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HomeMy WebLinkAboutMONTAVA PHASE G AND IRRIGATION POND - BDR210013 - SUBMITTAL DOCUMENTS - ROUND 7 - ROW RELATED DOCUMENT 1 1938.4600; 1306430v1 RIGHT-OF-WAY LICENSE AND MAINTENANCE AGREEMENT ___________________________ This RIGHT-OF-WAY LICENSE AND MAINTENANCE AGREEMENT (the “Agreement) is made this ____ day of _____________, 2023 by and between the CITY OF FORT COLLINS, a Colorado home-rule municipality (the “City”) and the MONTAVA METROPOLITAN DISTRICT NO. 1, a political subdivision of the State of Colorado (the “District”). The City and District are individually referred to herein as a “Party” and collectively as the “Parties.” RECITALS WHEREAS, the District was organized pursuant to and in accordance with the provisions of §§ 32-1-101, et seq., C.R.S. for the purpose of constructing, financing, operating, and maintaining certain public facilities and improvements for itself, its taxpayers, residents, and users; and WHREREAS, the District operated pursuant to that certain Consolidated Service Plan for Montava Metropolitan District Nos. 1-7 (the “Service Plan”) approved by the City on September 25, 2018; and WHEREAS, pursuant to the Service Plan, the District is authorized to own, operate, and maintain any part or all of the “Public Improvements” (as defined in the Service Plan) not otherwise conveyed or dedicated to the City or another appropriate governmental entity until such time that the District dissolves; and WHEREAS, the District desires to construct an enhanced public right-of-way within the City of Fort Collins, County of Larimer, State of Colorado, which includes the installation of brick pavers and which is more particularly depicted in Exhibit A as “Paver Area” (the “Enhanced ROW”), consisting of 1 page, attached hereto and incorporated herein by this reference; and WHEREAS, pursuant to § 32-1-1001(1)(d)(I), C.R.S., the District is empowered to enter into contracts and agreements affecting the affairs of the District; and WHEREAS, the City has agreed to accept for ownership the Enhanced ROW once constructed pursuant to the City’s public improvement acceptance policies; and WHEREAS, the District has agreed to be responsible for the ongoing maintenance of the Enhanced ROW before and after the City accepts ownership until such time that the District dissolves; and WHEREAS, the City hereby agrees to grant a license to the District that allows for the maintenance of the Enhanced ROW (the “Activities”), as more particularly described in Exhibit B, consisting of 1 pages, attached hereto and incorporated herein by this reference; and 2 1938.4600; 1306430v1 WHEREAS, the District agrees to provide the City with notice of all maintenance then due and pending under this Agreement before the District files a petition in district court for dissolution. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: TERMS AND CONDITIONS 1. Incorporation of Recitals. The Recitals above are hereby incorporated into the terms and conditions of this Agreement. 2. Grant of License. The City hereby grants a revocable, non-exclusive license (“License”) to the District and its employees, agents, representatives, and contractors to perform the Activities, subject to the additional terms and conditions contained herein, to have and to hold the same together with the rights and privileges of entry and use of the Enhanced ROW. The License does not convey an interest in real property and the District hereby acknowledges the same. 3. Maintenance Obligation. The District shall be responsible for ensuring that the its contractors (the “Contractor”) carry out the Activities. The District understands and agrees that the City shall not be liable or responsible for any costs related to any damage, maintenance, repair, or removal of any of the property or improvements placed, or kept, upon the Enhanced ROW by the District or Contractor. 4. Reservation of Rights. In granting this License, the City reserves the right to make full use of the Enhanced ROW as may be necessary or convenient. 5. Restoration of The City Enhanced ROW. All City property that is disturbed by the District’s or Contractor’s performance of the Activities shall be restored to a condition satisfactory to City. If restoration is not completed by District or Contractor within the time specified by City, the City, at its election, may perform such restoration at District’s expense. 6. Default and Opportunity to Cure. Each term and condition hereof shall be deemed to be a material element of this Agreement. In the event District should fail or refuse to perform according to the terms of this Agreement, District may be declared in default upon notice. In the event District has been declared in default, District shall be allowed a period of ten calendar days from the date of notice within which to cure said default, or such longer period as is reasonably required to cure such default so long as District is expeditiously proceeding to cure such default and so long as District provides City advance notice of the specific longer period required. In the event the default remains uncorrected, City may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail itself of any other remedy at law or equity. In the event of a default, District shall bear City's attorney fees and costs. 3 1938.4600; 1306430v1 7. Compliance with Laws. District, at its sole cost and expense, shall comply with all federal, state, local and police requirements, regulations, ordinances and laws pertaining to District’s or Contractor’s use of the Enhanced ROW and the conduct of the Activities and shall be solely responsible for any fines, fees or costs relating to the same. 8. Insurance. District shall require that its contractors maintain, at no cost to the City, insurance coverage in the minimum amounts set forth in Exhibit C, consisting of two pages, attached hereto and incorporated herein by this reference. A waiver of subrogation and rights of recovery against City, its directors, officers, employees and agents is required for each coverage provided. The Commercial General Liability and Comprehensive Automobile Liability Insurance policies will be endorsed to name City as an additional insured. All coverage provided pursuant to this Agreement shall be written as primary policies, not contributing with and not supplemental to any coverage that City may carry, and any insurance maintained by City shall be considered excess. City shall have the right to verify or confirm, at any time, all coverage, information or representations required by this Section 8 of the Agreement. The failure of the Contractor to purchase the required insurance shall not serve to release it or District from any obligations contained in this Agreement; nor shall the purchase of the required insurance serve to limit District’s or Contractor’s liability under any provision in this Agreement. 9. Indemnification. The District expressly agrees to require its contractors to indemnify and hold harmless City and any of its officers or employees from any and all claims, damages, liability, or court awards, including costs and attorneys’ fees that are or may be awarded as a result of any loss, injury or damage sustained by anyone, including, but not limited to, any person, firm, partnership, or corporation, in connection with, arising out of, or related to the issuance of the License or any omission or act of negligence, willful misconduct, or any criminal or tortious act or omission by its contractors or any of its employees, agents, representatives, or subcontractors with regard to the License. 10. Term. The term of the License shall continue from the date of this Agreement to the time that this Agreement is terminated. City may terminate this Agreement at any time by giving written notice to District thirty (30) calendar days in advance of the effective date of termination and specifying the date of termination therein. In the event District violates any term or condition of this Agreement, City may terminate this Agreement by giving District seven (7) calendar days written notice of termination. 11. Assignment. Neither the License, nor any of the Parties’ rights, obligations, duties, or authority under the License may be assigned in whole or in part by District without the prior written consent of City. Consent to one assignment shall not be deemed to be consent to any subsequent assignment nor the waiver of any right to consent to such subsequent assignment. City retains the right to assign its rights, obligations, duties or authority under the License freely in its sole discretion. 12. Notices. Any notice or communication required under this Agreement must be in writing, and may be given personally, sent via nationally recognized overnight carrier service, or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same will be deemed to have been given and received on the first to occur of (i) actual receipt 4 1938.4600; 1306430v1 by any of the addressees designated below as the Party to whom notices are to be sent, or (ii) five (5) business days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered or sent via nationally recognized overnight carrier service, a notice will be deemed to have been given when delivered to the Party to whom it is addressed. Either Party hereto may at any time, by giving written notice to the other Party hereto as provided herein designate additional persons to whom notices or communications will be given, and designate any other address in substitution of the address to which such notice or communication will be given. Such notices or communications will be given to the Parties at their addresses set forth below: City: City of Fort Collins __________________________________ __________________________________ _________________________________ Attn: ___________________________________ ___________________ (phone) With a copy to: City Attorney’s Office City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 District: Montava Metropolitan District No. 1 White Bear Ankele Tanka & Waldron, PC 2154 East Commons Avenue, Suite 2000 Centennial, CO 80122 Attn: Zachary P. White, Esq. (303) 858-1800 13. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and City Charter and Municipal Code of Fort Collins. Venue for any action arising under this Agreement or for the enforcement of this Agreement shall be in the appropriate court for Larimer County, Colorado. 14. No Waiver. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other of the provisions of this Agreement, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided herein, nor shall the waiver of any default be deemed a waiver of any subsequent default. 15. No Third Party Beneficiaries. It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to City and District, and nothing contained in this Agreement shall give or allow any such claim or right of action by any other third party on such Agreement. It is the express intention of the Parties that any person other than City or District receiving services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. 5 1938.4600; 1306430v1 16. Binding Effect. This Agreement shall be binding on the Parties, their successors and assigns. 17. Integration. The Parties hereto agree that neither has made nor authorized any agreement with respect to the subject matter of this instrument other than as expressly set forth herein, and no oral representation, promise, or consideration different from the terms herein contained shall be binding on either Party, or its agents or employees, hereto. 18. Governmental Immunity. Nothing in this Agreement shall be construed to waive, limit, or otherwise modify, in whole or in part, any governmental immunity that may be available by law to City, its respective officials, employees, contractors, or agents, or any other person acting on behalf of City and, in particular, governmental immunity afforded or available to City pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. 19. Negotiated Provisions. This Agreement shall not be construed more strictly against one Party than against the other merely by virtue of the fact that it may have been prepared by counsel for one of the Parties, it being acknowledged that each Party has contributed substantially and materially to the preparation of this Agreement. 20. Severability. If any portion of this Agreement is declared by any court of competent jurisdiction to be void or unenforceable, such decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full force and effect. In addition, in lieu of such void or unenforceable provision, there shall automatically be added as part of this Agreement a provision similar in terms to such illegal, invalid or unenforceable provision so that the resulting reformed provision is legal, valid and enforceable. 21. Counterpart Execution. This Agreement may be executed in several counterparts, each of which may be deemed an original, but all of which together shall constitute one and the same instrument. Executed copies hereof may be delivered by facsimile or email of a PDF document, and, upon receipt, shall be deemed originals and binding upon the signatories hereto, and shall have the full force and effect of the original for all purposes, including the rules of evidence applicable to court proceedings. [Remainder of Page Intentionally Left Blank. Signature Page Follows.] 6 1938.4600; 1306430v1 IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first above written. By the signature of its representative below, each Party affirms that it has taken all necessary action to authorize said representative to execute this Agreement. CITY: CITY OF FORT COLLINS, a Colorado municipal corporation By:_______________________________________ Kelly DiMartino, City Manager ATTEST: __________________________________ City Clerk’s Office Printed Name: ________________________ Title: _______________________________ APPROVED AS TO FORM: ___________________________________ Heather N. Jarvis, Assistant City Attorney 7 1938.4600; 1306430v1 DISTRICT: MONTAVA METROPOLITAN DISTRICT NO. 1, a quasi-municipal corporation and political subdivision of the State of Colorado By:_______________________________________ Printed Name: ________________________ Title: _______________________________ ATTEST: __________________________________ Printed Name: ________________________ Title: _______________________________ APPROVED AS TO FORM: WHITE BEAR ANKELE TANAKA & WALDRON Attorneys at Law ___________________________________ Printed Name:_______________________ General Counsel to the District 8 1938.4600; 1306430v1 EXHIBIT A (Enhanced ROW) 9 1938.4600; 1306430v1 EXHIBIT B (Activities) Accessing, constructing, maintaining, operating, reconstructing, replacing and repairing the Enhanced ROW. 10 1938.4600; 1306430v1 EXHIBIT C (Insurance Requirements) All insurance required and provided hereunder shall also comply with the provisions of Section 8 of the Agreement. 1. Standard Worker’s Compensation and Employer’s Liability Insurance covering all employees of Contractor involved with the performance of the Activities, with policy amounts and coverage in compliance with the laws of the jurisdiction in which the Activities will be performed. 2. Commercial General Liability Insurance with minimum limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage liability; $2,000,000 designated location, general aggregate; and $1,000,000 umbrella. Such insurance will include coverage for contractual liability, personal injury, and broad form property damage, and shall include all major divisions of coverage and be on a comprehensive basis including, but not limited to: a. premises operations; b. personal injury liability without employment exclusion; c. limited contractual; d. broad form property damages, including completed operations; e. medical payments; f. products and completed operations; g. independent consultants coverage; and h. coverage inclusive of construction means, methods, techniques, sequences, and procedures, employed in the capacity of a construction consultant. This policy must include coverage extensions to cover the indemnification obligations contained in this Agreement to the extent caused by or arising out of bodily injury or property damage. 3. Comprehensive Automobile Liability Insurance covering all owned, non-owned, and hired automobiles used in connection with the performance of the Activities, with limits of liability of not less than $1,000,000 combined single limit bodily injury and property damage. This policy must include coverage extensions to cover the indemnification obligations contained in this Agreement to the extent caused by or arising out of bodily injury or property damage. 4. If applicable: Contractor shall secure and maintain a third-party fidelity bond in favor of the District, covering the Contractor and its employees and agents who may provide or be responsible for the provision of Activities where such activities contemplate the responsibility for money or property of the District. Such bond shall protect the District against any fraudulent or dishonest act that may result in the loss of money, securities, or other property belonging to or in the possession of the District. Said bond shall be in an amount as determined by the District, from a surety acceptable to the District. 11 1938.4600; 1306430v1 5. Any other insurance commonly used by contractors for activities of the type to be performed pursuant to this Agreement.