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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 04/19/2022 - ITEMS RELATING TO THE MIDTOWN INFRASTRUCTURE PROJE Agenda Item 4 Item # 4 Page 1 AGENDA ITEM SUMMARY April 19, 2022 Engineering-Capital Projects STAFF Brad Buckman, Manager, Civil Engineering Josh Birks, Economic Health Director Aaron Guin, Legal SUBJECT Items Relating to the Midtown Infrastructure Projects T hirty Percent Design Project. EXECUTIVE SUMMARY A. Second Reading of Ordinance No. 037, 2022, Appropriating Prior Year Reserves and Authorizing Transfers of Appropriations for the Midtown Infrastructure Projects Thirty Percent Design Project and Related Art in Public Places. B. Resolution 2022-053 Authorizing the Execution of an Intergovernmental Agreement Between the City of Fort Collins, Colorado, and the Midtown Business Improvement District for the Midtown Infrastructure Projects Thirty Percent Design Project. This Ordinance, unanimously adopted on First Reading on April 5, 2022, appropriates $150,000 in Transportation Capital Expansion Fee (“TCEF”) reserves and $150,000 in General Fund reserves to complete the thirty percent design threshold for the Mi dtown Infrastructure Projects, which are based on the City’s Midtown Plan and the Midtown in Motion plan. Staff proposes an Intergovernmental Agreement (“IGA”) with the Midtown Business Improvement District (“MBID”) to complete the Midtown Infrastructure Projects Thirty Percent Design Project (the “Project”). MBID already has allocated $200,000 to spend toward the Project, but a total of $500,000 is required to meet the thirty percent design threshold. The Resolution presented to Council for approval authorizes the execution of an IGA with MBID for the Project. Funds appropriated under this Ordinance will not be expended until such an agreement is in place. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, April 5, 2022 (w/o attachments) (PDF) 2. Ordinance No. 037, 2022 (PDF) Agenda Item 8 Item # 8 Page 1 AGENDA ITEM SUMMARY April 5, 2022 Engineering-Capital Projects STAFF Brad Buckman, Manager, Civil Engineering Josh Birks, Economic Health Director Aaron Guin, Legal SUBJECT First Reading of Ordinance No. 037, 2022, Appropriating Prior Year Reserves and Authorizing Transfers of Appropriations for the Midtown Infrastructure Projects Thirty Percent Design Project and Related Art in Public Places. EXECUTIVE SUMMARY The purpose of this item is to appropriate $150,000 in Transportation Capital Expansion Fee (“TCEF”) reserves and $150,000 in General Fund reserves to complete the thirty percent design threshold for the Midtown Infrastructure Projects, which are based on the City’s Midtown Plan and the Midtown in Motion plan. Staff proposes a partnership with the Midtown Business Improvement District (“MBID”) to complete the Midtown Infrastructure Projects Thirty Percent Design Project (the “Project”). MBID already has allocated $200,000 to spend toward the Project, but a total of $500,000 is required to meet the thirty percent design threshold. An intergovernmental agreement with MBID for the Project is being prepared and will be presented to Council for approval by Resolution at or after second reading of this Ordinance and funds appropriated under this Ordinance will not be expended until such an agreement is in place. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION Council adopted the Midtown Plan and the Midtown In Motion plan in 2013 and 2014, respectively. Together, these plans provide a framework for addressing safety, mobility, and access concerns along South College Avenue from Prospect Road to Harmony Road, and the plans include a wide range of capital projects. The City, through its Engineering Department and others, has been working on key improvements identified in these plans. To date, these improvements have focused on key intersections. The proposed partnership with MBID provides an opportunity for the City to advance the goals of these plans between key intersections on South College Avenue. Goals Achieved This is a unique opportunity to leverage a public/private partnership with MBID and $200,000 of their funding for the mutual benefit of both the MBID assessed properties and the City of Fort Collins as a whole. The MBID corridor generates approximately 21% of the entire sales tax for the City, thus the success of Midtown is critical to the City’s overall financial wellbeing. Improvements to South College have been approved already by City Council in the Midtown Plan and the ATTACHMENT 1 COPY Agenda Item 8 Item # 8 Page 2 Midtown in Motion plan; however, this critical step in partnership with MBID is about bringing them to fruition. Additionally, this Project helps to fulfill the primary purpose of the MBID – to advance improvements to the physical environment along South College to establish Midtown as a destination.  Advancing this work now, alongside MBID’s infrastructure work, helps to leverage City funds committed to improving the intersection of South College and Drake, resulting in cost savings.  The timing of this Project is critical to allow both MBID and the City to leverage resources outside of the community (federal, state, etc.). It also allows the City to align the Midtown Infrastructure Projects with the City’s Budgeting for Outcomes process and prepares the City for submitting grant requests for infrastructure funding coming through the federal Infrastructure Investment and Jobs Act.  The preferred alternative for the Midtown in Motion plan provides high quality pedestrian and bicycle enhancements while maintaining vehicle access and mobility. It also received the most positive feedback from the community as the strongest triple bottom line analysis. Projects from this preferred alternative will be part of this thirty percent design project.  The preferred alternative also achieves all of Midtown in Motion project goals of creating safer travel conditions for all modes, strengthening bicycle and pedestrian connections to MAX, and creating a well- functioning, high quality street. Additionally, it helps to achieve the vision created in the Midtown Plan which includes creating an area that has high quality streetscape, is more bike friendly, and more walkable. This is done by creating a system of multi-use paths along the corridor while maintaining the three travel lanes for vehicles. Project Cost and Funding Break Down The total cost to complete the Thirty Percent Design Project between Thunderbird and Boardwalk is $500,000. MBID already is under contract with BHA Design and Wilson and Company and has contributed $200,000 toward this effort. The stretch of South College Avenue between Thunderbird and Boardwalk, in conjunction with the City’s projects already underway for the intersection at Drake Road and South College Avenue, will result in thirty percent design for the entire length of the road within the MBID. Funding Sources: • $200,000 - MBID contribution • $150,000 - Transportation Capital Expansion Fees Reserves • $150,000 - General Fund Reserves Achieving the thirty percent design threshold is critical to enable these projects to be eligible for federal capital grant funds available under recent infrastructure legislation. Estimated Overall Construction Costs The infrastructure project has begun under funding from MBID. Early estimates indicate that the suite of projects along South College Avenue from Thunderbird to Boardwalk could cost between $40 and $60 million to construct. These projects typically would take several decades to complete using the City’s standard approach to capital funding; however, in light of recent Federal infrastructure legislation, there is an opportunity to compete for funding to accelerate some of these projects. At this time, it’s not clear which projects would be top priority and/or which will comply with the funding criteria. Nevertheless, many of these projects will be consistent with the intent of the new federal legislation. Therefore, achieving thirty percent design in anticipation of this funding source becoming available makes strategic sense. The estimated projects would range from sidewalk widening to bike lanes, and from intersection improvements to adjustment to frontage roads, to increase safety for all modes of travel. The following is a breakout of the costs by the City’s budgeting outcome areas. COPY Agenda Item 8 Item # 8 Page 3 • Neighborhood Livability & Social Health $6 to $9 Million • Culture & Recreation $6 to $9 Million • Economic Health $8 to $12 Million • Environmental Health $2 to $3 Million • Safe Community $8 to $12 Million • Transportation & Mobility $8 to $12 Million The types of projects by category are listed below:  Neighborhood Livability & Social Health  Improved walkability and bikeability  Creating inviting spaces for people to shop, eat, and linger near existing neighborhoods  Beautification and Placemaking  Culture & Recreation  Creation of event spaces (shared streets) on frontage roads for community gatherings  Pocket Parks  Public Art Opportunities  Economic Health  Public investment will enhance this vital commercial corridor and encourage private investment along the corridor as demonstrated on North College Avenue and Lincoln Ave  Creating more opportunities for people to linger and spend more in Midtown  Support local businesses and encourage business to continue their investment in the area and/or expand  Environmental Health  Improved multi-modal access would help reduce automobile trips  Landscape improvements could reduce water consumption  Safe Community  Improved frontage road intersections  Improved pedestrian and bike facilities  Transportation & Mobility  Improved frontage road intersections  Improved pedestrian and bike facilities  Improved traffic signals and pedestrian street crossing  ADA improvements  High Performing Government  Taking advantage of public/private partnership with MBID  Leveraging funds to create opportunities for infrastructure grants  Supporting business community  Taking next step toward implementation of Midtown Plan and Midtown In Motion Plans Per City Code Section 24-304, all appropriations for construction projects estimated to cost over $250,000 must include an amount equal to one percent of the estimated cost for works of art. As the total appropriation requested for capital projects in this agenda item is $300,000, the Art in Public Places funds to be appropriated by this measure is $3,000. COPY Agenda Item 8 Item # 8 Page 4 CITY FINANCIAL IMPACTS 0BFunds to be Appropriated with this Action and Transferred to Capital Projects Fund Transportation Capital Expansion Fee Funds Reserves $150,000 General Fund Reserves $150,000 Total to be Appropriated with this Action $300,000 Transfer to Art in Public Places $3,000 BOARD / COMMISSION RECOMMENDATION Staff presented this proposal to the Council Finance Committee on March 3, 2022, which was met with approval. (Attachment 1) PUBLIC OUTREACH Staff conducted significant outreach in the past during development of the Midtown Plan and the Midtown in Motion plan. Staff will continue to coordinate and meet with residents, property owners and other stakeholders through the remainder of design as well as prior to and during construction. ATTACHMENTS 1. Council Finance Committee Minutes (excerpt) (PDF) 2. Presentation to Council Finance Committee (PDF) COPY -1- ORDINANCE NO. 037, 2022 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING PRIOR YEAR RESERVES AND AUTHORIZING TRANSFERS OF APPROPRIATIONS FOR THE MIDTOWN INFRASTRUCTURE PROJECTS THIRTY PERCENT DESIGN PROJECT AND RELATED ART IN PUBLIC PLACES WHEREAS, the City Council adopted the Midtown Plan and the Midtown In Motion plan in 2013 and 2014, respectively, which provide a framework for addressing safety, mobility, and access concerns along South College Avenue from Prospect Road to Harmony Road; and WHEREAS, the Midtown Plan and the Midtown In Motion plan include a wide range of capital projects for which the City, through its Engineering Department and others, have been working on key improvements identified in these plans, namely addressing key intersections; and WHEREAS, the City plans to partner with the Midtown Business Improvement District (“MBID”) to complete the “thirty percent design project” (the “Project”), as thirty percent design is the key threshold required to apply for Federal funding grants, so the City can compete for federal funding recently authorized by Congress’ adoption of the federal Infrastructure Investment and Jobs Act (the “Infrastructure Act”); and WHEREAS, MBID already has allocated and contributed $200,000 toward the thirty percent design effort, but a total of $500,000 is required to complete the thirty percent design plan set; and WHEREAS, the proposed partnership with MBID provides a unique opportunity for the City to advance the goals of these plans between key intersections on South College Avenue by leveraging a public/private partnership with MBID and securing $200,000 of its funding for the mutual benefit of both the MBID ratepayers and the City of Fort Collins as a whole; and WHEREAS, the MBID corridor generates approximately twenty-one percent of the entire sales tax for the City, making the success of Midtown critical to the City’s overall financial wellbeing; and WHEREAS, this partnership would help to fulfill the primary purpose of MBID – to advance improvements to the physical environment along South College to establish Midtown as a destination – while also leveraging City funds committed to improving the intersection at Drake and South College Avenue at a cost savings; and WHEREAS, the timing of this effort is critical to allow both MBID and the City to leverage resources outside of this community (federal, state, etc.), while allowing the City to align the Midtown Infrastructure Projects with the City’s Budgeting for Outcomes process and preparing the City to submit grant requests for infrastructure funding coming through the Infrastructure Act; and -2- WHEREAS, this appropriation benefits the public health, safety, and welfare of the residents of Fort Collins and serves the public purpose of improving transportation infrastructure within the City; and WHEREAS, Article V, Section 9 of the City Charter permits the City Council, upon the recommendation of the City Manager, to make supplemental appropriations by ordinance at any time during the fiscal year such funds for expenditure as may be available from reserves accumulated in prior years, notwithstanding that such reserves were not previously appropriated; and WHEREAS, the Interim City Manager has recommended the appropriations described herein and determined that these appropriations are available and previously unappropriated from the General Fund and the Transportation Capital Expansion Fee Fund, as applicable, and will not cause the total amount appropriated in the General Fund or the Transportation Capital Expansion Fee Fund, as applicable, to exceed the current estimate of actual and anticipated revenues and all other funds to be received in these funds during this fiscal year; and WHEREAS, Article V, Section 10 of the City Charter authorizes the City Council, upon recommendation by the City Manager, to transfer by ordinance any unexpended and unencumbered appropriated amount or portion thereof from one fund or capital project to another fund or capital project, provided that the purpose for which the transferred funds are to be expended remains unchanged, the purpose for which the funds were initially appropriated no longer exists, or the proposed transfer is from a fund or capital project in which the amount appropriated exceeds the amount needed to accomplish the purpose specified in the appropriation ordinance; and WHEREAS, this Project involves a construction project estimated to cost more than $250,000 and, as such, City Code Section 23-304 requires one percent of these appropriations to be transferred to the Cultural Services and Facilities Fund for a contribution to the Art in Public Places program (“APP Program”); and WHEREAS, City Code Section 23-302 defines “construction project” to include, among other costs, all design costs associated with the construction project; and WHEREAS, the Interim City Manager has recommended the transfer of $3,000 from the Capital Projects Fund to the Cultural Services & Facilities Fund and determined that the purpose for which the transferred funds are to be expended remains unchanged; and WHEREAS, Article V, Section 11 of the City Charter authorizes the City Council to designate in the ordinance when appropriating funds for a capital project that such appropriation shall not lapse at the end of the fiscal year in which the appropriation is made but continue until the completion of the capital project; and WHEREAS, the City Council wishes to designate the appropriation herein for the Midtown Infrastructure Projects Thirty Percent Design Project as an appropriation that shall not lapse until the completion of the Project; and -3- NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That there is hereby appropriated from prior year reserves in the General Fund the sum of ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000) to be expended in the General Fund for transfer to the Capital Projects Fund for the Midtown Infrastructure Projects Thirty Percent Design Project and appropriated therein. Section 3. That there is hereby appropriated from prior year reserves in the Transportation Capital Expansion Fee Fund the sum of ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000) to be expended in the Transportation Capital Expansion Fee Fund for transfer to the Capital Projects Fund for the Midtown Infrastructure Projects Thirty Percent Design Project and appropriated therein. Section 4. That the unexpended and unencumbered appropriated amount of TWO THOUSAND THREE HUNDRED FORTY DOLLARS ($2,340) in the Capital Projects Fund is hereby authorized for transfer to the Cultural Services and Facilities Fund and appropriated and expended therein to fund art projects under the APP Program. Section 5. That the unexpended and unencumbered appropriated amount of SIX HUNDRED DOLLARS ($600) in the Capital Projects Fund is authorized for transfer to the Cultural Services and Facilities Fund and appropriated and expended therein for the operation costs of the APP Program. Section 6. That the unexpended and unencumbered appropriated amount of SIXTY DOLLARS ($60) in the Capital Project Fund is authorized for transfer to the Cultural Services and Facilities Fund and appropriated and expended therein for the maintenance costs of the APP Program. Section 7. That the appropriation herein for the Midtown Infrastructure Projects Thirty Percent Design Project is hereby designated, as authorized in Article V, Section 11 of the City Charter, as an appropriation that shall not lapse at the end of this fiscal year but continue until the completion of the Project. -4- Introduced, considered favorably on first reading, and ordered published this 5th day of April, A.D. 2022, and to be presented for final passage on the 19th day of April, A.D. 2022. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 19th day of April, A.D. 2022 __________________________________ Mayor ATTEST: _______________________________ City Clerk -1- RESOLUTION 2022-053 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF FORT COLLINS, COLORADO, AND THE MIDTOWN BUSINESS IMPROVEMENT DISTRICT FOR THE MIDTOWN INFRASTRUCTURE PROJECTS THIRTY PERCENT DESIGN PROJECT WHEREAS, the City Council adopted the Midtown Plan and the Midtown In Motion plan in 2013 and 2014, respectively, which provide a framework for addressing safety, mobility, and access concerns along South College Avenue from Prospect Road to Harmony Road; and WHEREAS, the Midtown Plan and the Midtown In Motion plan include a wide range of capital projects for which the City, through its Engineering Department and others, have been working on key improvements identified in these plans, namely addressing key intersections; and WHEREAS, the City intends to engage in a cooperative endeavor with the Midtown Business Improvement District (“MBID”) to complete the “thirty percent design project” (the “Project”), as thirty percent design is the key threshold required to apply for Federal funding grants, so the City can compete for federal funding recently authorized by Congress’ adoption of the federal Infrastructure Investment and Jobs Act (the “Infrastructure Act”); and WHEREAS, a total of $500,000 is required to complete the thirty percent design Project; and WHEREAS, MBID has contributed $200,000 toward the Project, requiring additional funds from the City in the amount of $300,000; and WHEREAS, the proposed cooperative endeavor with MBID provides a unique opportunity for the City to advance the goals of these plans between key intersections on South College Avenue by cooperating with MBID in funding and completion of the Project to complete the thirty percent design work for improvements benefitting both the properties within the MBID Service Area and the City of Fort Collins as a whole; and WHEREAS, the MBID Service Area generates approximately twenty-one percent of the entire sales tax for the City, making the success of Midtown critical to the City’s overall financial wellbeing; and WHEREAS, this Project would help to fulfill a primary purpose of MBID – to advance improvements to the physical environment along South College to establish Midtown as a destination – while also leveraging City funds committed to improving the intersection at Drake and South College Avenue at a cost savings; and WHEREAS, the timing of this effort is critical to allow both MBID and the City to leverage resources outside of this community (federal, state, and other funding), while allowing the City to align the Midtown Infrastructure Projects with the City’s Budgeting for Outcomes -2- process and preparing the City to submit grant requests for infrastructure funding coming through the Infrastructure Act; and WHEREAS, MBID has proposed the Intergovernmental Agreement (“IGA”), attached as Exhibit “A,” between the City and MBID that outlines the terms and conditions of the use of the total funds for completion of the Project; and WHEREAS, this Resolution comes before City Council to authorize execution of the IGA between the City of Fort Collins and MBID substantially in the form attached hereto as Exhibit “A” and incorporated herein by this reference; and WHEREAS, on April 5, 2022, the City Council approved on first reading Ordinance No. 037, 2022, appropriating prior year reserves and authorizing transfers of appropriations for this Project, as well as for Art in Public Places, pursuant to the matching funds requirements of the proposed IGA; and WHEREAS, with second reading and final approval of Ordinance No. 037, 2022, all of the required local matching funds have been duly appropriated for the Midtown Infrastructure Projects Thirty Percent Design Project as follows: (1) $150,000 transfer from the General Fund to the Capital Projects Fund and (2) $150,000 appropriated from the Transportation Capital Expansion Fee Fund to the Capital Projects Fund; and WHEREAS, Colorado Revised Statutes Section 29-1-203 provides that governments may cooperate or contract with one another to provide certain services or facilities when such cooperation or contracts are authorized by each party thereto with the approval of its legislative body or other authority having the power to so approve; and WHEREAS, Article II, Section 16 of the City Charter empowers the City Council, by ordinance or resolution, to enter into contracts with governmental bodies to furnish governmental services and make charges for such services, or enter into cooperative or joint activities with other governmental bodies; and WHEREAS, City Code Section 1-22 requires the City Council to approve intergovernmental agreements that require the City to make a direct, monetary payment over $50,000 and the proposed IGA requires the City to provide matching funds in the amount of $300,000; and WHEREAS, the City Council has determined that the IGA with MBID is in the best interests of the City and that the Mayor be authorized to execute the IGA between the City and MBID in support thereof. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. -3- Section 2. That City Council authorizes the Mayor to execute, on behalf of the City, the Intergovernmental Agreement with the Midtown Business Improvement District, in substantially the form attached hereto as Exhibit “A,” with such additional or modified terms and conditions as the Interim City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City or effectuate the purposes of this Resolution. Section 3. That the City Council hereby authorizes the Interim City Manager or City Manager to approve and execute future amendments to the IGA that the Interim City Manager or City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to facilitate completion of the Project, so long as such amendments do not increase the cost of the Project, substantially modify the purposes of the IGA, increase the allocation or amount of funding for the Project funded by the City, or otherwise increase the obligations and responsibilities of the City as set forth in the IGA. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this the 19th day of April, A.D. 2022. ____________________________________ Mayor ATTEST: _____________________________ City Clerk INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND THE MIDTOWN BUSINESS IMPROVEMENT DISTRICT REGARDING SOUTH COLLEGE AVENUE IMPROVEMENTS (Midtown Improvements Projects Thirty Percent Design Project) THIS INTERGOVERNMENTAL AGREEMENT (the “Agreement”) is made and entered into this day of 2022 (the “Effective Date”), by and between the CITY OF FORT COLLINS, a Colorado home rule municipal corporation (the “City”), and the MIDTOWN BUSINESS IMPROVEMENT DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (the “BID”) (the City and the BID may be collectively referred to herein as the “Parties” or individually as a “Party”). RECITALS WHEREAS, the Parties, as Colorado governmental entities, are constitutionally and statutorily empowered pursuant to Colo. Const., Article XIV, §18, and Section 29-1-201, et seq., C.R.S., to cooperate or contract via intergovernmental agreement with one another to provide functions, services, or facilities authorized to each cooperating government; and WHEREAS, the BID is a business improvement district located within the City and established by City ordinance pursuant to the provisions of Section 31-25-1201, et seq., C.R.S.; and WHEREAS, the Parties desire to cooperatively participate in the preparation of a 30% design of certain improvements to South College Avenue within the City (as used herein, the “Project”) as further set forth herein; and WHEREAS, the City is willing to contribute funds toward the Project in order to facilitate timely completion of the Project as further set forth herein; and WHEREAS, the BID is willing to undertake the Project as further set forth herein; and WHEREAS, the Parties and their respective constituents will jointly benefit from the completion of the Project; and WHEREAS, the Parties desire to enter into this Agreement in order to set forth their mutual understanding and agreement regarding the cooperative funding and completion of the Project. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby covenant and agree as follows: EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 2 of 11 DN 6592056.1 AGREEMENT 1. RECITALS. The foregoing recitals are hereby incorporated as though fully set forth herein. 2. PROJECT IMPLEMENTATION. A. The Project. The “Project,” as defined and used herein, shall be the initial scoping, preliminary design and other initial planning components up to what is known as a 30% design for certain improvements to South College Avenue between E. Boardwalk Drive and E. Thunderbird Drive in the City, including but not limited to the following proposed improvements and components: i. conversion of frontage roads along S. College Avenue to one-way, where practical; ii. exploration of opportunities to slow traffic and improve the environment for pedestrians and bicycles, including but not limited to identification of lane narrowing opportunities or elimination of lanes/turn lanes; iii. widened sidewalks/paths on both sides of the street for pedestrians and bicycles; iv. upgraded, expanded and landscaped medians; v. exploration of future multi-modal transportation opportunities on S. College Avenue; vi. intersection improvements at Thunderbird, Harvard, Swallow, Foothills Parkway, Monroe, Bockman and Boardwalk; vii. improvements to the trail underpass connecting either side of S. College Avenue; viii. crosswalk improvements throughout the corridor to improve pedestrian safety; ix. coordination with the City regarding upgrades to utilities; and x. placemaking improvements, including branded Midtown signage and wayfinding, creation of urban parks and plazas, adding public art and plantings, enhanced lighting, streetscaping, and street furniture. EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 3 of 11 DN 6592056.1 B. Project Implementation and Funding. The Parties understand and agree that the BID, in coordination with the City and any and all other applicable entities, as necessary, shall be primarily responsible for facilitating, overseeing, and completing the Project. The Parties’ financial contributions toward the costs of the Project will be funded as provided in Section 3 of this Agreement. C. Completion of Improvements. The Project, as defined herein, does not include the construction or final completion of improvements to South College Avenue, and no portion of the City Contribution (defined herein) shall be used for construction unless otherwise agreed by the Parties in writing. The Parties have discussed, and it is anticipated, that upon completion of the Project, the Parties may, by amendment to this Agreement or by a separate agreement, establish mutually agreeable terms upon which the Parties will later cooperatively provide for the final planning, construction and completion of proposed improvements to South College Avenue consistent with the Project. D. Anticipated Completion of Project. The BID will use reasonable efforts to complete the Project by December 31, 2022. No failure by the BID to complete the Project by December 31, 2022, shall constitute a breach of this Agreement, however, so long as the BID pursues completion with reasonable efforts and due diligence. E. Communication. Both the City and the BID shall each appoint a project manager to be each Party’s primary point of contact for the Project (the “Project Managers”). The Project Managers shall routinely communicate, cooperate and coordinate with one another as reasonably necessary to keep the Parties apprised of the Project progress. The BID shall keep accurate records of the progress of the Project and shall provide status reports to the City, or its designee, on a regular basis (at a minimum, quarterly), including progress updates, notice of any material problems related to the Project, and a record of expenses and payments made to any contractor(s). Said status reports shall include updates to the Project Costs (defined herein) expended and the remaining costs projected to be expended through Project completion and shall note any variances from the estimated Project Costs as well as any adjustments to the time schedule for Project completion. 3. CONTRIBUTIONS TO PROJECT COSTS. A. Contributions. The City and the BID agree to contribute funds toward the total actual costs of the Project as provided in this Section 3, including, but not limited to, costs associated with scoping and design, utility survey and location, permitting, review fees, and any and all other directly related costs and expenses of the Project (the “Project Costs”). The total Project Costs are currently estimated to be approximately Five Hundred Thousand Dollars ($500,000) (the “Estimated Project Costs”). B. Allocated Shares of Estimated Project Costs. The Parties understand and agree that the City and the BID will be responsible for funding individually allocated portions of the Project as detailed below: EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 4 of 11 DN 6592056.1 Entity Share of Estimated Project Cost City of Fort Collins $300,000 Midtown Business Improvement District $200,000 TOTAL $500,000 C. City Contribution. The City hereby agrees to contribute to the BID the amount of Three Hundred Thousand Dollars ($300,000) for the express limited purpose of funding the Project Costs (the “City Contribution”). The City shall transfer the City Contribution to the BID within 14 days of the receipt of a written request from the BID to transfer the City Contribution to the BID. The transfer may be completed by any means mutually agreeable to the Parties. D. BID Contribution. The BID has appropriated and agrees to contribute toward the Project Costs funds in the amount of Two Hundred Thousand Dollars ($200,000) (the “BID Contribution”). E. Use of City Contribution Funds. The BID expressly agrees the City Contribution funds shall only be used for the express limited purpose of funding actual Project Costs. The BID shall maintain or cause to be maintained full and complete records of actual Project Costs incurred and funds committed and expended by the BID for actual Project Costs in accordance with generally accepted accounting principles. The City shall have the right to audit the BID’s financial records related to the Project during the Project and up to three (3) years after completion of the Project. The Parties agree the cost of BID staff, legal and consultant time directly related to and necessary for the implementation of the Project may be considered and included in Project Costs, and such costs will be specifically documented in the BID’s Project records; provided, however, general administrative and overhead costs of the BID not directly related to the Project shall not be considered and included in Project Costs. F. Project Cost Overruns and Underruns. (i) If the BID becomes aware that Project Costs may exceed the Project Cost Estimate, the BID will provide the City with written notice of the same as soon as is reasonably possible. (ii) In the event the Project Costs do in fact exceed the Project Cost Estimate, the City and the BID shall in good faith endeavor to appropriate additional funds in excess of their respective contributions in order to fund the total amount of the Project Costs above the Project Cost Estimate; provided, however, the City and the BID expressly understand and agree that nothing in this Agreement in any way obligates either the City or the BID to budget, appropriate, transfer, pay or otherwise contribute to the other or the Project an amount in excess of the City Contribution or the BID Contribution, respectively. EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 5 of 11 DN 6592056.1 (iii) In the event the actual Project Costs are in fact less than the Project Cost Estimate upon final completion of the Project, the BID Contribution shall be reduced by an amount equal to the difference between the total Project Cost Estimate and the actual Project Costs, it being the understanding and intent of the Parties that the whole of the City Contribution may be spent on actual Project Costs prior to the expenditure of any portion of the BID Contribution such that any unneeded BID Contribution funds may be utilized by the BID to fund the next phases of the contemplated improvements to South College Avenue. In the event the actual Project Costs are in fact less than the City Contribution upon final completion of the Project, all excess City Contribution funds that are not needed to complete the Project shall be promptly returned to the City. 4. ANNUAL APPROPRIATIONS ONLY. It is expressly understood and agreed that the Parties are political subdivisions of the State of Colorado, and any and all financial obligations described hereunder, including but not limited to the City Contribution and the BID Contribution, are subject to annual appropriations of the respective Parties and do not establish debts or other multi-fiscal year obligations thereof. 5. COMPLETION OF IMPROVEMENTS; OWNERSHIP AND MAINTENANCE. As stated herein, the Project does not include the completion or construction of improvements to South College Avenue. All improvements, facilities and appurtenances associated with or related to the Project, if any, will be constructed, owned, operated and maintained as mutually agreed by the Parties in a separate agreement. Nothing herein shall be construed as granting to any entity other than the City and the BID any rights, property or otherwise, in or to any improvements to South College Avenue or the Project, or any improvements, facilities and appurtenances associated with the same. The City shall be identified as a third party beneficiary to any agreements between the BID and contractors or subcontractors to prepare any designs, plans, drawings or other documents for the Project, and any and all designs, plans, drawings or other documents prepared by or for the BID to complete the Project pursuant to this Agreement shall be considered the joint property of the Parties and shall be made available to the City at any time upon request. 6. CHARACTER OF CITY ROLE. Except for the City Contribution as set forth herein, the Parties expressly understand and agree that the City shall not have any duty, obligation, responsibility or liability related to the Project. The City shall not be liable for any claims, demands, losses, damages, expenses, injuries, or liabilities arising from the death or injury of any person or persons, including any claims of the BID, or from any damage to or destruction of property, caused by or in connection with the BID’s activities performed pursuant to this Agreement to complete the Project, or any negligent act or omission of the BID, its officers, employees, or agents, or the Project contractor(s) related thereto. 7. INSURANCE. The BID shall require that any and all contractor(s) performing work for the Project obtain and maintain insurance in customary industry amounts satisfactory to the BID and the City, and both the BID and the City shall be added as additional insureds on such insurance policies. EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 6 of 11 DN 6592056.1 8. BREACH AND ENFORCEMENT. It is specifically understood that, by executing this Agreement, each Party commits itself to perform pursuant to the terms and conditions contained herein and that the failure of any Party to fulfill any obligation set forth herein shall constitute a breach of this Agreement. The Parties agree that this Agreement may be enforced in law or in equity for specific performance, injunctive, or other appropriate relief, as may be available according to the laws of the State of Colorado. 9. TERM OF AGREEMENT AND TERMINATION. This Agreement shall be effective as of the Effective Date identified above and shall terminate upon the earlier of: (1) payment of the City Contribution to the BID, completion of the Project, final accounting of the Project Costs being provided by the BID to the City, and payment or permitted withholding of any unneeded City Contribution Funds as provided herein; or (2) termination in the event of default pursuant to the below provisions. Each Party shall have the right to terminate this Agreement after sixty (60) days written notice to the other Party in the event of a material default which is not cured; provided, however, termination shall not be effective if reasonable actions to cure the breach have been taken by the defaulting Party before the effective date of the termination, and such actions are pursued diligently to a successful completion within sixty (60) days from inception of the actions. If such actions are not successful within said period of time, a non-defaulting party shall have the right to terminate this Agreement upon written notice to the other party. In the event of termination for any reason, the BID shall settle all accounts related to the Project and, subject to Section 3(f) hereof, remit to the City any portion of the City Contribution that has not been applied to Project Costs or that is recovered from or refunded by any Project contractor, as applicable. 10. INDEMNIFICATION. To the extent permitted by law, and without waiving any privileges and rights granted to the BID under the Colorado Governmental Immunity Act and the Colorado Constitution, the BID shall indemnify, defend, save, and hold harmless the City, its officers, employees, and agents, against any and all claims, damages, liability, and court awards, including all costs, expenses, and attorney fees incurred as a result of any act or omission of the BID or its employees, agents, subcontractors, or assignees related to this Agreement and the Project. 11. MISCELLANEOUS. A. Assignment. The Parties hereto may not assign this Agreement or parts hereof or its rights hereunder without the express written consent of all of the Parties. Any attempt to assign this Agreement in the absence of such written consent shall be null and void ab initio. B. Time is of the Essence. The Parties acknowledge that time is of the essence in the performance of this Agreement. EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 7 of 11 DN 6592056.1 C. No Partnership or Agency. Notwithstanding any language in this Agreement or any representation or warranty to the contrary, the Parties shall not be deemed or constitute partners, joint venture participants, or agents of the other. Any actions taken by the Parties pursuant to this Agreement shall be deemed actions as an independent contractor of the others. D. No Third-Party Beneficiaries. It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement and all rights of action relating to such enforcement shall be strictly reserved to the Parties. It is the express intention of the Parties that any person or entity other than the Parties shall be deemed to be only an incidental beneficiary under this Agreement. E. Governmental Immunity. Nothing in this Agreement or in any actions taken by the Parties or their respective elected officials, directors, officers, agents and employees pursuant to this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions of the Colorado Governmental Immunity Act, Sections 24-10-101, et seq., C.R.S. F. No Personal Liability. No elected official, director, officer, agent or employee of the Parties shall be charged personally or held contractually liable under any term or provision of this Agreement, or because of any breach thereof or because of its or their execution, approval or attempted execution of this Agreement. G. Notices. Any notices or other communications required or permitted by this Agreement or by law to be served on, given to, or delivered to any Party hereto by another Party shall be in writing and shall be deemed duly served, given, or delivered when personally delivered to the Party to whom it is addressed or, in lieu of such personal services, when received in the United States mail, first-class postage prepaid addressed to: If to the BID: Midtown Business Improvement District c/o Spencer Fane LLP Attn: Tom George 1700 Lincoln Street, Suite 2000 Denver, CO 80203 If to the City: City of Fort Collins Engineering Department Attn: Brad Buckman, PE, CFM 281 North College Avenue Fort Collins, CO 80524 EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 8 of 11 DN 6592056.1 Any Party may change its address for the purpose of this section by giving written notice of such change to the other Party in the manner provided in this section. H. Headings. The headings and captions in this Agreement are intended solely for the convenience of reference and shall be given no effect in the construction or interpretation of this Agreement. I. Controlling Law and Venue. This Agreement shall be construed in accordance with the laws of the State of Colorado. In the event of any dispute between the Parties, the exclusive venue for dispute resolution shall be the District Court for and in Larimer County, Colorado. J. No Waiver. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other of the provisions of this Agreement, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided herein, nor shall the waiver of any default hereunder be deemed a waiver of any subsequent default hereunder. K. Binding Contract. This Agreement shall inure to and be binding on the successors and permitted assigns of the Parties. L. Entire Contract. This Agreement constitutes the entire agreement between the Parties with regard to the Project and sets forth the rights, duties, and obligations of each to the other as of this date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement with regard to the Project are of no force and effect. M. Contract Modification. This Agreement may not be amended, altered, or otherwise changed except by a written agreement between the Parties. N. Severability. The invalidity or unenforceability of any portion or previous version of this Agreement shall not affect the validity or enforceability of any other portion or provision. Any invalid or unenforceable portion or provision shall be deemed severed from this Agreement and, in such event, the Parties shall negotiate in good faith to replace such invalidated provision in order to carry out the intent of the Parties in entering into this Agreement. O. Counterpart Execution. This Agreement may be executed in multiple counterparts; all counterparts so executed shall constitute one agreement binding upon all parties, notwithstanding that all parties are not signatories to the original or the same counterpart. Documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written. By the signature of its representative below, each Party affirms that it has taken all necessary action to authorize said representative to execute this Agreement. EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 9 of 11 DN 6592056.1 [signature pages follow] EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 10 of 11 DN 6592056.1 CITY OF FORT COLLINS By: Dated: Attested: By: Approved as to Form: By: EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 11 of 11 DN 6592056.1 MIDTOWN BUSINESS IMPROVEMENT DISTRICT By: Name: Title: Date: ATTEST: By: Name: Title: EXHIBIT A