Loading...
HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 12/15/2015 - ITEMS RELATING TO LOCKER RENOVATIONS AT EDORA POOLAgenda Item 3 Item # 3 Page 1 AGENDA ITEM SUMMARY December 15, 2015 City Council STAFF Bob Adams, Recreation Director SUBJECT Items Relating to Locker Renovations at Edora Pool Ice Center (EPIC) and an Intergovernmental Agreement with CSU Department of Campus Recreation EXECUTIVE SUMMARY A. Second Reading of Ordinance No. 150, 2015, Appropriating Unanticipated Revenue for Locker Renovation at EPIC. B. Resolution 2015-103 Authorizing an Intergovernmental Agreement with Colorado State University Regarding the Construction of a Locker Room at the EPIC Ice Arena. Ordinance No. 150, 2015, unanimously adopted on First Reading on December 1, 2015, appropriates $57,012 for the construction cost of a locker room at EPIC. The funding for the locker room construction was raised by the CSU club hockey team. Resolution 2015-103 provides an intergovernmental agreement (IGA) between the City of Fort Collins and Colorado State University (CSU) Department of Campus Recreation. The IGA provides for a renewable 10-year agreement to provide a dedicated locker room for the hockey team. Because CSU is funding the improvements, staff has proposed waiving certain maintenance costs for the new EPIC locker room during the initial term of the IGA. However, it is expected that the University will continue to pay all standard rental and user fees associated with reservation and use of ice time at EPIC. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading and the Resolution. ATTACHMENTS 1. First Reading Agenda Item Summary, December 1, 2015 (w/o attachments) (PDF) 2. Ordinance No. 150, 2015 (PDF) Agenda Item 5 Item # 5 Page 1 AGENDA ITEM SUMMARY December 1, 2015 City Council STAFF Bob Adams, Recreation Director SUBJECT First Reading of Ordinance No. 150, 2015, Appropriating Unanticipated Revenue in the Recreation Fund for Locker Renovation at Edora Pool Ice Center (EPIC). EXECUTIVE SUMMARY The purpose of this item is to introduce an ordinance to appropriate $57,012 for the construction cost of a locker room at EPIC. The funding for the locker room construction was raised by the CSU club hockey team. Staff will bring to Council for approval upon second reading of the appropriation ordinance an intergovernmental agreement (IGA) between the City of Fort Collins and Colorado State University (CSU) Department of Campus Recreation. The IGA is expected to provide for a renewable 10-year agreement to provide a dedicated locker room for the hockey team. Because CSU is funding the improvements, staff has proposed waiving certain maintenance costs for the new EPIC locker room during the initial term of the IGA. However, it is expected that the University will continue to pay all standard rental and user fees associated with reservation and use of ice time at EPIC. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION CSU Ram Hockey is a Club Hockey organization under the umbrella of the CSU Department of Campus Recreation. The City’s history with the men’s team dates back to 1990, a few years after EPIC opened. The Colorado State Rams Hockey Team plays in the American Collegiate Hockey Association (ACHA) Division 1 league and is a founding member of the Western Collegiate Hockey League (WCHL). EPIC and CSU have maintained a positive relationship for decades. This relationship has included:  Jointly operating weekend hockey games  Tournaments  Fundraising events  Beginner/intermediate/advanced skills classes for credit in health science studies  Intercollegiate figure skating competitions. Two years ago, the CSU Men’s club hockey team moved its home rink to the NoCo Ice Rink in Windsor. Last year, the team and coaches requested a return to EPIC as the team’s home rink and wanted to negotiate a long term use agreement. However, the Division 1 Western Collegiate Hockey League in which the hockey team plays requires teams have their own locker room at their home rink. ATTACHMENT 1 Agenda Item 5 Item # 5 Page 2 Last year, EPIC staff identified a possible solution to the locker room issue and began plans to convert underutilized temporary office space and a small multi use room into a locker room. The CSU team then raised the necessary funds to remodel the space and transferred the funds to the City. The locker room construction begins a ten-year commitment between the CSU Campus Recreation Department and the City of Fort Collins, furthering the positive and progressive partnership between the two entities. CITY FINANCIAL IMPACTS The construction of the new locker room creates no new financial commitment for the City of Fort Collins beyond application of the funds generated by CSU, deposited with the City for this purpose. CSU would continue to be entitled to the use of the locker room, assuming continued operation of the EPIC facility generally. Long term financial benefits for the City include:  Increased revenue for EPIC through home match ticket sales  Increased profile for EPIC and use of the facility by the CSU students attending events  Hockey Tournament ticket and concession sales  Hockey camp revenues  Reduced labor expense in the City’s Cub Hockey program as a result of volunteer involvement by CSU team members. BOARD / COMMISSION RECOMMENDATION The Parks and Recreation Advisory Board reviewed and unanimously supported a draft of the agreement at its July 22, 2015, meeting. ATTACHMENTS 1. Parks and Recreation Board minutes, July 22, 2015 excerpt (PDF) 2. Final Construction Cost with Add-On Options (PDF) ORDINANCE NO. 150, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING UNANTICIPATED REVENUE IN THE RECREATION FUND FOR LOCKER RENOVATION AT EDORA POOL ICE CENTER (EPIC) WHEREAS, between 1990 and 2013, the Colorado State University (“CSU”) Men’s club hockey team (“CSU Hockey”) used the Edora Pool Ice Center (“EPIC”) ice rink as the team’s home rink; and WHEREAS, two years ago, CSU Hockey moved its home rink to the NoCo Ice Rink in Windsor; and WHEREAS, last year the CSU Department of Campus Recreation (“CSU Recreation”) on behalf of CSU Hockey requested a return to EPIC as the team’s home rink and sought to negotiate a long term use agreement; and WHEREAS, the City’s Recreation Department has negotiated an intergovernmental agreement with CSU Recreation regarding the use of EPIC as the home rink for CSU Hockey; and WHEREAS, the Division 1 Western Collegiate Hockey League, of which CSU Hockey is a member, requires that member teams have their own locker room at their home rink; and WHEREAS, City Council is considering for approval, concurrent with Second Reading of this Ordinance, a Resolution authorizing the intergovernmental agreement that City staff has negotiated with CSU Recreation (the “IGA”); and WHEREAS, pursuant to the IGA, CSU Hockey has agreed to pay the City the amount of $57,012 for locker room renovations at EPIC; and WHEREAS, the purpose of this item is to appropriate $57,012 in the Recreation Fund by CSU Hockey for the construction cost of a locker room at EPIC dedicated for the team’s use; and WHEREAS, Article V, Section 9, of the Charter of the City of Fort Collins 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 revenue as described herein will not cause the total amount appropriated in the Recreation Fund to exceed the current estimate of actual and anticipated revenues to be received in that fund during the fiscal year. 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 for expenditure from unanticipated revenue in the Recreation Fund the sum of FIFTY SEVEN THOUSAND TWELVE DOLLARS ($57,012) for the construction cost of a locker room at Edora Pool Ice Center. Introduced, considered favorably on first reading, and ordered published this 1st day of December, A.D. 2015, and to be presented for final passage on the 15th day of December, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 15th day of December, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk RESOLUTION 2015-103 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT WITH COLORADO STATE UNIVERSITY REGARDING CONSTRUCTION OF A LOCKER ROOM AT THE EPIC ICE ARENA WHEREAS, between 1990 and 2013, the Colorado State University (“CSU”) men’s club hockey team (“CSU Hockey”) used the Edora Pool Ice Center (“EPIC”) as the team’s home ice rink; and WHEREAS, in 2013, CSU Hockey moved its home rink to the NoCo Ice Arena in Windsor; and WHEREAS, the Division I Western Collegiate Hockey League, of which CSU Hockey is a member, requires its member teams have dedicated locker rooms at their home rinks; and WHEREAS, in 2014, the CSU Department of Campus Recreation (“CSU Recreation”) on behalf of CSU Hockey requested a return to EPIC as the team’s home rink and sought to negotiate a long term use agreement for a locker room at EPIC; and WHEREAS, as part of its request to return to EPIC, CSU approached the City’s Recreation Department to explore options to construct a dedicated locker room for CSU Hockey; and WHEREAS, in 2014, City Recreation staff identified underutilized office space and an underutilized multi-use room at EPIC that were available for remodeling, and began designing locker room construction plans with CSU; and WHEREAS, CSU Hockey has since raised all funds necessary to complete the locker room remodeling and has proposed entering into an agreement with the City to facilitate construction and dedication of the locker room for CSU Hockey during its regular hockey season (August-April); and WHEREAS, for the benefit of CSU Hockey, CSU separately contracts for use of one or more ice rinks (referred to as “ice time”) at EPIC; paying such user fees as are charged for ice time by the facility from time to time, and such separate acquisition of ice time at EPIC is likely to continue on a year-to-year basis during the term of any such agreement in light of the availability of a locker room meeting Division I Western Collegiate Hockey League standards, thereby increasing the likelihood of ongoing revenues to EPIC during such time; and WHEREAS, in addition to payment of the full cost for the locker room remodeling, CSU Hockey has agreed to provide volunteers to support the City’s club hockey program during the term of a proposed agreement, reducing the City’s costs to deliver that program; and WHEREAS, the City’s Recreation Department has negotiated an agreement with CSU Recreation regarding construction of a locker room and use of EPIC as the CSU Hockey home ice rink; and WHEREAS, on July 22, 2015, the City Parks & Recreation Board reviewed and recommended approval of an intergovernmental agreement with CSU for the EPIC locker room remodeling and use by CSU Hockey; and WHEREAS, City Recreation staff has recommended that City Council authorize the City Manager to enter into the Intergovernmental Agreement Regarding Construction of a New Edora Pool Ice Center (EPIC) Locker Room with Colorado State University in the form attached hereto as Exhibit "A", and incorporated herein by reference (the “IGA”), addressing the construction of a new locker room at EPIC (the “EPIC Locker Room”) and use of that space by CSU Hockey for a term of ten (10) years, with two renewal terms of five (5) years each, for a maximum term not to exceed twenty (20) years; and WHEREAS, the IGA contemplates the grant of a limited license to the University to use the EPIC Locker Room, claim EPIC as the “home rink” of the University’s Division I Western Collegiate men’s club hockey team, including the right to exclusively occupy and use the EPIC Locker Room on agreed upon dates during the regular hockey season, and is not intended to grant an interest in real property of a nature normally granted under a lease, notwithstanding the definition of a “lease” set forth in Article IV, Chapter 23 of the City Code; and WHEREAS, the long term financial benefits of dedicating the EPIC Locker Room to CSU’s use to the extent set forth in the IGA is in the best interest of the City, based on the value of the proposed locker room improvements to be funded by CSU, CSU’s payment of user fees for ice time at EPIC during term of the IGA, anticipated ticket and concession sales for home CSU Hockey matches and tournaments, increased national profile for EPIC as a sports venue, additional City hockey camp capacity through improved facilities, and reduced labor costs through volunteer involvement of CSU Hockey team in operating City hockey programs; and WHEREAS, to the extent the IGA constitutes a “lease” as defined in City Code Section 23-110, City Council may authorize such a “lease” by resolution pursuant to Code Section 23- 113 if the term does not exceed twenty (20) years and it serves a bona fide public purpose; and WHEREAS, to the extent Article IV, Chapter 23 of the City Code applies to the proposed IGA, the City Council finds that the capital facility improvements and financial benefits to be received by the City under and as a result of the IGA provide adequate consideration substantially equivalent to the fair market value of the of the limited license granted thereunder and serve a bona fide public purpose; and WHEREAS, the City is authorized to enter into intergovernmental agreements to provide any function, service, or facility, as provided in Article II, Section 16 of the Charter of the City of Fort Collins and Section 29-1-203, C.R.S. 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. Section 2. That the City Manager is hereby authorized to enter into the IGA with such other terms and conditions, or subsequent modifications or amendments, as the City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City and effectuate the purposes set forth herein, and not otherwise inconsistent with this Resolution. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 15th day of December, A.D. 2015. _________________________________ Mayor ATTEST: _____________________________ City Clerk Exhibit A INTERGOVERNMENTAL AGREEMENT REGARDING CONSTRUCTION AND USE OF A NEW EDORA POOL ICE (EPIC) CENTER LOCKER ROOM THIS INTERGOVERNMENTAL AGREEMENT REGARDING CONSTRUCTION AND USE OF A NEW EPIC LOCKER ROOM ("Agreement"), is made and entered into on the day and year it is fully executed by all Parties ("Effective Date"), by and between the City of Fort Collins, Colorado, a home rule municipality of the State of Colorado ("City") and The Board of Governors of the Colorado State University System, acting by and through Colorado State University, an institution of higher education of the State of Colorado ("University"), for the use and benefit of the Department of Campus Recreation (collectively, the "Parties"). WHEREAS, the City owns, maintains and operates the Edora Pool and Ice Center (“EPIC”), an ice arena located at 1801 Riverside Ave, Fort Collins, CO 80525, as shown on Exhibit A, attached hereto and incorporated into this Agreement, which arena includes specific underutilized space; and WHEREAS, the University wishes to use a portion of the underutilized space at EPIC as a locker room for recreational club ice hockey activities, and wishes to improve the underutilized space to better suit the University's needs (the “EPIC Locker Room”); and WHEREAS, in exchange for the University agreeing to pay the full cost for the desired improvements and all regular user fees to offset the cost of maintenance, repairs, janitorial services and construction of the EPIC Locker Room, the City is willing to provide the University with exclusive use of the EPIC Locker Room for a defined annual season, throughout a 10-year period; and WHEREAS, by Resolution 2015-103, the Fort Collins City Council made specific findings regarding the extent to which the capital facility improvements and financial benefits to be received by the City under and as a result of this Agreement provide adequate consideration substantially equivalent to the fair market value of the of the limited license granted hereunder and serve a bona fide public purpose under the definitions and requirements of Article IV, Chapter 23 of the City Code. NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties hereto agree as follows: 1. Term. This Agreement shall commence on the Effective Date recited first above, and shall continue for an initial term of ten (10) years unless sooner terminated as provided herein. Upon mutual agreement, this Agreement may be renewed for up to two additional five (5) year terms or such other term as the Parties may agree and upon such terms and conditions as the Parties may agree. a. After the first year of the initial term, the University may terminate this Agreement at any time, without cause, by giving not less than six months prior written notice to the City, but such termination shall not relieve the University from any obligations IGA with CSU EPIC Locker Room Page 2 of 18 incurred while the Agreement was in effect. b. After the first year of the initial term, the City may terminate this Agreement at any time, without cause, by giving not less than six months prior written notice to the University. Subject to Section 15, in the event the City elects to terminate this Agreement during the initial term for any reason other than the University’s default, City shall reimburse the University for the University’s advanced payment of the Improvements on a pro-rated basis of $5,000 for each remaining year of the initial term. The following are examples of how the reimbursement will be calculated based on this value:  Termination at the end of second year: payment = $40,000 ($5,000 for each of the remaining 8 years)  Termination during middle of third year: payment = $37,500 ($5,000 for each remaining full year, $2,500 for each pro-rated half year) 2. Representatives of the Parties. Each Party hereby designates the representative identified below to act as its single point of contact. A Party may change its representative at any time by written notice to the other party, pursuant to Section 21. The Parties' representatives shall work cooperatively and in good faith with one another to make all arrangements, coordinate scheduling of events, and deal with related issues. City: University: Paul Thibert, Recreation Supervisor 970-221-6532; pthibert@fcgov.com 3. EPIC Locker Room Improvements Costs. The City, either itself or through contractors, agrees to perform all work necessary to make or construct the improvements described on Exhibit B attached hereto and incorporated into this Agreement (the "Improvements"). The estimated cost of the Improvements (including a contingency of $13,685.00) is $57,012.00 (“Maximum Cost”). a. The University shall remit $57,012.00 to the City within ten (10) days after execution of this Agreement. The City shall have no obligation to complete any portion of the Improvements that result in a cost that exceeds the Maximum Cost, unless such amount is separately agreed to in advance and in writing by the Parties, and deposited by the University with the City prior to the City undertaking any obligation to construct such Improvements. b. The City will use its best efforts to ensure the Improvements are substantially complete by January 15, 2016, unless the Parties agree in writing to a different date, and subject to delays caused by weather, Acts of God, or other circumstances beyond the reasonable control of the City. Notwithstanding the foregoing, the City shall have no obligation for and the University hereby waives claims for any compensation, damages, liquidated damages, or other claims for loss by the University in the event the Improvements are not substantially completed by January 15, 2016. IGA with CSU EPIC Locker Room Page 3 of 18 c. Following issuance of a letter of completion closing the building permit for the Improvements (“project completion”), the City will provide the University with a detailed accounting of project expenditures, and will refund to the University any unexpended funds advanced by the University to complete the Improvements. 4. Grant of “Home Rink” License/Right to Use Facilities/Facility Guidelines. The City hereby grants the University the right to claim EPIC as the “home rink” of the University’s Division 1 Western Collegiate men’s club hockey team, including the right to exclusively occupy and use the EPIC Locker Room on the dates and times agreed to herein, subject to the terms and conditions of this Agreement. a. The license granted by this Agreement is a limited license to the University only, and not a lease or conveyance of any interest in real property. The license so granted is personal to the University for the purposes described herein, and shall not be transferred, assigned or sublicensed to any other party or person, or used for any other purposes, without the express, written consent of the City. b. The license granted by this Agreement does not include the right to use any parking area or facility on terms other than those available to the general public, nor does the license include the right of either Party to use, publicly display, or reproduce the other Party's name, logo, trademark or service mark, or other copyrighted materials without such Party's express written consent. c. The license granted by this Agreement does not entitle University to entry or access into EPIC outside of facility public hours of operation or to receive keys or badges to any space or door at EPIC other than those affixed to the EPIC Locker Room doors. 5. Compliance with City Use Guidelines. The University shall be responsible to ensure all persons using the EPIC Locker Room pursuant to the University’s license comply with all City Facility Use Guidelines and Procedures ("Guidelines”) as currently in effect or as may be amended from time to time. In the event of a conflict between the Guidelines and this Agreement, this Agreement will control. Notwithstanding any other provision of this Agreement, its attachments and exhibits, or the contents of the Guidelines or any other rules, regulations, ordinances or requirements that may apply, the University shall not be liable as an indemnitor of the City and the University shall not be responsible for any claims and demands of third parties that arise from the negligence, misconduct, acts or omissions of persons who are not in the University's employ, enrolled as students of University, and/or are not acting within the scope of their authority for the University at the time such claim arises. 6. Scheduling Use of the Locker Room. The University shall have exclusive right to use the EPIC Locker Room during the Division 1 Western Collegiate Hockey League regular season (August–April for the purposes of this Agreement), subject to the City's determination, in its sole discretion, that the EPIC Locker Room is in usable condition. The University is under no obligation to use the EPIC Locker Room if it chooses not to. IGA with CSU EPIC Locker Room Page 4 of 18 a. If the EPIC Locker Room is not in usable condition as a result of damage not caused by University, the City will use reasonable efforts to promptly repair or otherwise improve the condition of the EPIC Locker Room. The City shall have no obligation to repair damage to the EPIC Locker Room caused by University, including damage that renders the space unusable in the City’s sole determination. b. City has no liability for compensation or claims and University waives such claims for unavailability of the EPIC Locker Room arising from the necessity of repairing or temporarily closing the EPIC Locker Room. c. During the off season (May-July for the purposes of this Agreement), the University shall have a first right of refusal to use the EPIC Locker Room. The City may however schedule other uses of the space if the University does not exercise its right of refusal within ten (10) business days after it receives a written request from the City to schedule another use of the EPIC Locker Room. 7. Charges for Use of EPIC Locker Room. In recognition of the EPIC Locker Room construction costs paid by the University, during the initial term of this Agreement, the University will not be required to pay facility fees for the use of the EPIC Locker Room during the regular seasons; however, University shall continue to pay all fees associated with reservations and use of ice and other EPIC facilities, pursuant to separate agreement(s) with the City. a. As may be further agreed to in writing by the Parties, during any renewal or extension term, the University may be required to pay facility fees in addition to user fees, for each hockey season during which the University uses the EPIC Locker Room. Fees are set annually per a fee schedule that is applicable to all users and attached to a User Agreement Contract. All fees are due in accordance with the payment schedule specified in the User Agreement Contract. b. During all terms of this Agreement, the University shall be solely responsible for janitorial services and maintaining the cleanliness of the EPIC Locker Room with regular cleaning/disinfecting of the room. In the event the University does not maintain the cleanliness of the EPIC Locker Room, as determined at the City’s sole discretion, the City shall have the right to clean the EPIC Locker Room and invoice the University for reimbursement of the reasonable cost of such cleaning services. University shall promptly pay all invoices from the City for such cleaning, and in any event, if University does not reimburse the City for such costs within thirty (30) days after the date of the City’s reimbursement invoice, the City may terminate the Agreement for default and University shall have no further use of the EPIC Locker Room. c. At all times under this Agreement, the University shall be responsible for the costs to repair any damage to the EPIC Locker Room, other than reasonable wear and tear, attributable to University’s use of the facilities. 8. Insurance Requirements. IGA with CSU EPIC Locker Room Page 5 of 18 a. Each Party warrants and represents it has and shall maintain, at all times herein, insurance in the following kinds and amounts: 1) Workers Compensation Insurance as required by state statute, and Employer's Liability Insurance covering all of such Party's employees acting within the course and scope of their employment; and 2) Commercial General Liability Insurance, which may be self-insured in whole or in part with minimum limits as follows: (i) $1,000,000 each occurrence; (ii) $1,000,000 general aggregate; (iii) $1,000,000 products and completed operations aggregate; and (iv) $50,000 any one fire. b. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, the Party shall immediately obtain additional insurance to restore the full aggregate limit and furnish to the other Party a new certificate or other satisfactory document showing compliance with this provision. c. Each Party shall furnish the other with its certificate evidencing such coverages (any part of which may be self-insured) at any time during the term hereof, upon reasonable request, and shall provide for at least thirty (30) days’ notice of change in coverage or cancellation. The City reserves the right to require additional insurance when, in its judgment, the same is required to adequately protect against the risks associated with a proposed event. 9. [Omitted] 10. Governmental Immunity. Each Party hereto acknowledges and agrees that both Parties are governmental entities of the State of Colorado whose liability in tort is at all times strictly limited and controlled by the Colorado Governmental Immunity Act, CRS 24-10-101, et seq., as now or hereafter amended (the “CGIA”), and that nothing herein is intended as a waiver of such immunity. Without waiving such immunity, only to the extent permitted by applicable law, each Party shall be responsible for its own negligence and the negligence of its employees, authorized volunteers, and agents acting within the scope of their authority under this Agreement. Any liability of the City, the University, or their officers and employees is subject to all the defenses, immunities, and limitations of the CGIA, and to any other defenses, immunities, and limitations to liability available under the law. It is expressly understood and agreed that nothing contained in this Agreement shall be construed as an express or implied waiver by the University or the City of it governmental and sovereign immunities, as an express or implied acceptance by the University or the City of liabilities arising as a result of actions which lie in tort or could lie in tort in excess of the liabilities allowable under the CGIA, as a pledge of the full faith and credit the State of Colorado, or as the assumption by any of the Parties of a debt, contract or liability of each other in violation of Article XI, Section 1 of the Constitution of Colorado 11. Relationship of Parties; Assignment. Neither Party may assign or in any way transfer its rights under this Agreement to any other persons or non-parties. Nothing in this Agreement shall imply any partnership, joint venture, or other association between the University and the City. Each Party shall have sole responsibility for the content and the conduct of its activities. Neither the University's nor the City's name shall be used by the other to suggest co- sponsorship or endorsement of any activity without prior written approval of the other Party. 12. Acceptance of Premises. Prior to requesting the use of the EPIC Locker Room, or any facilities and equipment therein, the University agrees that it has inspected the same and IGA with CSU EPIC Locker Room Page 6 of 18 accepts them in their then-present, as-is condition and shall not alter or change them without written approval of the City, and that at the termination of the use, the same shall be returned in the condition as received by the University, reasonable wear and tear excepted. The University will reimburse the City for any damage to City property directly attributable to University's use of the facilities beyond reasonable wear and tear. 13. Destruction, Loss of Use, Risk of Loss. a. If, prior to the use date(s) provided for herein, the EPIC Locker Room facilities or equipment are destroyed or damaged by fire or other casualty or become unavailable or unusable because of a strike, public emergency, natural disaster, or other cause beyond the reasonable control of the City, then the City may elect to terminate this Agreement and return any use fees previously paid by the University for future uses and have no further obligation whatsoever hereunder, or the City may repair the EPIC Locker Room to the same or similar condition as it was in prior to the damage or destruction, in which case the City will refund only those use fees previously paid for dates that the EPIC Locker Room was unavailable. b. The City is not responsible for broken, lost or stolen property. The University agrees that all of its property or property of others brought or permitted to be brought by it onto City-owned property shall be at the University's risk. 14. Compliance with Laws, Rules, Regulations and Policies. Each Party agrees to abide by all applicable laws and ordinances, including those of the City of Fort Collins and State of Colorado, in connection with the activities under this Agreement, and with the City's Guidelines. If in the City's sole discretion and judgment, a particular event or activity on City property threatens or creates an unreasonable risk of harm to persons or property, or constitutes a violation of law, a nuisance, or a hazard, the City may immediately cancel or terminate the event without liability. 15. Subject to Annual Appropriation. All financial obligations of the City under this Agreement are contingent upon annual appropriation, budgeting and availability of specific funds to discharge those obligations, including advanced payment of project costs by University. Funding beyond the current fiscal year is conditioned upon appropriation of sufficient funds to support the activities described in this Agreement. Nothing in this Agreement shall create a payment guaranty by the City, a debt or a multiple-fiscal year financial obligation under the Colorado Constitution or any similar provisions of the City’s charter or ordinances. Upon notice, the City may terminate this Agreement in whole or in part, without prejudice to any right or remedy of City, if expected or actual funding is withdrawn, reduced, or limited in any way 16. Americans with Disabilities Act (ADA). City facilities are accessible to persons with disabilities as required by federal law. The University may also have obligations under the ADA, or other state or local laws, to ensure that University events are accessible to persons with disabilities. Any such obligation that is unique to the University, beyond the physical accessibility of the EPIC Locker Room, shall be the University's sole IGA with CSU EPIC Locker Room Page 7 of 18 responsibility. 17. Right of Entry. Facilities occupied by University shall, at all times, be under the control of the City, and City personnel have the right to enter said facilities on official matters at any time when so deemed necessary. At no time during the term of this Agreement shall University alter locks or otherwise secure facilities in any manner that renders the facilities inaccessible to City personnel. 18. Alterations. The University will not mark, paint, drill into or in any way mar or deface any portion of the City's property without the City's prior written consent. 19. Signs. The University team will be allowed to have signage on door(s) and/or windows of the EPIC Locker Room, acknowledging the locker room is the “Colorado State University Men’s Ice Hockey locker room”. All such signage, and any other signs or banners, such as advertising and sponsor banners, must be approved in writing by the City and shall comply with the Guidelines and any applicable provisions of the City Code and City Land/Facility Use Code. Permission to post such signs does not grant to the University a right to (re)name the EPIC Locker Room or any feature of the Improvements. 20. Ejection. The City reserves the right to refuse admission to or cause to be removed from City property any person(s) engaging in objectionable or improper conduct. The City reserves the right to eject anyone deemed by the City in its judgment to be endangering or damaging the Premises or any person in any manner whatsoever. 21. Notices. Any notice, request, demand, consent or approval, or other communication required or permitted hereunder will be in writing and will be deemed to have been given when personally delivered or deposited in the United States mail or with an overnight courier, with proper postage and address as follows: If to University: Judy Muenchow, Ph.D. Director, Campus Recreation 8027 Campus Delivery Colorado State University Fort Collins, CO 80523-6030 With a Copy to: Office of the General Counsel 01 Administration Building 0006 Camus Delivery Fort Collins, CO 80523-000 If to City: City of Fort Collins Recreation Department 215 N. Mason, 3rd Floor P.O. Box 580 Fort Collins, CO 80522-0580 With a Copy to: City Attorney's Office City of Fort Collins IGA with CSU EPIC Locker Room Page 8 of 18 300 LaPorte Avenue P.O. Box 580 Fort Collins, CO 80522-0580 22. Binding Effect; Third Party Beneficiaries. This Agreement is binding upon the, personal representatives, successors, and permitted assigns of both parties. It is expressly understood and agreed that the 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. Nothing contained in this contract shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of the Parties that any such person or entity, other than the Parties, receiving services or benefits under this Agreement shall be deemed an incidental beneficiary only. 23. Amendment. No modification or amendment to this Agreement shall be valid unless it is made in a writing signed by the authorized representatives of the parties. 24. Survival of Certain Terms. Notwithstanding anything herein to the contrary, the Parties understand and agree that all terms and conditions of this Agreement and the exhibits and attachments hereto which may require continued performance, compliance, or effect beyond the termination date of this Agreement shall survive such termination date. 25. Waiver. The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent breach of the same or other provision hereof. 26. Severability. In the event that any provision of this Agreement is held unenforceable for any reason, the remaining provisions of this Agreement shall remain in full force and effect. 27. Default; Termination; Dispute Resolution. a. Default. A Party will be considered in default of its obligations under this Agreement if such party should fail to observe, to comply with, or to perform any term, condition, or covenant contained in this Agreement and such failure continues for 10 days after a non-defaulting Party gives the defaulting Party written notice thereof. b. Termination for Cause. In the event of default, a non-defaulting Party, upon written notice to the defaulting Party, may terminate this Agreement as of the date specified in the notice. c. Dispute Resolution. Any dispute concerning the performance of this Agreement that cannot be resolved by the designated representatives of the Parties shall be referred to superior departmental management staff designated by each party (which, for University, shall be the Vice President for University Operations, and for the City, shall be the City Manager), whose decisions shall be made within 30 days after notice or such other period as the Parties may agree. Failing resolution at that level, either party has the right to bring legal action to recover only such damages and remedies as are authorized pursuant to this Agreement, in accordance with Colorado law, and only in a court of competent jurisdiction located within the City of Fort Collins, County of Larimer, Colorado. Notwithstanding any other provision IGA with CSU EPIC Locker Room Page 9 of 18 contained herein, neither party shall be liable to the other for any indirect, consequential, incidental, exemplary (punitive), or special damages. In the event of any default or dispute, each party shall be solely responsible for its own attorneys' fees. d. Disputes over Payments. In the event the University disputes any amount invoiced by the City during the term of this Agreement, the University shall timely remit payment of all undisputed amounts on that invoice, and, together with such payment, provide a written objection to the disputed amounts and the reasons for such dispute. The Parties will cooperate and communicate promptly, in good faith, exchange all pertinent information, investigate the circumstances, and otherwise use all reasonable means to resolve the disputed items as soon as possible thereafter. If the Parties are unable to resolve the dispute, the University will remit the disputed payment, but such amount shall be considered paid under protest, and the University will retain the right to seek redress under subsection c. of this Section 27. 28. Counterparts and Facsimiles. This Agreement may be executed with any number of counterparts, each of which, when executed and delivered will constitute an original, but all such counterparts will constitute one and the same instrument. 29. Special Provisions. The Special Provisions appearing on the following page are required by Colorado law to be contained in every state contract of the state of Colorado, and are hereby incorporated into this contract; except that Special Provisions 3 (first paragraph), 7, and 10 shall not apply. Any conflict between the Special Provisions and any other provision of this contract, including any exhibit or attachment, shall be controlled by the Special Provisions. IGA with CSU EPIC Locker Room Page 10 of 18 These Special Provisions apply to all contracts except where noted in italics. 1. CONTROLLER'S APPROVAL. CRS §24-30-202(1). This contract shall not be valid until it has been approved by the Colorado State Controller or designee. 2. FUND AVAILABILITY. CRS §24-30-202(5.5). Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. 3. GOVERNMENTAL IMMUNITY. No term or condition of this contract 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, CRS §24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq., as applicable now or hereafter amended. 4. INDEPENDENT CONTRACTOR. Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees. Unemployment insurance benefits will be available to Contractor and its employees and agents only if such coverage is made available by Contractor or a third party. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this contract. Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Contractor shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents. 5. COMPLIANCE WITH LAW. Contractor shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. 6. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this contract. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this contract, to the extent capable of execution. SPECIAL PROVISIONS IGA with CSU EPIC Locker Room Page 11 of 18 7. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra-judicial body or person. Any provision to the contrary in this contact or incorporated herein by reference shall be null and void. 8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this contract and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Contractor is in violation of this provision, the State may exercise any remedy available at law or in equity or under this contract, including, without limitation, immediate termination of this contract and any remedy consistent with federal copyright laws or applicable licensing restrictions. 9. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. CRS §§24-18-201 and 24-50-507. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this contract. Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Contractor’s services and Contractor shall not employ any person having such known interests. 10. VENDOR OFFSET. CRS §§24-30-202 (1) and 24-30-202.4. [Not Applicable to intergovernmental agreements] Subject to CRS §24-30-202.4 (3.5), the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39-21-101, et seq.; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action. 11. PUBLIC CONTRACTS FOR SERVICES. CRS §8-17.5-101. [Not Applicable to agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental agreements, or information technology services or products and services] Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this contract, through participation in the E-Verify Program or the Department program established pursuant to CRS §8-17.5- 102(5)(c), Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract or enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this contract. Contractor (a) shall not use E-Verify Program or Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed, (b) shall notify the subcontractor and the contracting State agency within three days if Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien for work under this contract, (c) shall terminate the subcontract if a subcontractor does not stop employing or contracting with the illegal alien within three days of IGA with CSU EPIC Locker Room Page 12 of 18 receiving the notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to CRS §8-17.5-102(5), by the Colorado Department of Labor and Employment. If Contractor participates in the Department program, Contractor shall deliver to the contracting State agency, Institution of Higher Education or political subdivision a written, notarized affirmation, affirming that Contractor has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If Contractor fails to comply with any requirement of this provision or CRS §8-17.5-101 et seq., the contracting State agency, institution of higher education or political subdivision may terminate this contract for breach and, if so terminated, Contractor shall be liable for damages. 12. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101. Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) shall comply with the provisions of CRS §24-76.5-101 et seq., and (c) has produced one form of identification required by CRS §24-76.5-103 prior to the effective date of this contract. Revised 1-1-09 IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT CITY: CITY OF FORT COLLINS, A COLORADO MUNICIPAL CORPORATION By: ______________________________________ Darin A. Atteberry City Manager Date: ATTEST: _______________________________ City Clerk APPROVED AS TO FORM _______________________________ STATE OF COLORADO John Hickenlooper GOVERNOR Board of Governors of the Colorado State University System, acting by and through Colorado State University By: ___________________________________ Frank Krappes, Interim Director of Procurement Services Date: ________________________________ REQUIRED APPROVALS: By: ___________________________________ Dean or Dept. Head Name & Title: Judy Muenchow LEGAL REVIEW John W. Suthers, Attorney General By: IGA with CSU EPIC Locker Room Page 13 of 18 Assistant City Attorney ___________________________________ Special Assistant Attorney General for Colorado State University Date: ALL CONTRACTS REQUIRE APPROVAL by the STATE CONTROLLER CRS §24-30-202 requires the State Controller to approve all State Contracts. This Contract is not valid until signed and dated below by the State Controller or delegate. Contractor is not authorized to begin performance until such time. If Contractor begins performing prior thereto, the State of Colorado is not obligated to pay Contractor for such performance or for any goods and/or services provided hereunder. STATE CONTROLLER Robert Jaros, CPA By: Authorized Delegate Name: Linda Meserve Date: IGA with CSU EPIC Locker Room Page 14 of 18 EXHIBIT A EPIC Facility and Locker Room Location IGA with CSU EPIC Locker Room Page 15 of 18 IGA with CSU EPIC Locker Room Page 16 of 18 EXHIBIT B Itemization of EPIC Locker Room Construction Work Scope of Work The City either itself or through contractors will supply and complete the Work based on the Option #2 per the attached Exhibit A. 1. Design 2. Asbestos/Lead Sampling 3. Concrete material testing 4. Project Management 5. Permits 6. Sitework/Demolition - Deconstruction of all interior walls 7. Sitework/Demolition - Deconstruction of flooring 8. Sitework/Demolition - Deconstruction of existing restroom 9. Sitework/Demolition - Demolition of CMU walls per industrial standard for lead contamination 10. Sitework/Demolition Exclusion – Removal of the existing built in/trophy case 11. Doors & Windows - Removal of existing bathroom door 12. Doors & Windows Exclusion – Removal of exiting doors to the main corridor/hallway 13. Finishes - Material and labor to install Tuflex Titan Black flooring throughout 14. Finishes - New Paint for all the walls 15. Finishes Exclusion – Any tile work 16. Plumbing - All existing plumbing to be capped and redlined on the drawings for future reference 17. Plumbing – Exclusion – Any new rough in’s 18. Electrical – Safe off for demolition of interior walls 19. Electrical – Removal of any existing conduit/wiring that is no longer needed 20. Electrical Exclusion – Any new electrical work 21. Does not include lockers or seating Estimated Total: $43,327.00 Project Budget Work $43,327.00 Contingency $13,685.00 Total $57,012.00 IGA with CSU EPIC Locker Room Page 17 of 18 IGA with CSU EPIC Locker Room Page 18 of 18