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HomeMy WebLinkAbout2005-075-07/05/2005-AUTHORIZING THE MAYOR TO EXECUTE A RESTATEMENT AND AMENDMENT TO THE INTERGOVERNMENTAL AGREEMENT WITH RESOLUTION 2005-075 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE MAYOR TO EXECUTE A RESTATEMENT AND AMENDMENT TO THE INTERGOVERNMENTAL AGREEMENT WITH COLORADO STATE UNIVERSITY FOR THE TRANSIT CENTER LOCATED AT THE LORY STUDENT CENTER WHEREAS, the City and Colorado State University(the "University")desire to develop a transit center on the north end of the Lory Student Center for the purpose of enhancing the operation of the City's Transfort bus system and for the purpose of providing more comfortable and efficient service to the students, faculty, staff and visitors of CSU and the citizens of the City; and WHEREAS, toward this end, the City and CSU have entered into an Intergovernmental Agreement for Transit Center dated November 7, 2000, and an Amendment to said Agreement on August 17, 2002; and WHEREAS,the City and the University now desire to further amend the Intergovemmental Agreement for Transit Center, and restate the parties'understanding in its entirety through a new "Restatement and Amendment" of the Intergovemmental Agreement for Transit Center, rendering null and void the prior agreement and amendment; and WHEREAS, the principal changes from the prior agreements are that the University has agreed to pay the operation and maintenance expenses for the Transit Center in exchange for design improvements and for collecting the revenue from the various parties occupying the facility, and also, the City and the University have agreed to a change in the design of the structure so that it is no longer a stand alone facility, but rather as a complex totally integrated with the Lory Student Center building and operations; and WHEREAS, the Council has determined that it is in the best interest of the citizens of the City that the Intergovernmental Agreement for Transit Center be restated and amended accordingly. NOW,THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the Mayor is hereby authorized to execute the Restatement and Amendment to the Intergovernmental Agreement for the Transit Center, attached hereto and incorporated herein as Exhibit"A"including such additional terms and conditions as the City Manager,in consultation with the City Attorney, determines to be necessary or appropriate to protect the interests of the City. Passed and adopted at a regular meeting of the City ncil held this 5th da f July, A.D. 2005. Mayor ATKEST: City Clerk EXHIBIT "A" INTERGOVERNMENTAL AGREEMENT FOR TRANSIT CENTER (Restatement and Amendment) THIS AGREEMENT is entered into this day of 2005, nunc pro tunc November 7, 2000, by and between THE BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY SYSTEM (formerly known as the State Board of Agriculture), BY AND THROUGH COLORADO STATE UNIVERSITY ("University") and the CITY OF FORT COLLINS, COLORADO, a Colorado home-rule municipality ("City"). Recitals A. The City and the University desire to develop a site on the University campus north of and adjacent to the Lory Student Center for a transit center (Transit Center) for the purpose of enhancing the operation of the City's Transfort bus system, and for the purpose of providing more comfortable and efficient service to the students, faculty, staff and visitors of the University and citizens of Fort Collins. B. The City and the University desire to enter into this Agreement in order to set forth their respective rights and obligations concerning the development, maintenance, operation, use and ultimate retirement of the Transit Center. C. The property upon which the Transit Center will be built is owned by the University, which property is approximately 8.21 acres, which property is more particularly described on Exhibit A-I attached hereto and which is generally shown on the campus map in Exhibit A-2 attached hereto (Property). D. The parties are authorized to enter into an intergovernmental agreement to provide any function, service or facility as provided in Colorado Revised Statutes § 29-1-203. E. In pursuance of the foregoing, the City and the University entered into an Intergovernmental Agreement for Transit Center dated November 7, 2000 and entered into "Amendment Number One to Intergovernmental Agreement" on August 27, 2002 for the purpose of amending the Intergovernmental Agreement for Transit Center. F. The parties now desire to further amend the Intergovernmental Agreement for Transit Center, as previously amended, and restate the parties' understanding in its entirety in this Restatement and Amendment. Accordingly, by execution of this Restatement and Amendment, the Intergovernmental Agreement for Transit Center dated November 7, 2000 and its Amendment Number One dated August 27, 2002 shall be of no further force and effect. NOW THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Page 1 of 15 1. General Purpose. The general purpose of this Agreement is to establish and formalize the basic understanding between the City and the University regarding the efforts of both in establishing a Transit Center to be used by the City's Transfort bus system for the benefit of the mass transit public and the system generally and of the students, faculty and staff of the University in particular. This Transit Center shall be located on the Property at the north end of the Lory Student Center and shall be constructed in such a manner as to be integrated into the Lory Student Center and connected to the student center on all levels by elevator access. The construction of this Transit Center will require the reconstruction of the steps at the north end of the Lory Student Center rising from the parking lot to the main level of the center. All of these ' aspects of this construction project are described further in the plans and specifications that are listed in Exhibit B, which is attached to this Agreement and incorporated herein (the "Plans"). The parties acknowledge that the plans and specifications that are mutually agreed upon in writing by the City and the University shall govern the physical construction of the Transit Center and all construction that is related, ancillary, and/or accessory thereto. 2. Provisions Pertaining to the Property. 2.1 Ownership Interests of the Parties. It is understood that the Property upon which the Transit Center shall be constructed is owned by the University. It is further understood that funding for the construction of the Transit Center is to be provided, in large part, by a grant from the Federal Transit Administration (FTA), and that as a condition of such grant, the City is required to have a legal interest in the Property upon which the Transit Center is located. Accordingly, in consideration of the mutual promises of the parties and other good and valuable consideration, the University hereby leases to the City the Property upon which the Transit Center is to be located, for the operation and maintenance of the Transit Center, for an Initial Term of thirty-three (33) years and four (4) months, commencing on November 7, 2000, and ending on March 7, 2034, unless sooner terminated or extended as provided herein. 2.1.1 Extension: This Agreement may be extended, upon the mutual agreement of both the City and the University, for not more than two additional terms of thirty-three (33) years and four (4) months (each, a "Renewal Term"). Any agreement to extend must be in a writing signed by the parties not less than sixty (60) days nor more than one hundred eighty (180) days prior to the expiration of the Initial Term or first Renewal Term, as applicable. 2.1.2 Termination. This Agreement shall not be subject to termination by the University, except that: a. The University may terminate this Agreement at any time by assuming any and all liability for the Transit Center residual value as set forth in section 2.3 herein below. b. The University may terminate this Agreement in the event that the Property is not actively used by the City as a Transit Center as set out herein. The Transit Center shall not be deemed to be inactive unless the City shall fail to provide bus service to the Transit Center for a period in excess of six (6) months, or fail to provide such service for more than six Page 2 of 15 (6) months in any calendar year. If any such failure to provide bus service to the Transit Center is caused by some force majeure, then for a period in excess of two (2) years. Force majeure means a cause beyond either party's control, such as fire, flood, explosion, power failure, acts of God, war, revolution, civil commotion, or acts of public enemies. C. Subject to the cost reduction provisions contained in Section 7.1 the University may terminate this Agreement if the FTA grant sufficient to complete construction of the project as described in paragraph 3 below, is not awarded by November 7, 2006. d. The Agreement may terminate as provided in Section 13 herein below. 2.2 Reservation of Rights. The University reserves the following rights: a. To utilize, in common with the City, the parking lots and facilities, streets, roadways, utility easements, storm drainage facilities, sidewalks, rights of way, and similar improvements or amenities on the Property, so long as such uses do not unreasonably impair Transit Center operations. The City acknowledges that the current activities and uses of such areas, including the expected uses of the redesigned Lory Student Center loading dock area, shall continue and do not unreasonably impair Transit Center operations. b. To grant easements, rights of way, or licenses for streets, roadways, utility facilities, storm drainage facilities, sidewalks, and similar improvements or amenities on or across the Property so long as such uses do not unreasonably impair Transit Center operations; and, C. To use and extend utility chases and facilities that serve the Transit Center and the campus as may be reasonably necessary by the University so long as such uses or extensions do not unreasonably impair Transit Center operations. 2.3 Residual Value. If the FTA shall demand and be entitled to a return of grant funds for the City's failure to utilize the grant funds for the authorized purposes, then upon the expiration of this Agreement or any extension thereof according to its term, or upon termination of this Agreement as authorized pursuant to section 2.1.2(a), (b), or (d) herein, the Transit Center shall be appraised by the City, the University and the FTA in accordance with reasonable valuation practices and, eighty (80) percent of the actual appraised value of the Transit Center shall thereupon be remitted to the FTA either: (a) by and at the sole expense of the City if the City terminates, refuses, or fails to renew the lease or terminates the provision of bus service to the Transit Center, thereby rendering the Transit Center as inactive pursuant to section 2.1.2 (b) herein, or if this Agreement terminates pursuant to sections 7.1, default by the City under section 12, or section 13 herein below; or (b) by and at the sole expense of the University if the University terminates or fails to renew the lease pursuant to section 2.1.2(a), defaults under section 12, or in accordance with section 13 herein. Any such reimbursement shall be made as required by federal law and regulation, unless such reimbursement requirement shall have been Page 3 of 15 repealed by subsequent federal legislation or has been waived by the FTA or its successor agency, if any. Following the reimbursement by the terminating party of eighty (80) percent of the actual appraised value as provided above, the Transit Center building and all related improvements shall thereupon become the sole property of the University and the City shall have no further interest therein. Notwithstanding the foregoing, in the event that the lease has been renewed for the full one hundred (100) year term, then the reimbursement to the FTA shall be made by the City based upon actual salvage value instead of actual appraised value, and all ownership rights belong to the University. 3. Construction of the Transit Center. 3.1 Transit Center Facilities. Facilities to be constructed as part of the Transit Center project shall be completed in two Phases, as follows: Phase I: Phase I has been completed, or substantially completed, and consists of: a. Site testing, design for storm drainage, environmental assessment, public outreach, and final design and construction of the bus transfer areas, site improvements, bus shelters/signage, parking, pedestrian walkways, landscaping, site lighting; b. Site infrastructure improvements and utility connections for serving the new center. C. Outdoor bus terminal facilities and pedestrian pick up and drop off. d. Improvements for pedestrian access between Lory Student Center, Engineering Building, and Rockwell Hall. e. Reconstruction of parking improvements and additions that retains all existing parking spaces, with the exception of 45 spaces (existing capacity 820 spaces/new capacity 775 spaces) and demolition of the existing transit facility (the 'old transit center") located adjacent to North end of the Morgan Library parking lot. Phase II: Phase II shall commence promptly after the City has obtained the requisite funding as described in paragraph 7 of the Agreement, but in any event, no later than November 7, 2006 (in accordance with paragraph 2.1.2(c) of the Agreement), and shall consist of the final design and construction of a transit center facility addition to the Lory Student Center Building, of approximately 14,458 GSF, described as follows: Page 4 of 15 a. Construction of 14,458 gross square feet of new area to be added to the Lory Student Center Building and renovation of 7,749 square feet of the existing Lory Student Center Building, all in accordance with Exhibit "C" attached hereto. b. Elevator from the parking level to other levels of the Lory Student Center and to the Morgan Library/Student Center Plaza. C. Landscape development, including irrigation, in accordance with plans acceptable to the University. d. Exterior lighting, in accordance with plans acceptable to the University. e. Construction of improvements to the existing plaza steps from the parking lot to the Morgan Library/Lory Student Center Plaza. 3.2 During the term of this Agreement and any extensions hereof, the parties further acknowledge and agree that all parking spaces on University property, whether or not within the area leased to the City under this Agreement, shall continue to be part of the University's parking inventory and, in consideration thereof, the University agrees that it shall be solely responsible for all maintenance of the surface and subsurface of the Transit Center area parking spaces including and without limitation to all concrete maintenance, signing and striping, all issuance of permits, installation, removal and maintenance of meters or other payment devices and facilities, and the like. The University shall be responsible for collection of all revenues and enforcement of parking rules and regulations. In support of the aforesaid obligation of the University, revenues from such parking shall be retained by the University. J 3.3 When Phase II is completed, the University shall provide 15 "staff/faculty" parking permits for the Transit Center lot to be purchased by City at the then-current staff/faculty rate, for use by Transit Center employees and guests, subject to the parking/policing regulations of the University, and shall designate 5 spaces, in reasonably close proximity to the Transfort offices in the new Transit Center building, as "Reserved for Use by Transfort Employees and Guests." The parties agree that, on or about the first anniversary after the completion of Phase II and as often thereafter as is reasonably necessary, they will meet and review the use of these "reserved" spaces with the goal of reducing the number of such "reserved" spaces or eliminating the "reserved" designation altogether, to the extent that this is compatible with the City's needs. 3.4 Plans and Specifications. All construction shall be done in accordance with the Plans, including (but not limited to) the site plan and building conceptual drawings, all schematic design, design development and construction documents related thereto. Changes may be made to such approved documents only by mutual agreement of the parties, and must be reasonably consistent with prior approved plans, including the ability to accommodate potential future expansion of the Lory Student Center with Page 5 of 15 one additional story. Construction shall meet all requirements of University and City construction standards. 3.5 Air Quality and Noise Mitigation Based on current information the parties believe that neither air quality nor noise impacts will result from the construction and operation of the Transit Center at the proposed location. However, an allowance having been included in the budget for the Transit Center for such purpose, the University shall mitigate such negative air quality or noise impacts in the event any such impacts are identified. 3.6 Drainage. To the extent reasonably feasible, the City shall design and construct the Transit Center consistent with the University's adopted Master Drainage Plan, as may be amended from time to time. The City acknowledges that the Property is prone to flooding and that it will mitigate impacts as necessary. 3.7 Infrastructure. Construction of the project shall include extension and hook-up to existing water, and sewer and electric utilities infrastructure, and infrastructure improvements including but not limited to curbing, gutter, sidewalk, site lighting, and landscaping. 3.8 Construction Contract. The City shall hire the architects and engineers, general contractor and other vendors as necessary for construction of the Transit Center. The University reserves the right to approve such hiring decisions, approval for which shall not be unreasonably withheld. The general contractor shall be subject to a pre-qualifying process consistent with state and Federal law and procurement rules. The City and the University will jointly develop and agree upon the pre-qualifying criteria. The parties shall consult with one another on all decisions concerning the construction of the Transit Center. The University shall act as the Project Manager and the University shall be solely responsible for construction management of the Transit Center project. 3.9 Use. The Transit Center shall at all times be used solely for the purposes described above, and for no other purposes. There shall be no vehicle maintenance facility or repair garage at the Transit Center, nor shall maintenance and repair activities be permitted at the Transit Center site except as reasonably necessary to effect the removal of an inoperable or unsafe vehicle. 4. Furnishings, Equipment and Supplies. The City shall provide from FTA grant funds furnishings, equipment, and supplies as reasonably necessary for functional and aesthetic purposes in the Transit Center building. Furnishings, equipment and supplies not included in the construction of the building, and not included in the FTA grant financing this project, shall be provided at the option and at the sole cost of the City. All such furnishings, equipment and supplies provided from funding from FTA grants shall be used solely in the operation of the Transit Center, except upon mutual agreement of the parties. All such furnishings, equipment and supplies shall be deemed to be the property of the City upon cessation of the operation of the Transit Center. The parties may enter into separate agreements for procuring certain furnishings, equipment, or supplies involving rights thereto not contemplated in this Agreement. All costs for Page 6 of 15 maintaining and repairing the furnishings, equipment and supplies for the Transit Center shall be borne by the respective owner of such items. 5. Art Contribution. The parties agree that one (1) percent of the total project cost of the Transit Center shall be used for the acquisition of art pursuant to the City's "Art in Public Places" program and federal law. Such funds shall be allocated from the FTA grant. When the City Council approves the appropriation for the Transit Center, it is decided that one (1) percent shall be deposited into the appropriate reserve account in accordance with section 23-304 of the City Code. Maintenance of the art shall be done in accordance with paragraph 6.1. 6. Operation and Maintenance. 6.1 Maintenance/Transfer of Operation. Prior to completion of the Transit Center Building (Phase II), the City shall be responsible for the costs of repair and maintenance of the Transit Center facilities. This includes, but is not limited to, repair and replacement, ice control and snow removal , and all mechanical systems associated with the Transit Center in accordance with the City's usual and customary standards of maintenance, so that these facilities properly function at all times and remain in a good and safe condition. The University shall maintain all parking areas and all areas of landscaping, which areas are more particularly described in the Plans. Upon completion of the Transit Center Building (Phase II) all operation and maintenance of the Transit Center facilities as described in this Section 6 shall become the sole obligation of the University and shall be performed in accordance with the usual and customary standards of maintenance and repair at the University so that the facilities function properly at all times and remain in a good, aesthetically pleasing, sanitary and safe condition. In support of the aforesaid obligation of the University, revenues from the operation of the Transit Center Building's lessees, vending machines, and third party vendor operations, shall be retained by the University. 6.2 Custodial. The University shall provide custodial, waste removal, recycling, and interior landscaping services for the Transit Center Building sufficient to keep the Transit Center Building in a clean, neat, healthy and attractive condition in accordance with the University's usual and customary standards of maintenance. Any such custodial services necessary for the outdoor bus terminal facilities and pedestrian pick up and drop off shall be performed by the City until completion of the Transit Center Building at which time the University shall assume such obligation. 6.3 Security. The University shall provide general public safety protection for the Transit Center consistent with service levels provided elsewhere on the main campus. If the City desires additional security services, such security services shall be provided by the City. 6.4 Access. Access to the facility shall be provided to the City at all times. The Transit Center shall remain open for operation notwithstanding the fact that the University classes may not be "in session". It is understood that the Transit Center shall be used for general passengers on the City's Transfort bus system and that, accordingly, the Transit Center must remain open at such times deemed necessary by the City notwithstanding that University educational functions might be in hiatus. The function and operation of the Transit Center must Page 7 of 15 continue unimpeded and under no circumstance shall the University be entitled to interfere with such function and operation. However, nothing herein shall be construed as requiring that the Lory Student Center remain open at all times that the Transit Center is open. The Transit Center Building shall be constructed so that the Lory Student Center may be securely locked, so that access is not permitted to the Lory Student Center during times when the Lory Student Center is closed. Retail operations to be located in the Transit Center indoor areas shall be required to maintain reasonable hours of operation given the Transit Center business hours, the nature of the retail operation, and other circumstances. 6.5 Utilities. The University shall provide and maintain in good working condition all reasonable utility services for the Transit Center building, including gas, water, sewer, chilled water, steam, electricity, and other utility services if and as needed. As used herein, "reasonable" utility services are equivalent to those customarily used by an office building and transit lobby for a similar size facility and do not include utilities used to fuel or power vehicles. The City shall be responsible for its own telephone, data and other communications services and the costs related to such services, but shall not be required to pay a recurring connection fee for delivery of service to the Transit Center facility. All other costs related to utilities usage shall be bome by the University. The City agrees that the University shall not be liable for failure to provide such services during any period when the University uses reasonable diligence to supply the same, it being understood that the University reserves the right to temporarily discontinue services at such times as may be necessary when, by reason of accident, unavailability of employees, strikes, repairs, alterations or improvements, or whenever by reason of strikes, walkouts, acts of God, or any other event beyond the control of the University, the University is unable to provide the same. 6.6 Third Party Vendors. The University shall be responsible for managing the leasing and licensing of third parry vendor operations at the Transit Center in accordance with the conditions hereafter set forth. The University shall be permitted to authorize third party vendors and retail establishments to operate in the Transit Center provided that such vendors and establishments (Vendors) are compatible with and not disruptive to.the principle transportation purposes of the Transit Center. The University shall be responsible both for the selection and the control, through leasing and licensing agreements, of such Vendors and retail establishments, and all revenue generated therefrom shall be the property of the University and shall be used by the University to assist in the defraying of its utility and other expenses associated with the operation and maintenance of the Transit Center. Notwithstanding the foregoing, no such Vendor shall be authorized or selected by the University until the City has approved such Vendor, which approval shall not be unreasonably withheld. Nothing herein shall be construed to (i) relieve any vendor from the requirement of obtaining any licenses or permits from the City that would otherwise apply to a vendor operating on University property, nor (ii) render the University liable for acts or omissions of vendors, their employees, contractors, invitees or customers. 6.7 Damage to Propertyjury to Persons. Page 8 of 15 6.7.1 The City shall not hold the University liable for any injury or damage to any City-owned furniture, fixtures, or other personal property inside the Transit Center, due to fire, water, steam, or by reason of the negligence or willful misconduct. All property of the City kept or stored in the Transit Center shall be at the sole risk of the City. The City waives and releases its right to recover against the University for (i) any loss occurring on the Property which is reasonably capable of being insured against by usual and customary "all-risk" insurance coverage, whether carried or not; and (ii) all loss, cost, damage or expense arising out of or due to any interruption of City business on the Property (regardless of the cause therefor), increase or additional cost of operation of City business on the Property or other costs or expenses, whether similar or dissimilar, which are reasonably capable of being insured against under usual and customary business interruption insurance, whether carried or not. 6.7.2 To the extent authorized by law, and by Article V, Section 16 of the Fort Collins City Charter, the City hereby agrees to indemnify, defend, and save the University harmless from any and all liability, loss, damages, costs or expenses, including attorney's fees on account of injuries persons or property where the injuries are caused by the negligence or willful misconduct of the City or any agent, employee, or invitee of the City or by any person in or upon the building with the City's consent, or where such injury occurs as a result of the violation of the provisions of this Agreement by any such person. 6.8 Bus Storage. The University shall allow and make accommodation for the parking of "in revenue service" buses at the Transit Center. "In revenue service" means buses that are in current service on a route and may be parked temporarily during such service in accordance with the daily operation of the transit system. 6.9 Accordance with ADA and Other Laws. The City and University shall construct, operate, and maintain the Transit Center in full compliance with all federal and State of Colorado laws, including but not limited to the federal "Americans with Disabilities Act" and all applicable federal and State of Colorado environmental laws and regulations. The City shall be responsible for proper, timely (and, where required, licensed) disposal, handling, monitoring and recording of any toxic and/or hazardous waste generated by and/or from any of its uses hereunder of the Property. The City acknowledges that the University is not permitted under its licenses to handle, accept, store or dispose of such materials and shall not be required to do so. The City shall maintain complete records concerning such toxic and/or hazardous waste, which records shall be made available for reasonable review and copying by the University upon written request. 6.10 Renovations/Expansion. The parties acknowledge that renovation and expansion may need to be done while this Agreement is in effect. Plans for such renovation or expansion shall be approved in writing by the party not proposing the renovation or expansion (Non- Proposing Party) prior to commencement of work and all costs shall be borne by the proposing party unless otherwise agreed in a written amendment to this Agreement signed by the authorized representatives of both parties. A party shall not withhold approval of a proposed renovation or expansion so long as: Page 9 of 15 a. The renovation or expansion is in accordance with the University Master Plan or successor planning document; b. There is no financial impact to the Non-Proposing Party, unless such financial impact is specifically agreed to in writing; C. Ability to access and service surrounding buildings and facilities is not impaired; and, d. Other factors do not exist that render such renovation or expansion unreasonable. e. The renovation or expansion has been approved by the FTA, but only if and to such extent that such approval is required by Federal law, rule or regulation. 7. Finance. 7.1 Cost/Allocation. The total cost of the Transit Center project is anticipated to be in the approximate amount of$10,302,601.00. It is anticipated that the City will receive a grant from the FTA sufficient to-fund eighty (80)percent of the total cost of the Transit Center project. It is also anticipated that the remaining twenty (20) percent of the cost will be contributed by the University in the form of the value of the land owned by the University and leased to the City for the Transit Center under section 2.1 hereof, along with the value of associated utility connections and plant investment fees. In the event that funding is insufficient to cover the full cost of the Transit Center project as described in the Plans, then the City and the University shall reduce the total project cost by the elimination of components of the project. The City and the University shall exert their best efforts to complete the Project as a viable transit facility within the limits of the then available funding, and if the project still remains infeasible, then they may terminate the project. If such reduction cannot be agreed upon within 90 days after the final funding and cost figures are made known to the parties, then this Agreement shall terminate. No change order shall be approved without the prior written consent of the parties. The general contractor will invoice the City for payment of the total construction then due. The City will pay the invoice from grant funds within sixty (60) calendar days of receipt of the invoice copy, provided that the University (as project manager) has first authorized, in writing, the payment. The City will also pay from grant funds all costs (up to $40,000) associated with moving University services impacted by construction and the construction of temporary offices for such services during construction, including restoration of temporary areas to their original condition. 7.2 Appraisals. For the purpose of the FTA Grant only, the City shall pay the cost of two (2) appraisals of the Property that is the subject of the lease described in section 2.1 hereof in order to determine its value as required pursuant to section 7.1 hereo£01 'The City has completed its obligations under this paragraph. Page 10 of 15 7.3 Federal Funding Contingency. This Agreement is expressly contingent upon the City receiving grant funds from FTA in sufficient amount to reasonably cover the costs of the Transit Center project. 8. Planning Activities. 8.1 Grant Acquisition. The University and the City will cooperatively seek funding from Congress to make possible the construction of the Transit Center, recognizing that funding will be sought in multiple fiscal years and that, accordingly, the Project must be phased. In seeking such funding, each party will exert a substantial effort by making contact with such Congressional representatives and administration officials as may be appropriate. No federal monies shall be used toward the funding of this activity. 8.2 Planning, Review. Even though it is understood that this Transit Center project need not be reviewed in accordance with the Land Use Code of the City, the parties agree that they shall cooperate in the planning of the project and that the location, character and extent of the project shall be submitted to the University Physical Development Committee for its approval and to the Planning and Zoning Board of the City for approval in accordance with C.R.S. § 31-23-209. 9. Notice. Whenever a notice is either required or permitted to be given, it shall be given in writing and delivered personally, or delivered by the Postal Service, certified mail, return receipt requested, to the other party at the address indicated below or at such other address as may be designated by either party: If to the City: City of Fort Collins City Manager P.O. Box 580 Fort Collins, CO 80522 With copies to: City of Fort Collins Director of Transportation Services 215 North Mason Street Fort Collins, CO 80522 Director of Operations Services 117 N. Mason Street Fort Collins, CO 80522 If to the University: Colorado State University Vice President for Administrative Services 6001 Campus Delivery 309 Administration Building Colorado State University Fort Collins, CO 80523-6001 Page 11 of 15 With copies to: Director of Facilities Management Facilities Services Center North 6030 Campus Delivery Colorado State University Fort Collins, CO 80523-6030 And to: Colorado State University General Counsel 202 Administration Building 0006 Campus Delivery Colorado State University Fort Collins, CO 80523-0006 Executive Director, Lory Student Center Room 211, Lory Student Center 8033 Campus Delivery Colorado State University Fort Collins, CO 80523-8033 10. Liability. 10.1 The University shall be responsible for any and all claims, damages, liability and court awards including costs, expenses and attorney fees incurred as a result of any action or omission of the University or its officers, employees, and agents in connection with the performance of this Agreement. 10,2 The City shall be responsible for any and all claims, damages, liability and court awards, including costs, expenses, and attorney fees incurred as a result of,any act or omission by the City, or its officers, employees, and agents in connection with the performance of this Agreement. 10.3 Nothing in this Agreement shall be construed as a waiver of the notice requirements, defenses, immunities, and limitations the City or University may have under the Colorado Governmental Immunity Act (C.R.S. § 24-10-101 et se or to any other defenses, immunities, or limitations of liability available to the City or the University by law. 11. Insurance. 11.1 Each party shall secure and maintain during the life of this Agreement statutory worker's compensation and employer's liability insurance. Each party shall retain the option of discharging this obligation by means of funded self-insurance. The City shall also secure and maintain liability insurance for its vehicles, including busses, which will be used in the operation of the Transit Center. Page 12 of 15 11.2 The University shall secure and maintain during the life of this Agreement property insurance covering the building, fixtures, equipment, University-owned improvements and betterments as more particularly described herein (but not the personal property of the City). Property insurance shall, at minimum, cover the perils insured under the ISO special causes of loss form (CP 10 30) and shall cover the replacement cost of the property insured. Flood and earthquake coverage, if reasonably available, will have limits as close as practicable to the full replacement cost of the building. 11.3 The University may, at its option, purchase business income, business interruption, extra expense or similar coverage as part of this commercial property insurance, and in no event shall the City be liable for any business interruption or other consequential loss sustained by the University, whether or not it is insured, even if such loss is caused by the negligence of the City, its employees, officers, directors, or agents, except for damages arising from the operation or use of the City's vehicles (including, but not limited to, the City's buses and other vehicles used to provide transportation to the public). The University may, at its option, purchase insurance to cover its personal property. In no event shall the City be liable for any damage to or loss of personal property sustained by the University, whether or not it is insured, even if such loss is caused by the negligence of the City, its employees, officers, directors, or agents. 11.4 The City and the University hereby waive any recovery of damages against each other (including their employees, officers, directors, agents, or representatives) for any loss or damage to the extent covered by the insurance required above. 11.5 Any or all of the insurance requirements set forth above maybe satisfied in whole or in part trough a self-insurance program of the insured party. If the insurance furnished as required above does not allow the insured to waive rights of recovery against others prior to loss, the insured party shall cause them to be endorsed with a waiver of subrogation. 12. Default/Remedies. 12.1 Except as otherwise provided herein, in the event either party should fail or refuse to perform according to the material terms of this Agreement, such party may be declared in default thereof. 12.2 In the event a party has been declared in default hereof, such defaulting party shall be allowed a period of twenty (20) days, from receipt of notice of the default from the non- defaulting party, within which to cure the default (or, if the defaulting party is diligently pursuing a cure within such period but reasonably requires additional time to cure the default, then within such reasonable period). In the event the default remains uncorrected, the non-defaulting party may require specific performance or avail itself of any other remedy at law or equity, including termination of this Agreement. Page 13 of 15 13. Damage and Destruction. 13.1 The University is responsible for insuring the Transit Center as set out in Section 11 herein. Even so, in the event the Transit Center is rendered untenable by fire, flood, or other casualty, and such damage or destruction is not covered by insurance proceeds, the parties may agree to seek additional funds as may be necessary to repair, restore, or replace the Transit Center. If the parties are unable or unwilling to repair or replace the Transit Center under the terms of this provision, and subject to the terms of the grant, this Agreement will immediately terminate and no financial obligation shall accrue from the date of such fire, flood or casualty, except that each party agrees to be responsible for one-half of demolition costs, if any, which are in excess of any insurance proceeds obtained by the University pursuant to its obligation to fully insure the Transit Center building and improvements, and one-half of the obligation to the Federal Government as more particularly set out in Section 13.2 below. 13.2 Unless otherwise approved in writing by the Federal Government, the City has agreed to remit to the FTA the Federal interest in the Property prematurely withdrawn from appropriate use in the event of fire, casualty, or natural disaster. Under its Agreement with the FTA, the City may fulfill its responsibilities with respect to the Federal interest remaining in the damaged Property by either: 1. Investing an amount equal to the remaining Federal interest in like-kind Property that is eligible for assistance within the scope of the Project that provided financial assistance for the damaged Property; or 2. Returning to the Federal Government an amount equal to the remaining Federal interest in the damaged Property. 14. Assignment. Neither party may assign any rights or delegate any duties under this Agreement without the written consent of the other party. Except as permitted in section 6.6, neither the City nor the University shall sublease any portions of the Transit Center or Property. 15. Entire Agreement. This Agreement, which includes the exhibits hereto, constitutes the entire agreement between the parties, their officers, employees, agents, and assigns and shall insure to the benefit of their respective survivors, heirs, successors and assigns. Covenants or representations not contained in this Agreement shall not be binding on the parties. 16. Jurisdiction/Severability. This Agreement shall be governed in all respects by the laws of the State of Colorado. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 17. Attorney's Fees. In the event that either party shall default under any of the provisions of this Agreement and the non-defaulting party shall commence litigation to enforce this Agreement, each party shall be responsible for its own attorney's fees. Page 14 of 15 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. For the City: The City of Fort Collins (a Colorado home-rule municipality) By: Douglas P. Hutchinson Mayor ATTEST: City Clerk Approved as to legal form- -W. Paul Eckman Deputy City Attorney For the University: The Board of Governors of the Colorado State University System By: Keith Ickes Vice President for Administrative Services By: Brian Chase Director of Facilities APPROVED AS TO FORM: By: University Contracts Counsel Page 15 of 15