HomeMy WebLinkAbout2010-027-05/18/2010-AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT WITH THE DOWNTOWN DEVELOPMENT AUTHORITY REGARDING THE REN RESOLUTION 2010-027
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT
WITH THE DOWNTOWN DEVELOPMENT AUTHORITY
REGARDING THE RENOVATION AND REDEVELOPMENT
OF CERTAIN DOWNTOWN ALLEYS
WHEREAS, on February 17, 2004, the City adopted the Downtown Strategic Plan which
supports development of an integrated pedestrian network consisting of alleyways; and
WHEREAS, on January 10, 2008, the Board of Directors of the DDA(the"DDA Board"),
commissioned Russell+Mills Studios ("R+M") to prepare an alley master plan for the
redevelopment of designated alleys within the boundaries of the DDA; and
WHEREAS, on September 11, 2008,the DDA Board approved the redevelopment in 2010
of the Old Firehouse Alley and the Montezuma Fuller Alley.(the "Alleys"); and
WHEREAS,the Alleys are in need of substantial renovation and redevelopment and,as key
areas of downtown Fort Collins, their renovation and redevelopment in accordance with the
approved construction plans(the"Downtown Alley Enhancements Project")will provide aesthetic
and economic benefits to,the area encompassed by the DDA, and to the City as a whole; and .
WHEREAS, the City is the owner of the right-of-way within the Alleys (the "ROW"); and
WHEREAS, the Downtown Alley Enhancements Project is consistent with and in
furtherance of the Downtown Strategic Plan; and
WHEREAS,in recognition of the foregoing,the City desires to participate in the Downtown
Alley Enhancements Project by taking the lead role in contract administration including, but not
limited to,the bidding process to select a contractor for the Downtown Alley Enhancements Project,
executing a construction contract with the Contractor and designating a City project manager to
work with the DDA on various construction aspects of the Downtown Alley Enhancements Project,
all as more fully set forth herein below; and
WHEREAS, the City and the DDA have developed and negotiated an Intergovernmental
Agreement Regarding the Renovation and Redevelopment of Certain Downtown Alleys, the form
of which is attached hereto as Exhibit A and incorporated herein by this reference(the"IGA");and
WHEREAS, the City and the DDA desire to enter into this IGA to memorialize their
respective rights and obligations in connection with the Downtown Alley Enhancements Project,
as well as their long term obligations relating to the Alley Improvements; and
WHEREAS, Article II, Section 16 of the City Charter empowers the City Council of the
City, by ordinance or resolution, to enter into contracts with other governmental bodies to furnish
governmental services and make charges for such services or enter into cooperative or joint
activities with other governmental bodies; and
WHEREAS, C.R.S. §29-1-203 also provides that governments may cooperate or contract
with one another to provide certain services or facilities when such cooperation or contracts are
authorized by each party thereto with the approval of its legislative body or other authority having
the power to so approve; and
WHEREAS, pursuant to C.R.S. §31-25-808, the DDA has authority to make public
improvements which benefit those downtown areas of Fort Collins within its boundaries, and is
empowered to cooperate with the City, to enter into contracts with the City and to make or receive
from the City grants, contributions and loans; and
WHEREAS,the DDA Board,on May 13, 2010,determined that this IGA is consistent with
and in furtherance of the goals and purposes of the DDA and thereupon approved the terms of this
IGA and authorized its chairperson to execute it.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that the City Manager is hereby authorized to enter into the Intergovernmental
Agreement Regarding the Renovation and Redevelopment of Certain Downtown Alleys with the
DDA, in substantially the form attached hereto as Exhibit A, together with such additional or
modified terms and conditions as the City Manager, in consultation with the City Attorney, deems
necessary and appropriate to protect the interests of the City.
Passed and adopted at a regular meeting of the Counci the City of Fort Collins this 18th
day of May A.D. 2010.
MaycU
ATTEST
City Clerk
EXHIBIT A
INTERGOVERNMENTAL AGREEMENT
REGARDING THE RENOVATION AND REDEVELOPMENT
OF CERTAIN DOWNTOWN ALLEYS
This INTERGOVERNMENTAL AGREEMENT REGARDING THE RENOVATION
AND REDEVELOPMENT OF CERTAIN DOWNTOWN ALLEYS ("IGA") is made and
executed this day of May, 2010, by and between the CITY OF FORT COLLINS,
COLORADO, a municipal corporation (the "City"), and THE FORT COLLINS, COLORADO,
DOWNTOWN DEVELOPMENT AUTHORITY, a body corporate and politic (the"DDA").
WITNESSETH:
WHEREAS, Article 11, Section 16 of the City Charter empowers the City Council of the
City, by ordinance or resolution, to enter into contracts with other governmental bodies to furnish
governmental services and make charges for such services or enter into cooperative or joint
activities with other governmental bodies;
WHEREAS, C.R.S. §29A-203 also provides that governments may cooperate or contract
with one another to provide certain services or facilities when such cooperation or contracts are
authorized by each party thereto with the approval of its legislative body or other authority
having the power to so approve;
WHEREAS, pursuant to C.R.S. §31-25-808, the DDA has authority to make public
improvements which benefit those downtown areas of Fort Collins within its boundaries;
WHEREAS, pursuant to C.R.S. §31-25-808, the DDA is empowered to cooperate with
the City, to enter into contracts with the City and to make or receive from the City grants,
contributions and loans;
WHEREAS, on February 17, 2004 the City adopted the Downtown Strategic Plan which
supports development of an integrated pedestrian network consisting of alleyways;
WHEREAS, on January 10, 2008, the Board of Directors of the DDA (the "DDA
Board"), commissioned Russell +Mills Studios ("R+M") to prepare an alley master plan for the
redevelopment of designated alleys within the boundaries of the DDA;
WHEREAS, on September 11, 2008, the DDA Board approved the redevelopment in
2010 of the Old Firehouse Alley and the Montezuma Fuller Alley(the "Alleys");
IGA.2010 Alley Improvements..05-06-10 1
WHEREAS, on February 12, 2009, the DDA Board, commissioned R+M to prepare
plans and specifications for renovation of the Alleys, which drawings entitled "Fort Collins
Downtown Alleys Enhancements — Montezuma Fuller Alley and Old Firehouse Alley" are on
file in the offices of the DDA and with the Engineering Department of the City (the
"Construction Plans" or"Alley Improvement[s]");
WHEREAS, the Alleys are in need of substantial renovation and redevelopment and, as
key areas of downtown Fort Collins, their renovation and redevelopment in accordance with the
Construction Plans (the "Downtown Alley Enhancements Project") will provide aesthetic and
economic benefits to the area encompassed by the DDA, and to the City as a whole;
WHEREAS, the City is the owner of the right-of-way within the Alleys (the"ROW");
WHEREAS, the Downtown Alley Enhancements Project is consistent with and in
furtherance of the Downtown Strategic Plan;
WHEREAS, in recognition of the foregoing, the City desires to participate in the
Downtown Alley Enhancements Project by taking the lead role in contract administration
including, but not limited to, the bidding process to select a contractor for the Downtown Alley
Enhancements Project ("Contractor"), executing a construction contract with the Contractor and
designating a City co-project manager to work with the DDA co-project manager on various
construction aspects of the Downtown Alley Enhancements Project, all as more fully set forth
herein below;
WHEREAS, the DDA's roles in the Downtown Alley Enhancements Project are to
manage the day-to-day construction of such project, to take the lead role in obtaining all
temporary and permanent easements needed for the project, and to pay the costs of the
Downtown Alley Enhancements Project, all as more fully set forth herein below;
WHEREAS, the City and the DDA desire to enter into this IGA to memorialize their
respective rights and obligations in connection with the Downtown Alley Enhancements Project,
as well as their long term obligations relating to the Alley Improvements;
WHEREAS, the DDA Board, on May 13, 2010, determined that this IGA is consistent
with and in furtherance of the goals and purposes of the DDA and thereupon approved the terms
of this IGA and authorized its chairperson to execute it;
WHEREAS, the City Council, on May 18, 2010, determined that this IGA is consistent
with and in furtherance of the goals and purposes of the City and the DDA and thereupon
approved the terms of this IGA and authorized the City Manager to execute it; and
IGA.2010 Alley Improvements..05-06-10 2
NOW, THEREFORE, in .consideration of the mutual promises and other valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as
follows:
1. Mutual Benefit of Downtown Alley Enhancements Project. The parties hereto
acknowledge that the Downtown Alley Enhancements Project will provide significant benefits to
both the DDA and the City. The parties further acknowledge the special relationship between
the City and the DDA and the importance of mutually implementing the Downtown Strategic
Plan through efforts such as the Downtown Alley Enhancements Project. In consideration
thereof, the DDA and the City agree that they will work cooperatively together in good faith to
fulfill the purposes of this IGA and to equitably resolve any issues arising hereunder in order to
complete the Project in accordance with the desires and intentions of the parties and the
requirements, standards and procedures applicable to construction of public improvements
within the ROW.
2. The Construction Contract.
2.1 Contracting Party. In consideration of the City's ownership of the ROW, the
City's future interest in certain of the Alley Improvements, as well as the
City's experience with, and established procedures for, construction of
improvements to public rights-of-way, the parties hereto have determined that
the City shall select and enter into a contract (the "Construction Contract")
with the Contractor for the construction of the Downtown Alley Enhancements
Project (Bid #7138). The DDA agrees to contract with.and provide Ditesco
Project & Construction Services ("Ditesco") to function as the Engineer
pursuant to the terms of the Construction Contract, and to function as the DDA
Project Representative ("DPR"), as described below.
2.2 Funding. The Construction Contract establishes a maximum construction cost
for the Downtown Alley Enhancements Project (the "Contract Price"). The
DDA shall be solely responsible to pay, in accordance with the terms of this
IGA, all costs of the Construction Contract which are required to be paid by the
City thereunder, and the City shall have no obligation to fund Construction
Contract payments except as expressly set forth herein, subject to the following
conditions:
2.2.1 The City shall consult with and involve the DDA in Construction
Contract procurement, administration, management and oversight
activities in accordance with the provisions of this IGA;
2.2.2 The DDA funds in support of the Construction Contract shall remain in
the accounts and control of the DDA until such time as they are
IGA.2010 Alley Improvements-05-06-10 3
required pursuant to the provisions hereinafter, to pay a properly
approved invoice of the Contractor, to compensate the City for the
services of the City Project Representative, or to reimburse the City for
the purchase of the Maintenance Vehicle described in Section 6.1.4.
2.2.3 The City shall not approve, in writing or otherwise, any addition to or
modification of the terms of the Construction Contract, including, by
way of example and not of limitation, change orders, extension of
deadlines, or alterations to standards or designs, without the prior
written consent of the DDA;
2.2.4 The DDA agrees to approve and consent to change orders, extensions of
deadlines or alterations to standards or designs to the extent the same
are reasonably required in order to ensure that the Improvements meet
adopted City standards and requirements applicable to public rights-of-
way as reasonably determined by the CPR, after consultation with the
DPR and City Engineer;
2.2.5 The City shall perform fully all of its obligations under the Construction
Contract in accordance with the terms, provisions and conditions
thereof and shall require the same of the Contractor;
2.2.6 The DDA shall be responsible for ensuring that Ditesco performs fully
all of its obligations under the Construction Contract in accordance with
the terms, provisions and conditions thereof and on behalf of the DDA;
2.2.7 The DDA shall not be obligated to pay to the City any amount for the
Construction Contract in excess of the Contract Price, unless the City
received the prior written approval of the DDA to exceed the Contract
Price, including but not limited to increases set forth in change orders to
the Construction Contract approved by the DDA as set forth above; and
2.2.8 The City shall be responsible for any damages beyond the agreed-upon
or approved Contract Price, to the extent said costs are directly caused
by a negligent or reckless act or omission of the City, its officers or
employees.
2.3 Construction Contract Management. In order to facilitate and coordinate the
sharing of Construction Contract management and oversight between the
parties hereto, the City and the DDA shall each designate such qualified
representatives to carry out certain responsibilities in connection with the
Construction Contract (as described below, who shall be collectively referred
to herein as the "Project Team"). In addition to the enumerated responsibilities
set forth below, each member of the Project Team shall be responsible for
regularly communicating with the other members of the Project Team
regarding the status of the Construction Contract and significant project
IGA.2010 Alley Improvemems-05-06-10 4
developments. The Project Team shall meet on a weekly basis to coordinate
and share information regarding Project status, and to review and discuss any
anticipated changes to the Project, and questions or anticipated or pending
issues regarding Project completion and pay applications and approvals.
2.3.1 Responsibilities of City Project Representative. The City shall designate
a City Project Representative ("CPR") who shall be and have the
responsibilities of the Owner's Representative under the Construction
Contract. The CPR will also have the following responsibilities:
(a) Act as the primary contact for coordinating with City staff,
(b) Oversee the pre-bidding and bidding phases;
(c) Act as the lead project manager of the construction
administration in accordance with applicable City standard
purchasing procedures based on the City's Capital Projects
Procedures Manual;
(d) Oversee the day-to-day administration of the Contract by the
DPR;
(e) Review and act upon all pay applications and contract changes
in accordance with the terms of the Construction Contract (as
the "Owner Representative" thereunder) and this IGA, working
with the DPR; and
(f) Oversee the completion of project closeout by the DPR.
2.3.2 Responsibilities of DDA Project Representative. The DDA shall
designate Ditesco (or such other mutually agreeable project manager) as
DDA Project Representative ("DPR"), who shall have the
responsibilities:
(a) Act as Engineer and to act at the direction of the DDA pursuant
to the Construction Contract;
(b) Act as the DDA liaison to the Project in order to identify and
resolve technical or project concerns on behalf of the DDA;
(c) Assist the City in pre-bidding and bidding phases;
(d) Assist the City in contract administration;
c
0
IGA.2010 Alley Improvements-05-06-10 5
(e) Review and act upon pay applications from the Contractor
pursuant to the Construction Contract, working with the CPR;
and
(f) Coordinate with City Engineering, City Parks, City Traffic, City
Utility and the private utility companies' inspection staffs in
their respective reviews of work under the Construction Contract
for compliance with adopted and applicable City standards and
requirements.
2.3.3 Responsibilities of DDA Project Planner. The DDA shall designate a
Project Planner("DPP"), who shall have the following responsibilities
(a) Take the lead role in acquiring all necessary temporary and
permanent easements; and
(b) Coordinate public outreach, and act as the sole contact for
responding to property and business owner concerns throughout
the project and communicating with the DDA Board.
2.3.4 Compensation for CPR.
(a) Initial Amount. In consideration of the significant demands that
the Downtown Alley Enhancements Project will place upon the
CPR, the DDA agrees to compensate the City for such services
at the rate of Forty-nine Dollars and Sixty-two cents ($49.62)
per hour up to a maximum amount of Fifteen Thousand Dollars
($15,000.00) (the "Compensation Amount"). The City shall
send to the DDA itemized monthly invoices for such services.
The DDA shall make payment to the City for such invoices
within thirty (30) days of receipt by the DDA.
(b) Additional Compensation. If the City determines that the
Compensation Amount will be insufficient, it shall provide to
the DDA timely notice of such determination together with a
description of the services that the City believes remain to be
performed by the CPR through completion of the Construction
Contract, as well as an estimate of the amount of funds in excess
of the Compensation Amount the City believes will be sufficient
to cover the cost of such services through the Construction
Contract term. The parties hereto agree to negotiate in good
faith to reach a mutually acceptable agreement on additional
compensation for CPR services through the Construction
Contract term based upon the needs and status of the Project and
in accordance with the responsibilities of the CPR and DPR as
IGA.2010 Alley Improvements-05-06-10 6
set forth in Sections 2.3.1 and 2.3.2 above. In the event of a
dispute over additional compensation and, after consultation
with the Executive Director of the DDA, the final decision on
funding in excess of the Compensation Amount shall be made
by the City Manager of the City.
2.3.5 Payment of Contractor Invoices.
(a) Obligation to Contractor. The City and the DDA acknowledge
and agree that any and all payments legally due to the
Contractor pursuant to the Construction Contract shall be
reviewed, approved and paid in a timely manner, in accordance
with the terms and provisions of this IGA. The purpose of
review of invoices shall be to determine whether the
requirements of the Construction Contract have been met and
whether payment is consequently due to the Contractor.
(b) Payment Approval. The approval process for monthly
contractor invoices for the Downtown Alley Enhancements
Project shall be as set forth in the Construction Contract and as
follows (the"Payment Approval Process"):
(i) Contractor invoices shall be reviewed and processed by the
DPR and the CPR as the Owner's Representative, as provided in
the Construction Contract and this IGA;
(ii) The Project Team shall review and discuss each monthly
Contractor invoice at each subsequent weekly Construction
Contract meeting until such time as such monthly invoice has
been paid or otherwise disposed of;
(iii) A recommendation of approval by the DPR shall be
required in order for any payment to the Contractor to be
processed. In the event the CPR objects to any payment so
approved being made, the CPR and the DPR shall confer and
determine the basis for such disagreement. In the event the DPR
and CPR are unable to reach agreement, the City Manager, after
consultation with the DDA Executive Director, shall determine
whether the payment at issue is due on a pending invoice.
(iv) The CPR shall be responsible for providing written notice
to the Contractor pursuant to the Construction Contract, and to
the DDA, when it has been determined that full payment of any
invoice will not be made, and for providing notice to the DDA
that an invoice has been approved for payment upon approval as
provided hereunder("Payment Approval").
IGA.2010 Alley Improvements..05-06-10 7
(c) DDA Payment Obligation/City Recourse. Upon each Payment
Approval of a Contractor invoice, the DDA shall conduct the
receiving process and deliver of such approved invoice to the
City's Finance Department and the City shall promptly take all
necessary steps to ensure that payment to the Contractor for each
such invoice is timely made. In the event that any such payment
authorization by the DDA is not made within three (3) business
days before its due date, the City shall have the right, without
further authorization from the DDA, to access the DDA 2008
Bond Project Fund and to make the approved payment from
monies in such fund. The City, in such event, shall provide
prompt written notice to the DDA of such payment.
2.4 Cooperation in Defending Legal Challenges. If any legal or equitable action
or other proceeding is commenced by a third party challenging the validity of
any action taken pursuant to the Construction Contract or any of the
easements obtained in connection therewith, the City and the DDA agree to
cooperate in defending such action or proceeding. In consultation with the
City, the DDA shall take the lead role in defending any such action, including,.
but not limited to, preparing all pleadings and necessary correspondence
among the parties and paying one hundred percent (100%) of both court filing
fees and the costs of any expert witnesses, depositions, interrogatories,
transcripts or other similar costs. Each party shall pay its own attorney fees.
2.4.1 Limited Cites. Unless the City at its option decides to take a more
active role in defending any such action or proceeding, the City and
the DDA agree that the City's role therein shall be limited to the
following:
(a) City to Sign Pleadings. In the event of any legal action filed
against the City in connection with the Construction Contract or
any of the easements obtain in connection therewith, or any
appeal filed by one or more third parties in connection with such
action, the review and signing of all pleadings and other
documents reasonably required to defend such suit, including
any appropriate counterclaims; and
(b) On Appeal. In the event that the DDA decides to appeal any
negative judicial decision in connection with the Construction
Contract or any of the easements obtain in connection therewith,
to be named as an appellant along with the DDA and to review
and sign all pleadings and other documents reasonably required
in connection with such appeal.
IGA.2010 Alley lmprovemencs..05-06-10 8
2.4.2 Controlling Precedent. Although it is the intent of this Section 2.4 that
the City shall cooperate with the DDA in defending any legal
proceeding so long as the DDA determines to continue such defense,
in the event there is a controlling decision of the Supreme Court of the
United States, Tenth Circuit Court of Appeals, Supreme Court of
Colorado, or Colorado Court of Appeals governing one or more of the
issues raised in the legal proceeding that is adverse to the City's
position, the City shall not be obligated to contest or continue the
defense of such issue.
3. Acquisition of Easements and Encroachment Permit. The DDA, at its sole expense,
shall be responsible for acquiring and providing to the City prior to issuance of a Notice to
Proceed under the Construction Contract and in a form reasonably acceptable to the City, all
easements necessary for the Construction Contract, and an encroachment permit for the trash
enclosures (specifically the doors, which will open into the right-of-way) and any other non-City
facilities to be installed as part of the Construction Contract.
4. As-Built Drawings and Engineering Certification Letter. The DPR shall provide to the
City true and correct copies of the as-built drawings and the engineering certification letter for
the Alley Improvements within thirty (30) days of the DPR's receipt of such documents from the
Contractor.
5. Ongoing Maintenance/Repair Obligations of Alley Improvements.
5.1 DDA Obligations. Through the termination of the existing Tax Increment
Financing in place for the DDA (i.e. January 1, 2032), or the termination of the
DDA, whichever first occurs, the DDA, at its sole cost and expense, shall
maintain the Alley Improvements in a manner generally consistent with the
Scope of Services defined below in Section 6.1.2 and attached hereto as
Exhibit "A", the parties acknowledging that reasonable adjustments to the
Scope of Services shall be made from time to time based upon the usage of and
experience in maintaining the Alleys in their improved condition. Such
obligation shall not extend to renovating, rebuilding, upgrading, or,
modernizing any of the Alley Improvements, but shall include replacement of
materials or installed features as required to preserve the overall Improvements
in a condition reasonable given the age and normal use of the Improvements.
5.2 City Repair Obligations.
5.2.1 For so long as and to the extent the Alley Improvements continue to be
maintained by the DDA, and excepting temporary repairs made for
IGA.2010 Alley Improvements-05-06-10 9
reasons of safety, the City shall make those repairs to the Alley
Improvements to the extent they are necessary directly as a result of:
(a) A negligent, reckless or intentional act or omission of the City,
its employees, agents or contractors.
(b) An act or omission of a City permittee, licensee, franchisee,
where the City has already received compensation from such
person for the act or omission requiring repairs to the Alley
Improvements; or
(c) A defect in materials or construction occasioned by the
performance of the Contractor under the Construction Contract
where the City has already received compensation from .the
Contractor for such defect;or
(d) A criminal or tortious act of any third party, and such third party
has made such repairs or paid the City for such repairs.
5.2.2 In the event that the DDA repairs any Alley Improvement and,
subsequent to such payment by the DDA, the City for any reason
whatsoever receives compensation for such repairs from any third
party, then the City shall pay to the DDA the amount received from
such third party up to the amount of the DDA's costs and expenses to
provide for such repair.
5.3 Claims Against Others for Repair. In the event that the City has a valid claim
against a City permittee, licensee, franchisee, or the Contractor entitling the
City to require repair to the Alley Improvements or correction of a defect
therein, the City shall reasonably evaluate the strength of such claim and the
potential costs of asserting it, and determine whether to assert such claim, at
law or in equity.
5.4 Special Conditions on Repair and Replacement of Pavers.
5.4.1 Repair or Replacement by the Citv. In the event that the City undertakes
to repair or replace any damaged paver within the ROW, the City agrees
that it shall conduct such repair and/or replacement in accordance with
the manufacturer's specifications (the "Paver Specification Sheet"), and
that it shall replace missing or irreparably damaged pavers with new
IGA.2010 Alley Improvements..05-06-10 10
pavers. For so long as and to the extent the Alley Improvements
continue to be maintained by the DDA, and excepting temporary repairs
made for reasons of safety, the City agrees that it shall not repair or
replace missing or damaged pavers with other road base materials such
as asphalt or concrete. The DDA agrees to provide the City with a copy
of the Paver Specification Sheet prior to completion of the Construction
Contract. Provided that the requirements of this Section 5.4.1 have
been satisfied, the DDA agrees to reimburse the City for its costs in
repairing or replacing pavers in the Alleys:
5.4.2 Excavation and Building Permittees.
(a) Within a reasonable period of time after the date of execution of
this IGA, the City commits to implementing such policies and
procedures as necessary to ensure that during the term of this
Agreement any person or entity who applies for or inquires
about a building or excavation permit within the Alleys affecting
the Alley Improvements is provided an information pamphlet
advising the prospective permittee of the special nature of the
paver improvements within the Alley ("Paver Information
Pamphlet") and a copy of the Paver Specification Sheet.
(b) Subject to approval by the City Council, in its sole discretion, of
related City Code amendments, as a condition of any such
building or excavation permit, the permittee, upon completing
work in the Alleys affecting the Alley Improvements, shall be
required to return the Alley Improvements to the state and
condition which existed prior to the permittee's work in the
Alleys, including, by way of example and not of limitation,
repairing or replacing any pavers that. it damages consistent with
the Paver Specification Sheet. The City agrees to make
reasonable and good faith efforts to enforce such permit
condition against any and all permittees.
5.4.3 Utility Providers. Franchisees and Other Persons. To the extent
permitted by law, the City agrees to take reasonable measures during
the term of this Agreement to ensure that third parties who will be
engaging in activities in the Alleys of a type or nature which could
reasonably be capable of causing damage to the pavers, but who may
not be required to obtain a permit before conducting such activities (e.g.
IGA1010 Alley Improvements..05-06-10 11
franchisees and utility providers), are provided with the Paver
Information Pamphlet and the Paver Specification Sheet, and that such
third parties are required to repair or replace damaged pavers in
accordance with the Paver Specification Sheet.
5.4.4 Notices to DDA and Parks Maintenance. The policies and procedures
to be adopted by the City for work in the Alleys which may disturb the
Alley Improvements therein shall include a process to timely notify the
DDA and the City Parks and Cemeteries Division of such proposed
work during the term of this Agreement.
6. Initial Maintenance Agreement with City and Future Intergovernmental
Agreement.
6.1 Initial Maintenance Agreement. The DDA desire to contract with the City for
services to include routine maintenance of the Alley Improvements herein
required of the DDA, and the City agrees to contract to perform such
maintenance, on following the terms and conditions (the "Initial Maintenance
Agreement"):
6.1.1 Term. Maintenance shall commence upon completion of the Alley
Improvements and shall continue through the end of that calendar year
and for a period of two (2) additional calendar years (the "Maintenance
Term").
6.1.2 Scope of Services. During the Maintenance Term, the City shall
perform the routine maintenance services identified on Exhibit "A,"
attached hereto and incorporated herein by reference (the "Scope of
Services").
6.1.3 Compensation. Upon completion of the Alley Improvements, the DDA
shall pay to the City the amount of $41,575 (i.e. $21,825 for the
Montezuma Fuller alley and $19,750 for the Firehouse Alley) for the
City's performance of the Scope of Services for the Alleys for the first
twelve months of the Term. On the anniversary of the completion of
the Alley Improvements the DDA shall pay to the City the amount of
$42,820 (i.e. $22,480 for the Montezuma Alley and $20,340 for the
Firehouse Alley), plus an additional amount of $3,569 for each
additional month through the end of the Maintenance Term for the
IGA.2010 Alley Improvemenrs..05-06-10 12
City's performance of the Scope of Services for the remainder of the
Maintenance Term,.
6.1.4 Maintenance Vehicle. The parties hereto acknowledge that, in order for -
the City to perform the Scope of Services, the City will need to
purchase a Toro diesel vehicle with a cab, lift and water tank (the
`.`Maintenance Vehicle"). The DDA agrees to reimburse the City for
such purchase up to the amount of $50,000 for the acquisition of the
Maintenance Vehicle. Upon expiration of the Maintenance Term
(unless extended pursuant to an intergovernmental agreement between
the parties), the Maintenance Vehicle shall become the property of the
DDA and the City shall promptly transfer title to the Maintenance
Vehicle to the DDA or, alternatively at the City's discretion, shall pay
to the DDA the fair market value of Maintenance Vehicle at the
expiration of the Maintenance Term.
6.2 Future Intergovernmental Agreement. The DDA and the City desire to work
together to establish a long-term intergovernmental agreement for maintenance of
the Alleys as well as other alleys which may be improved with DDA boundaries.
Prior to the end of the Maintenance Term, the parties agree to meet and negotiate
terms for such future intergovernmental agreement
7. Additional Ongoing DDA Obligations.
7.1 Through the term of this Agreement, the DDA shall be responsible for
providing all flowers and ornamental plants for the planters and planting areas
created by the Alley Improvements, and for providing all labor associated with
planting and maintaining such flowers and plants. The City agrees to provide to
the DDA an estimate of the annual planting expenses for the next season prior
to August of each year.
7.2 Snow Removal. The DDA shall provide for snow removal from the ROW.
7.3 Utility Costs Related to Alley Improvements. The Construction Plans call for
the installation of the water and electrical meters identified on Exhibit `B,"
attached hereto and incorporated herein by reference (the "Utility Meters"), for
the following purposes related to the following Alley Improvements: (1) to
provide electricity to the Tivoli lights; (2) to provide electricity to the electrical
outlets located within trash enclosures; and (3) for irrigation of the plants and
flowers located in the planters and planter areas. The DDA shall be responsible
IGA.2010 Alley Improvements-05-06-10 13
for the cost of the utilities originating at the Utility Meters, subject to the
following limitations: (a) the City shall make reasonable efforts to ensure that
the Tivoli lights are not turned on until after dusk and are turned off prior to
dawn; and (b) the City shall not make use of the power or water originating at
the Utility Meters for any purpose, except as otherwise provided in this
Agreement.
8. Vender Permits, Concessionaire Licenses. In the event the City issues a vender's
permit, concessionaire's license, or other license or permit used for similar purpose, within the
Alleys, then the City shall require as a condition of any such permit or license that such user
shall be responsible for keeping the area covered by the permit or license in a clean and neat
condition, free of litter, soils and rubbish, and for returning such area to the condition which
existed prior to the permittee's or licensee's use thereof, including repairing damaged pavers in
accordance with Section 5.2 hereof.
9. City Ownership of ROW and Improvements. The ROW shall remain the sole
property of the City. The DDA shall not acquire any property interest in or to the ROW pursuant
to or as a result of this IGA, nor shall the DDA have any obligations with respect to the ROW,
beyond those obligations specifically identified herein. Upon acceptance thereof, the City shall
own all of the Alley Improvements excepting the consolidated trash enclosures, which shall be
owned by the DDA (the"DDA Alley Improvements").
10. Notices. All notices to be given to parties hereunder shall be in writing and shall
be sent by certified mail to the addresses specified below:
If to the DDA: The Fort Collins, Colorado,
Downtown Development Authority
Attn: Executive Director
19 Old Town Square, Suite 230
Fort Collins, CO 80524
With a copy to: Liley, Rogers & Martell, LLC
Attn: Lucia A. Liley, Esq.
300 South Howes Street
Fort Collins, CO 80521
IGA.2010 Alley Improvements..05-06-10 14
If to the City: City of Fort Collins
Attn: Executive Director of Culture, Parks, Recreation
and Environment
215 N. Mason Street
Fort Collins, CO 80521
With a copy to: City Attorney's Office
Attn: City Attorney
300 Laporte Avenue
Fort Collins, CO 80521
it. Governing This IGA shall be governed by, and its terms construed under
the laws of the State of Colorado.
12. No Third Partv Beneficiaries. It is the mutual intent of the parties hereto that this
IGA shall inure to the benefit of only the parties hereto. Accordingly, nothing in this IGA shall
be construed as creating any right or entitlement which inures to the benefit of any third party.
13. Annual Appropriation. All financial obligations of the City or the DDA arising
under this IGA that are payable after the current fiscal year are contingent upon funds for that
purpose being annually appropriated, budgeted and otherwise made available by the City
Council of the City, in its discretion, and/or the Board of Directors of the DDA, in its discretion,
as applicable.
14. Benefit, Binding; Effect, Covenant. The parties hereto recognize that there are
legal constraints imposed upon them by the constitution, statutes, and rules and regulations of the
State of Colorado and of the United States, and imposed upon them by their respective governing
statutes, charters, ordinances, rules and regulations, and that, subject to such constraints, the
parties intend to carry out the terms and conditions of this IGA. Notwithstanding any other
provision of this IGA to the contrary, in no event shall either of the parties be obligated
hereunder to exercise any power or take any action that is be prohibited by applicable law.
Whenever possible, each provision of this IGA shall be interpreted in such a manner so as to be
effective and valid under applicable law.
IGA1010 Alley Improvements..05-06-10 15
IN WITNESS WHEREOF, the parties have executed this IGA the day and year first
above written.
CITY OF FORT COLLINS, COLORADO,
a municipal corporation
By:
Darin Atteberry, City Manager
ATTEST:
Wanda Krajicek, City Clerk
APPROVED AS TO FORM:
Carrie M. Daggett, Deputy City Attorney
THE FORT COLLINS, COLORADO,
DOWNTOWN DEVELOPMENT
AUTHORITY, a body corporate and politic
By:
Patty Spencer, Chairperson
ATTEST:
Bill Sears, Secretary
IGA.2010 Alley Improvements..05-06-10 16
Exhibit"A"
To Intergovernmental Agreement
Scope of Services
A. The City will contract with the DDA to perform the following maintenance tasks in the
Montezuma Fuller Alley and Firehouse Alley, and the Rights-of-Way (collectively the "Service
Area"). The DDA will be responsible for all expenses incurred for the maintenance of this
Service Area and any additional work requested beyond this Scope of Service:
1. Routine Cleaning and Maintenance. The City will clean all surfaces within the
Service Area, including but not limited to maintaining the cleanliness of pavers and concrete
surfaces, light standards, trash receptacles, cigarette receptacles, movable planters, and
benches. The City will provide a maximum of eight power washings per year for paver
surfaces and any adjacent fixed infrastructure. The City will repair movable fixtures,
including but not limited to benches and trash receptacles. The City will de-ice slippery areas
after a contractor has provided snow removal efforts per event. The City is not responsible
under this Agreement for repairing permanent fixtures, including but not limited to light
standards and flag poles. The DDA agrees to be responsible for repair and replacement of
such permanent fixtures, for replacement of all movable fixtures, and for repair or
replacement of infrastructure, including pavers and concrete surfaces. The DDA may
arrange with the City to provide these additional services at the DDA's expense.
2. Flower Beds,'Movable Planters, Hanging Baskets. )The City will design, purchase,
install and provide routine maintenance of all plant materials, including seasonal plantings,
water, fertilizer, and fall cleanup for beds, planters and hanging baskets listed in the service
area. The City will not replace plant materials damaged or destroyed by vandalism or
inclement weather. Should the DDA request that annual plants be installed prior to May 15
(average date of last frost), the DDA will bear the cost of replacing annual plants damaged by ,
frost, snow, ice or freezing temperatures. The DDA or event sponsor will also reimburse the
City for the cost of replacement required as a result of damage during special events if
scheduled in the Service Area.
3. Routine Litter Control. The City will provide litter control and debris removal within
the Service Area, except for special .events where the event promoter is contractually
responsible for cleanup.
4. Other. Any other maintenance requests beyond those listed in this Scope of Services
can be arranged for between the City and DDA at an additional cost based on time and
materials.
5. Not Included. The City will not provide the following maintenance services: snow
removal, utility costs, light bulb replacement, or electrical fixtures and infrastructure
replacement. The DDA may arrange with the City to provide additional services at the
DDA's expense.
IGA.2010 Alley Improvemems-05-0640 17
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