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HomeMy WebLinkAboutResolution 2014-0064TITLE : CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 64 Series of 2014 A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH THE URBAN DRAINAGE AND FLOOD CONTROL DISTRICT AND THE REGIONAL TRANSPORTATION DISTRICT FOR THE CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR THE ARVADA CHANNEL, BETWEEN MILLER AND OAK STREET WHEREAS , the City Council wishes to construct the Ridge Road Tributary; and WHEREAS , the City has negotiated an intergovernmental agreement with the Urban Drainage and Flood Control District and the Regional Transportation District for the local funding of the project; NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council , that: 1. Intergovernmental Agreement Approved The Intergovernmental Agreement between the City and the Urban Drainage and Flood Control District and the Regional Transportation District for construction of the Ridge Road Tributary is hereby approved and the Mayor and City Clerk are authorized and directed to execute the same. 2 . Effective Date ____ _ This Resolution shall be effective immediately upon adoption . DONE AND RESOLVED this # day of Vcc:..e~ r, 2014. ( J .nw ( ATTEST : \\ HEREAS. the City Council of CITY, the Board of Directors ofRTD. and th e Board of Directors of DISTRICT have authori7ed. b.> appropriation or resolution. all of PROJECT costs of the respective PARTIES: and WHEREAS, thi s Agreement provides for the funding to RTD of$533.704 ($667.130 with RTD local match) of Federalllighway Administration (FHWA) funds. which were tran sferred by the FHWA ro the Federal Transportation Authority (FTA) to be administered b) DRCOG toR ro for improvements associated with the Gold Line Corridor on the EAGLE project; and WHEREAS, RTD Funding Not to Exceed $1.500,000 i s comprised of$500,000 of Gold Line I'' Commitment DR COG Funds (Grant C0-95-XO 17-0 I). $167.130 Gold Line 2'~<~ Commitment DR COG Funds (Grant C0-95-XO 17-01 ). and $832.863 of EAGLE Full Funding Grant Agreement Funds (Gram C0-03-0208-00); and NOW. THEREFORE. in consideration of the mutual promises contained herein, PARTIES hereto agree as follows: I. SCOPE OF TillS AGREEMENT This Agreement de tines the responsibilities and financial commitments of PARTI ES with respect to PROJECT. 2. SCOPE OF PROJECT A. Construction Drawings. PROJECT shall be constructed in accordance with "Construction Drawings tor Construction of Arvada Channel (Miller Street to Oak Street)" by Muller Engineering Company. Inc .. dated August 2014. PROJECT limits shall c~tend from approximate!.> Miller Street to Oat... Street as shown on Exhibit A. B. Construction. PROJECT shall include construction by RTD of the drainage and flood control improvements as se t forth by PROJECT. 3. PUBLIC NECESSITY PARTIES agree that the work performed pursuant to this Agreement is necessary for the health, safe ty. comfort. convenience, and welfare of all the people of the State, and is ofporticular benefit to the inhabitants ofPARTICS and to their property therein. 4. PROJECT COSTS AND ALLOCATION OF COSTS A. PARTIES agree that for the purposes of this Agreement PROJECT costs shall consist of and be limited to the following: I. Construction of improvements; 2. Contingencies mutually agreeable to PARTIES. B. It is understood that PROJECT costs as defined above are not to exceed $2, 195,820 \\ ithout amendment to this Agreement. \clcm\ogrmnt\ l-1 \\ t-108().1 2 PROJECT costs for the various elements of the effort are estimated as follov.s: IT EM AMOUNT I. Construction• $1,996.:!00 2. Contingency (10%) 199,620 Grand Total $2,195.820 *It is anticipated that additional monies mny be added in future years by amendment. This breakdo""n of costs is for estimating purposes on I}. Costs ma) vaf) between the \.arious elements of the effort \\ ithout amendment to this Agreement provided the total expenditures do not exceed the ma\imum contribution by all PARTIES plus accrued interest. C. Based on total PROJECT costs. the maximum percent and dollar contribution by each party shall be: Percentage Previously Additional Maximum Share Contributed* Contribution Contribution DISTRICT 29.5% $147.178 $ 500,000 $ 6..t7,178 CITY 2.2% $ 48.642 $ -0-$ 48.642 RTD 68.3% $ -0-$1.500.000 $1,500,000 TOTAL 100.0% $195.8:!0 $2,000,000 $2.195,820 The percentages listed above are for reference on ly. and do not provide any basis for how additional funding \\ill be provided. RTD's maximum contribution for PROJ ECT shall not exceed $1.500.000. *This amount remains from the completed Phase I -Ridge Road Tributal) Reach. 5. MANAGEMENT OF FINANCES As set forth in DISTRICT policy (Re so lution No. II. Series or 1973. Resolution No. 49, Series of 1977, and Resoluti on No. 37. Series of2009). the funding of a local body's share may come from its own revenue sources or from funds received from state, federal or other sources of funding without limitation and without prior Board approval. The payments by CITY and DISTRICT shall be held b} DISTRICT in a special fund to pay for increments of PROJECT as authoriled by PARTIES. and as defined herein. DISTRICT shall provide a periodic accounting of PROJECT funds as well as a periodic notification to CITY of any unpaid obligations. Any interes1 earned by the monies co ntributed by CITY und DISTRICT shall be accrued to the special fund established by DISTRICT for PROJECT and c;uch interest shall be used only for PROJ ECT upon approval by th e contractin g officers (Paragraph I J). DISTRICT shall provide CITY and DISTRICT contributions to RTD \\ ithin JO days of RTD giving Notice to Proceed to PROJECT contractor. E>.ecution of a Work Order shall qualify as Notice to Proceed. ld.:mlagnnnt 1.1\\ 140!10~ 3 Within one }Car of completi on of PROJECT if there are monies including interest earned remaining "'hich arc not commiued, obligated. or disbursed. CITY and DISTRICT shall receive a share of such monies. which shares shall be computed as were the ori ginal shares. 6. FINAL DESIGN The design of PROJECT shall be provided by DISTRICT and C I TY. 7. RIGHT-OF-WAY CITY and RTD. '' ith DISTRICT assistance. has acquired such land or interests in land needed to implement construction of PROJECT from Miller Street to Oak Street, as defined herein. A. Ownership of Property and Limitation of Use. C I TY and RTD shall O\\ n the property either in fee or non-revocable easement and shall be responsible for same. It is speci ticall) understood that the right-of-way is being used for drainage and flood control purposes. The properties upon '"hich PROJECT is constructed shall not be used for any purpose thm will diminish or preclude its use for drainage and flood con trol purposes. C ITY may not dispose of or change the use of the properties v. ithout ,., ritten approval of DISTRICT and RTD. If. in the future. CITY disposes of any portion of or all of the properties acquired upon '' hich PROJEC r is constructed pursuant to this Agreement: changes the use of any portion or all of the properties upon which PROJECT is cons tructed pursuant to this Agreement; or modifies any of the improvements located on any portion of the properties upon which PROJECT is constructed purc;uant to this Agreement; and CITY has not obtained the written approval of DISTRICT and RTD prior to such action. CITY shall take any and all action necessary to reverse said unauthorized activity and return the properties and improvements thereon. acquired and constructed pursuant to this Agreement. to the O\vnership and condition they ''ere in immediately prior to the unauthorized activity at C I TY's sole expense. In the event CITY breaches the terms and provisions of this Paragraph 7.A and does not voluntarily cure as set forth above, DISTRICT and/or RTD shall have the right to pursue a claim against CITY for specitic performance of this portion of thc Agreement, or ifsubstnntial damage to PROJECT improvements or the RTD Gold Commuter Rail Line is imminently due to the unauthorized changes or modifications in the improvements or their use. RTD and/or DISTRIC r may take its own action to return the properties and improvements thereon (constructed pursuant to this Agreement) to the condition they were in immediately prior to the unauthori.ted activity. and require CITY to compensate RTD and/or DISTRICT for any and all expenses it incurred to retu rn the property to its condition prior to the unauthorized activity. C ITY agrees to pay such reasonable and necessary expenses in the event such unauthorized activities occur. DISTRICT or RTD ma). subsequent to the recording by C I TY of an) document transferring title or another interest to propert) acquired pursuant to this Agreement to CITY. record a memorandum ofthis Agreement (Exhibit 8). spec ifically a verbatim transcript of this Paragraph 7.A. Ownership of Property and Limitation of Use except for this sub-paragraph ltkm\agrmnl I 14\1 140804 4 "hich shall nor be contained in the memorandum. The memorandum shall reference by legal description the property being acquired by CITY and shall be recorded in the records of the Clerk and Recorder of Jefferson Count} immediate!) foliO\\ ing the recording of the document transferring title or another interest to CITY. CITY authorizes the recording of that memorandum and acknowledges that the same is meant to encumber the propert) "ith its restrictions. 8. MANAGEMENT OF CONSTRUCTION A. Costs. Construction costs shall consist of those costs as incurred by the most qualified contractor(s) including detour costs. licenses and permits. and utility relocations. as delined in Paragraph 4 of this Agreement. 8. Construction Management and Payment I. RTD. with the assistance of CITY and DISTRICT. shall administer and coordinate the construction-related \\Ork as provided herein. 2. RTD. \\ith assistance of CITY and DISTRICT, shall select and a''ard construction contract(s). 3. RTD shall require the contractor to pro.,. ide adequate liability insurance that includes CITY and DISTRICT. The contractor shall be required to indemnif) CITY and DISTRICT. Copies of the insurance coverage shall be provided to CITY and DISTRICT. 4. RTD. with assistance of CITY and DISTRICT. shall assure that construction is performed in accordance with the construction contract documents including approved plans and specifications. Copies of all inspection reports shall be furnished to CITY and DISTRICT upon request. RTD shall retain an engineer to perfonn all or a part of these duties. 5. DISTRICT. with approval of CITY. under a separate contract, and outside of the monies provided by DISTRICT and CITY for this Agreement. shall contract with and provide the services of the design engineer for basic engineering construction services to include addendum preparation; explanatory sketches: revisions of contract plans; shop drawing review, responses to field inquiries: review of as-built plans: weel..ly inspection of work; and final inspection. 6. PARTIES shall have access to the site during con~tnaction at all times to observe the progress of "ork and conformance to construction contract documents including plans and c;pecitications. PARTIES shall be required to foliO\\ all PROJECT safety requirements v.-hile onsite. 7. R fD shall revie.,., and approve contractor billings and send copies of them to CITY and DISTRICT for review. RTD shall remit payment to contractor based on billings approved by RTD unless objection is madt: by either CITY or DISTRICT. 5 8. RTD. with assistance and \Hillen concurrence by CITY and DISTRICT. shall prepare and issue all \Hitten change or '"orl-. orders to the contract documents. 9. PARTIES shall jointly conduct a final inspection and accept or reject the completed PROJECT in accordance "' ith the contract documents. 10. RTD shall provide CITY and DISTRICT "as-built" information. C. Construction Change Orders. In the event that it becomes necessary and advisable to change the scope or detail of the work to be performed under the contract(s). such changes shall be rejected or approved in writing by the contracting officers. No change orders shall be approved that increase the costs beyond the funds available in the PROJECT fund. including imercst earned on those funds, unless and until the additional funds needed to pay for the added costs are committed by all PARTIES. ldu n\.agrmnt' I Ill 110 !10 4 6 9. MAINTENANCE PARTIES agree that CITY shall be responsible for maintenance of the completed and accepted PROJECT. PARTIES shal l have right-of-access to right-of-way and storm drainage improvements at all times for observation of flood control facility conditions. Should CITY fail to properly maintain the completed and accepted PROJECT improvements in the state they \\ere in ~hen accepted and completed. RTD and /or DISTRICT shall have the right to demand immediate action by CITY and to seek specitic performance ifnecessal). Should substantial damage to the improvements or RTD's Gold Commuter Rail Line be imminently due to the lack of maintenance, RTD and/or DISTR ICT shall have the right to enter upon the property to conduct such maintenance as ro bring PROJECT improvements back into their completed and accepted state. and to submi t a payment request to C ITY for any and all expenses incurred to conduct such maintenance. CITY agrees to pay such co~ts that are reasonable and necessary to return PROJECT improvements to their completed and accepted state. 10. FLOODPLAIN REGULATlON CITY agrees 10 regulate and control the floodplain of Arvada Channel ,.,.ithin C ITY in the manner prescribed b} the National Flood Insurance Program and prescribed regulations thereto as a minimum. PARTIES understand and agree. however. that CITY cannot obligate itself by contract to exercise its police powers. If C ITY fails to regulate the floodplain of Arvada Channel within CITY in the manner prescribed by the National Flood In surance Program and prescribed regulations thereto as a minimum, DISTRICT may exercise its power to do so and CITY shall cooperate fully. II. TERM OF AGRECMENT The term of thi s Agreement shall commence upon final execution by all PARTIES and shall terminate three (3) years afle r the ftnal payment is made to the construction contractor and the tinal accotmting of funds on deposit at DISTRICT is provided to all PARTIES pursuant to Paragraph 5 herein, except for Paragraph 10. FLOODPLAIN REGULATION, Paragraph 7.A. Ownership of Property and Limitation of Use. and Paragraph 9. MA INTENANCE. which shall run in perpetuil). 12. LIABILITY Each party hereto shall be responsible for any suits, demands. costs or actions at law resulting from its O\\ n acts or omissions and may insure against such possibilities as appropriate. 13. CONTRACTING OFriCCRS A. The contracting officer for CITY shall be the Director of Public Works. 7500 West 29 111 A venue. Wheat Rid ge. Colorado 80033. B. The contracting oflicer for RTD shall be the General Manager, 1600 Blal..e Street. Denver. Colorado 80202. C. The contracting officer for DISTRICT shall be the Executive Director. 2480 West 26th A venue, Suite 1568, Denver. Colorado 80211. \ucml ngrmnt\14\\ l-1080~ 7 D. The contracting officers for PARTICS each agree to designate and assign PROJECT reprcsentathes to act on the behalf of said PARTIES in all matters related to PROJECT undenaken pursuant to this Agreement. Each representative shall coordinate all PROJECT-related issues between PARTIES. shall attend all progress meetings. and shall be responsible for providing all available PROJECT-related file information to the engineer upon request b) D I STRICT or CITY. Said representatives shall ha,·e the authority for all approvals. authorizations. notices or concurrences required under this Agreement. However, in regard to any amendments or addenda to this Agreement, said representative shall be responsible to promptly obtain the approval of the proper authority. 14. RESPONSIBILITIES OF PARTIES DISTRICT shall be responsible for coordinating" ith CITY and RTD the information developed by the various consultants hired by DISTRICT and for obtaining all concurrences from C I TY and RTD needed to complete PROJECT in a timely manner. 15. AMENDMENTS This Agreement contains all of the terms agreed upon by and among PARTIES. Any amendments to this Agreement shall be in \Hiting and eAecuted by PARTIES hereto to be "alid and binding. 16. SEVERABILITY If an) clause or provision herein contained shall be adjudged to be invalid or unenforceable by a coun of competent jurisdiction or by operation of an) applicable law. such imalid or unenforceable clause or provision shall not affect the validity of the Agreement as a ''hole and all other clauses or provisions sha ll be given full force and effect. 17 . APPLICABLE LAWS rhis Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Jurisdiction for any and all legal actions regarding this Agreement shall be in the State of Colorado and venue for the same shall lie in the CITY where PROJECT is located . 18. ASS I GNABI LITY No pany to this Agreement shall assign or transfer any of its rights or obligations hereunde r without the prior written consent of rhe nonassigning party or panics to this Agreement. 19. BINDI NG EFFECT The provisions of this Agreement shall bind and sha ll inure to the bene lit of PARTIES hereto and to their respective successors and permitted assigns. 20. E:.NFORCEABILITY PARTICS hereto agree and acknowledge that this Agreement rna) be enforced in Ia\\ or in equity. b) decree of specific performance or damages. or such other legal or equitable relief as may be available subjec t to the provisions of the laws of the State of Colorado. 21. fERM I NATION OF AGREEMENT This Agreement may be terminated upon thiny (30) days' written notice by any party to this Agreement. but only if there are no contingent, outstanding contracts. If there are comingent, ld~m\lgrmru' ll\\l40llll-l 8 outstanding contracts. this Agreement rna) on I) be tenninated upon the cancellation of all contingent, ou tstanding contracts. All costs associated with the cancellation of the contingent contracts sha ll be <;hared between PARTIES in the same ratio(s) as were their contributions. 22. PUBLIC RELATIONS It shall be at RTD's so le discretion ro initiate and to carry out any public relations program to infonn the residents in PROJECT area as to the purpo::.e of PROJECT and \\hat impact it may have on them. Technical intonnation shall be presented to the public by the selected engineer. In any event CITY and DISTRICT shall have no responsibility for a public relation s program. but shall assist RTD as needed and appropriate. 23. NO DISCRIMINATION IN EMPLOYMENT In connection with the performance of work undl!r this Agreement. PARTIES agree not to refuse to hire. discharge. promote or demote. or to discriminate in matters of compensation against any person otherwise qualified because of race. color. anceStl). creed. religion, national origin, gender, age. military status. sc.xua l orientation. marital status. or physical or mental disability and further agree to insert the foregoing provision in all subcontracts hereunder. 24. APPROPRIATIONS Notwithstanding any other term. condition. or provi sion herein. each and every obligation of RTD . CITY, and/or DISTRICT stated in this Agreement is su bject to the requirement of a prior appropriation of funds therefore by the appropriate governing body of RTD , CITY. and /or DISTRICT. 25. NO THIRD PARTY BENEFICIARIES It is expressly understood and agreed that enforcement of the tenns and conditions of this Agreement. and all rights of action relating to such enforcement. shall be strictly reserved to PART IES, and nothing contained in this Agreement shall give or allow any such claim or right of action by any other or third person on suc h Agreement. It is the express intention of PARTIES that any person or party otht:r than any one of PARTIES receiving services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. :!6. ILLEGAL ALICNS PARTIES agree that any public contract for services c:-..ecuted as a result of this intergovernmental agreement shall prohibit the employment of illegal aliens in compl iance" ith §8-17 .5-10 I C.R.S. et seq . The following language shall be included in any contract for public serv ice s: "The Consultant or Contractor shall not and by signing this Agreement certifies that it docs not knowingly employ or contract with an illegal alien to perform work under this Agreement. Consulwnt or Contractor shall not enter into a subco ntract with a subcontractor that fails to cenif) to the Consultant or Contractor that the subcontractor shall not knowing!) employ or contract '"ith an illegal alien to perfonn worl.. under this public contract for services. Consultant or Contractor affirms that they have "erified through participation in the Colorado Employment Verification program established pursuant to 8-17.5-102 (S)(c) C.R.S. or the Elec tronic Employment Verification Program ldcmi.Jgrmnt\1-l\1 l-10!104 9 administered jointly by the United States Department of Homeland Securit) and the Social Security Administration that Consultant or Contractor does not employ illegal aliens. Consultant or Contractor is prohibited from using these procedures to undertake pre-employment screening of job applicants while the public contract for services is being perfonned. In the event that the Consultant or Contractor obtains actual knowledge that a subcontractor perfonning work. under this Agreement J..nO\\ ingl) employs or contracts\\ ith an illegal alien. the Consultant or Contractor shall be required to: A. Notify the subcontractor and PARTIES within three days that the Consultant or Contractor has actual knowledge that the subcontractor is emplo) ing or contracting" ith an illegal alien: and B. Terminate the subcontract with the subcontractor if within th ree days of receiving the notice required the Subcontractor does not stop employing or contracting with the illegal alien; except that the Consultant or Contractor shall not terminate the contract "ith the Subcontractor if during such three da)'S the Subcontractor provides infonnation to establish that the subcontractor has not knowing!} employed or conrracted "ith an illegal alien. Consultant or Contractor is required under this Agreement to comply \\ ith any reasonable request by the Colorado Department or Labor and Employment (COL) made in the course of an investigation the CDL is undertaking pursuant to its legal authority. Violation of this section of this Agreement shall constitute a breach or this Agreement and may result in termination by PARTIES. Consultant or Contractor shall be liable to PARTIES for actual and consequential damages 10 PARTIES resulting from such breach pursuant to §8-17.5-1 0 I (3) C.R.S. PARTIES shall also report any such breach to the Office of the Secretary ofState. Consultant or Contractor acknowledges that the CDL rna) investigate whether Consultant or Contractor is complying with the provision of the Agreement. This may include on-site inspections and the review or documentation that proves the citi7cnship of any person performing work under this Agreement aml any other reasonable steps necessary to detennine compliance with the provisions of this section." 27. GOVERNMENTAL IMMUNITIES PARTIES hereto intend that nothing herein shall be deemed or construed as a "aiver by an) part) of any rights, limitations. or protections afforded to them under the Colorado Governmental Immunity Act (Section 24-10-1-1, C.R.S., ct ~.)as now or hereafter amended or otherwise available at law or equity. 28. INTENT OF AGREEMENT Except as othen' ise stated herein, this Agreement i~ intended to describe the rights and responsibilities of and between PARTIES and is not intended to and shall not be deemed to confer righrs upon any person or entities not named as PARTIES. nor to limit in an) way the powers and responsibilities of RTD. CITY, DISTRICT or any other entity not a party hereto. l dcm'"'grmm\ 14\\ I 408().1 lO AGREEMENT REGARDING CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR ARVADA CHANNEL (MILLER STREET TO OAK STREET) Agreement No. 1-1-08.04 E~hibit A SAMPLE AGREEMENT REGARDING CONSTRUCTION OF DRAINAGE AND FLOOD CONTROL IMPROVEMENTS FOR ARVADA CIIANNEL (MILLER STREET ro OAK S rREET) Agreement No . 14-08 .04 Exhibit B MEMORANDUM fhis MEMORANDUM is entered into this day of , 20_ by and betv.een URBAN DRAINAGE AND FLOOD CONTROL DISTRICT, a quasi-governmental entity, whose address is 2480 West 26th A venue, Suite I 56-B, Denver, Colorado 8021 I (hereinafter called "DISTRICT'') and -------------·· a governmental entity. whose address is ______________ (hereinafter called ''CI fY") and collectively known as "PARTIES"; WHEREAS. PARTIES entered into "Agreement Regarding rinal Design. Right-of-Way Acqui s ition and Construction of Drainage and rtood Control Improvements lor ______________ ,''Agreement No.--------on or about _____ . :!0_, (hereinafter called "AGREEMENT"): and WHEREAS. AGREEMENT is unrecorded. however PARTIES have agreed in AGREEMENT to record this MEMORANDUM in the records of the Clerk and Recorder of __________ . State of Colorado. in order to put all who inquire on notice of AGREEMENT and in particular Paragraph 7 .C of AGREEMENT; and WHEREAS. in AGREEMENT. PARTIES agreed to participate equally (up to a maximum of $ ______ each) in the cost of the construction of drainage and flood control improvements for ---------------within CITY boundaries which include -----------------------------(hereinafter called "PROJECT"); and WI IEREAS. construction of PROJECT may require the acquisition by CITY of real propeny; and WHEREAS, AGREEMENT funher provides that CITY will own all real propeny required to construct the improvements and that CITY O\\ nership of that real property shall be s ubject to the terms and conditions of AGREEMENT and in particular Paragraph 7.C of AGREEMENT; and WIIEREAS. Paragraph 7.C of AGREEMENT provides in appropriate pan as follows: "7 .C. 0\\ nership of Property and Limitation of Use. CITY s hall 0\\ n the property either in fee or non-revocable easement and shall be responsible for same. It is s pecifically understood that the right-of-wa) is being used for drainage and flood control purposes . The properties upon which PROJECT is constructed shall not be used for any purpose that will diminish or preclude its use lor drainage and flood control purposes. CITY may not dispose of or change the use of the properties without approval of DISTRICT. If, in the future. CITY disposes of any portion of or all of the properties acquired upon which PROJECT is constructed pursuant to this Agreement. changes the use of any portion or all of the properties upon which PROJECT is constructed pursuant to this Agreement, o r modifies any of the improvements located on any portion ofthe properties upon \\hich PROJECT is constructed pursuant to this Agreement. and CITY has not obtained the written approval of DISTRI CT. prior to such act ion, CITY shall take any and all action necessary to reverse said unauthorized ac tivity and return the properties and improvements thereon. acquired and constructed pursuant to this Agreement, to the ownership and condition they were in immediately prior to the unauthorized activity at C ITY's sole expense. In the event CITY breaches the terms and provisions of this Paragraph 7.C and does not voluntarily cure as set forth above, DISTRICT shall have the right to pursue a claim against C ITY for specific performance of this portion of the Agreement.": and WHEREAS. CITY has just acquired the real property described in Exhibit Z attached hereto and incorporated herein by reference, as if' set forth verbatim herein, pursuant to the terms and conditions of AGREEMENT for the construction of PROJECT: and WHEREAS. PARTIES intend that the tem1s and provisions ol' AGREEMENT. including but not limited to Paragraph 7.C of AGREEMENT set forth verbatim above, shall apply to and control the real property described in Exhibit Z. IT HAS BEEN AGREED previously in AGREEMENT by and between PARTIES that the terms and provisions of AGREEMENT. including but not limited to Paragraph 7.C of AGREEMENT set forth verbatim above shall apply lO and control the real property described in Exhibit Z. now owned by C ITY and that this MEMORANDUM be placed of record for the purposes of encumbering the real property described in Exhibit Z with the limitations and restrictions set forth in this MEMORANDUM. This MEMORANDUM is not a complete summary of AGREEMENT. Provisions in this MEMORANDUM shall not be used in imerpreting AGREEMENT's provision. In the event of conflict between this MEMORANDUM and the unrecorded AGREEMENT, the unrecorded AGREEMENT shall control. (SEAL) ATTEST: URBAN DRAINAGE AND FLOOD CONTROL DISTRJCT By ________________________ __ Title Executive Director Date. _______________________ _ STATE OF COLO RA DO ) ) ss. CITY OF ______ _ Subscribed and sworn to before me this ______ day of _____ _:• 20_, by WITNESS my hand and officia l seal. (SEAL) Notary Public My Commission Expires--------------