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HomeMy Public PortalAboutORD15871 BILL NO. 2018-090 SPONSORED BY Councilman Kemna ORDINANCE NO. . AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A MASTER LICENSE AND COOPERATIVE AGREEMENT WITH JEFFERSON CITY PARKS AND RECREATION COMMISSION, JEFFERSON CITY PARKS AND RECREATION FOUNDATION, AND BICENTENNIAL BRIDGE, LLC. NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1. The Mayor and City Clerk are hereby authorized to execute a Master License and Cooperative Agreement with Jefferson City Parks and Recreation Commission, Jefferson City Parks And Recreation Foundation, and Bicentennial Bridge, LLC Section 2. The agreement shall be substantially the same in form and content as that agreement attached hereto as Attachment 1. Section 3. The Mayor, City Clerk, City Administrator, and City Counselor are hereby authorized to execute all other necessary instruments and appurtenant documents to carry out the intent of this ordinance. Section 4. This Ordinance shall be in full force and effect from and after the date of its passage and approval. Passed: ' J/4714."C�&rf' .7 2C I�� Approved: (-- a.44 . Q1{/ ?-01 1/)1 , Presiding Officer Mayor Carrie Tergin ATTEST: APPROVED AS TO FORM: Ci y Cler City C nselor MASTER LICENSE AND COOPERATIVE AGREEMENT WHEREAS, the City of Jefferson (referred to herein in the singular as “City”) is a municipal corporation and the owner of property known as Adrian’s Island, Jefferson City, Cole County, Missouri (referred to herein as the “Island”); and WHEREAS, the Parks and Recreation Commission of the City of Jefferson (referred to herein as the “Commission”) is a Commission created by the people of Jefferson City under the Charter of the City of Jefferson and is charged with the supervision, improvement, care, and custody of the parks of the City of Jefferson; and WHEREAS, the Jefferson City Parks and Recreation Foundation (referred to herein as the “Foundation”) is a nonprofit corporation organized under the laws of the State of Missouri and is the recipient of a certain restricted gift in the amount of Three Million Two Hundred and Forty Thousand Dollars ($3,240,000.00) (referred to herein as the “Gift”) which is limited in its use to the design and construction of a bridge to provide public pedestrian access to the Island (the “Bridge”). WHEREAS, Bicentennial Bridge, LLC (referred to herein as the “Company”) is a Missouri limited liability company whose sole member is the Jefferson City Area Chamber of Commerce (referred to herein as the “Chamber”) and will be responsible for administering the Gift to carry out its intended charitable purposes on behalf of the Foundation and City. WHEREAS, entry onto the Island and land controlled by the City adjacent to the Missouri State Capitol Grounds (collectively, the “Property”) is necessary for the design and construction of a bridge to provide public pedestrian access to the Island and to successfully carry out the intent of the Gift. WHEREAS, upon completion the Bridge will be conveyed to the City and dedicated to use by the general public for enjoyment of a park on the Island, consistent with the charitable goals of the Foundation. NOW THEREFORE, for valuable consideration, it is agreed as follows: 1. City’s Obligations. a. License Granted. City hereby grants a license to the Company for use by Company’s employees, contractors, agents or assigns, the right to enter upon and cross the Property to the extent necessary to design and construct a bridge to provide public pedestrian access to the Island. b. City Inspections. City shall inspect all public improvements constructed by Licensees in accordance with local ordinances and codes. c. Titling of the Island. The City shall cause title to the Island to be recorded in the name of the “City of Jefferson in the care of the Jefferson City Parks and Recreation Commission.” 2. Foundation’s Obligations. a. Deposit of Gift. Upon receipt of the Gift, the Foundation shall deposit all Gift funds in one or more interest-bearing accounts in the name of the Foundation at one or more financial institutions of the Foundation’s choosing, (referred to herein as the “Foundation Project Fund”), so long as the financial institution is authorized to do business in the state of Missouri. Each of the Mayor of the City of Jefferson, the President of the Commission, and the President of the Chamber shall be entitled to review and inspect all account information and other records of the Foundation related to the Foundation Project Fund upon reasonable notice. b. Other Funds. All other funds currently held or received by the Foundation which are restricted, earmarked, or otherwise designated to fund design and construction of the Bridge shall be deposited in the same account as the Gift and subject to the same provisions for distribution of the Foundation Project Fund. c. Remaining Funds. Subject to the Restricted Gift Agreement, if any monies remain in the Foundation Project Fund after final completion of the Bridge and after final payment of any professional services providers, construction manager, contractor, or vendor engaged in the design and construction of the Bridge, the Foundation may maintain the Foundation Project Fund and use such monies to advance development of the passive park on the Island, including additional access on the east side of the Island, for the upkeep, maintenance, or repair of the passive park on the Island, or it may use such monies to assist in the maintenance, upkeep, enhancement or repair of the Bridge. Nothing herein shall prevent the Foundation from honoring or complying with any restriction or limitation on any gift or donation made to the Foundation. 3. Company’s Obligations a. Construction of the Bridge. For purposes of the design and construction of the Bridge, Company shall be the Owner of the Bridge. Company shall complete construction of the Bridge in accordance with design plans prepared and sealed by a Missouri-licensed design professional. The Company is authorized to continue to utilize the design professional who is currently retained by the Chamber for design of the Bridge. Said design plans shall be in conformance with any applicable City specifications. This obligation shall include securing, executing, and managing written contracts with a design professional and a construction manager, and any other vendors or contractors necessary under a construction manager at-risk method of project delivery. Neither the Foundation, City, or the Commission shall be deemed to be a party to any of the Company’s contracts and shall have no liability arising from or relating thereto. Company shall complete construction of the Bridge consistent with any deadlines imposed under the Restricted Gift Agreement (defined below). b. Selection of Construction Manager At-Risk. The Company shall utilize the Construction Manager At-Risk method of project delivery for the Bridge. The Company shall utilize the process described in this paragraph to select a construction manager at-risk. The Company shall interview at least three (3) potential firms qualified to provide services as construction manager at-risk. After such interviews, the Company shall select the firm who will best complete the Bridge in accordance with any timeframes or deadlines required by the Foundation’s acceptance of the Gift and in conformance with an agreed-upon guaranteed maximum price, and enter into an agreement with such firm as Construction Manager At-Risk to construct the Bridge. c. Compliance with Statutes. The construction of the Bridge shall comply with the following statutes: (1) Prevailing Wage Law, § 290.210 RSMo. et seq.; (2) 10 Hour OSHA Training, § 292.675 RSMo.; (3) Participation in Work Authorization Program, § 285.530 RSMo.; Proof of Lawful Presence, § 208.009 RSMo.; (4) Prompt Payment Act, § 34.057 RSMo., Public Project Payment Bonds, § 107.170 RSMo. 4. Commission’s Obligations. a. Park Development on Adrian’s Island. The Commission shall develop a passive park on the Island. The Commission shall endeavor to develop such park contemporaneously with the construction of the Bridge so that least a portion of such park will be accessible to the public at the time the Bridge is dedicated to the City and opened to public pedestrian traffic. Development of such passive park shall be consistent with the requirements of the Redevelopment Contract entered into between the Housing Authority of Jefferson City and the City, which is hereby ratified by the Commission and the lands conveyed to the City under such Redevelopment Contract is hereby accepted by the Commission as a park into the park system of the City. 5. Distribution of Funds a. Bridge Project Costs. The Foundation shall make distributions to the Company from the Foundation Project Fund upon presentation by the Company of a request for disbursement, which such request shall include an itemized list of actual costs incurred by Company in the design and construction of the Bridge and any related work. b. Foundation or City Costs. The Foundation and City each may be reimbursed from the Foundation Project Fund for administrative costs, including attorney’s fees, incurred by the Foundation or City in the administration of the Gift or Foundation Project Fund, or the design and construction of the Bridge. Whenever the Foundation or the City receives such a reimbursement, the reimbursed party shall provide a notice of reimbursement to the other parties to this Agreement. c. Company Administration Fee. Consistent with the charitable purposes of the Gift, the Company shall be entitled to an administration fee of Forty Thousand Dollars ($40,000.00), payable from the Gift as a lump sum on or before January 31, 2019. This administration fee shall constitute compensation for the Company’s efforts in administering the necessary contracts for design and construction of the Bridge but nothing herein shall prevent the Company from requesting and receiving reimbursement from the Foundation Project Fund of costs directly incurred by the Company in the design and construction of the Bridge. 6. Establishment of City Funds. The City and the Commission have identified Six Hundred Ninety-Nine Thousand Eight Hundred Thirty-Five Dollars ($699,835.00) in total capital improvements sales tax funds and parks funds which have been previously identified for riverfront access and park and trail development. This amount shall be used to fund maintenance and upkeep of the Bridge and to develop a passive park on the island. a. Bridge Maintenance Sinking Fund. Prior to the time the Bridge is dedicated to the City and opened to public pedestrian traffic, the City shall establish a Bridge Maintenance Sinking Fund with an initial amount of Three Hundred Thousand Dollars ($300,000.00) in capital improvements sales tax funds. The Bridge Maintenance Sinking Fund shall be maintained, subject to annual appropriation, and shall only be drawn upon for the maintenance, repair, and operation of the Bridge. The Commission may annually withdraw Ten Thousand Dollars ($10,000.00) from the Bridge Maintenance Sinking Fund for the general minor maintenance and upkeep of the Bridge (the “Annual Bridge Operations Expense”). Once the Bridge Maintenance Sinking Fund is depleted, the Commission shall not be entitled to withdraw the Annual Bridge Operations Expense. All other expenditures from the Bridge Maintenance Sinking Fund shall be subject to approval by the City Council and the Commission. b. Island Park Development Fund. No later than October 31, 2019, the Commission shall establish the Island Park Development Fund, which shall be a separate fund in the Park Fund. The City shall appropriate Two Hundred Forty-Three Thousand Eight Hundred Seventy-Five Dollars ($243,875.00) of capital improvement sales tax funds, which had been previously identified for riverfront access and park and trail development, into the Island Park Development Fund. The Commission shall appropriate an additional One Hundred Fifty-Five Thousand Nine Hundred Sixty Dollars ($155,960.00) from the Park Fund balance into the Island Park Development Fund. Such amounts shall be used to develop a passive park on the Island, which can include additional public access to the Island on the east side of the Island. Any unused amounts shall be reappropriated back into the respective originating funds on a pro-rata basis, upon approval by the City and Commission. c. Amendments to Section 6. Notwithstanding anything in this agreement to the contrary, amendments to this Section 6 shall not require the approval of the Company or the Foundation. 7. Dedication of Bridge Upon Completion. Upon final completion of the Bridge, the Company shall dedicate and convey fee simple absolute title to the Bridge to the City by an instrument approved by the City Counselor, coupled with copies of liens waivers covering the entire Bridge project. This obligation may be compelled by specific performance. 8. Failure to Complete. The parties recognize that time is of the essence to construct the Bridge. Once construction on the Bridge is started, work on the Bridge shall proceed without delay. If at any time thirty (30) consecutive days pass without work proceeding on the construction of the Bridge, or if the Managing Member of the Company states in writing addressed to the Mayor of the City that the Company cannot complete construction of the Bridge, the City may take over construction of the Bridge as Owner. Scheduled, seasonal breaks in work or delays caused by Act of God shall not be used in determining whether work is proceeding under this Section. If the City provides notice that it is taking over the construction of the Bridge as Owner, the Company shall immediately dedicate title to Bridge to the City and the City may complete construction of the Bridge, either by assuming the rights and obligations of the Company in any contract related to the design or construction of the Bridge or by terminating any such contracts and selecting new professional service providers, construction managers, contractors, or vendors to complete the work. Furthermore, if the City provides notice that it is taking over the construction of the Bridge as Owner, the City shall be entitled to receive disbursements from the Foundation Project Fund, in the same manner as the Company under Subsection 5(a) above. 9. Related Agreements. The parties recognize that the Restricted Gift Agreement entered into by and between the Betty J. DeLong Revocable Trust, Dated December 9, 1992, the Foundation, and the City (approved by the City Council on December 3, 2018 and referred to herein as the “Restricted Gift Agreement”) and the Redevelopment Contract entered into by and between the Housing Authority of Jefferson City and the City (approved by the City Council on December 17, 2018 and referred to herein as the “Redevelopment Contract”) (collectively, the “Related Agreements”) are essential to the performance of this Agreement, that performance of this Agreement is intended to comply with the requirements of the Related Agreements, and nothing herein shall be construed to allow or require non-compliance with any material provision of the Related Agreements. 10. Construction of Improvements. Except as otherwise expressly indicated herein, all public improvements to be developed on the Property shall be constructed in accordance with any applicable City Department of Public Works Standard Specifications and Drawings, as may be amended, or any successor specifications and standards adopted by the City. The Company shall obtain all necessary permits and governmental permissions to perform its obligations set forth in this Agreement. The Company shall also comply with all applicable City Building Codes. 11. Adjoining Properties. Company shall obtain all necessary private easements or licenses to perform its obligations set forth in this Agreement and shall be liable for all damages to adjoining properties that may be caused by Company’s performance of its obligations, even where construction of improvements are in accordance with the City Department of Public Works Standard Specifications and Drawings, as may be amended or succeeded. 12. Amendments. Any amendment to this Agreement must be in writing and must be executed by the City, Commission, Foundation and Company, or any successor interest who would otherwise be obligated to perform any of the requirements imposed upon the parties by this Agreement. Oral modifications or amendments of this Agreement shall be of no force or effect. 13. Remedies. The parties to this Agreement may, either in law or equity, by suit, action, mandamus or other proceedings in court, seek declaratory relief, enforce and compel specific performance of this Agreement, provided that in no event shall the City or Commission have any liability in damages, costs (including attorneys’ fees) or any other monetary liability to Company or Foundation or any affiliate of either, any person claiming through Company or Foundation, or to their respective successors, assigns, heirs and personal representatives in respect of any suit, claim, or cause of action arising out of this Agreement or any of the actions or transactions contemplated herein. 14. Third Party Actions. Company shall have the right, but not the obligation to assume the costs of defense of any action or proceeding initiated by a third party challenging this Agreement, or any other actions or transactions contemplated by this Agreement (including, without limitation, to settle or compromise any claim or action for which Company has assumed the defense) with counsel of Company’s choosing, and the City and Company agree that so long as no conflicts of interest exist between them (in the judgment of the City Counselor), the same attorney or attorneys may simultaneously represent the City, Commission, and Company in any such proceeding. If the Company declines to exercise its rights of defense under this Section, the Foundation may assume such rights. In no event shall the City or Commission have any liability to Company or Foundation for damages or otherwise in the event that all or any part of this Agreement or the ordinances approving this agreement shall hereafter be declared invalid or unconstitutional in whole or in part by a final (as to which all rights of appeal have been exhausted or expired) judgment of a court of competent jurisdiction, and, in the event Company or Foundation elects not to assume such defense and costs, the City shall have no obligation to defend or to assume the costs of defense of any such action. 15. Notices. All notices between the parties hereto shall be in writing and shall be sent by certified or registered mail, return receipt requested, by personal delivery against receipt, or by overnight courier, and shall be deemed to have been validly served, given or delivered immediately when delivered against receipt or three (3) business days after deposit in the mail, postage prepaid, or one (1) business day after deposit with an overnight courier, and shall be addressed as follows: If to the City: If to Commission: City of Jefferson Jefferson City Parks and Recreation Commission City Administrator Director of Parks, Recreation and Forestry 320 E. McCarty 1299 Lafayette Jefferson City, MO 65101 Jefferson City, MO 65101 If to Company: If to Foundation: Bicentennial Bridge, LLC Jefferson City Parks and Recreation Foundation Managing Member Registered Agent/Director of Parks, Recreation 213 Adams St. and Forestry Jefferson City, MO 65101 1299 Lafayette Jefferson City, MO 65101 Each party shall have the right to specify that notice is to be addressed to another address by giving to the other party ten (10) days written notice thereof. 16. Hold Harmless. Company at its sole cost and expense, hereby agrees to indemnify, protect, release, defend (with counsel acceptable to the City) and hold harmless the Foundation and the City (including the Commission),their respective municipal officials, elected officials, boards, commissions, officers, employees, attorneys, and agents from and against any and all causes of action, claims, demands, all contractual damages and losses, economic damages and losses, all other damages and losses, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, and all costs and expenses of any kind, including, without limitation, reasonable attorney’s fees and costs of defense arising, directly or indirectly, in whole or in part, from the action or inaction of Company, its agents, representatives, employees, contractors, subcontractors or any other person for whose acts Company may be liable, in the activities performed, or failed to be performed, by Company under this Agreement or in the design and construction of the Bridge and all related appurtenances, or from breach of this Agreement, except to the extent arising from or caused by the sole or gross negligence or willful misconduct of the Foundation or the City, or their respective elected officials, officers, employees, agents or contractors. The indemnification, duty to defend and hold harmless obligations set forth in this Section shall survive for a period of five (5) years from the date of substantial completion of all improvements contemplated hereunder. 17. Insurance. Company shall require of any construction manager or contractor working on the Bridge general liability insurance with a reputable, qualified, and financially sound company licensed to do business in the State of Missouri, and unless otherwise approved by the City, with a rating by Best of not less than “A,” that shall protect Company, the Foundation, the City (including the Commission), and each of the parties respective officials, officers, and employees from claims which may arise from operations under this Agreement, whether such operations are by the construction manager or contractor, its officers, directors, employees and agents, or any subcontractors of the construction manager or contractor. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from all operations, products, services or use of automobiles, or construction equipment in the construction of the Bridge. The amount of insurance required herein shall be in no event less than the individual and combined sovereign immunity limits established by § 537.610 RSMo for political subdivisions; provided that nothing herein shall be deemed to waive the City’s sovereign immunity. An endorsement shall be provided which states that the City and Foundation are named as an additional insured and stating that the policy shall not be cancelled or materially modified so as to be out of compliance with the requirements of this Section, or not renewed without 30 days advance written notice of such event being given to the City and Foundation.. 18. Compliance with Laws. Foundation and Company shall comply with all applicable state, local, and federal laws in the performance of this Agreement. 19. No Assignment. The obligations created under this Agreement may not be assigned without the written permission of all parties. 20. Special Sales Tax Provisions. Company shall cause any construction manager or contractor working on construction of the Bridge to purchase construction materials and supplies in accordance with these Special Sales Tax Provisions. a. City shall furnish the Company a “Project Tax Exemption Certificate” which shall include the following: i. City’s name, address, Missouri tax identification number and signature of authorized representative; ii. The project location, description, and unique identification number; iii. The date the contract with a construction management at-risk is entered into, which is the earliest date materials may be purchased for the Bridge project on a tax-exempt basis; iv. The estimated date of completion for the Bridge; v. The Tax Exemption Certificate expiration date. Such certificate is renewable for the Bridge project at the option of the City, only for the purpose of revising the certificate expiration date as necessary to complete the Bridge project. b. Company shall: i. Furnish the Project Tax Exemption Certificates to all construction managers and contractors, and require that the Project Tax Exemption Certificate be issued to all subcontractors. The construction manager and any contractor or subcontractor purchasing materials shall purchase all tangible personal property and materials to be incorporated into or consumed in the construction of the Bridge and no other on a tax-exempt basis. Suppliers shall execute to the purchasing construction manager, contractor, or subcontractor invoices made out to the construction manager or contractor. The invoices must also bear the name of the Company and City and the project identification number. Nothing in this section shall be deemed to exempt the purchase of any construction machinery, equipment, or tools used in constructing the Bridge. All invoices for all personal property and materials purchased for the Bridge project utilizing the Project Tax Exemption Certificate shall be retained by the purchasing construction manager, contractor, or subcontractor for a period of five (5) years and shall be subject to audit by the Missouri Director of Revenue. ii. Cause to be included in any contract with a construction manager or contractor for construction of the Bridge sufficient provisions necessary to comply with § 144.062 RSMo. and construct the Bridge on a tax-exempt basis. c. In the event that the Missouri Department of Revenue determines that the Bridge project is not eligible to be constructed on a tax exempt basis , the Foundation shall indemnify the City and Company, provided that the Foundation’s liability shall be limited to funds held in the Foundation Project Fund. The City may endeavor to obtain a ruling on the tax-exempt status of the Bridge project prior to the execution of the agreement to construct the Bridge between the Company and a construction manager as contemplated in Section 3(b) above. If the Missouri Department of Revenue determines that the Bridge project cannot be constructed on a tax-exempt basis, this Section 20 shall be amended to reflect the rulings of the Missouri Department of Revenue or any related judgments. 21. Entire Agreement. This Agreement contains the entire and complete agreement between the City, Commission, Company, and Foundation with respect to the requirements imposed upon the parties for the providing of certain interests in land, and the construction and installation of certain improvements, all as hereinabove described in the Recitals for this Agreement and the above numbered paragraphs of this Agreement. Parties agree that this Agreement constitutes a lawful contract between the Parties and the Foundation and Company hereby acknowledge and agree that this Agreement and provisions of the City's Code of Ordinances applicable to this Agreement constitute lawful exercises of the City's authority and police power. IN Witness Whereof, the'parties hereto have hereunto set their hands this 4(0 day of OrGk ?2019. CITY OF JEFFERSON JEFFERSON CITY PARKS AND RECREATION COMMISSION OtulAciT Mayor Carrie Tergin� B d Bates. Prent Y A"ITTEST: ATTEST: CyCIe }. Clerk Executive Secretary APPROVED AS TO FORM: City Cou selor JEFFERSON CITY PARKS AND BICENTENNIAL BRIDGE, LLC RECREATION FOUNDATION //' A/i /!Ir , i r 1a Towner, resident 'andy yen, Authorized Representative ATTEST: ATTEST: /11/14-• friAL Secretary