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HomeMy WebLinkAbout08484ORDINANCE NO. 8484 AN ORDINANCE APPROVING AMENDMENT NO. 1 TO THE CONSTRUCTION AND MAINTENANCE AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE PUEBLO URBAN RENEWAL AUTHORITY AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. Amendment No. 1 to the Construction and Maintenance Agreement dated December 27, 2010, between the City of Pueblo, a Municipal Corporation, and the Pueblo Urban Renewal Authority, a copy which is attached hereto (“Amendment No. 1”), having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of City Council is authorized and directed to execute Amendment 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. SECTION 3. This Ordinance shall become effective immediately upon final passage and approval. INTRODUCED: May 29, 2012 BY: Chris Nicoll COUNCIL PERSON PASSED AND APPROVED: June 11, 2012 Background Paper for Proposed ORDINANCE DATE: May 29, 2012AGENDA ITEM # R-2 DEPARTMENT: PUBLIC WORKS DIRECTOR – EARL WILKINSON, P.E. TITLE AN ORDINANCE APPROVING AMENDMENT NO. 1 TO THE CONSTRUCTION AND MAINTENANCE AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE PUEBLO URBAN RENEWAL AUTHORITY AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should the City Council approve an Amendment to the Agreement with the Pueblo Urban Renewal Authority (“PURA”) for Construction and Maintenance of the Lake Avenue Reconstruction Project? RECOMMENDATION Approval of this Ordinance. BACKGROUND The City of Pueblo entered into an Agreement for Construction and Maintenance of the Lake Avenue Reconstruction Project (approved by Ordinance No. 8295, dated December 27, 2010). This Amendment modifies the Agreement to allow for the City to directly contract for construction of the improvements and provides for the Pueblo Urban Renewal Authority to reimburse the City for the construction contract expenditures for all project phases subsequent to the presently completed portion, known as Segment 3. FINANCIAL IMPACT None. AMENDMENT NO. 1 TO CONSTRUCTION AND MAINTENANCE AGREEMENT for Lake Avenue Reconstruction Project Pueblo, Colorado THIS AMENDMENT NO. 1 to Construction and Maintenance Agreement ( "Amendment No. 1") is made and entered into this 29 day of May, 2012, by and between the City of Pueblo, a Municipal Corporation ( "City ") and the Pueblo Urban Renewal Authority, a body corporate and politic of the State of Colorado ( "Authority "), and formerly known as the Urban Renewal Authority of Pueblo, Colorado. The City and Authority are sometimes referred to herein collectively as the "Parties" and each individually as a "Party ". WHEREAS, City and Authority entered into a Construction and Maintenance Agreement for the Lake Avenue Reconstruction Project dated as of December 27, 2010 (the "Agreement ") to provide for implementation of the Lake Avenue Reconstruction Project ( the "Project "), setting forth each Party's role and responsibilities; and WHEREAS, the Parties have completed Segment 3 of the Project, as defined in the Agreement, and are prepared to move forward with one or more other segments of the Project; and WHEREAS, based upon experience with the first completed segment of the Project, the Parties believe that certain changes to the Agreement should be made for the remaining segments of the Project so that those segments may be implemented more efficiently; and WHEREAS, the City and Authority are willing to amend the Agreement to make such changes for the remaining segments, subject to the terms and conditions of the Agreement as hereby modified; and NOW, THEREFORE, in consideration of the foregoing and the terms and conditions set forth herein, the parties agree as follows: 1. With respect to all segments of the Project undertaken on or after the date of this Amendment No. 1, including Segments 1, 2 and 4 as defined in the Agreement, the Agreement is amended as set forth in the Amended and Restated Construction and Maintenance Agreement of even date herewith which is attached hereto and incorporated herein by reference. 2. Except as expressly modified by this Amendment No. 1, the Agreement shall remain in full force and effect. Except as modified by this Amendment No. 1, any obligations to be performed under the Agreement by either party are not waived nor excused in any manner, but shall be performed in accordance with the terms and conditions of the Agreement as it existed prior to this Amendment No. 1. Amendment No 1 to Construction Agreement - Lake Ave Reconstruction Project (2) IN WITNESS WHEREOF, Authority and City have executed this Amendment No. 1 as of the date first written above. CITY OF PUEBLO, ATTEST: a Municipal Corporation By l £#I City rk Presid-nt of ty Council APPROVED AS TO FORM: Ate Lam. City Attorney PUEBLO U' ' • N RENEWAL AUTHO' By Ad grl..vL ,ney Title: Chairman 2 5 -22 -2012 ver. 2 AMENDED AND RESTATED CONSTRUCTION AND MAINTENANCE AGREEMENT for Lake Avenue Reconstruction Project Pueblo, Colorado THIS CONSTRUCTION AND MAINTENANCE AGREEMENT (the "Restated Agreement ") is made and entered into as of June 11 2012, by and between the City of Pueblo, a Municipal Corporation (the "City ") and the Pueblo Urban Renewal Authority, 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 has issued bonds or other credit instruments, known as the Series 2011 Bonds, 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 1 5 -22 -2012 ver. 2 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. G. City and Authority have full authority and capability to perform as set forth in this Restated Agreement and intend to cooperate in the design, construction and cost - sharing of implementation of the Project in accordance with the terms of this Restated 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 Restated Agreement: 1.1 All terms defined in the Recitals shall have the meanings therein provided. 1.2 The Project is comprised of five 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 Illinois Avenue. Segment 2A - Lake Avenue and adjacent land from approximately 100 feet south of the south right of way line of Iowa Avenue to an area approximately 100 feet south of south right of way of Highland Avenue. Segment 2B - Lake Avenue and adjacent land from the approximately 100 feet south of the south right of way line of Iowa Avenue to an area approximately 100 feet south of Illinois Avenue. Segment 3 - Lake Avenue and adjacent land from approximately 100 feet south of Highland Avenue to the north right of way line of Indiana Avenue. Segment 3 has been completed and is governed by the terms of the agreement between the Parties which preceded this Restated Agreement. Segment 4 - Lake Avenue and adjacent land from the north 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. 2 5 -22 -2012 ver. 2 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 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 Executive Director (or an attachment thereto) and thereafter shall be repaired or completed by City'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 Segments 1, 2A, 2B, and 4 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, "engineering 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 its comments and requirements to Authority. After receiving same, Authority shall cause the final design or bidding documents to be revised to address the comments to the reasonable satisfaction of the City, including, without limitation, compliance with the Series 2011 Bonds bond documents. In the event 3 5 -22 -2012 ver. 2 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 Restated 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. The bid documents shall provide that the design engineer may be consulted regarding design intent, but that the Director of Public Works of City shall retain authority to determine performance by City's contractor and reject defective or non - compliant work. 2.5 Except as provided in Article IV, Section 4.5 of this Restated Agreement, City will, at Authority's expense, but subject to budget approval by Authority and availability of proceeds from the Series 2011 Bonds, construct and install the Project in accordance with the Approved final design and bidding documents. Construction and installation may be phased. 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, and preparation of payment requests to be submitted to Authority, as provided in Article III, Section 3.3. 2.7 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, 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 to be awarded by City, Authority shall be apprised of the contract price plus contingency amount prior to award by City, and upon approval of the contract price and contingency, represents to City that it has budgeted and appropriated funds for such contract, including contingencies, and that sufficient and adequate unexpended funds from the proceeds of the Series 2011 Bonds are available therefor. ARTICLE III — Functions and Responsibilities of City 3.1 City shall provide timely access to City's contractors over and upon the roadways and rights of way associated with the Project, and will cooperate 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 4 • 5 -22 -2012 ver. 2 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 or the Authority 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 approve construction plans and specifications, and will furnish to it's the design consultants statements of requirements and 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: (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, requests 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. 3.4 City's performance of the administrative services set forth in this Article and the Authority's duties under this Agreement shall not make City or the Authority 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. 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. Neither the Authority nor the City shall 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 5 5 -22 -2012 ver. 2 4.1 Subject to availability of funds from the Series 2011 Bonds, 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, and construction surveying if performed by City's personnel. 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 the 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 Series 2011 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 Restated 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 Restated Agreement; however, it may offer recommendations to City and Authority regarding issues related to design; plans and specifications; scheduling; real property 6 5 -22 -2012 ver. 2 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 Restated 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 incurred. The existence of a dispute shall not excuse the Parties from performance pursuant to this Restated Agreement. ARTICLE VIII — Miscellaneous Provisions 8.1 Notices. Any notice required or permitted by this Restated 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, Pueblo Urban Renewal Authority, 115 East Riverwalk, Suite 410, 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 Restated 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 Restated 7 5 -22 -2012 ver. 2 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 Restated 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 Restated Agreement. 8.6 Integration and Amendment. This Restated 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 Restated Agreement may be amended only by an instrument in writing signed by the Parties. If any other provision of this Restated Agreement is held invalid or unenforceable, no other provision hereof shall be affected by such holding, and all of the remaining provisions of this Restated Agreement shall continue in full force and effect. 8.7 Waiver of Breach. A waiver by any Party to this Restated Agreement of the breach of any term or provision of this Restated 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 Restated Agreement shall be governed by the laws of the State of Colorado. In the event of any litigation arising under this Restated 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 Restated 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 Restated Agreement. 8.10 Execution in Counterparts. This Restated 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 Restated Agreement is intended to describe the rights and responsibilities only as to the Parties hereto. This Restated 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 5 -22 -2012 ver. 2 8.12 No Presumption. The Parties to this Restated Agreement and their attorneys have had a full opportunity to review and participate in the drafting of the final form of this Restated Agreement. Accordingly, this Restated Agreement shall be construed without regard to any presumption or other rule of construction against the Party causing the Restated Agreement to be drafted. 8.13 Severability. If any provision of this Restated 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 Restated Agreement, the application of any such provision in any other circumstances or the validity, or enforceability of the Restated Agreement as a whole. 8.14 Minor Changes. The Parties executing this Restated Agreement are authorized to make non - substantive corrections to this Restated Agreement and attached exhibits, if any, as the Parties mutually consider necessary. 8.15 Good Faith of Parties. In the performance of this Restated 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 Restated Agreement. 8.16 Parties Not Partners. Notwithstanding any language in this Restated 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 combination of Parties shall be deemed to be partners or joint venturers, and no combination of Parties shall be responsible for any debt or liability of any other Party. IN WITNESS WHEREOF, this Restated 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: l re iden o the City Council City lerk 9 • 5 -22 -2012 ver. 2 AUTHORITY: THE URBAN RENEWAL AUTHORITY OF PUEBLO, COLORADO AT _ By: /LAlt ___ c �r cretary • 10