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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 02/01/2011 - ITEMS RELATING TO THE DOWNTOWN ALLEY PROJECT rDTATE:: :February 1, 2011 ' ' •aig Foreman • COLLINSCOUNCIL Items Relating to the Downtown Alley Project. A. Second Reading of Ordinance No. 005, 2011, Appropriating Unanticipated Revenue in the Capital Projects Fund, Downtown Alley Enhancement Project. B. Resolution 2011-006 Authorizing an Intergovernmental Agreementwith the Downtown Development Authority Regarding the Renovation and Redevelopment of Certain Downtown Alleys. EXECUTIVE SUMMARY Ordinance No. 005, 2011, adopted unanimously on First Reading on January 18, 2011, appropriates the Downtown Alley Enhancement Project funding for construction of the West Laurel and West Myrtle Alleys Project. The City will be administering the construction contract for the Downtown Development Authority. Resolution 2011-006 authorizes an intergovernmental agreement that City staff has negotiated with the DDAto provide for cooperative management of the Downtown Alleys Enhancements Project for the renovation of the West Laurel and West Myrtle Alleys. The Intergovernmental Agreement also provides for ongoing DDA maintenance of the alley improvements, to be carried out on a contractual basis by the City at DDA expense for the initial two years after completion, and thereafter by agreement. This is essentially the same IGA the City and DDA successfully used for the completed Firehouse and Montezuma Fuller alleys. After award of the construction contract, the project will proceed to completion during the summer of 2011. Arrangements for work in additional alleys in the future will be addressed in subsequent arrangements between the City and the DDA. BACKGROUND / DISCUSSION City staff has worked extensively with DDA staff to develop and negotiate the terms of the proposed Intergovernmental Agreement,which addresses both the construction of the alley enhancements and ongoing maintenance and repair. Detailed provisions include the processing of change orders, payments and project inspection under the construction contract for the project, along with specific arrangements for payment to the City for the work of the City project representative. In addition, the Agreement describes the manner in which the City will contractually provide maintenance of the alleys for the DDA. The Agreement requires that all easements needed for the project be obtained by the DDA prior to the issuance of a notice to proceed on the project. The easements that have been acquired for the project that are for the benefit of the City will be considered for acceptance under Routine Deeds and Easements at a future Council meeting. STAFF RECOMMENDATION Staff recommends adoption of the Resolution and the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary-January 18, 2011 2. Artist's rendering of Alley. ATTACHMENT 1 DATE: January 18, 2011 All I I=1 kyl P111 I T • ' STAFF: Craig Foreman • ' • • First Reading of Ordinance No. 005, 2011, Appropriating Unanticipated Revenue in the Capital Projects Fund, Downtown Alley Enhancement Project. EXECUTIVE SUMMARY �-� �-� r—� TN /7 tlm The Downtown Alley Enhancement Protect funding for construction of th�VUest Laurel to West Myrtle Alley Project needs to be appropriated to the City,,T�City!willbe./ainistering the construction contract for the Downtown Development Authority(DDA). The DDA-funds forthe-Project-will remain inithe DDA's account,and will be transferred and spent to pay contractor invoices only as they become due and payable. BACKGROUND / DISCUSSION The City adopted the Downtown Strategic Plan on February 17, 2004. The Plan supports development of an integrated network consisting of alleyways. On December 11, 2008,the Downtown Development Authority approved the 2011 redevelopment of the West Laurel to West Myrtle alleys. /ice �� n /7 The Alley Project includes utility upgrades, new_decorative pay very and planters, trash receptacle enclosures, and signage and lighting. The Project will be constr'ucte. _ d this summer-:- lv FINANCIAL / ECONOMIC IMPACTS The funding of$1.2 million for this Project is 100% from the Downtown Development Authority's operating budget, using its bond proceeds. Because the City will be managing the project with oversight from the DDA, a City capital project will be created. Consequently, funding for the Project must be appropriated. This is consistent with prior City projects that have received DDA funding(the Civic Center Parking Garage, Downtown Sidewalks'Improvements,and the 2010 alley project). This Ordinance appropriates an amount-hot to exc ee d$•1.2 million that will be transferred from the DDA Operating Fund to the City's Capital Project Fund. Consistent with the majorittof capital projects in the City's Capital Projects' Fund, the actual dollars from the DDA Operating Fund will=be transferred monthly to the City account on a reimbursable basis after the expenditure has beernwith'City funds. LJ Upon awarding the bid to successful contractor, the City will freeze any portion of the$1.2 million appropriation that exceeds the winning bid amount to the contractor. This will free funding for the DDA to utilize for future projects. The DDA funds for the project will remain in the DDA's account, and will be transferred and spent to pay contractor invoices only as they become due and payable. ENVIRONMENTAL IMPACTS The design of the improvements supports the City's sustai thenability.goals with use of durable materials, low energy lights, and recycling of waste material_s. �, 1 J l January 18, 2011 -2- ITEM 9 STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BOARD / COMMISSION RECOMMENDATION The Downtown Alley Enhancement Project for the West Laurel and West Myrtle Alley Project was approved by the Downtown Development Authority on December 11, 2008. PUBLIC OUTREACH u The Alley Project was a part of the Downtown Strategic Plan in 2004 that included outreach to the public and downtown businesses. ATTACHMENTS 1. Location map Qopy COPY COPY ATTACHMENT �1 ! f c.:•7 u � � q r, 51Vet , al if IV .45 �J • �I . ���`� „�,. ... � � � ��� `�T--mow / -...'�` ._ Y: : -j��/," (: . .� � ' /5� : `/► �; r ORDINANCE NO. 005, 2011 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING UNANTICIPATED REVENUE IN THE CAPITAL PROJECTS FUND, DOWNTOWN ALLEY ENHANCEMENT PROJECT WHEREAS, the Downtown Strategic Plan (the "Plan"), which was adopted by the City Council by Resolution 2004-028 on February 17,2004,calls for an enhanced pedestrian environment in the downtown area of the City; and WHEREAS, the West Laurel to West Myrtle alleys are key areas of downtown in need of substantial renovation and redevelopment to provide aesthetic improvements, facilitate pedestrian movement and support economic growth in the downtown area; and WHEREAS, on December 11, 2008, the Downtown Development Authority ("DDA") approved the 2.011 redevelopment of the West Laurel to West Myrtle alleys (together referred to as the "Alleys"), and has proposed to provide funds for those renovations; and WHEREAS, the Downtown Alley Enhancement Project, which will be constructed in City rights-of-way during the summer of 2011, includes utility upgrades, new decorative pavers and planters, trash receptacle enclosures, signs and lighting; and WHEREAS, the project will be carried out pursuant to a City construction contract, which the DDA has agreed to fund in whole; and WHEREAS,in order for the DDA funds to be,spent in support of the City contract,the funds are being appropriated in the Downtown Alley Enhancement Capital Project in an amount not to exceed $1,200,000; and WHEREAS, the DDA funds for the Project will remain in the DDA's account, and will be transferred and spent to pay contractor invoices only as the become due and payable; and WHEREAS, Article V, Section 9, of the City Charter permits the City Council to make supplemental appropriations by ordinance at any time during the fiscal year,provided that the total amount of such supplemental appropriations,in combination with all previous appropriations for that fiscal year, does not exceed the current estimate of actual and anticipated revenues to be received during the fiscal year; and WHEREAS, City staff has determined that the appropriation of the anticipated revenue as described herein will not cause the total amount appropriated in the Capital Projects Fund to exceed the current estimate of actual and anticipated revenues to be received in that fund during any fiscal year. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That there is hereby appropriated for expenditure from unanticipated revenue in the Capital Project Fund the sum of ONE MILLION TWO HUNDRED THOUSAND DOLLARS ($1,200,000) from the DDA to be used for the Downtown Alley Enhancement Capital Project. Section 2. That upon awarding the bid to the successful contractor, the City agrees to freeze any portion of the $1,200,000 appropriation that exceeds the winning bid amount'to the contractor in order to free up the excess funds for the DDA to utilize for future projects. Section 3. The funds appropriated hereunder will be transferred to the City from the DDA as payments to the successful contractor become due and payable. Introduced, considered favorably'on first reading, and ordered published this 18th day of January, A.D. 2011, and to be presented for final passage on th st ay of February, A.D. 11. Mayo ATTEST: 4CLLh City Clerk Passed and adopted on final reading on the 1 st day of February, A.D. 2011. Mayor ATTEST: City Clerk RESOLUTION 2011-006 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT WITH THE DOWNTOWN DEVELOPMENT AUTHORITY REGARDING THE RENOVATION AND REDEVELOPMENT OF CERTAIN DOWNTOWN ALLEYS WHEREAS, on February 17, 2004, the City adopted the Downtown Strategic Plan which supports development of an integrated pedestrian network consisting of alleyways; and WHEREAS, on January 10, 2008, the Board of Directors of the DDA (the"DDA Board"), commissioned Russell+Mills Studios ("R+M") to prepare an alley master plan for the redevelopment of designated alleys within the boundaries of the DDA; and WHEREAS, on December 11, 2010,the DDA Board approved the redevelopment in 2011 of the West Laurel Alley and the West Myrtle Alley(the "Alleys"); and WHEREAS,the Alleys are in need of substantial renovation and redevelopment and,as key areas of downtown Fort Collins, their renovation and redevelopment in accordance with the approved construction plans (the"Downtown Alley Enhancements Project")will provide aesthetic and economic benefits to the area encompassed by the DDA, and to the City as a whole; and WHEREAS, the City is the owner of the right-of-way within the Alleys (the"ROW"); and WHEREAS, the Downtown Alley Enhancements Project is consistent with and in furtherance of the Downtown Strategic Plan; and WHEREAS,in recognition of the foregoing,the City desires to participate in the Downtown Alley Enhancements Project by taking the lead role in contract administration including, but not limited to,the bidding process to select a contractor for the Downtown Alley Enhancements Project, executing a construction contract with the Contractor and designating a City project manager to work with the DDA on various construction aspects of the Downtown Alley Enhancements Project; and WHEREAS, the City and the DDA have developed and negotiated an Intergovernmental Agreement Regarding the Renovation and Redevelopment of Certain Downtown Alleys, the form of which is attached hereto as Exhibit A and incorporated herein by this reference(the"IGA"); and WHEREAS, the City and the DDA wish to enter into this IGA to formally establish their respective rights and obligations in connection with the Downtown Alley Enhancements Project, as well as their long-term obligations relating to the Alley Improvements; and WHEREAS, Article II, Section 16 of the City Charter empowers the City Council of the City, by ordinance or resolution, to enter into contracts with other 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, C.R.S. §29-1-203 also 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, pursuant to C.R.S. §31-25-808, the DDA has authority to make public improvements which benefit those downtown areas of Fort Collins within its boundaries, and is empowered to cooperate with the City, to enter into contracts with the City and to make or receive from the City grants, contributions and loans; and WHEREAS,the DDA Board,on December 11,2010,determined that this IGA is consistent with and in furtherance of the goals and purposes of the DDA and approved the terms of this IGA and authorized its chairperson to execute it. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the City Manager is hereby authorized to enter into the Intergovernmental Agreement Regarding the Renovation and Redevelopment of Certain Downtown Alleys with the DDA, in substantially the form attached hereto as Exhibit A, together with such additional or modified terms and conditions as the City Manager, in consultation with the City Attorney, deems necessary and appropriate to protect the interests of the City. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 1 st day of February A.D. 2011. Mayor ATTEST: City Clerk EXHIBIT A INTERGOVERNMENTAL AGREEMENT REGARDING THE RENOVATION AND REDEVELOPMENT OF WEST MYRTLE ALLEY This INTERGOVERNMENTAL AGREEMENT REGARDING THE RENOVATION AND REDEVELOPMENT OF WEST MYRTLE ALLEY ("IGA") is made and executed this day of , 2011, by and between the CITY OF FORT COLLINS, COLORADO, a municipal corporation (the "City"), and THE FORT COLLINS, COLORADO, DOWNTOWN DEVELOPMENT AUTHORITY, a body corporate and politic (the "DDA"). WITNESSETH: WHEREAS, Article II, Section 16 of the City Charter empowers the City Council of the City,by ordinance or resolution, to enter into contracts with other governmental bodies to furnish governmental services and make charges for such services or enter into cooperative or joint activities with other governmental bodies; WHEREAS, C.R.S. §29-1-203 also 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; WHEREAS, pursuant to C.R.S. §31-25-808, the DDA has authority to make public improvements which benefit those downtown areas of Fort Collins within its boundaries; WHEREAS, pursuant to C.R.S. §31-25-808, the DDA is empowered to cooperate with the City, to enter into contracts with the City and to make or receive from the City grants, contributions and loans; WHEREAS, on February 17, 2004 the City adopted the Downtown Strategic Plan which supports development of an integrated pedestrian network consisting of alleyways; WHEREAS, on January 10, 2008, the Board of Directors of the DDA (the "DDA Board"), commissioned Russell +Mills Studios ("R+M") to prepare an alley master plan for the redevelopment of designated alleys within the boundaries of the DDA; WHEREAS, on September 11, 2008, the DDA Board approved the redevelopment of Old Firehouse Alley, Montezuma Fuller Alley and West Myrtle Alley in 2009 and 2010; IGA.2011 Alley Improvements 1 West Myrtle Alley. City Council Exhibit 2-1-2011 WHEREAS, redevelopment of Old Firehouse Alley and Montezuma Fuller Alley is completed, however, design and construction of enhancements to West Myrtle Alley (the "Alley") was delayed until 2010 and 2011 to accommodate residents and businesses oriented to Colorado State University ("CSU")which are located adjacent to and in the vicinity of the Alley; WHEREAS, on February 12, 2009, the DDA Board, commissioned R+M-to prepare plans and specifications for renovation of the Alley, which drawings entitled "Fort Collins Downtown Alleys Enhancements—West Myrtle Alley"are on file in the offices of the DDA and with the Engineering Department of the City (the "Construction Plans" or "Alley Enhancements"); WHEREAS, the Alley is in need of substantial renovation and redevelopment and, as a key connection between downtown Fort Collins and CSU, its renovation and redevelopment in accordance with the Construction Plans (the "Downtown Alley Enhancements Project - West Myrtle Alley") will provide aesthetic and economic benefits to the area encompassed by the DDA, and to the City as a whole; WHEREAS, the City and DDA have formulated and agreed upon a basis of design to clarify design expectations for redevelopment of the Alley and future alley enhancement projects in downtown Fort Collins, a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference("Basis of Design"); WHEREAS, the Alley Enhancements were designed in accordance with the Basis of Design and current Larimer County Urban Area Street Standards and the plans for the Alley Enhancements have been reviewed and approved by the City through its internal capital project review process; WHEREAS, the City is the owner of the right-of-way within the Alley(the "ROW"); WHEREAS, the Downtown Alley Enhancements Project - West Myrtle Alley is consistent with and in furtherance of the Downtown Strategic Plan; WHEREAS, in recognition of the foregoing, the City desires to participate in the Downtown Alley Enhancements Project— West Myrtle Alley by taking the lead role in contract administration including, but not limited to, the bidding process to select a contractor for the Downtown Alley Enhancements Project — West Myrtle Alley ("Contractor"), executing a construction contract with the Contractor and designating a City co-project manager to work with the DDA co-project manager on various construction aspects of the Downtown Alley Enhancements Project—West Myrtle Alley, all as more fully set forth herein below; IGA.2011 Alley Improvements 2 West Myrtle Alley. City Council Exhibit 2-1-2011 WHEREAS, the DDA's roles in the Downtown Alley Enhancements Project — West Myrtle Alley are to manage the day-to-day construction of such project, to take the lead role in obtaining all temporary and permanent easements and encroachment permits needed for the project, and to pay the costs of the Downtown Alley Enhancements Project—West Myrtle Alley, all as more fully set forth herein below; WHEREAS, the City and the DDA desire to enter into this IGA to memorialize their respective rights and obligations in connection with the Downtown Alley Enhancements Project —West Myrtle Alley, as well as their long term obligations relating to the Alley Enhancements; WHEREAS, the DDA Board, on December 9, 2010, determined that this IGA is consistent with and in furtherance of the goals and purposes of the DDA and thereupon approved the terms of this IGA and authorized its chairperson to execute it; WHEREAS, the City Council, on February 1, 2011, determined that this IGA is consistent with and in furtherance of the goals and purposes of the City and the DDA and thereupon approved the terms of this IGA and authorized the City Manager to execute it; and NOW, THEREFORE, in consideration of the mutual promises and other valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. Mutual Benefit of Downtown Alley Enhancements Project — West Myrtle Alley. The parties hereto acknowledge that the Downtown Alley Enhancements Project—West Myrtle Alley will provide significant benefits to both the DDA and the City. The parties further acknowledge the special relationship between the City and the DDA and the importance of mutually implementing the Downtown Strategic Plan through efforts such as the Downtown Alley Enhancements Project — West Myrtle Alley. In consideration thereof, the DDA and the City agree that they will work cooperatively together in good faith to fulfill the purposes of this IGA and to equitably resolve any issues arising hereunder in order to complete the Project in accordance with the desires and intentions of the parties and the requirements, standards and procedures applicable to construction of public improvements within the ROW. 2. The Construction Contract. 2.1 Contracting Partv. In consideration of the City's ownership of the ROW, the City's future interest in certain of the Alley Enhancements, as well as the City's experience with, and established procedures for, construction of improvements to public rights-of-way, the parties hereto have determined that the City shall select and enter into a contract with the Contractor for the construction of the Downtown Alley Enhancements Project — West Myrtle IGA.2011 Alley Improvements 3 West Myrtle Alley. City Council Exhibit 2-1-2011 Alley (the "Construction Contract"). The DDA agrees to contract with and provide Ditesco Project & Construction Services ("Ditesco") to function as the Engineer pursuant to the terms of the Construction Contract, and to function as the DDA Project Representative ("DPR"), as described below. 2.2 Funding. The Construction Contract establishes a maximum construction cost for the Downtown Alley Enhancements Project — West Myrtle Alley (the "Contract Price"). The DDA shall be solely responsible to pay, in accordance with the terms of this IGA, all costs of the Construction Contract which are required to be paid by the City thereunder, and the City shall have no obligation to fund Construction Contract payments except as expressly set forth herein, subject to the following conditions: 2.2.1 The City shall consult with and involve the DDA in Construction Contract procurement, administration, management and oversight activities in accordance with the provisions of this IGA; 2.2.2 The DDA funds in support of the Construction Contract shall remain in the accounts and control of the DDA until such time as they are required pursuant to the provisions hereinafter, to pay a properly approved invoice of the Contractor or to compensate the City for the services of the City Project Representative ("CPR"). 2.2.3 The City shall not approve, in writing or otherwise, any addition to or modification of the terms of the Construction Contract, including, by way of example and not of limitation, change orders, extension of deadlines, or alterations to standards or designs, without the prior written consent of the DDA; 2.2.4 The DDA agrees to approve and consent to change orders, extensions of deadlines or alterations to standards or designs to the extent the same are reasonably required in order to ensure that the Improvements meet adopted City standards and requirements applicable to public rights-of- way as reasonably determined by the CPR, after consultation with the DPR and City Engineer; 2.2.5 The City shall perform fully all of its obligations under the Construction Contract in accordance with the terms, provisions and conditions thereof and shall require the same of the Contractor; 2.2.6 The DDA shall be responsible for ensuring that Ditesco performs fully all of its obligations under the Construction Contract in accordance with the terms, provisions and conditions thereof and on behalf of the DDA; 2.2.7 The DDA shall not be obligated to pay to the City any amount for the Construction Contract in excess of the Contract Price, unless the City IGA.2011 Alley Improvements 4 West Myrtle Alley. City Council Exhibit 2-1-2011 received the prior written approval of the DDA to exceed the Contract Price, including but not limited to increases set forth in change orders to the Construction Contract approved by the DDA as set forth above; and 2.2.8 The City shall be responsible for any damages beyond the agreed-upon or approved Contract Price, to the extent said costs are directly caused by a negligent or reckless act or omission of the City, its officers or employees. 2.3 Construction Contract Management. In order to facilitate and coordinate the sharing of Construction Contract management and oversight between the parties hereto, the City and the DDA shall each designate such qualified representatives to carry out certain responsibilities in connection with the Construction Contract (as described below, who shall be collectively referred to herein as the "Project Team"). In addition to the enumerated responsibilities set forth below, each member of the Project Team shall be responsible for regularly communicating with the other members of the Project Team regarding the status of the Construction Contract and significant project developments. The Project Team shall meet on a weekly basis to coordinate and share information regarding project status, and to review and discuss any anticipated changes to the project, and questions or anticipated or pending issues regarding project completion and pay applications and approvals. T3.1 Responsibilities of City Project Representative. The City shall designate a City Project Representative ("CPR") who shall be and have the responsibilities of the Owner's Representative under the Construction Contract. The CPR will also have the following responsibilities: (a) Act as the primary contact for coordinating with City staff, (b) Oversee the pre-bidding and bidding phases; (c) Act as the lead project manager of the construction administration in accordance with applicable City standard purchasing procedures based on the City's Capital Projects Procedures Manual; (d) Oversee the day-to-day administration of the Construction Contract by the DPR; (e) Review and act upon all pay applications and contract changes in accordance with the terms of the Construction Contract (as the "Owner Representative" thereunder) and this IGA, working with the DPR; and (f) Oversee the completion of project closeout by the DPR. IGA.2011 Alley Improvements" 5 West Myrtle Alley. City Council Exhibit 2-1-2011 2.3.2 Responsibilities of DDA Project Representative. The DDA shall designate Ditesco (or such other mutually agreeable project manager) as DDA Project Representative ("DPR"), who shall have the responsibilities: (a) Act as Engineer and to act at the direction of the DDA pursuant to the Construction Contract; (b) Act as the DDA liaison to the project in order to identify and resolve technical or project concerns on behalf of the DDA; (c) Assist the City in pre-bidding and bidding phases; (d) Assist the City in contract administration; (e)-, Review and act upon pay applications from the Contractor pursuant to the Construction Contract, working with the CPR; and (f) Coordinate with City Engineering, City Parks, City Traffic, City Utility and the private utility companies' inspection staffs in their respective reviews of work under the Construction Contract for compliance with adopted and applicable City standards and requirements. 2.3.3 Responsibilities of DDA Project Planner. The DDA shall designate a Project Planner("DPP"), who shall have the following responsibilities (a) Take the lead role in acquiring all necessary temporary and permanent easements; and (b) Coordinate public outreach, and act as the sole contact for responding to property and business owner concerns throughout the project and communicating with the DDA Board. 2.3.4 Compensation for CPR. (a) Initial Amount. In consideration of the significant demands that the Downtown Alley Enhancements Project — West Myrtle Alley will place upon the CPR, the DDA agrees to compensate the City for such services based on the actual current rate of salary and benefits of the CPR designated by the City, at the maximum rate of Forty-nine Dollars and Sixty-two cents ($49.62) per hour and, subject to Section 2.3.4(b) below, up to a IGA.2011 Alley Improvements 6 West Myrtle Alley. City Council Exhibit 2-1-2011 maximum amount of Ten Thousand Dollars ($10,000.00) (the "Compensation Amount"). The City shall send to the DDA itemized monthly invoices for such services. The DDA shall make payment to the City for such invoices within thirty (30) days of receipt by the DDA. (b) Additional Compensation. If the City determines that the Compensation Amount will be insufficient, it shall provide to the DDA timely notice of such determination together with a description of the services that the City believes remain to be performed by the CPR through completion of the Construction Contract, as well as an estimate of the amount of funds in excess of the Compensation Amount the City believes will be sufficient to cover the cost of such services through the Construction Contract term. The parties hereto agree to negotiate in good faith to reach a mutually acceptable agreement on additional compensation for CPR services through the Construction Contract tern based upon the needs and status of the Project and in accordance with the responsibilities of the CPR and DPR as set forth in Sections 2.3.1 and 2.3.2 above. In the event of a dispute over additional compensation and, after consultation with the Executive Director of the DDA, the final decision on funding in excess of the Compensation Amount shall be made by the City Manager of the City. 2.3.5 Payment of Contractor Invoices. (a) Obligation to Contractor. The City and the DDA acknowledge and agree that any and all payments legally due to the Contractor pursuant to the Construction Contract shall be reviewed, approved and paid in a timely manner, in accordance with the terms and provisions of this IGA. The purpose of review of invoices shall be to determine whether the requirements of the Construction Contract have been met and whether payment is consequently due to the Contractor. (b) Payment Approval. - The approval process for monthly contractor invoices for the Downtown Alley Enhancements Project — West Myrtle Alley shall be as set forth in the Construction Contract and as follows (the "Payment Approval Process"): (i) Contractor invoices shall be reviewed and processed by the DPR and the CPR as the Owner's Representative, as provided in the Construction Contract and this IGA; IGA2011 Alley Improvements 7 West Myrtle Alley. City Council Exhibit 2-1-2011 J (ii) The Project Team shall review and discuss each monthly Contractor invoice at each subsequent weekly Construction Contract meeting until such time as such monthly invoice has been paid or otherwise disposed of, (iii) A recommendation of approval by the DPR shall be required in order for any payment to the Contractor to be processed. In the event the CPR objects to any payment so approved being made, the CPR and the DPR shall confer and determine the basis for such disagreement. In the event the DPR and CPR are unable to reach agreement, the City Manager, after consultation with the DDA Executive Director, shall determine whether the payment at issue is due on a pending invoice. (iv) The CPR shall be responsible for providing written notice to the Contractor pursuant to the Construction Contract, and to the DDA, when it has been determined that full payment of any invoice will not be made, and for providing notice to the DDA that an invoice has been approved for payment upon approval as provided hereunder("Payment Approval"). (c) DDA Payment Obligation/City Recourse. Upon each Payment Approval of a Contractor invoice, the DDA shall conduct the receiving process and deliver of such approved invoice to the City's Finance Department and the City shall promptly take all necessary steps to ensure that payment to the Contractor for each such invoice is timely made. In the event that any such payment authorization by the DDA is not made within three (3) business days before its due date, the City shall have the right, without further authorization from the DDA, to access the DDA 2008 Bond Project Fund and to make the approved payment from monies'in such fund. The City, in such event, shall provide prompt written notice to the DDA of such payment. 2.4 Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any action taken pursuant to the Construction Contract or any of the easements obtained in connection therewith, the City and the DDA agree to cooperate in defending such action or proceeding. In consultation with the City, the DDA shall take the lead role in defending any such action, including, but not limited to, preparing all pleadings and necessary correspondence among the parties and paying one hundred percent (100%) of both court filing fees and the costs of any expert witnesses, depositions, interrogatories, transcripts or other similar costs. Each party shall pay its own attorney fees. IGA.2011 Alley Improvements 8 West Myrtle Alley. City Council Exhibit 2-1-2011 2.4.1 Limited City Role. Unless the City at its option decides to take a more active role in defending any such action or proceeding, the City and the DDA agree that the City's role therein shall be limited to the following: (a) City to Sign Pleadings. In the event of any legal action filed against the City in connection with the Construction Contract or any of the easements obtain in connection therewith, or any appeal filed by one or more third parties in connection with such action, the review and signing of all pleadings and other documents reasonably required to defend such suit, including any appropriate counterclaims; and (b) On Appeal. In the event that the DDA decides to appeal any negative judicial decision in connection with the Construction Contract or any of the easements obtain in connection therewith, to be named as an appellant along with the DDA and to review and sign all pleadings and other documents reasonably required in connection with such appeal. 2.4.2 Controlling Precedent. Although it is the intent of this Section 2.4 that the City shall cooperate with the DDA in defending any legal proceeding so long as the DDA determines to continue such defense, in the event there is a controlling decision of the Supreme Court of the United States, Tenth Circuit Court of Appeals, Supreme Court of Colorado, or Colorado Court of Appeals governing one or more of the issues raised in the legal proceeding that is adverse to the City's position, the City shall not be obligated to contest or continue the defense of such issue. 3. Acquisition of Easements and Encroachment Permit. The DDA, at its sole expense, shall be responsible for acquiring and providing to the City prior to issuance of a Notice to Proceed under the Construction Contract and in a form reasonably acceptable to the City, all easements necessary for the Construction Contract, and an encroachment permit for the trash enclosures (specifically the doors, which will open into the right-of-way) and any other non-City facilities to be installed as part of the Construction Contract. 4. ROW Excavation Permit Fee. The Engineering Department of the City shall estimate the City fee for the ROW excavation permit ("ROW Permit")based upon the Construction Plans. Such fee amount for the ROW Permit shall be included in the Contract Price and shall be binding upon the City through September 30, 2011. The Contractor shall pay the ROW Permit fee at the time of issuance of the ROW Permit and shall be reimbursed therefor in accordance with the Construction Contract and Section 2.3.5 of this IGA. IGA.2011 Alley Improvements 9 West Myrtle Alley. City Council Exhibit 2-1-2011 5. As-Built Drawings and Engineering Certification Letter. The DPR shall provide to the City true and correct copies of the as-built drawings and the engineering certification letter for the Alley Enhancements within thirty(30) days of the DPR's receipt of such documents from the Contractor. 6. Ongoing Maintenance/Repair Obligations of Alley Enhancements. 6.1 DDA Obligations. Through the termination of the existing Tax Increment Financing in place for the DDA (i.e. January 1, 2032), or the termination of the DDA, whichever first occurs, the DDA, at its sole cost and expense, shall maintain the Alley Enhancements in a manner generally consistent with the Scope of Services defined below in Section 7.1.2 and attached hereto as Exhibit `B", the parties acknowledging that reasonable adjustments to the Scope of Services shall be made from time to time based upon the usage of and experience in maintaining the Alley in their improved condition. Such obligation shall not extend to renovating, rebuilding, upgrading, or modernizing any of the Alley Enhancements, but shall include replacement of materials or installed features as required to preserve the overall Alley Enhancements in a condition reasonable given the age and normal use of the Alley Enhancements. 6.2 City Repair Obligations. 6.2.1 For so long as and to the extent the Alley Enhancements continue to be maintained by the DDA, and excepting temporary repairs made for reasons of safety, the City shall make those repairs to the Alley Enhancements to the extent they are necessary directly as a result of- (a) A negligent, reckless or intentional act or omission of the City, its employees, agents or contractors. (b) An act or omission of a City permittee, licensee, franchisee, where the City has already received compensation from such person for the act or omission requiring repairs to the Alley Enhancements; or (c) A defect in materials or construction occasioned by the performance of the Contractor under the Construction Contract where the City has already received compensation from the Contractor for such defect; or IGA.2011 Alley Improvements - 10 West Myrtle Alley. City Council Exhibit 2-1-2011 (d) A criminal or tortious act of any third party, and such third party has made such repairs or paid the City for such repairs. 6.2.2 In the event that the DDA repairs any Alley Enhancement and, subsequent to such payment by the DDA, the City for any reason whatsoever receives compensation for such repairs from any third party, then the City shall pay to the DDA the amount received from such third party up to the amount of the DDA's costs and expenses to provide for such repair. 6.3 Claims Against Others for Repair. In the event that the City has a valid claim against a City permittee, licensee, franchisee, or the Contractor entitling the City to require repair to the Alley Enhancements or correction of a defect therein, the City shall reasonably evaluate the strength of such claim and the potential costs of asserting it, and determine whether to assert such claim, at law or in equity. 6.4 Special Conditions on Repair and Replacement of Pavers. 6.4.1 Repair or Replacement by the City. In the event that the City undertakes to repair or replace any damaged paver within the ROW, the City agrees that it shall conduct such repair and/or replacement in accordance with the manufacturer's specifications (the "Paver Specification Sheet"), and that it shall replace missing or irreparably damaged pavers with new pavers. For so long as and to the extent the Alley Enhancements continue to be maintained by the DDA, and excepting temporary repairs made for reasons of safety, the City agrees that it shall not repair or replace missing or damaged pavers with other road base materials such as asphalt or concrete. Copies of the Paver Specification Sheet shall be kept on file with the DDA and in the Technical Services Department of the City with the as-built drawings for the Alley Enhancements. Provided that the requirements of this Section 6.4.1 have been satisfied, the DDA agrees to reimburse the City for its costs in repairing or replacing pavers in the Alley. 6.4.2 Excavation and Building Permittees. (a) Pursuant to its adopted policies and procedures, the City shall, during the term of this IGA, provide to any person or entity who IGA.2011 Alley Improvements West Myrtle Alley. City Council Exhibit 2-1-2011 applies for or inquires about a building or excavation permit within the Alley affecting the Alley Enhancements an information pamphlet advising the prospective permittee of the special nature of the paver improvements within the Alley ("Paver Information Pamphlet") and a copy of the Paver Specification Sheet. (b) Subject to approval by the City Council, in its sole discretion, of related City Code amendments, as a condition of any such building or excavation permit, the permittee, upon completing work in the Alley affecting the Alley Enhancements, shall be required to return the Alley Enhancements to the state and condition which existed prior to the permittee's work in the Alley, including, by way of example and not of limitation, repairing or replacing any pavers that it damages consistent with the Paver Specification Sheet. The City agrees to make reasonable and good faith efforts to enforce such permit condition against any and all permittees. 6.4.3 Utility Providers, Franchisees and Other Persons. To the extent permitted by law, the City agrees to take reasonable measures during the term of this IGA to ensure that third parties who will be engaging in activities in the Alley of a type or nature which could reasonably be capable of causing damage to the pavers, but who may not be required to obtain a permit before conducting such activities (e.g. franchisees and utility providers), are provided with the Paver Information Pamphlet and the Paver Specification Sheet, and that such third parties are required to repair or replace damaged pavers in accordance with the Paver Specification Sheet. 6.4.4 Notices to DDA and Parks Maintenance. The policies and procedures to be adopted by the City for work in the Alley which may disturb the Alley Enhancements therein shall include a process to timely notify the DDA and the City Parks and Cemeteries Division of such proposed work during the term of this IGA. 7. Initial Maintenance Agreement with City and Future Intergovernmental Agreement. IGA.2011 Alley Improvements 12 West Myrtle Alley. City Council Exhibit 2-1-2011 7.1 Initial Maintenance Agreement. The DDA desire to contract with the City for services to include routine maintenance of the Alley Enhancements herein required of the DDA, and the City agrees to contract to perform such maintenance, on following the terms and conditions (the "Initial Maintenance Agreement"): 7.1.1 Term. Maintenance shall commence upon completion of the Alley Enhancements and shall continue through the end of that calendar year and for a period of two (2) additional calendar years (the "Maintenance Term"). 7.1.2 Scope of Services. During the Maintenance Term, the City shall perform the routine maintenance services identified on Exhibit `B," attached hereto and incorporated herein by reference (the "Scope of Services"). 7.1.3 Compensation. Upon completion of the Alley Enhancements, the DDA shall pay to the City the amount of$58,404 for the City's performance of the Scope of Services for the Alley for the first twelve months of the Term. On the anniversary of the completion of the Alley Enhancements the DDA shall pay to the City the amount of$60,156, plus an additional amount of $5,013 for each additional month through the end of the Maintenance Term for the City's performance of the Scope of Services for the remainder of the Maintenance Term. 7.1.4 Maintenance Vehicles. The parties hereto acknowledge that, in order for the City to perform the Scope of Services, the City will need to purchase a small electric utility vehicle and a small two-wheel pickup (the "Maintenance Vehicles"). The DDA agrees to reimburse the City for such purchase up to the total amount of$29,000 for the acquisition of the Maintenance Vehicles. Upon expiration of the Maintenance Term (unless extended pursuant to an intergovernmental agreement between the parties), the Maintenance Vehicles shall become the property of the DDA and the City shall promptly transfer ownership and possession of the Maintenance Vehicles to the DDA or, alternatively at the City's discretion, the City shall pay to the DDA the fair'market value of Maintenance Vehicles at the expiration of the Maintenance Term. IGA.2011 Alley Improvements 13 West Myrtle Alley. City Council Exhibit 2-1-2011 7.2 Future Intergovernmental Agreement. The DDA and the City desire to work together to establish a long-term intergovernmental agreement for maintenance of the Alley as well as other alleys which may be improved with DDA boundaries. Prior to the end of the Maintenance Term, the parties agree to meet and negotiate terms for such future intergovernmental agreement 8. Additional Ongoing DDA Obligations. 8.1 Plantings and Maintenance. Through the term of this IGA, the DDA shall be responsible for providing funding for all flowers and ornamental plants for the planters and planting areas created by the Alley Enhancements, and for providing funding for all labor associated with planting and maintaining such flowers and plants. The City agrees to provide to the DDA an estimate of the annual planting expenses for the next season prior to August of each year. 8.2 Snow Removal. The DDA shall provide for snow removal from the ROW. 8.3 Utility Costs Related to Alley Enhancements. The Construction Plans call for the installation of the water and electrical meters identified on Exhibit "C," attached hereto and incorporated herein by reference (the "Utility Meters"), for the following purposes related to the following Alley Enhancements: (1) to provide electricity to the Tivoli lights; (2) to provide electricity to the electrical outlets located within trash enclosures; and (3) for irrigation of the plants and flowers located in the planters and planter areas. The DDA shall be responsible for the cost of the utilities originating at the Utility Meters, subject to the following limitations: (a) the City shall make reasonable efforts to ensure that the Tivoli lights are not turned on until after dusk and are turned off prior to dawn; and (b) the City shall not make use of the power or water originating at the Utility Meters for any purpose, except as otherwise provided in this IGA. [Note: There will be water meters, electric panels, irrigation lines and electric service lines installed in the Alley, so a new Exhibit "C" will be prepared when the plans are finalized.] 9. Vender Permits, Concessionaire Licenses. In the event the City issues a vender's permit, concessionaire's license, or other license or permit used for similar purpose, within the Alley, then the City shall require as a condition of any such permit or license that such user shall be responsible for keeping the area covered by the permit or license in a clean and neat condition, free of litter, soils and rubbish, and for returning such area to the condition which existed prior to the permittee's or licensee's use thereof, including repairing damaged pavers in accordance with Section 6.2 hereof. IGA.201 I Alley Improvements 14 West Myrtle Alley. City Council Exhibit 2-1-2011 10. City Ownership of ROW and Alley Enhancements. The ROW shall remain the sole property of the City. The DDA shall not acquire any property interest in or to the ROW pursuant to or as a result of this IGA, nor shall the DDA have any obligations with respect to the ROW, beyond those obligations specifically identified herein. Upon acceptance thereof, the City shall own all of the Alley Enhancements excepting the consolidated trash enclosures, which shall be owned by the DDA. 11. Notices. All notices to be given to parties hereunder shall be in writing and shall be sent by certified mail to the addresses specified below: If to the DDA: The Fort Collins, Colorado, Downtown Development Authority Attn: Executive Director 19 Old Town Square, Suite 230 Fort Collins, CO 80524 With a copy to: Liley, Rogers &Martell, LLC Attn: Lucia A. Liley, Esq. 300 South Howes Street Fort Collins, CO 80521 If to the City: City of Fort Collins Attn: Executive Director of Culture, Parks, Recreation and Environment 215 N. Mason Street Fort Collins, CO 80521 With a copy to: City Attorney's Office Attn: City Attorney 300 Laporte Avenue Fort Collins, CO 80521 12. Governing Law. This IGA shall be governed by, and its terms construed under the laws of the State of Colorado. 13. No Third Party Beneficiaries. It is the mutual intent of the parties hereto that this IGA shall inure to the benefit of only the parties hereto. Accordingly, nothing in this IGA shall be construed as creating any right or entitlement which inures to the benefit of any third party. IGA.2011 Alley Improvements 15 West Myrtle Alley. City Council Exhibit 2-1-2011 14. Annual Appropriation. All financial obligations of the City or the DDA arising under this IGA that are payable after the current fiscal year are contingent upon funds for that purpose being annually appropriated, budgeted and otherwise made available by the City Council of the City, in its discretion, and/or the Board of Directors of the DDA, in its discretion, as applicable. 15. Benefit, Binding Effect, Covenant. The parties hereto recognize that there are legal constraints imposed upon them by the constitution, statutes, and rules and regulations of the State of Colorado and of the United States, and imposed upon them by their respective governing statutes, charters, ordinances, rules and regulations, and that, subject to such constraints, the parties intend to carry out the terms and conditions of this IGA. Notwithstanding any other provision of this IGA to the contrary, in no event shall either of the parties be obligated hereunder to exercise any power or take any action that is be prohibited by applicable law. Whenever possible, each provision of this IGA shall be-interpreted in such a manner so as to be effective and valid under applicable law. IN WITNESS WHEREOF, the parties have executed this IGA the day and year first above written. CITY OF FORT COLLINS, COLORADO, a municipal corporation By: Darin Atteberry, City Manager ATTEST: Wanda Krajicek, City Clerk APPROVED AS TO FORM: Carrie M. Daggett, Deputy City Attorney IGA.2011 Alley Improvements 16 . West Myrtle Alley. City Council Exhibit 2-1-2011 THE FORT COLLINS, COLORADO, DOWNTOWN DEVELOPMENT AUTHORITY, a body corporate and politic By: Patty Spencer, Chairperson ATTEST: Bill Sears, Secretary IGA.2011 Alley Improvements 17 West Myrtle Alley. City Council Exhibit 2-1-2011