HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 9200167 (2)3-5-2020 1
INTERGOVERNMENTAL AGREEMENT
REGARDING REDEVELOPMENT OF 140 EAST OAK STREET
This INTERGOVERNMENTAL AGREEMENT (“IGA”) is made and entered on the date
set forth below by and between the FORT COLLINS, COLORADO, DOWNTOWN
DEVELOPMENT AUTHORITY, a body corporate and politic (the “DDA”), and HOUSING
CATALYST, a body corporate and politic (“Housing Catalyst”).
WITNESSETH
WHEREAS, the DDA was created pursuant to Colorado Revised Statutes (“C.R.S.”) 31-
25-801 et seq. (the “DDA Statute”);
WHEREAS, the DDA Statute has declared that the organization of downtown development
authorities will serve a public use; promote the health, safety, prosperity, security, and general
welfare of the inhabitants thereof and of the people of this state; will halt or prevent deterioration
of property values or structures within central business districts; halt or prevent the growth of
blighted areas within such district, and assist municipalities in the development and redevelopment
of downtowns and in the overall planning to restore or provide for the continuance of the health
thereof;
WHEREAS, pursuant to C.R.S. 31-25-807, the DDA is empowered to make and enter into
all contracts which are necessary or incidental to the exercise of its powers and performance of its
duties;
WHEREAS, pursuant to C.R.S. 31-25-808(1), the DDA has all powers necessary or convenient to
carry out and effectuate its statutory purpose;
WHEREAS, the DDA is the owner of the real property located at 140 East Oak Street, Fort
Collins, Colorado (the “Property”);
WHEREAS, there exists within the boundaries of the DDA (the “DDA District”) a shortage
of lower income housing options;
WHEREAS, based upon substantial public outreach and community input, the Board of
Directors of the DDA (the “DDA Board”) determined that construction on the Property of a mixed-
use building containing qualified-affordable housing would be beneficial to the DDA District (the
“Project Concept”);
WHEREAS, the DDA Board finds that economic diversity amongst the residents of the
DDA District is beneficial to the DDA District and furthers the DDA’s statutory purpose and its
adopted Plan of Development by, including, but not limited to, increasing the housing stock to
help reverse the declining residential population within the DDA District; maintaining the DDA
District as a regional center for social, recreational and cultural activities; promoting a diversity of
activities within the DDA District; and improving and sustaining the economic vitality of the DDA
District;
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WHEREAS, the mission of Housing Catalyst is to create vibrant, sustainable communities
throughout Fort Collins, including the development of new residential units;
WHEREAS, Housing Catalyst is the community leader in sustainable, long-term
affordable housing solutions;
WHEREAS, pursuant to C.R.S. § 29-4-209 (1) (d) Housing Catalyst has the power and
authority to provide for the construction, management and operation of projects providing for
dwelling accommodation that substantially benefit persons of low income as determined by
Housing Catalyst;
WHEREAS, pursuant to C.R.S. § 29-4-209 (1) (d.7) Housing Catalyst has the power and
authority to establish entities controlled by Housing Catalyst to own, construct, and operate
projects providing for dwelling accommodation that substantially benefit persons of low income
as determined by Housing Catalyst;
WHEREAS, pursuant to C.R.S. § 29-4-209 (1) (t) Housing Catalyst has the power and
authority to enter into contracts and agreements necessary or convenient to the exercise of its
powers and authority;
WHEREAS, pursuant to C.R.S. § 29-4-209 (1) (o) Housing Catalyst has the power and
authority to issue bonds, notes, debentures or other evidences of indebtedness;
WHEREAS, Housing Catalyst has substantial experience in developing and managing
qualified-affordable housing projects, and, in light of such experience, the DDA engaged with
Housing Catalyst in February 2019 to consider and further develop the Project Concept and
potential sources of financing for the Project Concept, with a desire to create housing opportunities
for individuals and households earning up to eighty percent (80%) of area median income
(“AMI”), with a goal of providing a mix of one (1) and two (2) bedroom units to a mix of
individuals and households earning thirty percent (30%), fifty percent (50%), seventy percent
(70%) and eighty percent (80%) AMI;
WHEREAS, over the past 12 months the DDA and Housing Catalyst have considered
many different project iterations and funding alternatives for the Project Concept and have
determined that the most beneficial and economically viable project would consist of construction
of a single multi-story, mixed-use building containing a ground floor commercial space with
approximately sixty (60) qualified-affordable housing units in the upper floors (the “Building”),
with parking to be provided in a below-ground parking structure (construction of the Building and
below-ground parking structure shall be referred to as the “Project”), financed with low-income
housing tax credits (“LIHTC(s)”) assistance through the Colorado Housing and Financing
Authority (“CHFA”); private activity bonds issued by Housing Catalyst; federal, state, and local
grants and loans; and construction and permanent loans made by banks or other institutional
lenders;
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WHEREAS, the DDA and Housing Catalyst desire to form a relationship under which
Housing Catalyst, acting by and through an entity owned and controlled by Housing Catalyst, will
serve as developer of the Project, managing the financing, construction, and technical aspects of
the Project, with the DDA providing funding for certain Preconstruction Services, as hereinafter
described; and
WHEREAS, the DDA and Housing Catalyst desire to enter into this IGA for the purpose
of, inter alia, establishing an initial structure for the relationship between the parties, to outline
their respective roles and responsibilities regarding preconstruction and development activities for
the Project and their anticipated respective roles and responsibilities for other aspects of the
Project, to establish an understanding of how the Building will be owned, utilized and managed
upon completion of the Project, and to provide for funding of certain Preconstruction Services by
the DDA.
NOW, THEREFORE, for and in consideration of the above premises and the within terms
and conditions, the parties agree as follows:
1. Term. This IGA shall commence upon execution by the parties and shall continue
until the sooner of termination in accordance with Section 7 below or issuance of a certificate of
occupancy for the Building (the “Term”).
2. Preliminary Structure of Relationship Between the Parties.
(a) Entity Formation. The parties anticipate that obtaining an allocation of
LIHTCs for the Project will require the formation of three (3) limited liability companies (“LLC”)
and one (1) limited liability limited partnership which will interact with one another in the manner
generally shown on Exhibit A, consisting of one (1) page, attached hereto and incorporated herein
by reference. The DDA shall be responsible for formation of one LLC, which the DDA shall own
and control (the “DDA LLC”). Housing Catalyst shall be responsible for formation of two LLCs,
which Housing Catalyst shall own and control (the “HC LLCs”). Housing Catalyst shall also be
responsible for forming the limited liability limited partnership (the “Limited Partnership”) The
DDA and Housing Catalyst agree to form the DDA LLC, the HC LLCs, and the Limited
Partnership within a reasonable period of time after execution of this IGA. The parties
acknowledge that initially a Colorado limited liability company formed, owned, and controlled by
Housing Catalyst will be the limited partner of the Limited Partnership and will transfer its
ownership interest in the Limited Partnership to the LIHTC investor at such time as the LIHTC
investor makes its initial capital contribution to the Limited Partnership (the “Partnership
Closing”). The DDA shall reimburse Housing Catalyst for costs and attorney’s fees incurred in
the preparation of the HC LLC Operating Agreements and the Limited Partnership Agreement as
part of the Preconstruction Costs, as hereinafter defined.
(b) Anticipated Allocation of Certain Responsibilities. The parties anticipate
that certain responsibilities related to financial contributions and cash flow, management of the
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Project and the Building, development of the Project, guaranty obligations related to the Project
and subordination of debt related to the Project will be allocated amongst the parties in the manner
identified on Exhibit B, consisting of two (2) pages, attached hereto and incorporated herein by
reference. Except as expressly provided for in this IGA, the actual allocation of responsibilities
outlined in Exhibit B shall be determined by agreement of the parties subsequent to this IGA
3. Preconstruction Services and Activities.
(a) Preconstruction Services. Housing Catalyst shall be responsible for
identifying all third-party services necessary or reasonably required for the Project prior to the
Partnership Closing and commencement of construction of the Project, including, but not limited
to, architectural, engineering, landscape design, land use planning, financing consulting services,
attorneys, and other qualified third-party professionals to provide all services necessary or
reasonably required prior to the Partnership Closing and commencement of construction of the
Project (“Preconstruction Services”). Housing Catalyst shall enter into contracts for all
Preconstruction Services (the “Preconstruction Services Contracts”), and agrees that it shall
perform all its obligations under the Preconstruction Services Contracts, including, but not limited
to, payment of any sums due thereunder, and that is shall diligently and competently manage the
performance of the service provider under the Preconstruction Services Contracts. Subject to
Section 3(g) below, Housing Catalyst shall have full decision-making authority regarding all
matters related to all Preconstruction Services Contracts. Subject to Section 10 below, the DDA
agrees that it shall reimburse Housing Catalyst for all costs and expenses incurred by Housing
Catalyst prior to the Partnership Closing and commencement of construction of the Project not to
exceed a total of One Million Dollars [$1,000,000.00] (“Preconstruction Costs”), to be paid to
Housing Catalyst in accordance with the terms and conditions contained in Section 3(c) below.
The parties agree that, except as otherwise provided in Section 8 hereinafter, each party shall be
responsible for its own staffing and operational costs, and overhead incurred in connection with
Preconstruction Services and any other aspects of the Project.
(b) Responsibility for other Preconstruction Activities. Housing Catalyst shall
be responsible for preparing and submitting all applications and other submissions necessary for
all aspects of the Project, including, but not limited to, those related to land use approvals and
financing of the Project, and for diligently and competently managing through completion all
processes associated therewith.
(c) Payments for Preconstruction Services Costs. Payments to Housing
Catalyst for Preconstruction Costs shall be made on a per-request basis in accordance with the
following process:
i. A request for a payment will be generated by Housing Catalyst’s
Director of Real Estate Development, which will then be approved and electronically signed by
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Housing Catalyst’s Chief Financial Officer. Requests for payment shall include a summary of
purpose of the payment, including vendor identity, invoice number, invoice date and amount paid,
a line item description of service costs, copies of invoices and a budget summary (sources/uses for
all draws funded and paid to date with balance to draw).
ii. Signed requests for payments shall be electronically forwarded to
the DDA Executive Director for review and approval via electronic signature, and upon approval,
shall be forwarded to the DDA Finance Coordinator for payment processing.
iii. Payment requests conforming to the requirements of this Section
3(c) shall be paid to Housing Catalyst within twenty-one (21) days of the DDA Executive
Director’s receipt of any such payment request.
iv. Except as provided in Section 8 below, Housing Catalyst shall have
no obligation to repay any amount paid to Housing Catalyst by the DDA for Preconstruction
Services Costs.
(d) Interest on Reimbursement Payments, Reimbursement of Preconstruction
Costs. Each reimbursement payment made to Housing Catalyst pursuant to Section 3(c) above
shall accrue interest at a variable rate equal to the interest rate being paid by Housing Catalyst on
its line of credit at FirstBank beginning on the date each such payment is made compounding
annually until repaid (the “Accrued Interest”). As part of the Partnership Closing, the Limited
Partnership shall be obligated to reimburse the DDA for all amounts paid by the DDA to reimburse
Housing Catalyst for Preconstruction Costs plus accrued interest. Except as otherwise provided
in Section 8 hereinafter, in the event the Partnership Closing does not occur for any reason,
Housing Catalyst shall have no obligation to reimburse the DDA for any amounts paid by the DDA
to reimburse Housing Catalyst for Preconstruction Costs nor any accrued interest.
(e) DDA Involvement in Preconstruction Services. Housing Catalyst agrees
that it shall involve and consult with the DDA Executive Director (or any DDA Board committee
that may be established for the Project) on all aspects of the Project and in good faith consider all
input given by the DDA Executive Director (or any such committee); provided, however, that
except for those matters specifically requiring DDA Board approval as hereinafter provided, after
such involvement and consultation Housing Catalyst shall have full and complete authority to
make all decisions concerning the Project. Without limiting the generality of the foregoing,
Housing Catalyst agrees that the following specific activities shall require the involvement of, and
consultation with, the DDA, unless the same shall be waived by the DDA:
i. Architect/ engineer selection: Participation of a DDA Board
committee and the DDA Executive Director shall be required for the interview and selection
process for any architecture or engineering firm that will be performing work on the Project;
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ii. Contractor selection: Participation of a DDA Board committee and
the DDA Executive Director shall be required for the interview and selection process for any
general contractor that will be performing work on the Project;
iii. Lender selection: Participation of a DDA Board committee and the
DDA Executive Director shall be required for the interview and selection process for any lender
that will be providing financing for the Project;
iv. Land use planner: Participation of the DDA Executive Director (or
his designee) shall be required for the interview and selection process for any land use planner that
will be performing work on the Project;
v. Progress meetings: Participation of the DDA Executive Director (or
his designee) shall be required at all progress meetings of the Project architect, engineer or land
use planner; and
vi. City meetings: Participation of the DDA Executive Director (or his
designee) shall be required at all meetings of significance with the City regarding Project approval
or entitlement.
(f) Regular Meetings of Staff. The DDA Executive Director and the Housing
Catalyst Executive Director (and/or any staff members of the organizations as may be designated
by said executive directors) shall meet to discuss all aspects of the Project then in progress at least
twice per month during the Term. Such meetings shall be held at a time and location to be agreed
upon by the DDA Executive Director and the Housing Catalyst Executive Director. The frequency
of such meetings may be adjusted by agreement of the DDA Executive Director and the Housing
Catalyst Executive Director to account for circumstances that necessitate more or less frequent
regular meetings including, but not limited to, Project schedule and the pacing of architectural,
engineering, land use planning or other Preconstruction Services.
(g) DDA Approval of Site Plan and Architectural Design. Housing Catalyst
agrees that the site plan and architectural design for the Project shall require DDA Board approval,
which the DDA Board may grant or withhold in its sole discretion. Such approval shall occur
prior to public presentation of such plan or design to the Fort Collins Planning and Zoning Board
or Fort Collins Landmark Preservation Committee.
4. Project Naming, Branding, Marketing and Advertising. The parties acknowledge
and agree that the naming, branding, marketing and advertising of the Project will play a role in
the success of the Project and that decisions relating to such matters shall be by agreement of the
DDA Executive Director and the Housing Catalyst Executive Director.
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5. Land, Building and Parking Space Ownership.
(a) Land Ownership, Long-Term Ground Lease. Prior to Housing Catalyst’s
submission of an application for LIHTCs, which the parties expect will occur by August ___, 2020,
the DDA shall transfer ownership of the Property to the DDA LLC and the DDA LLC shall enter
into a long-term ground lease with the Limited Partnership, on such terms and conditions as the
parties may agree, but with a term of ninety-nine (99) years (the “Lease”). The DDA (or DDA-
controlled entity) shall retain ownership of the Property and, upon expiration of the term of the
Lease, shall become the owner of the Building. Housing Catalyst acknowledges that the Lease
shall be subject to approval of the City Council of the Fort Collins (“City Council”) pursuant to
C.R.S. 31-25-808(2). The cost and attorney’s fees incurred by the parties in the negotiation and
preparation of the Lease shall be Preconstruction Costs payable initially by the DDA and
reimbursed by the Limited Partnership at the Partnership Closing.
(b) Building Ownership. Prior to the Partnership Closing, the Building will be
divided into two condominium units, with the DDA (or DDA-controlled entity) owning the ground
floor condominium unit (the “Ground Floor Condominium”) and the Limited Partnership owning
the condominium unit above the ground floor (the “Upper Floors Condominium”). The DDA shall
have the right to subdivide the Ground floor Condominium Unit into two or more units, and to sell
or otherwise transfer ownership of any such unit, at its sole discretion. Housing Catalyst agrees
that it shall not transfer ownership of the Upper Floors Condominiums from the Limited
Partnership to any person or entity except an entity owned and controlled by Housing Catalyst for
the purpose of providing qualified-affordable housing consistent with the intent of the Project, and
only if such transfer is permitted by CHFA and/or LIHTC program requirements. The cost,
attorney’s fees, and surveying fees incurred by the parties in the negotiation and preparation of the
Condominium Declaration and Condominium Map shall be Preconstruction Costs payable initially
by the DDA and reimbursed by the Limited Partnership at the Partnership Closing.
(c) Building Uses. The parties agree that the Ground Floor Condominium shall
be used only for commercial or other non-residential uses, and that the Upper Floors Condominium
shall be used only for residential uses, which residential uses must comply with all CHFA and
LIHTC program requirements concerning tenant income levels.
(d) Ownership of Parking Spaces. The parties agree that all on-site parking
spaces shall be condominiumized into individual condominium units, with the specific allocation
of such condominiumized parking space units between the parties to be determined by agreement
of the parties subsequent to execution of this IGA; provided, however, that such allocation shall
take into account applicable legal requirements for parking for the envisioned commercial and
residential components of the Project, including, but not limited to, Fort Collins Land Use Code
and CHFA and/or LITHC program requirements.
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6. Project Financing, Bond Issuance, Developer Fee.
(a) Project Funding and Financing. The parties acknowledge that they are in
the process of determining the amount of funding necessary for the Project, as well as the sources
of such funding, which the parties envision will include, but not necessarily be limited to, a multi-
million dollar cash contribution from the DDA, LIHTCs, and the private activity bond issuance
discussed in Section 6(b) below. Financing for the Project may also include tax increment
financing for that portion of the Project to be used for commercial purposes. The parties shall in
good faith continue to work toward an agreement on the amount and sources of funding for the
Project.
(b) Private Activity Bond Issuance for Project. Housing Catalyst shall issue
such private activity bonds as are available to Housing Catalyst and that are necessary to obtain an
allocation of LIHTCs.
(c) Developer Fee. The developer fee to be paid by the Limited Partnership to
Housing Catalyst shall be shared between the parties, with the DDA receiving Two Hundred
Thousand Dollars ($200,000.00) of such fee and Housing Catalyst receiving the remainder.
Housing Catalyst shall pay the DDA’s share of the developer fee to the DDA pro rata as the
developer fee is received by Housing Catalyst. The DDA agrees that it shall spend its portion of
the developer fee on improvements or services that directly or indirectly benefit the Project,
including, by way of example and without limitation, Project maintenance and costs related to any
vacancies in the Ground Floor Condominium, with specific expenditures of such funds to be within
the sole discretion of the DDA. Housing Catalyst agrees that it shall be responsible for ensuring
that the Limited Partnership pays such developer fee to Housing Catalyst.
7. Termination of IGA. Either party shall have the right to terminate this IGA by
written notice to the other party in the event that any of the following should occur, which notice
shall be delivered at least thirty (30) days prior to the termination date contained in said notice,
unless otherwise agreed in writing by the parties:
(a) No LIHTC application for the Project is submitted in 2020;
(b) The Project does not receive a LIHTC award on or before June 1, 2022;
(c) Substantial changes to the LIHTC program that significantly impact the
Project's ability to successfully close its financing, including, but not limited to, legislative, market
or tax code changes;
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(d) Substantial changes to the lending or investment market that significantly
impact the Project's ability to successfully close its financing, including, but not limited to,
legislative, market, and tax code changes;
(e) Substantial delays to Project entitlement or development approval that
significantly impact the Project's ability to close its financing;
(f) The inability of the parties to obtain land use approval for the Project,
including, but not limited to, any variances or modification of standards to Fort Collins Land Use
Code requirements necessary for the Project as designed;
(g) The inability of the parties to obtain sufficient financing by June 1, 2022, to
complete the Project, including, but not limited to, the inability of the parties to balance financing
sources and uses, a reduction in funds available to the DDA for the Project, the unavailability of
soft funds necessary to close any financing gap, substantial changes in construction pricing or
significant changes in basic underwriting factors;
(h) Despite reasonable and good faith efforts, the parties are unable to reach
agreement on any matter for which the future agreement of the parties is necessary for completion
of the Project; or
(i) The inability of a party to perform its obligations under this IGA or to
otherwise complete the Project as envisioned hereunder.
In the event of termination, the DDA agrees to pay for all Preconstruction Costs
incurred by Housing Catalyst through the date of termination, or any sum due under any
Preconstruction Services Contract entered into prior to Housing Catalyst’s receipt of notice of
termination. Housing Catalyst agrees that it shall not enter into any new Preconstruction Services
Contract, or request any service under any existing Preconstruction Services Contract, subsequent
to the date it receives notice of termination. Housing Catalyst further agrees to provide to the DDA
copies of all deliverables received by Housing Catalyst pursuant to any Preconstruction Services
Contract. Excepting the foregoing payment obligation of the DDA and deliverable obligation of
Housing Catalyst, the parties shall be released from all obligations hereunder on the date of
termination.
8. Sharing of Preconstruction Costs in the Event of IGA Termination. In the event
that either party should terminate this IGA pursuant to Section 7 above, Housing Catalyst agrees
that it shall reimburse the DDA an amount equal to thirty percent (30%) of all Preconstruction
Costs paid to Housing Catalyst by the DDA. Housing Catalyst shall be entitled to a credit against
its 30% share of the Preconstruction Costs for the cost of staffing, operations, and overhead
incurred by Housing Catalyst in connection with Preconstruction Services. If the determination of
such costs requires estimations, Housing Catalyst agrees that it shall employ a commercially
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reasonable methodology for making such estimations. At the DDA’s request, Housing Catalyst
agrees to disclose to the DDA such methodology and the documentation or other information
supporting such costs or such estimation of costs.
9. Repeal and Replacement of 2019 IGA. The parties agree that, upon execution of
this IGA, the intergovernmental agreement between the parties entitled “Intergovernmental
Agreement Regarding Funding for Planning Services for Potential Redevelopment of 140 East
Oak Street,” entered into on December 20, 2019 (the “2019 IGA”), shall be repealed and replaced
by this IGA.
10. Maximum DDA Funding Amount, Annual Appropriations. The maximum amount
of funds the DDA has authorized for all Preconstruction Costs under this IGA is One Million
Dollars ($1,000,000.00) (the “Maximum Funding Amount”), and the DDA shall not under any
circumstance be obligated to pay any sum under this IGA in excess of the Maximum Funding
Amount. The parties agree that the Maximum Funding Amount shall include any sums paid to
Housing Catalyst pursuant to the 2019 IGA. All financial obligations of the DDA and Housing
Catalyst 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
City Council, in its discretion, the DDA Board, in its discretion, and the Board of Directors of
Housing Catalyst, in its discretion.
11. Cooperation. The parties agree to act in good faith and cooperate each with the
other to effectuate the terms and provisions of this IGA and to execute any and all additional
documents or take such additional action as may be reasonably necessary or appropriate to
effectuate the terms of this IGA.
12. Counterpart Copies; Electronic Delivery. This IGA may be executed in two or
more counterparts, each of which shall be an original, with the same effect as if the signatures
were on the same instrument, and shall become effective when one or more counterparts has
been signed by each of the parties and delivered by each party to the other parties. Delivery of this
IGA by facsimile transmission, email or other electronic means (“Electronic Delivery”) containing
the signature of a party shall be deemed delivery of an original signature. If delivery is so made
by Electronic Delivery, the parties agree, upon the request of either party to exchange
documents bearing the original signatures, but such exchange is not required and delivery by
Electronic Delivery shall constitute delivery without regard to subsequent exchange of
documents bearing the original signatures.
13. No Third-Party Beneficiaries. It is the mutual intent of the parties that this IGA
shall inure to the benefit of only the parties. Accordingly, nothing in this IGA shall be construed
as creating any right or entitlement which inures to the benefit of any third party.
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14. DDA Obligations Conditional. All DDA obligations hereunder are expressly
conditioned upon Housing Catalyst forming the Limited Partnership and the Limited Partnership
agreeing to its obligations to reimburse the DDA for Preconstruction Costs and accrued interest
thereon as set forth in Section 3(d) hereof by signing this IGA as provided for on the signature
page.
15. Notices. Any notice required or desired to be given by a party shall be in writing
and may be personally delivered; sent by certified mail, return receipt requested; or sent by a
nationally recognized receipted overnight delivery service, including the United States Postal
Service, United Parcel Service or Federal Express for earliest delivery the next day. Any such
notice shall be deemed to have been given and received as follows: when personally delivered to
the party to whom it is addressed; when mailed, three delivery (3) days after deposit with the
United States Postal Service, postage prepaid; and when by overnight delivery service, one (1) day
after deposit in the custody of the delivery service. The addresses for the mailing or delivering of
notices shall be as follows:
If to the DDA: Downtown Development Authority
Attn: Matt Robenalt
19 Old Town Square, Suite 230
Fort Collins, CO 80524
With a copy to: Liley Law Offices, LLC
Attn: Joshua Liley
419 Canyon Avenue, Suite 220
Fort Collins, CO 80521
If to Housing Catalyst: Housing Catalyst
Attn: Julie Brewen
1715 West Mountain Avenue
Fort Collins, CO 80521
With a copy to: Belford & Martell, LLC
Attn: James A. Martell
145 North College Avenue, Suite E
Fort Collins, CO 80524
Notice of a change of address of a party shall be given in the same manner as all other
notices as hereinabove provided.
16. Interpretation; Severability. Sections and headings contained herein are for
organizational purposes only and shall not affect the interpretation of this IGA. References in this
IGA to the “parties” shall refer only to the parties hereto and not to any third party. The terms and
conditions contained in the body of this IGA shall always supersede and control the terms and
conditions contained in any attached and incorporated document. The parties have jointly
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participated in the negotiation and drafting of this IGA. In the event an ambiguity or question of
intent or interpretation arises, this IGA shall be construed as if drafted jointly by the parties and
no presumptions or burdens of proof shall arise favoring either party by virtue of the authorship
of any of the provisions of this IGA. If any word, phrase, sentence, clause, section, subsection or
provision of this IGA as applied to any party or to any circumstance is adjudged by a court to be
invalid or unenforceable, the same will in no way affect any other circumstance or the validity
or enforceability of any other word, phrase, sentence, clause, section, subsection or provision
of this IGA, and the parties agree that the remaining provisions shall be deemed to be in full
force and effect as if they had been executed by both parties subsequent to the expungement
or judicial reaffirmation of the invalid provision.
17. Entire Agreement; Subsequent Modification; Forbearance. This IGA sets forth
the entire understanding between the parties regarding the subject matter hereof and all prior
agreements, understandings and conversations regarding the same are merged herein. This IGA
may not be modified, amended, supplemented, canceled or discharged, except by written
instrument executed by both parties. No failure to exercise and no delay in exercising, any
right, power or privilege under this IGA shall operate as a waiver, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude the exercise of any other
right, power or privilege. No waiver of any breach of any provision shall be deemed to be a
waiver of any preceding or succeeding breach of the same or any other provision, nor shall any
waiver be implied from any course of dealing between the parties. No extension of time for
performance of any obligations or other acts hereunder or under any other agreement shall be
deemed to be an extension of the time for performance of any other obligations or any other
acts.
18. Attorneys’ Fees. In the event of any litigation resulting from or arising out of this
IGA, the court shall award to the prevailing party all reasonable costs and expenses, including
attorneys’ fees and other legal expenses.
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the parties have executed this IGA as of the date of the last
signature below written.
THE FORT COLLINS, COLORADO,
DOWNTOWN DEVELOPMENT AUTHORITY,
a body corporate and politic.
By:
Jenny Schultz, Chair
Date:
ATTEST:
Cheryl Zimlich, Secretary
HOUSING CATALYST,
a body corporate and politic
By:
Julie J. Brewen, Chief Executive Officer
Date: May 6, 2020
The Limited Partnership hereby agrees to reimburse the DDA for Preconstruction Costs
and accrued interest thereon as provided in the foregoing IGA, and to be subject to the terms and
conditions contained in Sections 15 through 18 hereof. By signing below, the Limited Partnership
shall become a party to this IGA only for the limited purpose of the DDA’s enforcement of the
Limited Partnership’s obligations hereunder.
_________________________, LLLP, a Colorado
limited liability limited partnership
By: __________________________, its general
partner
DocuSign Envelope ID: 16164F85-5098-44CA-B1A0-98387BB35553
5/15/2020