HomeMy WebLinkAbout2023-112-12/19/2023-APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH POUDRE SCHOOL DISTRICT AND POUDRE RIVER PUBLIC LIBRARYRESOLUTION 2023-112
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH
POUDRE SCHOOL DISTRICT AND POUDRE RIVER PUBLIC LIBRARY DISTRICT
TO ACQUIRE LAND AND CONSTRUCT THE SOUTHEAST COMMUNITY CENTER
WHEREAS,in April 2015 Fort Collins voters approved Ordinance No.013,2015,
extending for ten years a quarter-cent sales tax to be dedicated to the “Community Capital
Improvement Program”capital projects and related operation and maintenance (“CCIP”);and
WHEREAS,Ordinance No.013,2015 includes a requirement that the City construct a
Community Center in southeast Fort Collins focused on innovation,technology,art,recreation and
the creative process,including a large outdoor leisure pool and meeting spaces dedicated to
innovation and creativity (the “SECC”);and
WHEREAS,Poudre School District (“PSD”)uses swim lanes at existing City recreation
facilities for high school swim team practices and meets,but access to lanes for both PSD and the
general public is constrained by the current capacity of the City’s recreation system;and
WHEREAS,PSD has approximately 10 acres of land available next to Fossil Ridge High
School (the “Land”)that,based on preliminary information,is a suitable site for the SECC,
including all the facility requirements contained in the CCIP ballot language as well as an indoor
aquatics facility that would serve the recreation needs of the Fort Collins community and allow
PSD access to indoor lanes for its swim programs (the “Aquatics Facility”);and
WHEREAS,on August 15,2023,the City Council adopted resolution 2023-074,which
stated the Council’s intent that access for PSD students to the new Aquatics Facility be conditional
on PSD and the City agreeing on PSD’s share of the cost for such a facility;and
WHEREAS,PSD has agreed to fund 15%of the capital costs for the Aquatics Facility,and
contribute to the operating,maintenance,and replacement costs of the Aquatics Facility,if it can
obtain additional funding through a ballot measure in November,2024;and
WHEREAS,on November 7,2023,Fort Collins voters passed a ballot measure approving
a .50%sales tax,with 50%of the revenues to be spent on replacement,upgrade,maintenance,and
accessibility of parks facilities and for the replacement and construction of indoor and outdoor
recreation and pool facilities,and these revenues will provide an estimated $30-34 million of
capital costs funding for the Aquatics Facility;and
WHEREAS,the Poudre River Public Library District (“Library”)is interested in co
locating a new southeast branch library with the SECC,and has agreed that if it participates it will
pay its share of design and construction costs and will equip and operate the branch library at its
expense;and
WHEREAS,the City,PSD and the Library have negotiated an intergovernmental
agreement governing the City’s acquisition of the Land from PSD for the SECC,the construction
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of the SECC (including the Aquatics Facility)and the ownership,maintenance and use of the
Aquatics Facility (the “SECC IGA”);and
WHEREAS,a copy of the proposed SECC IGA is attached and incorporated herein as
Exhibit “A”;and
WHEREAS,key provisions of the SECC IGA include the following:
•The IGA is for a term of seven years,at which point the parties can reassess its terms;
•The City and PSD have agreed to value the Land at $3.18 million;
•The Land’s value is part of PSD’s consideration for the City’s agreeing to build indoor
swim lanes as part of the SECC;
•PSD intends to convey the Land to the City at no cost,so long as PSD can obtain full
funding for its 15%share of the costs to build the Aquatics Facility;
•If PSD cannot secure funds for 15%of the cost,the City will pay PSD for the land but will
have no obligation to build indoor swim lanes for PSD use;
•Details about the Land transfer will be covered in a separate Purchase and Sale Agreement
to be drafted by the City and PSD and presented to the City Council for consideration in
early 2024;
•PSD has also agreed to pay the City $150,000 per year,after the indoor pool opens,for
operation and maintenance of the indoor swim lanes,and $45,000 per year towards a long-
term equipment fund;
•The Aquatics Facility will be solely owned and maintained by the City;
•PSD’s use of City pool facilities,including the Aquatics Facility,will be governed by a
separate Facility Use Agreement between the City and PSD to be executed following the
outcome of PSD’s November 2024 election,subject to City Manager approval;
•The City and Library will jointly design and construct the Library Branch portion of the
Project and the Library will have input on common amenities,but the City will do all
contracting for design and construction of the SECC;and
•The Library’s participation in the SECC project will be governed by a separate
intergovernmental agreement to be negotiated between the City and the Library and
presented to the City Council for consideration in 2024;and
WHEREAS,Article XIV,Sectionl8(2)of the Colorado Constitution,and Section 29-1-
201 et seq.of the Colorado Revised Statutes authorize governmental entities to enter into
intergovernmental agreements,and to cooperate or contract with one another to provide any
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function,service,or facility lawfully authorized to each of the cooperating or contracting units;
and
WHEREAS,Section 1-22 of the City Code requires that,with some exceptions,
intergovernmental agreements or cooperative activities between the City and other governmental
entities be submitted to the City Council for review and approval by ordinance or resolution.
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 Council hereby authorizes the Mayor to execute the SECC
IGA in substantially the form attached hereto as Exhibit “A”,with such additional terms and
conditions as the City Manager,in consultation with the City Attorney determines to be necessary
and appropriate to protect the interest of the City or effectuate the purpose of this Resolution.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 19th
day of December,2023.
AEI7E
City Clerk,
EXHIBIT A TO RESOLUTION 2023-112
INTERGOVERNMENTAL AGREEMENT
RELATED TO THE SOUTHEAST COMMUNITY CENTER
THIS INTERGOVERNMENTAL AGREEMENT (“Agreement”)dated ______________,2023,is entered into
by and between THE CITY OF FORT COLLINS,COLORADO,a municipal corporation (“City”),POUDRE
SCHOOL DISTRICT R-1,a statutory Colorado school district (“School District”)and the POUDRE RIVER
PUBLIC LIBRARY DISTRICT,a political subdivision of the State of Colorado (“Library”).The City,School
District,and Library are referred to herein individually as a “Party”and collectively as the “Parties.”
RECITALS
A.The City is a home-rule municipality that was settled by non-native homesteaders in the mid-
1800’s,was originally platted as a town site in 1866,and became the seat of Larimer County
government in 1868.In 1873 the town of Fort Collins was incorporated.Fort Collins has a current
population of more than 174,000,having grown steadily over the last 60 plus years from a 1960
population of 25,000.
B.The School District is a duly organized and validly existing school district,political subdivision and
body corporate of the State of Colorado under the Constitution and laws of the State of
Colorado.
C.The Library is a Colorado Library District established by a citizen initiative in 2006 pursuant to the
Colorado Library Law,Sections 24-90-101 et seq.C.R.S.
D.The Colorado Constitution,Article XIV,Section §18,and §29-1-201,CR5.,et seq.provide for and
encourage political subdivisions of the State of Colorado to make the most efficient and effective
use of their powers and responsibilities by cooperating and contracting with each other;and
E.Section 29-1-203,C.R.S.,as amended,authorizes any political subdivisions or agencies of the
State of Colorado to cooperate or contract with one another to provide any function,service,or
facility lawfully authorized to each of the cooperating or contracting entities,including the
sharing of costs,imposition of taxes,or incurring of debt and
F.The Parties have a lengthy history of working together to provide park,recreation and library
facilities to the Fort Collins community.
G.In April2015 the voters of Fort Collins overwhelmingly approved Ordinance No.013,2015,
extending for ten years a quarter cent sales tax to be dedicated to the “Community Capital
Improvement Program”capital projects and related operation and maintenance (“CCIP”).
Ordinance No.013,2015 includes a requirement that the City construct a Community Center in
southeast Fort Collins focused on innovation,technology,art,recreation and the creative
process,including a “large outdoor leisure pool with water slides,sprays and jets,decks,a lazy
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EXHIBIT A TO RESOLUTION 2023-112
river and open swimming area,”as well as meeting spaces dedicated to innovation and
creativity.
H.The School District utilizes swim lanes within existing City recreation facilities for practices and
meets of its multiple high school swim teams.Access to lanes for both the School District and
public at large is constrained within the recreation system based on current capacity.Moreover,
the School District is likely to add an additional swim team in the near future.
I.The School District currently has approximately 10 acres of land (the “Land”,as defined below)
available that based on preliminary information,represents a suitable site for the construction
of a new Community Center that includes all of the facility requirements contained in the 2015
ballot language in addition to an expanded library branch,and the construction of an indoor
aquatics facility that would both serve the recreation needs of the Fort Collins community and
allow the School District access to indoor lanes for its swim programs.
J.Since the CCIP tax measure was approved by the voters,the Parties have participated in
extensive discussions focused on planning,developing and establishing the Community Center
to meet the needs and desires of the Fort Collins community.
K.The City has secured funding for a currently estimated $30-34 million of capital costs for the
indoor Aquatics Facility.The Parties acknowledge that the School District plans to secure funding
for the School District’s share of the indoor Aquatics Facility,and also contribute to the
operation,maintenance,and replacement costs of the Aquatics Facility.
L.On August 15,2023,the Fort Collins City Council adopted resolution 2023-074,which stated the
“City Council’s intent that access for [School District]students is conditional on the District’s and
City’s agreement on the District’s share in the full cost of those swimming lanes,”and the School
District has agreed to fund 15%of such costs.
M.The Library is interested in constructing a southeast branch library as part of the Community
Center.
N.In the spirit of these stated objectives,the Parties seek by this Agreement to memorialize the
terms on which they have agreed,in a collaborative manner and as partners,to develop and
operate the Community Center,with the intent that their collaborative partnership shall
continue for many years to come.
0.This Agreement is conditional on the execution of a Purchase and Sale Agreement (“PSA”)for the
Land,including any necessary approvals by the City and School District’s respective governing
bodies.This Agreement will automatically terminate if the City and School District are unable to
execute the PSA by April30,2024.
NOW,THEREFORE,in consideration of the mutual promises and covenants contained in this Agreement,
the Parties agree as follows:
EXHIBIT A TO RESOLUTION 2023-112
GENERAL TERMS
1.Definitions.
a.Appraised Price:the agreed upon fair market value of the Land,as further described
below in Section 11.1(b).
b.Apuatics Base:the total capital cost of designing and constructing the Aquatics Facility,
including but not limited to the cost of constructing indoor lap lanes and deck,aquatic
support (office space,pumping and filtration equipment and fixtures,lockers,and
storage),Common Amenities,and Site Costs.
C.Apuatics Facility:the indoor lap poo1 facility the City plans to construct as part of the
Community Center,this facility does not include any indoor elements of the Leisure Pool.
d.Common Amenities:means common areas of the Community Center that serve the
Aquatics Facility or Library Branch as well as the City’s other facilities,based on the 100%
design of the Community Center.
e.Community Center:the Southeast Community Center,to potentially include the Aquatics
Facility,Library Branch,Leisure Pool,and other facilities to serve a community purpose.
f.Effective Date:the date the Agreement is fully executed by all Parties.
g.Land:Approximately 10 acres of the larger parcel,as depicted in Exhibit A attached,
currently owned by the School District identified as Larimer County Assessor’s Parcel No.
8604000904 that the City intends to acquire as part of this Agreement subject to the
terms and conditions of a separate Purchase and Sale Agreement.The Parties agree that
Exhibit A will be updated with additional information pertaining to the Land,including
the legal description.
h.Leisure Pool:all elements of an outdoor/indoor leisure pooi with water slides,sprays
and jets,decks,a lazy river and open swimming area specified in the CCIP ballot
measure.
i.Library Branch:a facility to serve as a public library meeting the definitions promulgated
by the Office of Colorado State Librarian and providing community meeting spaces with
access to information of all kinds and programing that fosters reading,lifelong learning,
innovation and creativity.
j.Purchase and Sale Agreement or PSA:the agreement to be entered into by the City and
School District outlining the sale of the Land,as described above.
EXHIBITATO RESOLUTION 2023-112
k.Project:the acquisition of land,planning,design,construction and furnishing of the
facilities encompassing the Community Center.
2.Term and Termination.The term of this Agreement will begin on the Effective Date and shall
continue for 7 years.The Parties have agreed to review and update this Agreement as
needed and to engage in good faith negotiations regarding the need for potential term
extensions.This Agreement is subject to early termination only as described herein.
COMMUNITY CENTER AND AQUATICS FACILITY
1.Land Acquisition
a.~The City intends to acquire the Land from the School District,and both
Parties will engage in good faith negotiations to reach agreement on and
execute a Purchase and Sale Agreement on terms and conditions satisfactory to
both Parties.
b.Aupraisal.The City and the School District agree that the Appraised Price of the
Land is $3,180,000.This is the amount at which the Land was appraised on July
26,2023,by Jon Vaughan of CBRE.
c.City Land Acquisition and Aquatics Facility Construction Fund ing.The School
District intends to convey the Land to the City as an in-kind consideration as part
of an overall capital commitment of 15%towards the Aquatics Base,in exchange
for the City agreeing to build the Aquatics Facility and coordinate the School
District’s shared use of it for School District swim programs.
d.The School District agrees that the City is under no obligation to build the
Aquatics Facility unless the City and District secure sufficient funding as stated
below.The City and District have identified the following potential funding
sources for their respective shares of the Aquatics Facility construction costs:
i.On November 7,2023,Fort Collins voters passed a ballot measure
approving a .50%sales tax,with 50%of the revenues to be spent on
replacement,upgrade,maintenance,and accessibility of parks facilities
and for the replacement and construction of indoor and outdoor
recreation and pool facilities.These revenues will provide funding for
the Aquatics Facility.The City and the School District intend to sign a PSA
for the Land by April30,2024,if not sooner,and close on the Land by
November 30,2024.
ii.The School District intends to seek voter approval of a November 2024
ballot measure to fund the School District’s share of the Aquatics
Facility.
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EXHIBIT A TO RESOLUTION 2023-112
iii.The City and School District agree that they intend to close on the Land
following the November 2024 election.If the School District’s
November 2024 ballot measure is approved by the voters,then at
closing the School District will convey the Iand to the City at no cost as
part of the School District’s share of funding for the Aquatics Facility.
iv.If the School District’s November 2024 ballot measure is not approved
by the voters,at closing the City will deposit the Appraised Price of the
Land into an interest-bearing escrow account.The escrow agreement
shall be in substantially the form attached as Exhibit B to this
Agreement.This funding will remain in the escrow account until the
expiration of the reimbursement obligation described below.
v.If the School District’s November 2024 ballot is not approved but the
School District secures a new source of funding after the execution of
the PSA and conveyance of the Land to the City but before January 31,
2025,the escrowed funds and any accrued interest shall be released to
the City as part of the School District’s share of funding for the Aquatics
Facility.
vi.If the School District’s November 2024 ballot measure is not approved
and the School District is not able to secure a new source of funding by
January 31,2025,the escrowed funds and any accrued interest shall be
released to the School District,unless the City and School District
mutually agree to extend the funding deadline.The City and School
District agree that if funding cannot be secured by February 1,2025,
they intend to enter into good4aith negotiations in the future regarding
an aquatics facility on the Land and the School District’s use thereof.
e.As of the execution of this Agreement the Parties do not have knowledge of any
restrictions on the Land or title commitments.
f.The City will coordinate with the School District to arrange any site access
required by the City or its contractors prior to closing on the Land.
2.Funding and Construction of the Community Center
a.Construction and Design.The City will design and construct the Community
Center.The City and Library will jointly design and construct the Library Branch
portion of the Project and the Library will have input on Common Amenities,as
set forth in a separate Intergovernmental Agreement between the Library and
the City described in Section III below.The City will consult with the School
District,but will have final decision-making authority,on site planning for the
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EXHIBITATO RESOLUTION 2023-112
Community Center,and on the designs for the Aquatics Facility at the 50%
design stage.
b.Contracting.Contracting for the Project and related products and services shall
be done by the City through its purchasing processes,and subject to applicable
requirements of the City Code and City Purchasing Policies.The Parties
acknowledge that,pursuant to the City’s Charter,the City may not expend funds
or enter into any contract for materials or services related to the Project unless
the full amount of the funds necessary for such expenditure or contract has
been appropriated to the Project by the City Council.The City and the Library
will each designate a respective project manager through their standard
processes,or may agree to hire a joint agent or project manager for the design
process.The Parties understand that the construction of the Project is subject to
approval through the City’s development review process.The Project is expected
to be designed to a LEED gold level.
c.School District Cost Sharing.
i.The Parties agree that all cost sharing for the Project will be expressed
as a percentage share of the cost categories,as established in Exhibit C.
The cost sharing percentages will apply to the final design and
construction costs rather than the current 2022/2023 cost estimates.
ii.The School District shall fund 15%of the total of the Aquatics Base upon
the City’s presentation to the School District of a pay application
detailing the City’s estimated costs at the time of groundbreaking on the
Aquatics Facility,subject to a reconciliation of actual construction costs
upon issuance to the City of a Certificate of Occupancy covering the
Aquatics Facility.Upon reasonable notice,the School District shall have
the right to audit the records of the City as they relate to the Aquatics
Facility.School District payments to the City shall be due thirty (30)days
from the date of the City’s invoice to the School District.
iii.The Aquatics Base will include any change orders agreed to by the City
and School District that relate to the total cost of the Aquatics Facility.
The School District will pay 15%of any such change orders.
iv.The School District’s 15%obligation is based on the current occupancy
of the School District’s swim teams in existing City aquatics facilities
compared to the total annual lane-hour availability at such facilities,as
established in Exhibit D.Per Section ll.lc.above,if the School District
gives the Land to the City as an in-kind contribution,the Appraised Price
of the Land will count towards this 15%share.The remainder of the
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EXHIBIT A TO RESOLUTION 2023-112
School District’s 15%share will be paid in cash as described in
subparagraph ii above.Should the School District fail to make the
required payment(s),the City may terminate this Agreement with
respect to the obligations between the City and the School District.Such
termination under this subsection will not affect the relationship and
obligations between the Library and the City under this Agreement.
v.Should the Appraised Price exceed the School District’s 15%share of the
Aquatics Base,upon completion of the Aquatics Facility the City will
make a cash contribution to the School District equal to the difference
between the Appraised Price and the 15%share.Upon receipt of this
payment by the School District,the School District’s cost share of the
Aquatics Base will be considered fully satisfied.
3.Apuatics Facility ODeration.The Aquatics Facility will be solely owned and maintained by the
City.The School District’s use of City pool facilities,including this Aquatics Facility,shall be
governed by a separate Facility Use Agreement between the City and School District to be
executed within 120 days after the School District’s 2024 election.
4.School District Consideration for Use of Aguatics Facility.As further consideration for its use
of the Aquatics Facility,subject to the successful execution of the Facility Use Agreement but
separate and apart from the rights and obligations contained within the Facility Use
Agreement,the School District shall pay the City $150,000 annually,which the City will use
for the operation and maintenance of the Aquatics Facility.The City shall establish a long-
term equipment replacement fund associated with the Aquatics Facility and the School
District agrees to also pay the City $45,000 annually as its contribution to this fund.These
payments shall be due to the City no later than January31 of each year starting the first
January following the public opening of the Aquatics Facility.The City and the School District
intend that these annual payments will continue so long as the School District continues to
use the Aquatics Facility.Following completion of the initial term of this Agreement the
amounts are subject to adjustment as agreed to by the City and the School District.
COMMUNITY CENTER AND LIBRARY BRANCH
1.The Library is under no obligation to participate in the Project.If the Library participates in
the Project,it will share in design and construction costs;and will equip and operate a
Library Branch consisting of at least 30,000 square feet including meeting rooms and
programming spaces to foster research,reading,lifelong learning innovation and creativity.
2.The Library and the City intend to negotiate and enter into a separate Intergovernmental
Agreement memorializing their partnership in the Project before the commencement of any
land and building design.The Intergovernmental Agreement will include but not be limited
to:
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EXHIBIT A TO RESOLUTION 2023-112
a.The form of the Library’s interest in the real property;
b.Designation of the Parties Project Managers;
c.Whether the Library Branch will be a stand-alone structure or part of a larger
facility;
d.Cost sharing of land acquisition,design,and construction costs;and
e.Ongoing maintenance and operations of the real property and facilities.
IV.ADDITIONAL TERMS AND CONDITIONS
1.Obligations Subject to Appropriations.The obligations of the Parties to commit or expend
funds in any subsequent fiscal year are subject to and conditioned upon the annual
appropriation of funds sufficient and intended to carry out said obligations by each Party’s
respective governing body in its sole discretion.If any Party’s governing body does not
appropriate funds necessary to carry out any such obligations,such Party will notify the
other Parties promptly of such non-appropriation.If such non-appropriation results in a
material impairment of any of the Parties’rights hereunder,such Party may terminate the
Agreement,with no further recourse against the other Parties,by providing thirty (30)days
written notice.
2.Liability.Only to the extent permitted by applicable law,each Party will be responsible for its
own negligent acts or omissions and that of its officers,employees,agents and contractors.
Any liability of the City,School District,Library,or their officers and employees is subject to
all the defenses,immunities,and limitations of the Colorado Governmental Immunity Act,
C.R.S.§24-10-101,et seq.,as amended (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 City,School District,or Library of its governmental and sovereign immunities,as an
express or implied acceptance by the City,School District,or Library 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 of the State of Colorado,or as the
assumption by any of the Parties of a debt,contract or liability or each other in violation of
Article Xl,Section 1 of the Constitution of Colorado.
3.Existing Rights and Agreements.Nothing in this Agreement shall act to amend,modify,or
supersede any related agreements or any other agreements,rights,or legal positions by and
between the City,School District,and the Library external to this Agreement,or to alter in
any way their recourse under the same,unless specifically agreed upon herein.
4.Default;Dispute Resolution.If any Party defaults in its obligations under the terms of this
Agreement,a non-defaulting Party may give the defaulting Party written notice specifying
the nature of the default.If the defaulting Party has not cured the default within thirty (30)
days,or,for a default reasonably requiring more than thirty (30)days to effect a cure,has
not commenced a cure within thirty (30)days and pursued it with diligence,the non
defaulting Party may terminate this Agreement—provided that,if there is any dispute,
controversy or claim arising out of or relating to this Agreement or the breach,termination
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EXHIBIT A TO RESOLUTION 2023-
or invalidity thereof,the Parties agree to attempt to resolve the dispute informally before
terminating the Agreement.Accordingly,the Parties will first elevate the disputed issues to
senior administration,and if the matters are not resolved,the Parties may then engage in
mediation or other non-binding dispute resolution methods.The Parties agree that in the
event of a breach of this Agreement by any Party,that is not resolved through the means
described in this section,the non-breaching Party or Parties shall be entitled to pursue any
available legal or equitable remedies,including but not limited to injunctive relief or specific
performance.In any dispute between the Parties,each Party will bear its own attorney’s
fees and costs.
5.Notices.Any notice or other communication given by any Party to another relating to this
Agreement must be e-mailed,hand-delivered,or sent by registered or certified mail,return
receipt requested,or by overnight commercial courier,addressed to such other Party at its
respective addresses set forth below.A Party may update its address(es)for giving notice at
any time by notifying the other Parties in writing.Any notice or other communication
provided under this Section will be deemed given when so e-mailed or hand-delivered,or
three (3)business days after so mailed,or the next business day after being deposited with
an overnight commercial courier:
If to the City:
City Manager
City of Fort Collins
P.O.Box 580
Fort Collins,CO 80522
With a copy to:
City Attorney’s Office
City of Fort Collins
RO.Box 580
Fort Collins,CO 80522
If to the School District:
Finance Department
2407 Laporte Avenue
Fort Collins,CO 80521
With a copy to:General
Counsel 2407 Laporte
Avenue Fort Collins,CO
80521
If to the Library:
EXHIBIT A TO RESOLUTION 2023-112
V.MISCELLANEOUS PROVISIONS
i.words in the s ngular nclude the plural and vice versa.
2.This Agreement is to be construed according to its fair meaning and as if prepared by all
Parties and is deemed to be and contain the entire understanding and agreement
between the Parties There shall be deemed to be no other terms,conditions,promises,
understandings sta ements,or representations,expressed or implied,concerning this
Agreement nless set fort n writing and signed by the Parties.
3.Except as otherwise described herein,t is Agreement cannot be modified or assigned
except in writing signed by all Parties
4.Subject to the provisions hereof,the benefits of this Agreement and the burdens
hereunder inure to and are binding upon the Parties and their respective,
administrators,successors,agents and permitted assigns.
5.This Agreement will be governed by and its terms construed under the laws of the State
of Colorado.Any judicial proceedings commenced by a party to enforce any of the
obligations,covenants,and agreements contained herein,must be commenced in the
Larimer County District Court located in Fort Collins,Colorado.
6.Nothing contained herein is deemed or should be construed by the Parties nor by any
third party as creating the relationship of principal and agent,a partnership or a joint
venture between the Parties,or any employment relationship between the Parties.
7.This Agreement is made for the sole and exclusive benefit of the Parties,and it is not
made forthe benefit of any third party.
8.If any term or condition of this Agreement is held to be invalid by final judgment of any
court of competent jurisdiction,the invalidity of such a term or condition,will not in any
way affect any of the other terms or conditions of this Agreement,provided that the
invalidity of any such term or condition does not materially prejudice any party in their
respective rights and obligations under the valid terms and conditions of this
Agreement.
9.No Party will be deemed in violation of this Agreement if prevented from performing
any of its respective obligations hereunder by reason of strikes,boycotts,labor disputes,
embargoes,shortage of energy or materials,acts of God,acts of public enemies,acts of
superior governmental authorities,weather conditions,rights,rebellions,sabotage,or
any other circumstances for which it is not responsible or that are not within its control.
10.The Parties agree that this Agreement and related documents may be subject to
disclosure under the Colorado Open Records Act (“CORA”).
IN WITNESS WHEREOF,the parties have executed this Agreement as of the date of the most recent
signatory.
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EXHIBIT A TO RESOLUTION 2023-112
THE CITY OF FORT COLLINS,COLORADO
Date:________________________By:_____________________________
Jeni Arndt,Mayor
ATTEST:APPROVED AS TO FORM:
City Clerk Sr.Assistant City Attorney
POUDRE SCHOOL DISTRICT R-1
Date:_________________________By:_______________________________
Chair of the Board
ATTEST:
Board Secretary
POUDRE RIVER PUBLIC LIBRARY DISTRICT
Board of Trustees
Date:_________________________By:______
President
ATTEST:
Secretary
EXHIBIT A TO RESOLUTION 2023-112
Exhibit A —Land Depiction
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Foss~I Ridge High School lOAcre SiteAppnisal [N]USWAU ,i
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EXHIBIT A TO RESOLUTION 2023-112
Exhibit B —Draft Escrow Agreement
ESCROW AGREEMENT IDRAFTI
THIS AGREEMENT is entered into this ________day of ,20 ,by and
between the City of Fort Collins,Colorado,a Colorado home rule municipality (“City”)and
Poudre School District R-I,a statutory Colorado school district (“School District”),and
_________________(“Escrow Holder”).City and School District may be referred to hereafter
as a “Party”or “Parties.”
City shall deposit with Escrow Holder on or before _______________,20_,cash in the
amount of$.00 (the “Escrow Deposit Funds”),to be held and distributed
by Escrow Holder subject to the general terms and conditions hereof and the Special
Instructions set forth below.
GENERAL PROVISIONS
I.Amendments.These instructions may not be altered,amended,modified,or revoked
except by a writing signed by the parties hereto and approved by the Escrow Holder.
2.Form of Notice.Any notice,instruction or demand required or desired to be given to the
Escrow Holder or by the Escrow Holder to any other party must be in writing and may be
delivered personally,by U.S.or private mail or courier to the addresses listed below,or
by telefax or telegram.
Ifto City:Ifto School District:
3.Reliance on Notice.Escrow Holder may act in reliance upon any writing or instrument
or signature which it,in good faith,believes to be genuine,and may assume the validity
and accuracy of any statement or assertion contained in such a writing or instrument,and
may assume that any person purporting to give any writing,notice,advice or instruction
in connection with the provisions hereof has been duly authorized to do so.
4.Disbursement Time Requirements.Any notice to Escrow Holder hereunder shall be
given not later than 24 hours prior to the date and time for action by Escrow Holder.
Escrow Holder agrees to act upon all notices given to it that are fully approved by all
appropriate parties and are not conditioned upon any event other than Escrow Holder’s
actions,not later than 5:00 p.m.on the business day next following the date upon which
such notice was received.
5.Laws of Escheat.All Parties are hereby advised that unclaimed funds may be payable to
the State of Colorado at some future date pursuant to the laws of escheat,and should
Escrow Holder so pay any such funds held in the Escrow,Escrow Holder shall be
released from all further responsibility under this Agreement and shall not be liable to
EXHIBIT A TO RESOLUTION 2023-112
any Party so long as such payment was made pursuant to the statues of Colorado or
regulations of the Colorado Department of Revenue.
6.Interest Earned on Escrow Deposit Funds.Deposits of less than $1,000 shall not bear
interest.Deposits of $1,000 to $100,000 shall bear interest at the rate paid by the
financial institution (the “Institution”)where deposited.Deposits of$100,000 or more
may be directed by the Parties to other types of investments.Under no circumstances
shall Escrow Holder be liable for loss of funds due to bank,savings and loan association
or other Institution failure,or for acts or omissions of the employees or agents of such
Institution,suspension or cessation of business,or any action or inaction on the part of
the bank,savings and loan association or other Institution,or any delivery service
transporting funds to and from such Institution.
7.Receipt and Deposit of Proceeds.The Escrow Deposit Funds will be deposited in a
federally insured banking institution.If the Escrow Deposit Funds exceed $100,000,
Escrow Holder may invest the Escrow Deposit Funds in Government Repurchase
Agreements for U.S.Treasury obligations.Escrow Holder shall not be responsible for
maximizing the yield on the Escrow Deposit Funds.All Parties shall execute and deliver
to Escrow Holder all forms required by Federal,state,or other governmental agencies
relative to taxation matters and Escrow Holder will file appropriate 1099 or other
required forms.
8.Fees and Expenses of Escrow Holder.The Escrow Holder shall be entitled to
reimbursement in full,or may demand payment in advance,for all costs,expenses,
charges,fees or other payments made or to be made by Escrow Holder in the
performance of Escrow Holder’s duties and obligations under this Agreement.
shall be liable for the payment to Escrow Holder of all Fees and Expenses.
Escrow Holder is authorized and directed to disburse up to 50°o of the Fees to itself in
payment of Fees or Expenses from the Escrow Deposit Funds whether from principal or
interest or both,at any time and from time to time.
9.Non-Liability of Escrow Holder.Escrow Holder shall not be liable for any mistakes of
fact,or errors ofjudgment,or for any acts or omissions of any kind unless caused by the
willful misconduct or gross negligence of Escrow Holder.Escrow Holder shall not be
liable for any taxes,assessments,or other governmental charges which may be levied or
assessed upon the Escrow Deposit Funds or any part thereof,or upon the income
therefrom.Escrow Holder may rely upon the advice of counsel and upon statements of
accountants,brokers or other person reasonably believed by it in good faith to be expert
in the matters upon which they are consulted,and for any reasonable action taken or
suffered in good faith based upon such advice or statements.Escrow Holder shall not be
liable to anyone,except as set forth in the above and foregoing.
10.Compliance with Orders.Except as provided in section 3 above,the Escrow Holder is
hereby expressly authorized and directed to disregard any and all notices or warning
given by any of the parties hereto,or by any other person or corporation,excepting only
orders or process of court,and is hereby expressly authorized to comply with and obey
2
EXHIBIT A TO RESOLUTION 2023-
any and all orders,judgments,or decrees of any court,and in case Escrow Holder obeys
or complies with any such order,judgment,or decrees of any court,it shall not be liable
to any of the parties hereto or to any other persons,firm or corporation by reason of such
compliance.
II.Indemnity of Escrow Holder.The Parties,severally,on a 50%-50%basis and to the
extent permitted by law,agree to release and indemnify Escrow Holder as to any liability
by reason of this Escrow Agreement,or in connection herewith and to reimburse Escrow
Holder for all its expenses,including,but not necessarily limited to,attorney’s fees and
court costs incurred in connection herewith,except for Escrow Holder’s own misconduct
or negligence.However,with respect to any third-party claims against the Parties,
nothing herein shall be deemed a waiver of the notice requirements,defenses,immunities
and limitations to the liability available to the Parties and their respective officers and
employees under the Colorado Governmental Immunity Act (C.R.S.24-10-101 et.seq.)
or under any other law.
12.Disputes.In the event of any dispute between the Parties as to either law or fact as to any
such demand or other matter,such dispute shall be between the Parties and Escrow
Holder shall be excused from further responsibility and the Parties hereby agree,to the
extent permitted by law,to hold Escrow Holder harmless from any and all damages,
liability costs and fees in connection therewith.
13.Request for Written Instructions.Escrow Holder may at any time,and from time to time,
request the Parties to provide written instructions concerning the propriety of a proposed
payment of funds on deposit,distribution of documents,or other action or refusal to act
by Escrow Holder.Should the Parties fail to provide such written instructions within a
reasonable time,Escrow Holder may take such action,or refuse to act,as it may deem
appropriate and shall not be liable to anyone for such action or refusal to act.
Notwithstanding the foregoing,should the terms of the Escrow Agreement be complied
with,in the judgment of the Escrow Holder,then the Escrow Holder may disburse any
funds,distribute any documents,or take such action without specific further written
instructions from any Party.
14.Resignation of Escrow Holder.Escrow Holder may resign under this Agreement by
giving written notice to all of the Parties,effective 30 days after the date of the notice.
Upon the appointment by the Parties of a new escrow holder or custodian,or upon
written instructions to Escrow Holder for other disposition of the Escrow Deposit,
Escrow Holder shall,after retention of its accrued escrow fees and expenses,if any,
deliver the Escrow Deposit within a reasonable period of time as so directed,and shall be
relieved of any and all liability.
15.Applicable Law.This Agreement shall be governed by the laws of the State of Colorado.
16.Obligations Subject to Appropriation.The obligations of the Parties to commit or expend
funds in any subsequent fiscal year are subject to and conditioned upon the annual
appropriation of funds sufficient and intended to carry out said obligations by each
3
EXHIBIT A TO RESOLUTION 2023-112
Party’s respective governing body in its sole discretion.If such non-appropriation results
in a material impairment of the Escrow Holder’s rights hereunder,the Escrow Holder
may terminate the Agreement,with no further recourse against the Parties,by providing
30 days written notice to the Parties.
SPECIAL INSTRUCTIONS
1.The purpose of this Escrow is to ensure payment by the City to the School District
for real property conveyed by the School District to the City simultaneously with this Escrow for
the “Project”,which is defined as the planning,design,construction and furnishing of a new
Southeast Community Center (the “Facility”),as required by the language of the Community
Capital Improvement Program ballot measure approved by Fort Collins voters in April,2015,if
the School District is not able to secure funding by January 3 I,2025,to add to the Project an
indoor aquatics facility including swim lanes that the School District would be able to use (the
“Aquatics Facility”).
2.If the City,on or before January 31,2025,notifies the Escrow Holder in writing
that it is satisfied the School District has secured funds sufficient and intended for design and
construction of the Aquatics Facility,the Escrow Holder shall release the Escrow to the City.
3.If the City does not notify the Escrow Holder in writing before the close of
business on January 31,2025,that it is satisfied the School District has secured funds sufficient
and intended for design and construction of the Aquatics Facility,and the Parties have not
negotiated an extension to this Agreement,the Escrow Holder shall release the Escrow to the
School District.
EXHIBIT A TO RESOLUTION 2023-112
CITY OF FORT COLLINS
A Colorado municipal corporation
By:_____________________
Kelly DiMartino,
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM
Assistant City Attorney
POUDRE SCHOOL DISTRICT R-1
A statutory Colorado school district
By:
Chair of the Board
ATTEST:
Board Secretary
Accepted:
Escrow Agent
By:_______
Title:________
Date:
EXHIBIT A TO RESOLUTION 2023-112
Exhibit C—School District Cost Share
Capital Cost Category PSD
Common areas as determined @ 100%Design --anticipated 5%*
to be Entry,Offices,Lounge,Gymnasium (15%of 33.33%)
Community Center--Creation Space!Art Studio!Library 0%
Branch
Outdoor Leisure Pool 0%
Indoor 10-Lane Lap Pool 15%*
Indoor Leisure Pool 0%
Indoor Aquatic Support (Offices,Lockers,Storage,75%*
Mechanical)(15%of 50%)
50/*
Site Costs as determined at 100%design (15%of 33.33%)
Land (contributed capital)100%*
~PSD overall capital contribution is limited to 15%of the attributable Aquatics Base,including any
change orders agreed upon by the City and School District.Cash contributions over and above the Land
would be billed according to Exhibit E.
EXHIBIT A TO RESOLUTION 2023-112
Exhibit D —School District Lane Usage
PSD usage of gross available lane-hours
PSD usage per day of available peak lane-hours
PSD overall utilization during swim season
PSD Utilization*
Number of teams utilizing facility
Lanes used
Hours used per team
Lane hours utilized at facility per day
teams
lanes
hours
Overall Community +PSD Pool Utilization -Peak
Overall Community +PSD Pool Utilization -Off-peak
6-month swim season
PSD weighted average utilization of annual lane-hours
Calendar year
To be applied to capital share
*lnformafion current as of the Effective Date of the IGA