicable, to the Authority's designated representatives for review and comment. The Authority shall be afforded a reasonable time, but in any event not less than ten (10) days, to review the draft final design or bid documents, as the case may be, and to submit its comments and suggestions to the City After receiving same, the City will cause the final design or bidding documents to be revised to address the comments and suggestions to the reasonable satisfaction of the Authority If the City disagrees with such comments or suggestions or desires not to address such comments or suggestions, it shall promptly advise the Authority 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 then be referred to the Project Coordination Team established under Section 7 0 of this Agreement; provided, however, that if the issue or issues are not thereby resolved, the City Manager of City shall render the final decision upon any matter involving the design or construction work upon Memorial Hall, and provided further, that if the City Manager's decision results in additional costs exceeding the aggregate of the Available Revenue and proceeds of the Memorial Hall Bonds, such additional costs shall be borne by City or others but not by Authority 6 4 Bid Documents. 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 the Authority and the City, be the City's standard forms therefor The bid documents shall provide that during construction the Consultants may be consulted regarding design intent, but that the Director of Public Works of the City shall be authorized on behalf of the Parties to determine performance by the contractor and to reject defective or non - compliant work. The bid documents shall also include a construction contract requirement for the contractor to procure builders' risk insurance upon the completed value of Memorial Hall with the improvements contemplated by the Project. As part of the bid process for the construction contract, the City will pre - qualify contractors for bidding the work, and will require bidders to have experience with this type of work, including work on historic structures. 6 5 Memorial Hall Bonds. The Authority, in consultation with the City Attorney and City Manager, will take all necessary steps to issue the Memorial Hall Bonds in a principal amount up to Ten Million Dollars ($10,000,000) to be applied to the Project in accordance with Ordinance No 8196 and reasonable terms and conditions approved by the Parties consistent with this Agreement. 6 6 Payment of Design and Construction Costs. The Authority (or any trustee with respect to the proceeds of the memorial Hall Bonds) shall promptly pay the costs of the Project from the Available Revenue and the net proceeds of the Memorial Hall Bonds in accordance with periodic requests for payment prepared by City Costs of the Project include, without limitation, design, bidding, construction contract payments, approved change orders, environmental investigation and mitigation, surveys and studies, and materials testing. As provided in Sections 6 9 and 6 10, the City shall be responsible for coordinating design and construction of the Project with the design and construction of City Hall, performing construction oversight, observation, drafting and approval of change orders for presentation to 4 the contractors, and preparation of periodic payment requests to be submitted to the Authority If the City makes any construction contract award contingent upon Authority's issuance of the Memorial Hall Bonds and receipt of the net proceeds thereof, it shall notify Authority and the contractor of such contingency, and the work thereunder shall not proceed until the contingency has been satisfied. In the event that City incurs any design expenses prior to the effective date of this Agreement, Authority will reimburse the City for same out of the Available Revenues, or from the proceeds of the Memorial Hall Bonds if such reimbursement from proceeds of Memorial Hall Bonds has been authorized by any Resolution adopted by the Board of Commissioners of Authority in accordance with 26 C.F.R. § 1 150 -2 6 7 Establishment of Account. The Authority shall establish the Memorial Hall Account and deposit into such account all of the Available Revenue. The Available Revenue and the net proceeds of the Memorial Hall Bonds shall be used exclusively by the Authority to pay the costs of the Project. The Authority shall hold and earn interest on the revenue in the Memorial Hall Account in the same manner and in accordance with the policies and practices of the Authority as apply to other funds and revenue held by the Authority Interest earned on the revenue in the Memorial Hall Account shall be added to and become Available Revenue. 6 8 Compliance with City Requirements. The City 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, the City agrees that it shall, at the City's option, either (a) waive any permit fees payable to City which are applicable thereto, or (b) refund such permit fees to the Authority for use as Available Revenue. The 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. This section does not apply to building permit fees and plan review fees payable directly to the Pueblo Regional Building Department, and such building permit and plan review fees shall be paid in accordance with applicable fee schedules. 6 9 Cooperation with Design and Construction of City Hall. During the design and construction of the Project, the Authority will review and comment upon the Project plans and specifications, and issues that may arise during construction, in a timely manner as requested by the City 6 10 Contract Administration. The City will provide the following contract administration services for the Project: 6 10 1 Bidding. The City will prepare and advertise requests for bids for construction work and administer and supervise bid solicitations for the Project through bid opening and tabulation, and advise the Authority of its intent regarding award of contract. City shall afford Authority to review the bids and offer non - binding comments regarding award of the contract or contracts. Thereafter, City shall enter into a contract or contracts for the work. 6 10.2 Construction Observation. The City will provide observation of the construction work to the extent deemed reasonable by the Director of Public Works of the City, 5 making timely determinations as to compliance by contractors with the contract documents, and rejecting defective work. 6 10.3 Other Services. The City will review and process in a timely manner, shop drawings, reports for clarification, progress and final pay requests, attend periodic construction meetings, respond to clarification requests or transmit same to the Project's Consultants for response, attend meetings with the Authority's staff, attend periodic meetings with principal contractors, and perform project close -out requirements. 6 10 4 Maintenance and Operation. Upon completion of the Project work and acceptance thereof, the Parties may enter into a separate agreement concerning maintenance and operation of Memorial Hall. In the absence of any such agreement, City will be responsible for operation and maintenance 6 11 Redemption Account Funds. Within ten (10) days after execution of this Agreement by the City, the City Manager shall request in writing that American National Bank, Trustee for the 2005 Bonds, return to the City all of the Redemption Account Funds held by the Trustee in the Series 2005 Bond Redemption Account pursuant to the 2005 Indenture Upon receipt of the Redemption Account Funds, they shall be transferred by the City to the Authority for deposit into the Memorial Hall Account for uses in accordance with this Agreement. 6 12 Services Excluded. The City's performance of the administrative services set forth in this Section 6 0 shall not make the 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 The City'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. The 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. 7 0 PROJECT COORDINATION TEAM. To provide consistent and effective communication, the City and the 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 completion of all Project construction work. The Executive Director of the Authority and a City employee designated by the City Manager shall co -chair the Project Coordination Team. 7 1 Director of Public Works Until all design and construction work on the Project is complete, the Director of Public Works of the City shall keep the Project Coordination Team informed concerning the progress of the work on the Project and the City Hall, significant pending issues and actions, and shall seek the views of the Project Coordination Team. 7.2 Duties. The Project Coordination Team shall not have authority to modify or waive any provisions of this Agreement, but it may offer recommendations to the Parties regarding issues related to design, plans and specifications, scheduling; apportionment of costs 6 between the Project and City Hall, contract awards and modifications; contract costs, final inspection, maintenance, repair, replacement and rehabilitation, and other related matters. 8 0 DISPUTE RESOLUTION 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. Except as provided in section 6 3, 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 fifty percent (50 %) of any costs for the services provided by such third party as such costs are incurred. The existence of a dispute shall not excuse the Parties from performance pursuant to this Agreement. 9 0 MISCELLANEOUS PROVISIONS 9 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, overnight courier service, postage and fees prepaid, addressed to the Party to whom such notice is to be given at the address set forth below If to the City City Manager, City of Pueblo 200 S Main Street Pueblo, CO, 81003, with a copy to Thomas J Florczak, Esq City Attorney 503 N Main Street, Suite 203 Pueblo, CO, 81003, If to the 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 9.2 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 7 9.3 Default. Time is of the essence, subject to Section 9.2, 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. No commissioner, council member, official, employee, attorney, or agent of the Authority or the City shall be personally liable under this Agreement. 9 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. 9 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. 9 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 wrrtmg signed by the Parties. 9 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 9 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. 9 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. 9 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. 9 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 9 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. 9 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. 9 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 9 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. 9 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 joint venturers, and no Party 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 By' Pres • ent ‘1 the City Council City Jerk 9 AUTHORITY THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO ATTEST B ap , airman Secr- .ry / 10