City Council - Special Meeting

on October 2nd, 2005 at 5:30. Uh it's not on the agenda. Will you please stand for a quick word of prayer? Pray with me. Heavenly Father, we give thanks for all the blessings we have in our lives, our friends, our family, this city. We pray that you give this council wisdom to understand these issues and to be the best we can be. We pray for discernment so that will be done in everything that we do. We are thankful for the employees of this city and all that they do for our citizens. We ask that you help and make each one of them safe in their jobs and and give them the tools that they need to do the best they can be. We pray all these things in your son's heavenly name. Amen.

Amen. All right, gentlemen. We have one issue tonight on the agenda is consider and take appropriate action regarding the contract with sports med up. and only one, right? So, there you go. Better hit the home run.

Okay, that sounds good. Oh, before you have uh uh in your packet, you've got a resolution, of course, a contract uh with SportsMid Properties for the construction of the sports uh complex. Um and what this resolution would do is authorize the city manager to make uh some changes if necessary. Uh but ultimately but ultimately we need the um authorization from the council to do so so that we could make any of those changes uh and then have uh he would have the authority to execute that contract. Um we understand there are some things in there that do need to be tidied up and we can certainly do that and maybe tonight we could talk about a few of those things if you've got some concerns so that we can include those if necessary. I had three three things that stuck out to me just and with some further explanation I'm sure I will understand better. Uh the first one is on my page one and when attorney judge stretcher and I were looking we have different page numbers but says whereas the owner desires to develop own and operate on the property a sports complex development consisting of approximately 156,818 square feet. The project Does that need to include the fields and the area around it? I mean that seems very specific

on would if you don't mind maybe very first page. Okay. Very good. Under recital the second whereas Very good. It just lays out the the building but are they not the building is only 140,000 square feet. Okay. Well, this is 156,000. That probably includes the field. I'll make a note. I'll make a note of that. We can certainly include that. That won't be a big deal to include um that would have to include the um to include the fields, the ballparks. It was lined out in the RFQ. So, that's not a problem. We can just take that language and probably condense them a little bit, make sure it's included. That's not a problem at all.

Little little clarity. You bet. Just just to so you know, the building itself is 140,000. So it's got to include the fields. The second question I had is reading in that article two the services of the developer and 2.1. Uh yes.

Okay. So that kind of middle of the paragraph where u that says they will have no liability for failing to achieve the objectives nor for failing to perform the specific tasks set out of this agreement except to the extent what the developer has not used getting lost here commercially reasonable efforts to do so and has acted with gross negligence. So, I just kind of curious, does this mean that we don't have a way to hold them responsible if they don't finish?

Well, what we would want to do is is is certainly make sure that that is included. You know, at the end of the day, we've got to be able to they've got to be able to build this project for us. There's no doubt about that. So, that will be included if it isn't implied already somewhere else in the contract. Mr. Stretch, help us out with that. The couple of projects I've been involved with, you kind of get that target date and any date after that we're going to charge you 10%. You're talking about liquidated damages or the like something like that. That was question two. Question three towards the back. Article 8, miscellaneous 8.1. I thought we had changed all the venues to Texas and that still lists North Carolina

and they they should be. That's right. We agreed. We agreed to Midland Midland, Texas. Midland County. Yep. But that last line of 8.1, this agreement shall be governed and construed under the laws of the state of North Carolina. Absolutely. That'll be changed to Texas. Okay. Well, I think that's why we're making the motion like we're making it to give him the authorization, right, to make those changes. That's the reason it's Yeah. being read that way because we know there's some problems with it. There were two they've been kind of difficult according to Mr. Stretcher to deal with. uh their legal has been. So, we've talked about that a lot. So, those those were my three questions. Thank you.

Only question I had is on um I don't see a project budget in exhibit B. Did we ever get that? I don't have anything. We got to have those project schedule and C. I mean, so what we could do with that is is is put a limit on this resolution for instance. So you could and the council could if it if it's its prerogative they could say something effective uh you know move to approve the resolution as presented with the following changes a maximum budget of let's say $140 million with a 10% um contingency contingency right which would be something like that needs to be before we execute that could be included in the resolution correct so will we be allowed to change all this if we prove things tonight

that's what we're doing that's what Yeah, that's the given given the permission to make changes as well as execute and and fund so we can move it along. Erin, on that regard, we never did we ever get those drawings were promised the uh we have draw you're talking about conceptual renderings of the front. Those are they promised those weeks ago the they they promised those about three weeks ago saying they'd be ready in about four weeks. So that should be like next week, but I can certainly press them on that as well. Uh yeah, we just we're being we need those. Understood. Yeah, I know. I That was my only one thing. Any other questions?

Mayor, we we know we're going to have change orders and uh the way the resolution is written is it's the mayor that executes the agreement and uh if that if y'all want to change that to city manager, obviously now's the time to do it. And uh but we don't have anything about change orders. And I don't think I mean I I don't think the council is going to want to see every change order. So we come up with some kind of percentage. We can by law we can do up to 25%. I didn't know if y'all wanted to go that high, but we need to give some flexibility for you, mayor, to to execute those change orders or the council's going to be seeing every one of them. That's something you want to do, mayor.

Yes. I'd like to think maybe though at 10% that's still a lot. That's a lot more than that without permission of the council. Yeah. So yeah, some small changes I can see. I can't really see major without this council approving. 10 sounds good. Yeah. Yeah. Okay. But I still worry about you being out of pocket or something to make those change orders. Could it be off on a hunting? I mean, could be. I don't go any more hunting trips for at least a month, which is exactly my point, right? We have Mayor Py. I mean, he can I think as long I mean, that's what I was asking. Could it be the mayor or his designate? Perfect. Okay. Whatever. And then

what happens if you're out of town? My designate Chris. What happens if you go hunting with him? Then it goes one, two, District one. District one first. Um, so especially on the change orders if we don't see any con drawings like he's asking for. Um, so we're I don't want them to all of a sudden change the whole front of this to something else. We'd have to make the change or as owners, correct? So it'd be our request. Okay. So I And again, I don't make any without y'all knowing about it. So I think we're safe. Uh, I just didn't want any big all of a sudden, hey, they can't get any of this stuff. So now we got to change everything type deal.

Yeah. So let's just make sure everything's if this is something sort of Mickey Mouse, you're probably going to hear about it. Okay. Now if it's changing a door frame to wider or taller, I don't think you'all want to hear that. No. But if it's something major, you're going to hear about it.

Correct. And then mayor, are we okay that the funds I I've looked at some previous resolutions and 30 million have been appropriated for the entire project, but I didn't see any appropriation for the contract specific. But if y'all are okay with that language, then we're okay. I'd like it to And then just And then Aaron did mention a contingency. Did y'all want to address that or what what was everybody's thinking on that? Well, I think we need a contingency. Yeah, I do too. Are we doing the 10%? Is that where we're kind of holding to? I think 10's You think? Yeah, it's kind of an orbit. Think that's right. What do you think, Erin?

I if we could go up to 140, I'd like that because remember there is also the six million that's sitting over in uh that will come to us from a donation from the from the park foundation to cover that portion of the park that's over there. So, in my mind, if we could get it up to $140 million with a 10% contingency, I think we'd be fine. Okay. I think that's Can't forget the park. Is this They're building the park, too. So, that's right. Good thought. Okay. And then I'm sorry. Go ahead. Well, I got one other thing, Mayor. Uh, I was looking at the insurance. Mhm.

There's no limits listed in the insurance and we've gone back and forth with them that we want at a minimum of a million and we want some builder risk because we don't want to get threequarters of the way through and there'll be a fire or something and uh that's been delete that the amounts and it's been deleted and and so right now we would have to be would buy the builder's risk which we can do. I just as long I just want everybody to know that. And then on liability insurance, I think we should hold on that. I mean, I think they should provide some. I mean, yeah, I'm on page 14 of the insurance that's on the I guess contract.

Uh I don't see it says like for example, it says they will obtain a builder's risk policy. Developer contractor shall obtain a main but it doesn't have a number. I think we need to put some numbers in there, right? Um, and then I think we put some numbers in there about the liability and the property insurance and everything else. Absolutely. Like minimum limit, I would think a million dollar going out there. Yeah, they took that out, Erin. They deleted it on us. That was, you know, uh, Ste, Mr. Thompson, that was the last telephone, you know, the phone conversation we had and they we couldn't hear him very well, right? They took after that the version we got deleted it. So right

Councilman Haney asked an excellent question. It's like what's the actual cost of the building? So if it was destroyed in a fire, you know, one month from completion, we got to make sure it covers building. It's got to be 100% of the replacement value. Yes. And the only question, Council Member Haney, is we going to buy if they don't or if they bought, we've got to buy it. We got to go out there and get it. We just can't we can't risk it and we just need to find a cost on it. Well, I mean a real cost. Would that be in the sports med contract or would that be in the contractors? Lee Lewis's they got to provide the builder's risk.

We could should be providing the the builder's risk. Well, 14 C, excuse me, 51 C, it says developer or contractor and then they struck out or at developer's discretion. I think we got to put get a contractor. Contractor. Yeah. I don't know. Not the owner. I think we I mean if they're building it, not us. Yeah. C on fire. We didn't put any chemicals out there doing that's the way that's the way it should be. That's just something we need to keep an eye on and make sure they do it because if they don't, we've got to step in. They ain't starting until we have that that insurance contract. Absolutely. And a liability contract as well. But at least a minimum. And I'd prefer a minimum. I mean, not only a million, but also in excess of at least five.

I was thinking about an umbrella myself, but yeah, at least five to 10. In fact, probably ought to be probably ought to be 10. That's my thought. One and 10. I don't know. They may already carry I like I mean I think they're not going to provide insurance. We got a problem. We got a problem. So that should be you know there's a waiver of subro I see but I want that um I mean they agreed to wave segregation and they agreed to add us additional insured we just don't know what the amount is okay and I think that has to be in this contract I agree okay you'll make those changes any other they have insurance but we need clarification on the amount the coverage

yeah council member Canel that's what that's what threw us we didn't understand it because we looked at their contract with Park Hill and they had plenty of insurance. And so we were like, well, if you provide it to Park Hill, what's So we we didn't understand the issue. Still don't, but we'll hold on it. We got to get it. Got to get it. Y'all did bring something up that I had one more question on. So this construction management fee, there's a $850,000 construction management fee. What's the difference between that and the owner's rep that we hired? Saw that. I can't answer that. That's in my notes as well. I'm sorry.

That's in my notes as well. So, I want to differentiate what that is. I mean, I'd love it for them to give that 850 over to as part of the project over to the um owner's rep. Owner's rep fee. Thank you. Because they're not they're not our rep. They're Yes. Correct. Yeah, that's right. They're not our So, yes, sir. That needs clarification as well. Yeah. So yes, it does need work and we understand that and all of these comments are fantastic and we have our own comments as well to go through as you know that's in section 3.2 that construction management fee page 10 at least on my copy page 10 10 on mine. So they're they're assuming they're going to be the

they're assume they're assuming they're going to be the owner's rep as well basically what they're reading. Yeah. And that's not happening. Strike section 3.2. The resolution has you signing every all the documents, mayor. I didn't know. And now are your design. So is that the way we're going to leave it? I think so. Okay. Sounds good. All right. Any other thoughts or questions? I think we I think we still like legal and management to pay attention to. I mean, we all caught those, but there may be some others that I don't know. Make sure it's

there are there are others. Yeah, that's what I'm hoping you'd say. So, y'all work on that. And I mean, there's but it's it's work in progress. We're moving forward. So, when do they want all this paperwork back? Uh, that's in that's up to us. I mean, ultimately it'd be nice to get it back as soon as possible, but we're not going to rush through it by any means. We're going to just ask them when Oh, sure. when they were expecting. uh that they were probably expecting us to give it to them tomorrow, but I don't think that's going to happen. So, well, it can. Well, well, it could, but uh I mean, realistically, we're going to need a few days to look over this stuff and make sure it's right. And then we'll have one more conversation with them. And it's not like we haven't been asking for

that. That's right. And we'll have one more conversation with them. Today's Friday, I would say probably we look at it tomorrow, Monday. We probably hammer send it back over them by Tuesday. They're going to chew on it for a day and probably by the next Friday we might have something done. Great. But the idea is to just put put it in put us in the driver's seat, if you will, and allow the CM and the city attorney to work on this and then we just execute and get this thing going. Yes, sir.

The way we do our MSAs, we send an agreement. They red line what they don't really want and then we red line on theirs what they don't want and then they make an agreement with us on this. So, is that what we're going to do with this is show them that basically a red line through We haven't word. We will. I don't know what time we have it in word. We We do. Um Yes, sir. We've got it in word right now. This is what I have. The red line. We're redlining so that they know what we're we're not agreeing to. Right. We send them a a draft. We send them a draft. They send us back a red line. Looks like it's a Christmas decoration. So, uh, it's got enough red and

that's the way it always then we send it back to them and they So, it's I do it every day with them so I see it every day. You got it. That's exactly what happens. All right, gentlemen. Any other questions, thoughts? If not, I entertain a motion. So, move. We have a motion to consider and take appropriate action regarding this contract with sportsman. Is there a second? Second. I think councilman canel beat you. So a motion by councilman Haney, second by council. You get clarification. Was that to include $140 million with a 10% that

uh with a 10% contingency on top 10% contingency and 104 $140 million and a 10% contingency. That includes everything we discussed on the dice today. Okay. Very good. Everything. All right. Uh, all those in favor say I. I. Any opposed? Motion's unanimous. Um, if there's nothing else before this council, I'll take entertain a motion to adjurnn. So move. Motion by Councilman Thompson, second by Councilman Haney. All in favor say I. I.