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HomeMy WebLinkAbout2022-053-04/19/2022-AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF FORT COLLINS, COLORAINTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND THE MIDTOWN BUSINESS IMPROVEMENT DISTRICT REGARDING SOUTH COLLEGE AVENUE IMPROVEMENTS (Midtown Improvements Projects Thirty Percent Design Project) THIS INTERGOVERNMENTAL AGREEMENT (the “Agreement”) is made and entered into this day of 2022 (the “Effective Date”), by and between the CITY OF FORT COLLINS, a Colorado home rule municipal corporation (the “City”), and the MIDTOWN BUSINESS IMPROVEMENT DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (the “BID”) (the City and the BID may be collectively referred to herein as the “Parties” or individually as a “Party”). RECITALS WHEREAS, the Parties, as Colorado governmental entities, are constitutionally and statutorily empowered pursuant to Colo. Const., Article XIV, §18, and Section 29-1-201, et seq., C.R.S., to cooperate or contract via intergovernmental agreement with one another to provide functions, services, or facilities authorized to each cooperating government; and WHEREAS, the BID is a business improvement district located within the City and established by City ordinance pursuant to the provisions of Section 31-25-1201, et seq., C.R.S.; and WHEREAS, the Parties desire to cooperatively participate in the preparation of a 30% design of certain improvements to South College Avenue within the City (as used herein, the “Project”) as further set forth herein; and WHEREAS, the City is willing to contribute funds toward the Project in order to facilitate timely completion of the Project as further set forth herein; and WHEREAS, the BID is willing to undertake the Project as further set forth herein; and WHEREAS, the Parties and their respective constituents will jointly benefit from the completion of the Project; and WHEREAS, the Parties desire to enter into this Agreement in order to set forth their mutual understanding and agreement regarding the cooperative funding and completion of the Project. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby covenant and agree as follows: EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 2 of 11 DN 6592056.1 AGREEMENT 1. RECITALS. The foregoing recitals are hereby incorporated as though fully set forth herein. 2. PROJECT IMPLEMENTATION. A. The Project. The “Project,” as defined and used herein, shall be the initial scoping, preliminary design and other initial planning components up to what is known as a 30% design for certain improvements to South College Avenue between E. Boardwalk Drive and E. Thunderbird Drive in the City, including but not limited to the following proposed improvements and components: i. conversion of frontage roads along S. College Avenue to one-way, where practical; ii. exploration of opportunities to slow traffic and improve the environment for pedestrians and bicycles, including but not limited to identification of lane narrowing opportunities or elimination of lanes/turn lanes; iii. widened sidewalks/paths on both sides of the street for pedestrians and bicycles; iv. upgraded, expanded and landscaped medians; v. exploration of future multi-modal transportation opportunities on S. College Avenue; vi. intersection improvements at Thunderbird, Harvard, Swallow, Foothills Parkway, Monroe, Bockman and Boardwalk; vii. improvements to the trail underpass connecting either side of S. College Avenue; viii. crosswalk improvements throughout the corridor to improve pedestrian safety; ix. coordination with the City regarding upgrades to utilities; and x. placemaking improvements, including branded Midtown signage and wayfinding, creation of urban parks and plazas, adding public art and plantings, enhanced lighting, streetscaping, and street furniture. EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 3 of 11 DN 6592056.1 B. Project Implementation and Funding. The Parties understand and agree that the BID, in coordination with the City and any and all other applicable entities, as necessary, shall be primarily responsible for facilitating, overseeing, and completing the Project. The Parties’ financial contributions toward the costs of the Project will be funded as provided in Section 3 of this Agreement. C. Completion of Improvements. The Project, as defined herein, does not include the construction or final completion of improvements to South College Avenue, and no portion of the City Contribution (defined herein) shall be used for construction unless otherwise agreed by the Parties in writing. The Parties have discussed, and it is anticipated, that upon completion of the Project, the Parties may, by amendment to this Agreement or by a separate agreement, establish mutually agreeable terms upon which the Parties will later cooperatively provide for the final planning, construction and completion of proposed improvements to South College Avenue consistent with the Project. D. Anticipated Completion of Project. The BID will use reasonable efforts to complete the Project by December 31, 2022. No failure by the BID to complete the Project by December 31, 2022, shall constitute a breach of this Agreement, however, so long as the BID pursues completion with reasonable efforts and due diligence. E. Communication. Both the City and the BID shall each appoint a project manager to be each Party’s primary point of contact for the Project (the “Project Managers”). The Project Managers shall routinely communicate, cooperate and coordinate with one another as reasonably necessary to keep the Parties apprised of the Project progress. The BID shall keep accurate records of the progress of the Project and shall provide status reports to the City, or its designee, on a regular basis (at a minimum, quarterly), including progress updates, notice of any material problems related to the Project, and a record of expenses and payments made to any contractor(s). Said status reports shall include updates to the Project Costs (defined herein) expended and the remaining costs projected to be expended through Project completion and shall note any variances from the estimated Project Costs as well as any adjustments to the time schedule for Project completion. 3. CONTRIBUTIONS TO PROJECT COSTS. A. Contributions. The City and the BID agree to contribute funds toward the total actual costs of the Project as provided in this Section 3, including, but not limited to, costs associated with scoping and design, utility survey and location, permitting, review fees, and any and all other directly related costs and expenses of the Project (the “Project Costs”). The total Project Costs are currently estimated to be approximately Five Hundred Thousand Dollars ($500,000) (the “Estimated Project Costs”). B. Allocated Shares of Estimated Project Costs. The Parties understand and agree that the City and the BID will be responsible for funding individually allocated portions of the Project as detailed below: EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 4 of 11 DN 6592056.1 Entity Share of Estimated Project Cost City of Fort Collins $300,000 Midtown Business Improvement District $200,000 TOTAL $500,000 C. City Contribution. The City hereby agrees to contribute to the BID the amount of Three Hundred Thousand Dollars ($300,000) for the express limited purpose of funding the Project Costs (the “City Contribution”). The City shall transfer the City Contribution to the BID within 14 days of the receipt of a written request from the BID to transfer the City Contribution to the BID. The transfer may be completed by any means mutually agreeable to the Parties. D. BID Contribution. The BID has appropriated and agrees to contribute toward the Project Costs funds in the amount of Two Hundred Thousand Dollars ($200,000) (the “BID Contribution”). E. Use of City Contribution Funds. The BID expressly agrees the City Contribution funds shall only be used for the express limited purpose of funding actual Project Costs. The BID shall maintain or cause to be maintained full and complete records of actual Project Costs incurred and funds committed and expended by the BID for actual Project Costs in accordance with generally accepted accounting principles. The City shall have the right to audit the BID’s financial records related to the Project during the Project and up to three (3) years after completion of the Project. The Parties agree the cost of BID staff, legal and consultant time directly related to and necessary for the implementation of the Project may be considered and included in Project Costs, and such costs will be specifically documented in the BID’s Project records; provided, however, general administrative and overhead costs of the BID not directly related to the Project shall not be considered and included in Project Costs. F. Project Cost Overruns and Underruns. (i) If the BID becomes aware that Project Costs may exceed the Project Cost Estimate, the BID will provide the City with written notice of the same as soon as is reasonably possible. (ii) In the event the Project Costs do in fact exceed the Project Cost Estimate, the City and the BID shall in good faith endeavor to appropriate additional funds in excess of their respective contributions in order to fund the total amount of the Project Costs above the Project Cost Estimate; provided, however, the City and the BID expressly understand and agree that nothing in this Agreement in any way obligates either the City or the BID to budget, appropriate, transfer, pay or otherwise contribute to the other or the Project an amount in excess of the City Contribution or the BID Contribution, respectively. EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 5 of 11 DN 6592056.1 (iii) In the event the actual Project Costs are in fact less than the Project Cost Estimate upon final completion of the Project, the BID Contribution shall be reduced by an amount equal to the difference between the total Project Cost Estimate and the actual Project Costs, it being the understanding and intent of the Parties that the whole of the City Contribution may be spent on actual Project Costs prior to the expenditure of any portion of the BID Contribution such that any unneeded BID Contribution funds may be utilized by the BID to fund the next phases of the contemplated improvements to South College Avenue. In the event the actual Project Costs are in fact less than the City Contribution upon final completion of the Project, all excess City Contribution funds that are not needed to complete the Project shall be promptly returned to the City. 4. ANNUAL APPROPRIATIONS ONLY. It is expressly understood and agreed that the Parties are political subdivisions of the State of Colorado, and any and all financial obligations described hereunder, including but not limited to the City Contribution and the BID Contribution, are subject to annual appropriations of the respective Parties and do not establish debts or other multi-fiscal year obligations thereof. 5. COMPLETION OF IMPROVEMENTS; OWNERSHIP AND MAINTENANCE. As stated herein, the Project does not include the completion or construction of improvements to South College Avenue. All improvements, facilities and appurtenances associated with or related to the Project, if any, will be constructed, owned, operated and maintained as mutually agreed by the Parties in a separate agreement. Nothing herein shall be construed as granting to any entity other than the City and the BID any rights, property or otherwise, in or to any improvements to South College Avenue or the Project, or any improvements, facilities and appurtenances associated with the same. The City shall be identified as a third party beneficiary to any agreements between the BID and contractors or subcontractors to prepare any designs, plans, drawings or other documents for the Project, and any and all designs, plans, drawings or other documents prepared by or for the BID to complete the Project pursuant to this Agreement shall be considered the joint property of the Parties and shall be made available to the City at any time upon request. 6. CHARACTER OF CITY ROLE. Except for the City Contribution as set forth herein, the Parties expressly understand and agree that the City shall not have any duty, obligation, responsibility or liability related to the Project. The City shall not be liable for any claims, demands, losses, damages, expenses, injuries, or liabilities arising from the death or injury of any person or persons, including any claims of the BID, or from any damage to or destruction of property, caused by or in connection with the BID’s activities performed pursuant to this Agreement to complete the Project, or any negligent act or omission of the BID, its officers, employees, or agents, or the Project contractor(s) related thereto. 7. INSURANCE. The BID shall require that any and all contractor(s) performing work for the Project obtain and maintain insurance in customary industry amounts satisfactory to the BID and the City, and both the BID and the City shall be added as additional insureds on such insurance policies. EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 6 of 11 DN 6592056.1 8. BREACH AND ENFORCEMENT. It is specifically understood that, by executing this Agreement, each Party commits itself to perform pursuant to the terms and conditions contained herein and that the failure of any Party to fulfill any obligation set forth herein shall constitute a breach of this Agreement. The Parties agree that this Agreement may be enforced in law or in equity for specific performance, injunctive, or other appropriate relief, as may be available according to the laws of the State of Colorado. 9. TERM OF AGREEMENT AND TERMINATION. This Agreement shall be effective as of the Effective Date identified above and shall terminate upon the earlier of: (1) payment of the City Contribution to the BID, completion of the Project, final accounting of the Project Costs being provided by the BID to the City, and payment or permitted withholding of any unneeded City Contribution Funds as provided herein; or (2) termination in the event of default pursuant to the below provisions. Each Party shall have the right to terminate this Agreement after sixty (60) days written notice to the other Party in the event of a material default which is not cured; provided, however, termination shall not be effective if reasonable actions to cure the breach have been taken by the defaulting Party before the effective date of the termination, and such actions are pursued diligently to a successful completion within sixty (60) days from inception of the actions. If such actions are not successful within said period of time, a non-defaulting party shall have the right to terminate this Agreement upon written notice to the other party. In the event of termination for any reason, the BID shall settle all accounts related to the Project and, subject to Section 3(f) hereof, remit to the City any portion of the City Contribution that has not been applied to Project Costs or that is recovered from or refunded by any Project contractor, as applicable. 10. INDEMNIFICATION. To the extent permitted by law, and without waiving any privileges and rights granted to the BID under the Colorado Governmental Immunity Act and the Colorado Constitution, the BID shall indemnify, defend, save, and hold harmless the City, its officers, employees, and agents, against any and all claims, damages, liability, and court awards, including all costs, expenses, and attorney fees incurred as a result of any act or omission of the BID or its employees, agents, subcontractors, or assignees related to this Agreement and the Project. 11. MISCELLANEOUS. A. Assignment. The Parties hereto may not assign this Agreement or parts hereof or its rights hereunder without the express written consent of all of the Parties. Any attempt to assign this Agreement in the absence of such written consent shall be null and void ab initio. B. Time is of the Essence. The Parties acknowledge that time is of the essence in the performance of this Agreement. EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 7 of 11 DN 6592056.1 C. No Partnership or Agency. Notwithstanding any language in this Agreement or any representation or warranty to the contrary, the Parties shall not be deemed or constitute partners, joint venture participants, or agents of the other. Any actions taken by the Parties pursuant to this Agreement shall be deemed actions as an independent contractor of the others. D. No Third-Party Beneficiaries. It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement and all rights of action relating to such enforcement shall be strictly reserved to the Parties. It is the express intention of the Parties that any person or entity other than the Parties shall be deemed to be only an incidental beneficiary under this Agreement. E. Governmental Immunity. Nothing in this Agreement or in any actions taken by the Parties or their respective elected officials, directors, officers, agents and employees pursuant to this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions of the Colorado Governmental Immunity Act, Sections 24-10-101, et seq., C.R.S. F. No Personal Liability. No elected official, director, officer, agent or employee of the Parties shall be charged personally or held contractually liable under any term or provision of this Agreement, or because of any breach thereof or because of its or their execution, approval or attempted execution of this Agreement. G. Notices. Any notices or other communications required or permitted by this Agreement or by law to be served on, given to, or delivered to any Party hereto by another Party shall be in writing and shall be deemed duly served, given, or delivered when personally delivered to the Party to whom it is addressed or, in lieu of such personal services, when received in the United States mail, first-class postage prepaid addressed to: If to the BID: Midtown Business Improvement District c/o Spencer Fane LLP Attn: Tom George 1700 Lincoln Street, Suite 2000 Denver, CO 80203 If to the City: City of Fort Collins Engineering Department Attn: Brad Buckman, PE, CFM 281 North College Avenue Fort Collins, CO 80524 EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 8 of 11 DN 6592056.1 Any Party may change its address for the purpose of this section by giving written notice of such change to the other Party in the manner provided in this section. H. Headings. The headings and captions in this Agreement are intended solely for the convenience of reference and shall be given no effect in the construction or interpretation of this Agreement. I. Controlling Law and Venue. This Agreement shall be construed in accordance with the laws of the State of Colorado. In the event of any dispute between the Parties, the exclusive venue for dispute resolution shall be the District Court for and in Larimer County, Colorado. J. No Waiver. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other of the provisions of this Agreement, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided herein, nor shall the waiver of any default hereunder be deemed a waiver of any subsequent default hereunder. K. Binding Contract. This Agreement shall inure to and be binding on the successors and permitted assigns of the Parties. L. Entire Contract. This Agreement constitutes the entire agreement between the Parties with regard to the Project and sets forth the rights, duties, and obligations of each to the other as of this date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement with regard to the Project are of no force and effect. M. Contract Modification. This Agreement may not be amended, altered, or otherwise changed except by a written agreement between the Parties. N. Severability. The invalidity or unenforceability of any portion or previous version of this Agreement shall not affect the validity or enforceability of any other portion or provision. Any invalid or unenforceable portion or provision shall be deemed severed from this Agreement and, in such event, the Parties shall negotiate in good faith to replace such invalidated provision in order to carry out the intent of the Parties in entering into this Agreement. O. Counterpart Execution. This Agreement may be executed in multiple counterparts; all counterparts so executed shall constitute one agreement binding upon all parties, notwithstanding that all parties are not signatories to the original or the same counterpart. Documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date first above written. By the signature of its representative below, each Party affirms that it has taken all necessary action to authorize said representative to execute this Agreement. EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 9 of 11 DN 6592056.1 [signature pages follow] EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 10 of 11 DN 6592056.1 CITY OF FORT COLLINS By: Dated: Attested: By: Approved as to Form: By: EXHIBIT A City of Fort Collins / Midtown Business Improvement District Agreement Regarding S. College Avenue Improvements (30% Design) Page 11 of 11 DN 6592056.1 MIDTOWN BUSINESS IMPROVEMENT DISTRICT By: Name: Title: Date: ATTEST: By: Name: Title: EXHIBIT A