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Home My WebLink About10291ORDINANCE NO. 10291 AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO SIGN A CONSTRUCTION MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THE PUEBLO DEVELOPMENT FOUNDATION, A COLORADO NONPROFIT CORPORATION, RELATING TO A CONSTRUCTION PROJECT AT 32501 WALT BASSET AVENUE, PUEBLO, CO 81001 BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Construction Management Agreement (“Agreement”), dated September 26, 2022 between the City of Pueblo, a Colorado municipal corporation and the Pueblo Development Foundation, a Colorado nonprofit corporation, a copy of which is attached hereto, having been approved as to form by the City Attorney is hereby approved. The Mayor is authorized to execute and deliver the Agreement in the name of the City and the City Clerk is authorized to affix the seal of the City thereto and to attest same. SECTION 2. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance and the attached Agreement which are necessary or desirable to implement the transactions described therein. SECTION 3. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on September 12, 2022 . Final adoption of Ordinance by City Council on September 26, 2022 . President of City Council Action by the Mayor: ☒ Approved on September 28, 2022 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-21 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: September 12, 2022 TO: President Heather Graham and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Marisa Stoller, City Clerk FROM: Daniel C. Kogovsek, City Attorney SUBJECT: AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO SIGN A CONSTRUCTION MANAGEMENT AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND THE PUEBLO DEVELOPMENT FOUNDATION, A COLORADO NONPROFIT CORPORATION, RELATING TO A CONSTRUCTION PROJECT AT 32501 WALT BASSETT AVENUE, PUEBLO, CO 81001 SUMMARY: Attached is an Ordinance approving and authorizing the Mayor to sign a construction management agreement with the Pueblo Development Foundation, a Colorado nonprofit corporation (“PDF”) relating to a hangar owned by the City located at 32501 Walt Bassett Avenue, Pueblo, CO 81001. PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. BACKGROUND: The City is the owner of a hangar containing approximately 22,500 rentable square feet located 32501 Walt Bassett Ave., Pueblo, CO 81001 (the “Property”) Since approximately July 24, 2017, the Property has been leased to the Lockheed Martin Corporation, a Maryland Corporation (“Lockheed”). The City is simultaneously entering into an Amendment No. 2 to the lease between the City and Lockheed for the Property which extends the term of the lease by two years but also requires the City to install a new concrete floor in the front office area of the Property at the City’s sole cost and expense. The City desires to engage PDF to provide construction management services in connection with the installation of the concrete floor. FINANCIAL IMPLICATIONS: PDF will oversee and manage the installation of a new concrete floor in the front office area of the Property for an amount not to exceed Seventy Thousand Dollars ($70,000,000) including PDF’s management fee. City shall pay PDF three percent (3%) of the total costs of renovating the Property to be retained by PDF as payment in full of PDF’s construction management fee. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: City Council has three (3) options if it decides not to approve this ordinance: 1. Not to approve the Lockheed lease extension. 2. If Council agrees to the lease extension, it could decide not to install the new concrete floor at the City’s expense. 3. If Council agrees to install the new concrete floor at City expense, Council could require that the City’s Purchasing Department issue a request for bids for the project. RECOMMENDATION: Approve the Ordinance. Attachments: Proposed Ordinance Poposed Construction Management Agreement CONSTRUCTION MANAGEMENT AGREEMENT THIS CONSTRUCTION MANAGEMENT AGREEMENT ("Agreement") is entered into effective September 26, 2022, between the City of Pueblo, a municipal corporation ("City") and Pueblo Development Foundation, a Colorado nonprofit corporation ("PDF"). City and PDF are sometimes referred to herein as a "Party" and collectively, the "Parties." WITNESSETH: WHEREAS, City is the owner of a building containing approximately 22,500 rentable square feet located 32501 Walt Bassett Ave., Pueblo, CO 81001 (the "Property"); and WHEREAS, since approximately July 24, 2017, the Property has been leased to the Lockheed Martin Corporation, a Maryland Corporation ("Lockheed"); and WHEREAS, the City is simultaneously entering into an Amendment No. 2 (of even date herewith) to the lease between the City and Lockheed for the Property which extends the term of the lease by two years but also requires the City to install a new concrete floor in the front office area of the Property ("renovation of the Property") at City's sole cost and expense; and WHEREAS, City desires to engage PDF to provide construction management services in connection with the renovation of the Property; and WHEREAS, City will reimburse PDF funds for the renovation of the Property and PDF is willing to oversee and manage such construction, on the condition that the City pay PDF an agreed upon management fee. NOW THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and PDF agree as follows: Section 1. Renovation. PDF will oversee and manage the installation of a new concrete floor in the front office area of the Property for an amount not to exceed Seventy Thousand Dollars ($70,000.00) including PDF's management fee. Time is of the essence hereof. The Parties agree that renovation of the Property shall be completed on or before December 31, 2022. Section 2. Requests for Payment. PDF shall file with City's Director of Finance written requests for payment certified to be true and correct by an officer of PDF or its representative that the amounts included in each request for payment have not been included in any prior request for payment and are for the actual cost of renovating the Property, identifying the construction work for which payment is sought has been completed. All City Funds disbursed directly to PDF shall be held in trust by PDF for the sole and only purpose of paying for renovation of the Property. Section 3. Management Fee. City shall pay PDF three percent (3%) of the total costs of renovating the Property to be retained by PDF as payment in full of PDF's construction management fee. Section 4. Additional Documents or Action. The Parties agree to execute any additional documents or take any additional action that is necessary to carry out this Agreement. Section 5. 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. Section 6. Minor Changes. The Parties executing this Agreement are authorized to make non-substantive corrections to this Agreements, if any, as the Parties mutually consider necessary. Section 7. 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. Section 8. Venue and Waiver of Jury Trial. In the event of any litigation arising under this Agreement, exclusive 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 personal and subject matter jurisdiction of such District Court. To the full extent allowed by law, each Party waives its right to a jury trial. Section 9. Notices. Any notice required or permitted to be given or delivered under this Agreement shall be in writing and shall be given by personal delivery, or by the United States Postal Service, by registered or certified mail, postage prepaid, or reputable national overnight courier service: (a) If to City, addressed to: Mayor City of Pueblo 1 City Hall Place, 2nd Floor Pueblo, Colorado 81003 with a copy to: City Attorney 1 City Hall Place, 3rd Floor Pueblo, Colorado 81003 (b) If to PDF, addressed to: 2 President 301 N. Main Street, Suite 210 Pueblo, CO 81003 or to such other address or person as any Party may from time to time specify in a writing delivered to the other Party in the manner provided in this paragraph. Any notice shall be deemed delivered on the day on which personal delivery is effected or three (3) days after deposit in the mail in the case of registered or certified mail, and one (1) business day after deposit in the case of overnight courier. Section 10. Authority to Sign. The persons signing this Agreement in the name of and on behalf of PDF represent and warrant that they and PDF have the requisite power and authority to enter into, execute, and deliver this Agreement, and that this Agreement is a valid legally binding obligation of PDF enforceable against PDF in accordance with its terms. When executed by the City and PDF, this Agreement shall constitute a binding Agreement and shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Section 11. Severability. 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. Section 12. Drafters. Each party acknowledges that this Agreement was fully negotiated by the parties and, therefore, no provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision. Section 13. Attorneys' Fees. In the case of any litigation among the parties under this Agreement, the prevailing party will be entitled to reimbursement for its reasonable costs, including reasonable attorneys' fees, incurred in any such dispute. Section 14. Assignment. This Agreement shall be binding upon and inure to the benefit of City and PDF and their respective successors and assigns, provided PDF may not assign this Agreement or any of its rights hereunder without the prior written consent of City. EXECUTED at Pueblo, Colorado as of the day and year first above written. CITY OF PUEBLO, a Colorado Municipal Corporation By: -7[`,t, Nicholas A. radisar, Mayo 3 Attest: City Cr '' Approved as to form: >& Q 'C• a�/4 City Attorney PUEBLO DEVELOPMENT FOUNDATION a Colorado Non-profit Corporation By: - Z= Robert L. Root, President Attest: ilti , / �„ _1/Li , ^ 1 -ry 4