HomeMy WebLinkAbout2012-013-02/21/2012-APPROVING A TWO-YEAR EXTENSION OF THE SECOND INTERIM AGREEMENT AMONG THE CITY, THE DOWNTOWN DEVELOPM RESOLUTION 2012-013
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING A TWO-YEAR EXTENSION OF THE SECOND INTERIM AGREEMENT
AMONG THE CITY, THE DOWNTOWN DEVELOPMENT AUTHORITY,
THE DOWNTOWN BUSINESS ASSOCIATION AND PROGRESSIVE OLD TOWN
SQUARE, LLC, REGARDING THE MAINTENANCE
AND MANAGEMENT OF OLD TOWN PLAZA
WHEREAS, the Downtown Development Authority (DDA) is the owner of certain real
property located in Fort Collins, Colorado;known as"Old Town Plaza", as shown on Exhibit"A",
attached and incorporated herein by reference; and
WHEREAS, Old Town Plaza was developed by a private developer in 1983-84 to enhance
the Old Town area by providing a pedestrian mall for shoppers; and
WHEREAS,Progressive Old Town Square Limited Liability Company(POTS)is the owner
of private buildings adjacent to Old Town Plaza, as shown on Exhibit A; and
WHEREAS,the Downtown Business Association(DBA)manages Old Town Plaza on behalf
of the DDA; and
WHEREAS,the City is the owner of certain rights-of-way adjacent to and abutting both Old
Town Plaza and the POTS property, as shown on Exhibit A; and
WHEREAS,in July, 1993,the City Council approved Resolution 1993-161,authorizing an
agreement between the City, the DDA, and POTS' predecessor in interest; and
WHEREAS,on October 29, 1993,in accordance with Resolution 1993-161,the City,DDA
and POTS entered into an agreement regarding the maintenance and management of Old Town Plaza
and establishing a payment in lieu of taxes (the "1993 Agreement"); and
WHEREAS, the parties have since executed two amendments to the 1993 Agreement, the
first of which,dated May 20, 1994,had to do with the provision of electricity to lights and signs,and
the second, dated August 14, 2000, provided for payments for enhanced maintenance and capital
improvements for Old Town Plaza; and
WHEREAS, On July 13, 2005, the City, DDA and POTS entered into an agreement
modifying the roles,responsibilities and financial commitments of each party with regard to the use,
operation,maintenance and repair of Old Town Plaza and adjacent rights-of-way(the"First Interim
Agreement"); and
WHEREAS, on April 21, 2010, the City, DDA, DBA and POTS entered into a revised
agreement regarding Old Town Plaza and the adjacent rights-of way (the "Second Interim
Agreement"); and
WHEREAS, under the Second Interim Agreement the City and DDA each agreed to
contribute $58,931 annually and POTS agreed to contribute $4,500 per month, as their respective
shares of the maintenance costs, with these amounts being adjusted annually to reflect changes in
the consumer price index; and
WHEREAS, the First and Second Interim Agreements were meant to remain in place only
until the parties negotiated a new agreement to replace the 1993 Agreement; and
WHEREAS, the Second Interim Agreement expired on December 31, 2011; and
WHEREAS,the parties have not yet negotiated a new agreement and now wish to extend the
Second Interim Agreement on the same terms and conditions; and
WHEREAS, a proposed First Amendment to the Second Interim Agreement, which would
extend the Second Interim Agreement for up to three more years,is attached and incorporated herein
as Exhibit`B'; and
WHEREAS,the First Amendment to the Second Interim Agreement has been approved by
the DDA, DBA and POTS; and
WHEREAS, under the Second Interim Agreement, the City, DDA and POTS would each
continue to contribute funds to pay for maintenance and repair work for Old Town Plaza and the
rights-of-way, with the City performing the work;and
WHEREAS, pursuant to Section 1-22 of the City Code, the City Council is being asked to
approve the First Amendment to the Second Interim Agreement by resolution because it is, in part,
an intergovernmental agreement between the City and the DDA, and the direct monetary payments
to be made by the City exceed $50,000.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that the City Manager is hereby authorized to execute the First Amendment to the Second
Interim Agreement in substantially the form as is shown in Exhibit `B", together with such
additional terms and conditions as the City Manager,in consultation with the City Attorney,deems
necessary and appropriate to protect the interests of the City or to effectuate the purposes of this
Resolution.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 21 st
day of February A.D. 2012.
O�FORTC o
ATTEST:
SEA
City Clerk COLOR�00O
Exhibit A
Ownership
Downtown Development Authority
Progressive Old Town Square
The City of Fort Collins
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EXHIBIT B
FIRST AMENDMENT TO
SECOND INTERIM AGREEMENT
THIS FIRST AMENDMENT TO SECOND INTERIM AGREEMENT ("First
Amendment")is made and entered into this_day of , 2012,by and between
the CITY OF FORT COLLINS, COLORADO, a municipal corporation (the"CITY"), the FORT
COLLINS, COLORADO, DOWNTOWN DEVELOPMENT AUTHORITY, a body corporate
and politic (the "DDA"), PROGRESSIVE OLD TOWN SQUARE, LLC, a Colorado limited
liability company ("POTS"), and the FORT COLLINS, COLORADO, DOWNTOWN
BUSINESS ASSOCIATION, a Colorado nonprofit corporation, (the "DBA").
WITN.E-SS.ETH:. ... ... - . -.. .... ..
WHEREAS, the City, the DDA, POTS and the DBA entered into the Second Interim
Agreement on April 21, 2010, for the purpose of establishing the rights and responsibilities of
the parties through December 31, 2011, or until the Permanent Agreement is executed by the
parties, whichever occurred first, in connection with the use, operation, maintenance and repair
of the Old Town Plaza; and
WHEREAS, the parties hereto desire to enter into this First Amendment for the purposes
of extending the term of the Second Interim Agreement for an additional two (2)-year period.
NOW,THEREFORE,by and in consideration of the above premises and the within terms
and conditions,the parties hereto agree as follows:
A. Section 1.0 of the Second Interim Agreement shall be amended to read as follows:
"1.0 TERM
1.1 Initial Term. The term of this Second Interim Agreement shall be effective
retroactively to June 15, 2006, and shall continue through December,31, 2013.
1.2 Ratification and Acknowledgment. The parties hereto ratify all actions of the
parties performed pursuant to the Second Interim Agreement, and acknowledge
that each such party has fully performed its respective obligations under the
Second Interim Agreement, through the date of execution. of this First
Amendment.
1.3 Automatic Renewal. Unless the Permanent Agreement has been executed prior to
December 31, 2013, the term of this Second' Interim Agreement shall
automatically renew for an additional one (1) year period, commencing January 1,
2014, and continuing through December 31, 2014, subject to the early termination
provision set forth in Section 1.4 below.
1.4 Execution of Permanent Agreement. The provisions of 1.3 above notwithstanding,
any party hereto shall have the right to terminate this Second Interim Agreement
First Amendment to Second Interim Agreement 1
1-11-12
upon sixty (60) days' prior written notice to the other parties hereto. If such
termination occurs prior to the end of a calendar year during the term hereof,
contributions by the parties hereto shall be prorated in accordance with the
provisions of Sections 3.2.4 and 4.0 hereof.
B. Subsections a. and b. of Section 1 of Exhibit D to the Second Interim Agreement (Scope
of Services) shall be amended to read as follows:
"a. Routine Cleaning and Maintenance. The City will be responsible for cleaning of
all surfaces within the Service Area, including but not limited to maintaining the
cleanliness of flagstone and concrete surfaces, light standards, trash receptacles,
cigarette receptacles, movable planters, flag poles and benches. The City will
provide one power washing per weeli-Torsurfaces ui areas where-foo3 vendors are
permitted to operate, and eight power washings per year for other paver surfaces.
The City will repair movable fixtures, including but not limited to benches and
trash receptacles. 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 if and as needed to maintain the safety and operational function of
the Plaza as a public place. The DDA may arrange with the City to provide these
additional services at the DDA's expense.
b. Routine Cleaning and Maintenance of the Fountain. The City will apply
chemicals, change filters, and be responsible for turning on and shutting off the
fountain in Old Town Plaza. The City will drain, clean and refill the fountain as
needed. The DDA will be responsible for pump repairs, replacement of fountain
components and infrastructure and annual underground pipe cleaning and/or
replacement if and as needed to keep the fountain operational. The DDA may
arrange with the City to provide these additional services at the DDA's expense."
C. All of the terms and conditions of the Second Interim Agreement that are not specifically
amended by this First Amendment shall remain in full force and effect throughout the term of the
Second Interim Agreement as amended.
D. This First Amendment shall be governed by, and its terms construed under, the laws of
the State of Colorado. U
E. All notices and payments 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: Fort Collins, Colorado,
Downtown Development Authority
Attn: Executive Director
19 Old Town Square, Suite 230
Fort Collins, CO 80524
First Amendment to Second Interim Agreement 2
I-11-12
With a copy to: Liley,Rogers &Martell,LLC
Attn: Lucia A. Liley, Esq.
300 South Howes Street
Fort Collins, CO 80521
If to the CITY: City of Fort Collins
Attn: Finance Department
215 N. Mason Street
Fort Collins, CO 80521.
With a copy to: City Attorney's Office
Attn: Stephen J.Roy, Esq.
300 Laporte Avenue
Fort Collins, CO 80521
If to POTS: Progressive Old Town Square, LLC
c/o Old Town Square Properties, Inc.
5 Old Town Square, Suite 216
Fort Collins, CO 80524
With a copy to: Hasler,Fonfara&Maxwell LLP
Attn: Timothy W. Hasler,Esq.
125 S. Howes Street, 6th Floor
Fort Collins, CO 80521
If to the DBA: Fort Collins, Colorado,
Downtown Business Association
Attention: Executive Director
19 Old Town Square, Suite 230
Fort Collins, CO 80524
F. This First Amendment may be executed in multiple counterparts, each of which shall
constitute an original, but all of which, taken together, shall constitute one and the same
document.
G. This First Amendment shall be binding on and inure to the benefit of the parties hereto,
their heirs, successors and assigns.
Fast Amendment to Second interim Agreement 3
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IN WITNESS WHEREOF, the parties have executed this Second Interim Agreement as
of the date written above.
CITY OF FORT COLLINS, COLORADO,
a municipal corporation
By:
Darin Atteberry, City Manager
ATTEST:
Wanda Krajicek, City Clerk
APPROVED AS TO FORM:
Ingrid Decker,Assistant City Attorney
THE FORT COLLINS, COLORADO,
DOWNTOWN DEVELOPMENT AUTHORITY,
a bod corporate and politic
By:
t Wynne dell, Chairperson
ATTEST-
Bill Sears, Secretary
First Amendment to Second Interim Agreement q
1-11-12
PROGRESSIVE OLD TOWN SQUARE, LLC, a
Colorado limited liability company
By:
Brian oukup, 7`149
Member
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing-First Amendment was acknowledged before me this 13 day of
AY 0 , 2012, by Brian T. Soukup, as Managing Member of Progressive Old Town
Square LL , a Colorado limited liability company.
Witness my hand and official seal. �" /
My commission expires: k 2s 26�.6 �,�IW1/(,(\lfill i f
otary Public J
RACHELLE vASHTI eardanaAL
Notary Pubis THE FORT COLLINS, COLORADO,
State of Colorado DOWNTOWN BUSINESS ASSOCIATION,
a Colorado nonprofit corporation
By: (:� /�q ;�
P sident, D/BA D�
Name: J'�1^ �f A N v1 oW
(please print)
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
rt�
The foregoing Second Interim Agreement was acknowledged before me this day
of nv 2012, by v*:, %mai� , as President of the Fort Collins, Colorado,
Downtown Business Association, a nonprofit corporation.
Witness my hand and official seal.
,SPY P.j
2�' eF�Ct
My commission expires:tee,t, �Qi� . " V �1`C JoqNNA M.
ary Public I STONE
MY COMMISSION EXPIRES.
February 6,2015
First Amendment to Second Interim Agreement 5
1-II-12