HomeMy WebLinkAbout10310
ORDINANCE NO. 10310
AN ORDINANCE APPROVING AN AGREEMENT
BETWEEN THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION, AND PUEBLO DEVELOPMENT
COMPANY, LLC, A COLORADO LIMITED LIABILITY
COMPANY, RELATED TO THE COMPLETION OF THE
WEST 18TH STREET EXTENSION PROJECT AND
AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENT
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Agreement between the City of Pueblo, a Municipal Corporation and Pueblo
Development Company, LLC., a Colorado Limited Liability Company, a copy of which is
attached hereto, having been approved as to form by the City Attorney, is hereby
approved.
SECTION 2.
The Mayor 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 3.
The officers and staff of the City are authorized to perform any and all acts
consistent with this Ordinance and the attached Agreement to implement the polices
and procedures described therein.
SECTION 4.
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 October 11, 2022 .
Final adoption of Ordinance by City Council on October 24, 2022 .
President of City Council
Action by the Mayor:
☒ Approved on October 27, 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
Deputy City Clerk
City Clerk's Office Item # R7
Background Paper for Proposed
Ordinance
October 11, 2022
COUNCIL MEETING DATE:
TO: President Heather Graham and Members of City Council
CC: Mayor Nicholas A. Gradisar
VIA: Marisa Stoller, City Clerk
FROM:
Andrew Hayes, Public Works Director
SUBJECT: AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY
OF PUEBLO, A MUNICIPAL CORPORATION, AND PUEBLO
DEVELOPMENT COMPANY, LLC, A COLORADO LIMITED LIABILITY
COMPANY, RELATED TO THE COMPLETION OF THE WEST 18TH
STREET EXTENSION PROJECT AND AUTHORIZING THE MAYOR TO
EXECUTE SAID AGREEMENT
SUMMARY:
This Ordinance will approve an agreement between the City of Pueblo and Pueblo
Development Company, LLC., which outlines the parties' roles and responsibilities
related to the project to complete remaining public improvements along W. 18th Street
between Perry Avenue and Sun Mountain Boulevard (formerly Spaulding Avenue).
PREVIOUS COUNCIL ACTION:
On December 13, 2021, under Ordinance No. 10067 City Council budgeted and
appropriated $1,300,000 for the extension of West 18th Street from Perry Street and
Sun Mountain Boulevard.
BACKGROUND:
West 18th Street extends from Pueblo Boulevard on the west side to Mineral Palace
Park at its easternmost end. It is not, however, a through street as there are two
breaks in continuity along the route. One of the breaks occurs as West 18th Street
approaches the campus of the Colorado Mental Health Institute at Pueblo. The other is
a two-block stretch to the west of Chavez-Huerta K-12 Preparatory Academy between
Perry Avenue and Sun Mountain Boulevard (formerly Spaulding Avenue). The City
Council approved the establishment of Project No. CI2121 and budgeted and
appropriated $1,300,000 to complete the two-block section between Perry Street and
Sun Mountain. The agreement that is the subject of this proposed Ordinance codifies
the roles and responsibilities of the parties related to the installation of the public
improvements to be installed as part of that construction project.
FINANCIAL IMPLICATIONS:
The City Council has already established a project and budgeted and appropriated
funds for the work to be performed.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
If this Ordinance is not approved, the City will not be able to proceed with the project
under the terms and conditions as currently agreed to between the parties.
RECOMMENDATION:
Approval of the Ordinance.
ATTACHMENTS:
1. W.18th Street Extension Project Agreement
AGREEMENT WITH RESPECT TO TI IE EXTENSION
OF WEST le" STREET IN THE CHAMBERLIN SUBDIVISION
This Agreement is made and entered into this az-1.44' day of c,.), o b e r , 2022,
by and between the City of Pueblo, a Municipal Corporation (hereinafter referred to as"City") and
Pueblo Development Company, LLC, a Delaware limited liability company (hereinafter referred
to as "PDC") Together all entities may be referred to herein as the "Parties" or each individually
as a "Party".
WHEREAS, PDC desires to have constructed a two-block section of W. 18th Street
between Perry Avenue and Spaulding Avenue and related site work which construction would
have significant benefit to PDC;
WHEREAS, the construction of said portions of W. 18th Street would also further a public
purpose unique and distinct from general developments in the City including but not limited to
transportation network connectivity and reduced response times for emergency services on the
City's west side; and
WHEREAS, subject to the terms and conditions herein contained and PDC's timely and
complete performance of its obligations also herein contained, the City is willing to undertake such
construction and pay for a portion of the construction.
NOW THEREFORE, in consideration of the foregoing recitals and the covenants, terms,
and conditions set forth herein, the Parties agree as follows.
1. DEFINITIONS. The following terms as used in this Agreement shall have the following
meaning unless the context clearly indicates otherwise:
"Additional Engineering Services" means construction engineering services requested by
City which are separate from and in addition to those services necessary to provide approved
Plans and Specifications. Such services may include engineering, design, and other professional
consulting services required to develop engineered construction drawings and specifications
related to the project; preparation of project cost and material quantity estimates; administrative
and field data collection; surveying, geotechnical evaluation; subsurface utility engineering;
stormwater and drainage calculations and engineered drawings and specifications; wastewater
calculations, basis of design, and engineered drawings and specifications; hid evaluation support;
contract post-award construction engineering support such as evaluating construction contractor
submittals for compliance with plans and specifications; responding to contractor- or City-
generated requests for information (commonly referred to as RFI's); evaluating proposed value
engineering design changes; documentation of field changes and preparation of"as-built"
drawings, and other related technical support necessary for the efficient and timely execution of
the project.
"Awarded Contract" means that construction contract for the Project awarded pursuant
and subject to Chapter 10 of Title I of the Pueblo Municipal Code.
-1-
"City Contractor" means that contractor who enters a construction contract with the City
pursuant to the Awarded Contract.
"Director of Public Works" means the Director of Public Works of City.
"PDC's Engineer" shall be a professional engineer properly licensed in the State of
Colorado contracted by PDC and competent to perform the services herein provided including
but not limited to preparation of the Plans and Specification and performance of the Additional
Engineering Services,
"Plans and Specifications" means a complete set of engineered construction drawings,
specifications, and a breakdown of estimated work and material quantities for all work activities
to be performed under the Project.
"Project" means construction of a two-block section of W. 18th Street between Perry
Avenue and Spaulding Avenue and related site work approved by City and PDC.
"Public Improvement Scope of Work" means that scope of work necessary for
construction of a two-block section of W 18th Street between Perry Avenue and Spaulding
Avenue and required public improvements related to such street improvement to meet
compliance with City construction standards, specifications, and design criteria.
2. ROLES AND RESPONSIBILITIES OF PDC
(a) PDC shall timely provide for approval by City the Plans and Specifications. Such
Plans and Specifications shall comply with all applicable City construction standards,
specifications, and design criteria, the Manual on Uniform Traffic Control Devices (MIUTCD),
building codes, and any requirements of regulatory agencies having any approval authority. Plans
and Specifications shall expressly comply with ADA Accessibility Guidelines (ADAAG) Manual
developed by the U. S. Architectural and Transportation Barriers Board (1998) or ADA Standards
for Accessible Design published at 28 C F . Part 36, Appendix A, whichever is applicable. All
documents shall be signed and stamped by PDC's Engineer and shall include an attest statement
on each record drawing sheet of final plan drawings that certifies compliance with either the
ADAAG Manual or 28 C.F.R. Part 36 Standards. No Plans and Specifications shall be approved
by the Director of Public Works which do not meet the foregoing requirements, and all Plans and
Specifications shall be approved in writing by PDC.
(b) PDC through PDC's Engineer shall provide Additional Engineering Services as may
be requested by City; provided that such Additional Engineering Services are necessary for the
Project and the cost of such Additional Engineering Services requested by the City and incurred
after the date of this Agreement shall not exceed $20,000.00.
(c) PDC shall be liable and responsible to the City for the professional quality and technical
accuracy of the Plans and Specifications and the Additional Engineering Services including all
work performed by PDC's Engineer irrespective of City's approval of the Plans and Specifications.
PDC shall, through PDC's Engineer, provide the Director of Public Works with electronic files of
drawings in AutoCAD format; provide design drawings and specifications in both Microsoft Word
and Adobe PDF formats, and provide the cost and material quantity estimates in Microsoft Excel
format. PDC agrees to pay and the City will have no liability with respect to payment of any costs
associated with such services including but not limited to all services performed by PDC's
Engineer. PDC agrees to hold harmless, defend and indemnify City from and against any liability
to third parties or to any claim if raised by PDC, arising out of negligent acts, errors or omissions
in the performance of such services, including the Plans and Specifications and the Additional
Engineering Services, and from and against any liability to PDC's Engineer or to third parties
arising out of any claim for payment for such services including but not limited to all services
performed by PDC's Engineer.
(d) Subject to Section 3(d) of this Agreement, PDC agrees that all costs associated with
any element of the Project scope of work and any associated engineering or design work which is
beyond the Public Improvement Scope of Work shall be paid by and be an obligation of PDC.
Such costs payable by PDC shall include, by way of example only, cost of earthwork and other
site improvements on privately-owned parcels (generally referred to as "overlot grading" on
roadway cross section plans), installation of utility service connections, installation of driveway
and associated curb cuts, and any other work that may be requested by PDC. The Director of
Public Works, at his sole and absolute discretion, shall determine whether any element of the
Project scope of work is beyond the Public Improvement Scope of Work and shall determine the
costs for such work and notify PDC of same. All of such costs shall be paid by PDC and received
by City prior to award of any contract for construction of the Project or, as may be subsequently
applicable, any amendment or change order approved by City with respect to the contract awarded
pursuant to Section 1-10-6, P.M.C., for construction of the Project.
(e) PDC shall pay and no provision of this Agreement shall be relied upon or maintained
by PDC as waiving any public utility-related service connection, plant investment, and other
established fees and charges at the time and in the manner required by the public utility including
but not limited to City utilities such as wastewater and stormwater.
(f) PDC represents and warrants that they have not and will not communicate any
procurement-sensitive information to any prospective contractor, subcontractor or supplier who
may offer a bid or other proposal with respect to the advertisement for bid for construction of the
Project required pursuant to Section 1-10-4, P.M.C. Procurement-sensitive information includes
any project drawings and specifications, cost estimates, or other data that may give a prospective
bidder an unfair competitive advantage in the procurement process. PDC stipulate acknowledge
and agree that violation of this section shall he a basis for disqualification of such hid or proposal.
PDC shall be liable to City for all costs associated with any violation of this section including costs
of any process with respect to such disqualification. Further, the City may elect to abandon the
Project and terminate this Agreement without claim by, remedy or liability to PDC.
3. ROLES AND RESPONSIBILITIES OF THE CITY
(a) City shall have no obligation to undertake construction of the Project including
proceeding with any advertisement for bid required pursuant to Section 1-10-4, P.M.C., or
awarding any contract pursuant to Section 1-10-6, P.M.C., for construction of the Project, absent
-3-
satisfaction and performance of all conditions and condition precedents in this Agreement
including but not limited to:
(i) Timely receipt of Plans and Specifications approved by the Director of Public
Works and approved in writing by PDC.
(ii) Timely payment and receipt by City of all costs associated with any element
of the Project scope of work which is beyond the Public Improvement Scope of
Work as calculated by the Public Works Director pursuant to above Section 2(d)
and which has been approved by PDC, in its reasonable discretion and accepted
by the Public Works Director.
(iii) The costs of the Public Improvement Scope of Work shall not exceed
$1,300,000
(iv) Dedication and/or rededication by deed of dedication in a form acceptable to
City and executed by all owners of that area of land approved by the Director of
Public Works as a street right-of-way with respect to the two-block section of W.
18th Street between Perry Avenue and Spaulding Avenue and acceptance of same
by City Council of City.
(b) Advertisements for bids with respect to construction of the Project shall comply with
Section 1-10-4,P.M.C., and all applicable federal, state, and local regulations and policies. Award
of any construction contract for the Project after such bid shall be subject to Section 1-10-6,
P.M.C., as defined herein as the Awarded Contract, and shall be entered into by and between the
City and the City Contractor only. PDC shall have no authority to direct or perform any work
covered by or under the Awarded Contract.
(c) With respect to the Project and the Awarded Contract, City retains exclusive and sole
authority over the administration and management of same including but not limited to approval
of project scope, budget, schedule, acceptance of installed work, warranty, documentation, and
other aspects of the Project and the Awarded Contract, provided, however, to the extent there is
any increased cost associated with the Project that is the responsibly of PDC, PDC and the City
shall reasonably cooperate to mutually approve any such increased costs and address how such
additional costs are paid. In the event that PDC does not agree to pay any costs determined by the
Director of Public Works to be the responsibility of PDC, the City may, at its sole discretion,
amend the Awarded Contract and proceed with completion of the Public Improvement Scope of
Work.
(d) With respect to any amendment or change order to the Awarded Contract approved by
City and for which City authorizes any portion of such work to proceed without full receipt of the
prior payment of costs as set forth under above Section 2(d), City shall have the unilateral right to
modify the Project scope of work to eliminate any elements of work for which any prior payment
of costs have not been timely received. Any costs incurred by the City as a result of delays caused
by such failure to timely submit the prior payment of costs shall he the responsibility and liability
of PDC.
-4-
(e) Subject to the terms and conditions herein contained, City agrees to provide reasonable
efforts in prosecuting the Project and the Awarded Contract but makes no guarantees about
timelines with respect to the Project including but not limited advertisement for bids, contract
award, or construction.
4. SPECIFIC ACKNOWLEDGMENT, ASSUMPTION, RELEASE AND INDEMNIFICATION
BY PDC
(a) PDC acknowledges that it is the sole owner of the real property adjacent to or upon
which the Project shall be constructed. PDC acknowledges that the construction of the Project
may result in impacts to its properties ("Impacts") Impacts may include but are not limited to
changes to site drainage characteristics, erosion, settlement, devaluation, and other physical and
economic impacts, both anticipated and unforeseen, resulting from necessary site grading,
earthwork, revegetation, and other construction activities undertaken to complete the Project. PDC
further acknowledges that Impacts may result in the inability to construct structures on all parcels
adjacent to the street right-of-way located at W. 18th Street between Perry Avenue and Spaulding
Avenue. PDC acknowledges that their property shall be significantly benefited by the Project and
absent the covenants set forth in this section 4(a), City would not proceed with the Project. PDC
stipulates, acknowledges, and agrees that:
(i) PDC assumes all risk of loss associated with any and all Impacts, and
any and all injury, damage, loss (financial or otherwise), or liabilities
relating to the Impacts shall be borne by PDC at its sole expense;
(ii) Except for claims based upon bad faith or intentional acts of City, PDC
forever releases and waives any and all claims, known and unknown,
presently existing or arising in the future, and any suit or action in law or
equity against the City and its officers, employees, agents and independent
contractors, including City Contractor("Released Parties"), in any court or
tribunal, based on contract, tort, statute, or any other legal theory, any and
all injury, damage, loss (financial or otherwise), or liabilities that may
arise as a result of the Project or the Impacts; and
(iii) Except for claims permitted by law and based upon bad faith or
intentional acts of City, PDC shall not tile, pursue or prosecute any suit,
action or proceeding, in law or in equity, in any court or tribunal, against
the Released Parties, based on contract, tort, statute, or any other legal
theory, for any and all injury, damage, loss (financial or otherwise), or
liabilities that may arise as a result of the Project or the Impacts;
(iv) PDC shall indemnify, defend and hold harmless the Released Parties
against any and all claims arising out of completed work which is beyond
the Public Improvement Scope of Work or the Impacts.
-5-
5. MISCELLANEOUS.
(a) 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 tiled 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 extent allowed by law, each Party waives its right
to a jury trial.
(b) This Agreement expresses the entire understanding of the Parties and supersedes and
abrogates any and all prior dealings and commitments, whether oral or written, with respect to the
subject matter of this Agreement. This Agreement may not be amended or modified except in
writing signed by all Parties. Any waiver of any provision of this Agreement must be in writing
and signed by the Party whose rights are being waived. No waiver of any breach of any provision
hereof shall be or be deemed to be a waiver of any preceding or subsequent breach of the same or
any other provision of this Agreement. The failure of either Party to enforce or seek enforcement
of the terms of this Agreement following any breach shall not be construed as a waiver of such
breach.
(c) This Agreement shall be construed in accordance with and be governed by the laws of
the State of Colorado without regard to conflict of law principles. This Agreement is expressly
made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor
deemed to constitute, the creation of a debt or multi-year fiscal obligation or an obligation of future
appropriations by the City Council of Pueblo, contrary to Article X, § 20 Colorado Constitution or
any other constitutional, statutory or charter debt limitation. Notwithstanding any other provision
of this Agreement, with respect to any financial obligation of the City which may arise under this
Agreement in any fiscal year after 2022, in the event the budget or other means of appropriations
for any such year fails to provide funds in sufficient amounts to discharge such obligation, such
failure shall not constitute a default or breach of this Agreement.
(d) Any notices hereunder shall be sufficiently given if given in writing personally or
mailed by first class, registered, or certified mail, postage prepaid, addressed as follows:
(1) To the City_
Mayor
1 City Hall Place
Pueblo, CO 81003
with copy to:
City Attorney
1 City Hall Place
Pueblo, CO 81003
and:
-6-
Director of Public Works
211 E. D Street
Pueblo, CO 81003
(ii) To Pueblo Development Company;
Pueblo Development Company
295 Seven Farms Drive, Suite 204
Charleston, SC 29492
or to such other person or address as either Party shall specify in written notice given to the other
Party as necessary from time to time.
(e) Time is of the essence hereof. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns, provided PDC may not assign
this Agreement or any interest herein without the express written consent of the City, which
consent may not be unreasonably withheld.
(f)The persons signing this Agreement in the name of and on behalf of PDC represent and
warrant that they 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 PDC enforceable
against PDC in accordance with its terms.
(g) 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.
(h) PDC shall not be, or hold itself out as, agent of, joint venturer with or partner of City
under this Agreement.
(i) 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.
(j) The provisions of this Agreement are for the exclusive benefit of the Parties hereto and
their successors and permitted assigns, and no third party shall be a beneficiary, or have any rights
by virtue of this Agreement.
(k) This Agreement may be executed in any number of counterparts by physical or
electronic signatures, and each such counterpart shall be deemed for all purposes to be an original,
and all such counterparts shall together constitute but one and the same original.
-7-
Executed effective the day and year first above written.
I
Pueblo Development Company, LLC
(SEAL) By: Chris Macri, President
The foregoing instrument was acknowledged before me on litvild 1 , 2022 by
Chris Macri, President, Pueblo Development Company, LLC
My commission expires: 6� tig1___________
I /r/
,. i, C F
.,,,.......�,•. Nii0ary, ublic J
• Il. `%-•.. ." • t
-8-
r7�'� �fi/i0��
CITY OF PUEBLO, a unicipal Corporation
By: Nicholas Gradisar, Mayor
ATTEST:
City Cler
STATE OF COLORADO )
) ss.
COUNTY OF PUEBLO )
The f gopinstrument was acknowledged before me this d7day of
C�tO - , 2022 by Nicholas A. Gradisar, as Mayor of Pueblo, Colorado, and
Marisa Stoller as City Clerk of the City of Pueblo Colorado.
Witness my hand and official seal.
My commission expires: /o, /-223
Eilene Tracey Sample
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID#20074036010 NotaryPublic
COMMISSION EXPIRES 10/1012023
APPROVED AS TO FORM:
City Attorney
-9-