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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 02/03/2009 - ITEMS RELATING TO AN INTERGOVERNMENTAL AGREEMENT B ITEM NUMBER: 11 AGENDA ITEM SUMMARY DATE: February 3, 2009 FORT COLLINS CITY COUNCIL STAFF: Darin Atteberry SUBJECT Items Relating to an Intergovernmental Agreement Between the City of Fort Collins and the Town of Timnath. RECOMMENDATION Staff recommends adoption of the Ordinances on Second Reading. EXECUTIVE SUMMARY A. Second Reading of Ordinance No. 011,2009, Approving an Intergovernmental Agreement Between Timnath and Fort Collins Regarding Growth Management Areas and Associated Issues Authorizing Disposition of Property as Provided Therein. B. Second Reading of Ordinance No. 012, 2009, Appropriating $1.2 Million in Prior Year Reserves in the Stormwater Fund and Self-Insurance Fund and Irrevocably Pledging an Additional $800,000 in Undesignated Reserves to be Contributed to the Town of Timnath, Colorado for Improvements to the Boxelder Overflow Project. Fort Collins and Timnath have negotiated a proposed intergovernmental agreement(IGA)to resolve certain differences that have arisen between them regarding a variety of planning and growth management issues. The IGA is intended to firmly establish the Growth Management Areas(GMA) for each municipality. In addition, the IGA authorizes the conveyance of an easement on Arapaho Bend Natural Area for a portion of the Boxelder Overflow Project, and the potential sale of the Vangbo Natural Areas property to Timnath. It also authorizes a contribution by Fort Collins to Timnath's Boxelder Overflow Project. The IGA terminates overlapping annexations by Timnath and Fort Collins in the vicinity of Harmony and 1-25. Furthermore, the IGA makes clear that the Riverwalk property,at the southwest corner of I-25 and Harmony will stay within the Fort Collins' GMA. Both Ordinances were unanimously adopted on First Reading on January 20, 2009. ATTACHMENTS 1. Copy of First Reading Agenda Item Summary - January 20, 2009. (w/o original attachments) ATTACHMENT ITEM NUMBER: 22 A-B AGENDA ITEM SUMMARY DATE: January 20, 2009 FORT COLLINS CITY COUNCIL STAFF: /r Darin Atteberry I ( 1) p�J 7 Steve Roy ki d JA SUBJECT Items Relating to an Intergovernmental Agreement Between the City of Fort Collins and the Town of Timnath. RECOMMENDATION Staff recommends adoption of both Ordinances on First Reading. FINANCIAL IMPACT r [ If the IGA is approved by both Fort ollins and Timnath, F�in Collins would contribute up to $2,000,000 from the Utilities Stormwater fund-and-other sources-for improvements to the Boxelder Overflow Project. In addition, Fort Collins would receive approximately $1,500,000 if Timnath elects to acquire the Vangbo property from the Natural Areas fund. Various indirect impacts also would occur. Various indirect impacts also would occur due to the fact that certain properties currently within the Fort Collins GMA east of I-25 would become part of the Timnath GMA under the Agreement and those properties would therefore not become part of Fort Collins' tax base. EXECUTIVE SUMMARY A. First Reading of Ordinance No. 011, 2009, Approving an Intergovernmental Agreement Between Timnath and Fort Collins Regarding Growth Management Areas and Associated Issues Authorizing Disposition of Property as Provided Therein. B. First Reading of Ordinance No. 012��20.g9. Appro riating $1.2 Million in Prior Year �r �� .cp v Reserves in the Stormwater Fund and Se1Fl;Insurance Fund and Irrevocably Pledging an Additional $800,000 in Undesignated Resen, es-to be Contributed to the Town of Timnath, Colorado for Improvementst,the�Boxe�lder)verflow Project. Fort Collins and Timnath have negotiated a proposed intergovernmental agreement(IGA)to resolve certain differences that have arisen between them regarding a variety of planning and growth management issues. The IGA is intended to firmly establish the Growth Management Areas(GMA) for each municipality. In addition,the IGA authorizes the conveyance of an easement on Arapahoe Bend Natural Area for a portion of the Boxelder Overflow Project, and the potential sale of the Vangbo Natural Areas property to Timnath. It also authorizes a contribution by Fort Collins to January 6, 2009 -2- Item No. 22 A-B Timnath's Boxelder Overflow Project. The IGA terminates overlapping annexations by Timnath and Fort Collins in the vicinity of Harmony and I-25. Furthermore, the IGA makes clear that the Riverwalk property, at the southwest corner of I-25 and Harmony will stay within the Fort Collins' GMA. COP VJL BACKGROUND Over the last few years, Fort Collins and Timnath have had both major and minor disagreements about their respective GMA's, community separators, revenue sharing, flood control, and other issues. Those issues came to a head in the fall of 2008, when Timnath began the process to annex a property known as Riverwalk, located at the southwest comer of 1-25 and Harmony. The Riverwalk property has been part of Fort Collins' GMA since 1980. In reaction to Timnath's annexation process, Fort Collins' created an overlapping annexation on Harmony Road intended to prevent Timnath from using Harmony as a flagpole to annex the Riverwalk property, thereby creating the opportunity for additional Timnath annexations of properties within the Fort Collins GMA. At the same time, on October 8 2008, Fort Collins filed an objection and request for mediation pursuant to Section 24-32-3209(w.3)(b) of the Colorado Revised Statutes. Fort Collins and Timnath conducted mediation sessions on December 1, 2008 and December 15, � r �r 2008. Fort Collins' interest were re pre rented by�Mayor Doug Hutchinson, Mayor Pro Tern Kelly Ohlson, City Manager Darin(Atteberry and City1AttomeyX'Sfeve Roy. The outcome of these successful negotiations is the attach d4nter�go c mental Agreement (IGA). The following is a summary of the most significant provisions of the IGA. Growth Management Areas. Generally, I-25 will constitute the boundary between the Fort Collins and Timnath GMA's. However,Fort Collins will retain in its GMA five properties east of I-25 that are located near the northeast and southeast corners of the intersection of I-25 and Colorado Highway 14 (Mulberry). The Timnath GMA will be located exclusively on the east side of I-25. Neither party will annex property within the other party's GMA,nor will either party acquire community separators,natural areas,community parks,recreation areas or open space within the other party's GMA without the other party's consent, except to the extent that such acquisitions are incidental to�l the�cgsitionr off property r other legitimate municipal 17 purposes such as rights7of--way,and storm drainage facilities, in which case each party will attempt to notify the other_ r party of such acquisitions. \�, t L )T Neither party will anne\x tthee/I-•25 right-of-way except that Fort Collins may annex those portions of I-25 that are or will be bordered on both sides by property within its city limits and except that Timnath may annex the former frontage road at the southeast corner of I-25 and Harmony Road. Neither party will amend the contiguous boundaries of their respective GMA's without the written consent of the other party. January 6, 2009 -3- Item No. 22 A-B Riverwalk Annexation. The Riverwalk Property will remain in the Fort Collins GMA. Upon withdrawal or denia�he petition fo�Riverwalk Annexation, Fort Collins and Timnath will stipulate to�the dismissal offthe pe d ng court action related to that annexation. Fort Collins may then complete the.annexat�ion of Harmony Road up to the west access ramps of I-25, and Timnath may then annex Harmony Road up to the east access ramps of I-25. Future Cooperative Efforts. The parties will work cooperatively to study, design and plan a proposed pedestrian and transit connection between the Riverwalk Project and the property on the opposite side of I-25. However, no commitment has been made by either party to fund or construct the connection. Unless a subsequent agreement is reached with regard to revenue sharing or plan review, neither will occur except for such review as may be required by state law or unless either party invites such review///JJJ'''���� Conservation Easements. pt ` nlflv The parties will attemlp\It to.devise.aamechanism for jointly managing the conservation easements that Fort Collins presently owns on three properties in the future Timnath GMA. Option to Purchase the Vangbo Property. During the twelve months following the execution of the agreement, Timnath will have the option of either proposing a use for the Vangbo property that is acceptable to Fort Collins or exercising an option to purchase the property for the amount that Fort Collins paid for the property in 2005 plus interest at the same rate that the money used to acquire the property would have earned if it had remained in the City's Natural Areas Fund, which rate will be capped at four percent. If Timnath exercises its option to purchase the Vangbo property within the next twelve months, it will have an additional twelve months to close the transaction. Boxelder Overflow Project. // , ng-,a�majjTimnath is in the process of co\nstruct project, the cost of which is expected to exceed $4 million. The purpose of the project is to manage overflows from Boxelder Creek within the future Timnath GMA and the Town of Timnath and to reduce the Boxelder Creek floodplain. Timnath contends that the need for this project is driven by two factors to which Fort Collins has contributed over the years. The first had to do with the construction of I-25 in the 1960's, which entailed the installation of two box culverts that did not adequately handle the Boxelder Creek overflows,resulting in more of those January 6, 2009 -4- Item No. 22 A-B flows remaining on the east side of I-25. In the 1980's, at Fort Collins' request, the Colorado Department of Transportation(CDOT)installed two additional box culverts so that a greater portion of the overflows could be transmitted west of I-25. However,Fort Collins also requested that those two additional culverts not be opened until-Fort Collins-had constructed additional storm water facilities west of I-25 to mi4ate any(damag i tlja ghtkb�caused by those flows. Those improvements have not been constructedA Instead, improvements to be constructed within the next five to ten years by the recently formed"BozelderiBasin.RegionallStormwater Authority will contain those flows upstream from Timnath. In the interim, Timnath believes that it needs to construct its project in order to more expeditiously deal with the situation. The second way in which Timnath believes that it has been prejudiced by Fort Collins'actions with regard to this issue is that Fort Collins adopted, in 1999, new rainfall standards that ultimately resulted in the delineation of a broader regulatory floodplain in which development was either restricted or could not occur. This affected Timnath when Larimer County and the Federal Emergency Management Agency(FEMA)ultimately adopted the same rainfall standards. Timnath believes that it was not adequately informed of, or involved in, that decision. Given these considerations, Fort Collins has agreed to bear one-half of the cost of the Timnath project, with its share to be capped at a maximum of$2 million. That amount would be paid over a four-year period, with $1.2 million to be appropriated when the agreement is approved. The additional amount of$800,000 would,Ibe itrevNocabi y=pledged fo7this purpose by the Council and would be paid to Timnath at the rate of$2i0perl year oveur years. All payments would be on a reimbursement basis. 1 In consideration of Fort Collins' payments, Timnath has agreed to release any claims or causes of action it might have against the City with regard to the Boxelder Creek stormwater and floodplain issues. It has also agreed to not request that CDOT take any action with regard to the storm drainage facilities under 1-25 that might result in the opening of two box culverts under I-25 that are currently closed, and to support Fort Collins in opposing the opening of the culverts if a request to open them is made to CDOT by a third party. In addition to making these payments,Fort Collins has agreed to grant Timnath an easement through a portion of its Arapaho Bends Natural Area to accommodate the project. As part of the easement agreement, Timnath will be required to minimize the size of the easements and impacts on the natural area, and to restore the natural area to its pre-construction condition. Finally, Fort Collins has agreed to support Timnath's FEMA application for the project and to also support the project when it is reviewed bythevLarimer-County Flood Review Board. Fort Collins'Stormwater Utility`taffwill be afforded an opportunity to review and comment on the engineering cost estimates for the project'�However,!Timnath.will retain sole control and decision- making authority with regard to all aspects of the project. January 6, 2009 -5- Item No. 22 A-B Conclusion Staff believes that the provisions of the IGA equitably resolve the current disputes between the parties and that by successfully establishing firm-,land-use-planning boundaries, the City and v �x r �x r Timnath both avoid the possibility of long-term iomplexiexpensive,and uncertain battles over each others respective GMA s and m`nicipa l�boundaz�ie ; The IGAralso lays the groundwork for a long- term working relationship between.the two.mumcipalities a4offers the potential for additional collaboration and cooperation. C 0 P V) L ORDINANCE NO. 011, 2009 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN TIMNATH AND FORT COLLINS REGARDING GROWTH MANAGEMENT AREAS AND ASSOCIATED ISSUES AND AUTHORIZING THE DISPOSITION OF PROPERTY AS PROVIDED THEREIN WHEREAS,a dispute has arisen between the City of Fort Collins(the"City")and the Town of Timnath(the"Town")with regard to a number of land use and storm drainage issues and related matters,which dispute has been the subject of protracted mediation between the City and the Town; and WHEREAS, officials of the City and Town have, in the interest of regional cooperation, worked diligently to resolve these issues and have reached an agreement intended to resolve said dispute, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference (the "Agreement"); and WHEREAS, state law provides broad authority to local govermnents to enter into mutually enforceable agreements to plan for and regulate the use of property within their respective jurisdictions, and the City Charter also authorizes the Council to enter into agreements and cooperative activities with other governmental bodies; and WHEREAS, pursuant to the Agreement, the City Council has, this same date, approved Ordinance No. 012, 2009, which appropriates the sum of$1.2 million and irrevocably pledges an additional $800,000 in General Fund reserves, to be paid to the Town as partial reimbursement for storm drainage improvements the Town intends to construct for the purposes of. (a) mitigating the flow of storm waters from portions of Boxelder Creek adjacent to the Town; and (b) removing certain areas within the Timnath Growth Management Area from the Boxelder Creek floodplain(the "Project"); and WHEREAS,in order to allow the Project to proceed,Timnath will require an easement from the City over a portion of the Arapahoe Bend Natural Area east of Interstate 25, for the purpose of facilitating the westerly flow of stormwater from the Boxelder Creek (the "Boxelder Easement'); and WHEREAS, the Agreement provides that the location, size and impacts of the Boxelder Easement and any improvements built on and in the vicinity of said Natural Area shall be minimized to the extent reasonably possible, and that the Easement shall be upon terms and conditions to be mutually agreed upon by the parties,including a requirement that Timnath carry out its activities on the Boxelder Easement in a manner that is sensitive to the natural features of the affected property and restore, at its own expense, the area impacted by construction activities within the Boxelder Easement to pre-construction natural condition to the extent reasonably possible, using native vegetation; and WHEREAS,in view of the benefits to the Stormwater Utility from the Project,as more fully described in Ordinance No. 012, 2009, the Stormwater Utility shall, upon conveyance of the Boxelder Easement to Timnath, reimburse the Natural Areas Fund for the value of that Easement; and WHEREAS, the Agreement provides in part that the City grant to Timnath an option for a term of one year to acquire the Vangbo Property, as more specifically described in Exhibit 4 to the Agreement, from the City for the amount of$1,417,664 plus interest on such amount from August 15, 2005 through the date of conveyance calculated as provided in the Agreement; and WHEREAS, under Section 23-1 I 1 of the Code of the City of Fort Collins, the Council is authorized to sell or otherwise dispose of any and all interests in real property owned in the name of the City, provided that Council first finds by ordinance that the sale or disposition is in the best interests of the City. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby finds and determines that the Agreement will be beneficial to the citizens of Fort Collins and to the ratepayers of the Fort Collins Stormwater Utility, and that said Agreement is in the best interests of the City. Section 2. That the Mayor is hereby authorized to execute the Agreement, in substantially the form shown on Exhibit A,attached hereto and incorporated herein by this reference, subject to such modifications, amendments or additions thereto as may be determined by the City Manager, in consultation with the City Attorney, to be necessary or appropriate to protect the interests of the City. Section 3. That the conveyance of the Boxelder Easement as described herein is in the best interests of the City. Section 4. That the Mayor is hereby authorized to execute an agreement conveying the Boxelder Easement consistent with the terms of this Ordinance over specifically described property and containing such terms and conditions as the City Manager, in consultation with the City Attorney, determines to be necessary or appropriate to protect the interests of the City. Section 5. That the conveyance of an option to purchase the Vangbo Property and the conveyance of the Vangbo Property, as described herein, is in the best interests of the City. Section 6. That the Mayor is hereby authorized to execute a deed or such other document of conveyance as may be necessary to convey the Vangbo Property to Timnath consistent with the terms of this Ordinance and containing such terms and conditions as the City Manager, in consultation with the City Attorney,determines to be necessary or appropriate to protect the interests of the City. 2 Introduced, considered favorably on first reading, and ordered published this 20th day of January, A.D. 2009, and to be presented for final passage on th r day of February, A.D 2009. Mayocj ATTEST: City Clerk Passed and adopted on final reading on the 3rd day of February, A.D. 2009. Mayor ATTEST: City Clerk -3- Exhibit A to Ordinance No. 011, 2009 INTERGOVERNMENTAL AGREEMENT (Regarding Cooperation on Annexation, Growth Management and Development) THIS INTERGOVERNMENTAL AGREEMENT ("Agreement") is made and entered into this day of 2009 (the "Effective Date"), by and between THE TOWN OF TIMNATH, COLORADO, a Colorado home rule town, hereinafter referred to as "Timnath," and THE CITY OF FORT COLLINS, COLORADO, a Colorado home rule municipal corporation, hereinafter referred to as "Fort Collins". RECITALS WHEREAS, the parties desire to resolve certain differences that have arisen between them regarding a variety of planning and growth management issues and to lay the groundwork for future cooperative activities between them while respecting each other's growth management areas; and WHEREAS, resolving such differences and fostering such cooperation is of critical importance to both Timnath and Fort Collins and to the entire surrounding Northern Colorado region; and WHEREAS, productive regional cooperation between Timnath and Fort Collins can result in better management of development of each party's respective growth management area; and WHEREAS, maintaining and enhancing areas of urban development in a thoughtful and deliberate way involves cooperation in land use, transportation, planning and development, in the implementation of growth management policies, and in the identification and preservation of open space and natural areas; and WHEREAS, the parties acknowledge and agree that each party should make its own decisions regarding the acquisition of community separators, open space, and similar amenities within its own growth management area; and WHEREAS, in Title 29, Article 20, Colorado Revised Statutes, as amended, the General Assembly of the State of Colorado (the "General Assembly") has found and declared that in order to provide for planned.and orderly development within Colorado and a balancing of the basic human needs of a changing population with legitimate environmental concerns, the policy of the State of Colorado is to clarify and provide broad authority to local governments to plan for and regulate the use of property within their respective jurisdictions; and WHEREAS, in furtherance of said policy, the General Assembly has designated certain powers to local governments, among them the power to regulate the location of activities and developments which may result in significant changes in population density, the power to provide for phased development of services and facilities, the power to regulate the use of property on the basis of the impact thereof on the community or surrounding areas, and the power to otherwise plan for and regulate the use of property so as to provide planned and orderly use of property and protection of the environment in a manner consistent with constitutional rights; and WHEREAS, the General Assembly has also authorized and encouraged local governments to cooperate or contract with other units of government for the purpose of planning and regulating the development of property, including but not limited to the joint exercise of planning, zoning, subdivision, building, and related regulations; and WHEREAS, it is in the best interests of the citizens of Timnath and the citizens of Fort Collins for Timnath and Fort Collins to enter into an intergovernmental agreement for the purposes of resolving their differences, availing themselves of the foregoing grant of statutory authority and implementing their respective growth management plans; and WHEREAS, the agreements and understandings set forth below will promote increased coordination between Timnath and Fort Collins and result in better planning and growth management in the Timnath and Fort Collins areas. NOW, THEREFORE, in consideration of the covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: ARTICLE 1 DEFINITIONS The following terms and references shall have the meanings indicated: 1.1 "Average Annual Interest Rate" shall have the meaning provided in Section 6.1. 1.2 "Boxelder Easement' shall have the meaning provided in Section 7.1. 1.3 `Boxelder Overflow Project' or "Project" shall mean the engineering and installation of certain improvements designed to mitigate the potential overflow of water from Boxelder Creek during large storm events, as further described on Exhibit 1, attached hereto and incorporated herein by this reference. 1.4 "Conservation Easements" shall mean, collectively, those conservation easements located on the Hansen Property, the Cribari Property and the Person Property. 1.5 "Cribari Property" shall mean the approximately seventy-six (76) acres of undeveloped property located east of Interstate Highway 25 ("I-25"), within the TGMA, across which Chris Cribari has granted to Fort Collins a conservation easement pursuant to that certain Deed of Conservation Easement, recorded with the Clerk of Larimer County on March 21, 2005, at Reception No. 2005-0021923, incorporated herein by reference. 1.6 "Default' shall have the meaning provided in Section 10.1. 1.7 "District Court Petition' shall mean that certain Petition for Annexation Election and to Hold Annexation Proceedings in Abeyance filed by Fort Collins in the District Court in and for the Eighth Judicial District of Colorado, on November 12, 2008, Case No. 08-CV-1156. 2 1.8 "Effective Date" shall have the meaning provided in the introductory paragraph of this Agreement. 1.9 "FEMA" shall mean the Federal Emergency Management Agency. 1.10 "FCGMA" shall mean the Fort Collins Growth Management Area as established in that certain Intergovermnental Agreement between Fort Collins and Latimer County, Colorado, dated November 21, 2000. 1.11 "Fort Collins" shall have the meaning provided in the introductory paragraph of this Agreement. 1.12 "Fort Collins City Council" or "City Council" shall mean the governing body of Fort Collins, composed of seven (7) elected officials including a mayor and six (6)other council members. 1.13 "Fort Collins' Contribution" shall have the meaning provided in Section 7.3. 1.14 "Fort Collins Gateway Second and Third Annexations" shall mean that portion of the I-25 right-of-way shown on Exhibit 2 attached hereto and incorporated herein, for which Fort Collins received a petition for annexation on October 14, 2008, as amended on October 29, 2008. 1.15 "GMA" shall mean growth management area. 1.16 "Hansen Property" shall mean the approximately eighty-two (82) acres of undeveloped property located east of I-25, within the TGMA, across which Myrna J. Hansen has granted to Fort Collins a conservation easement pursuant to that certain Deed of Conservation Easement (Hansen Property), recorded with the Clerk of Latimer County on August 26, 2004, at Reception No. 2004-0084248, incorporated herein by reference. 1.17 "Option Notice" shall have the meaning provided in Section 6.1. 1.18 "Option Period" shall have the meaning provided in Section 6.1. 1.19 "Option Purchase Price" shall have the meaning provided in Section 6.1. 1.20 "Option Transaction" shall have the meaning provided in Section 6.1. 1.21 "Person Property" shall mean the approximately thirty-five (35) acres of undeveloped property located east of I-25, within the TGMA, across which Rod Person and Alison Person have granted to Fort Collins a conservation easement pursuant to that certain Deed of Conservation Easement (Person Property), recorded with the Clerk of Larimer County on November 18, 2005, at Reception No. 2005-0098259, incorporated herein by reference. 1.22 "Purchase Option" shall have the meaning provided in Section 6.1. 1.23 "Riverwalk Annexation" shall mean the approximately two hundred seventy four (274) acres of undeveloped property located east and west of I-25 at the intersection of I-25 and 3 Harmony Road, as shown on Exhibit 3, attached hereto and incorporated herein, for which Timnath received a petition for annexation on June 30, 2008. 1.24 "Riverwalk Petition" shall mean that certain Petition for Annexation filed with Timnath by Stoner and other neighboring property owners on or about June 30, 2008. 1.25 "Riverwalk Project" shall mean that certain proposed mixed-use development project, which will include office, commercial, retail, and residential uses. 1.26 "Stoner" shall mean collectively, Jay Stoner, an individual, and Stoner and Company, a Colorado corporation, owners of the Stoner Property. 1.27 "Stoner Property" shall mean the approximately two hundred eighty (280) acres of undeveloped property located at the southwest corner of the intersection of I-25 and Colorado State Highway 68 (Harmony Road) on which Stoner proposes to develop the Riverwalk Project. 1.28 "TABOR" shall mean Article X, § 20 of the Colorado Constitution. 1.29 "TGMA" or "Timnath Growth Management Area" shall mean that certain area shown on Exhibit 7, attached hereto. 1.30 "Timnath" shall have the meaning provided in the introductory paragraph of this Agreement. 1.31 "Timnath Town Council" shall mean the governing body of Timnath, composed of five (5) elected officials including a mayor and four(4) council members. 1.32 "Vangbo Property" shall mean the approximately one hundred six (106) acres of undeveloped property located east of 1-25 within the TGMA, which Fort Collins acquired in fee title on August 15, 2005, as more fully described on Exhibit 4 attached hereto and incorporated herein. 1.33 "Vangbo Proposal" shall have the meaning provided in Section 6.2. ARTICLE 2 GROWTH MANAGEMENT AREAS 2.1 Generally. Except as otherwise expressly provided herein, I-25 will become the boundary between the Fort Collins Growth Management Area ("FCGMA") and the Timnath Growth Management Area ("TGMA"), and the I-25 right-of-way will not be annexed by, or included within the GMA, of either party. Each party shall revise its GMA accordingly, shall . respect the other party's GMA and shall not: (a) annex, or accept any petition to annex, property within the other party's GMA; (b) acquire any property within the other party's GMA for the purpose of future community separators, natural areas, community parks, recreation or open space, without 4 the consent of the other party, either in fee or through conservation or other easements, either under its own authority or through participation with or financial contribution to third parties or entities, except to the extent that such acquisitions may be incidental to the acquisition of property for other legitimate municipal purposes, including, but not limited to transportation rights-of-way and storm drainage facilities, in which case each party shall use reasonable efforts to provide written notice to the other party prior to taking any action pursuant this exception; (c) annex any portion of the 1-25 right-of-way without the express written consent of the other party except as provided in Section 3.3 and except that Fort Collins may annex those portions of I-25 that are or will be bounded on both sides by property within its municipal limits. Any future amendments to the contiguous boundaries of the TGMA and FCGMA shall be made only if agreed upon in writing by both parties. 2.2 Fort Collins Growth Management Area. (a) The boundary of the FCGMA on the east side of I-25, from State Highway 392 on the south to Larimer County Road 52 on the north, as shown on Exhibit 5, attached and incorporated herein, shall be coterminous with its current municipal boundary except that the five parcels of property shown on Exhibit 6, attached hereto and incorporated herein, shall remain in the FCGMA, three of which properties are located in the northeast comer of the intersection of I-25 and Highway 14 (Mulberry) and two of which are located on the southeast corner of the intersection of I-25 and Highway 14 (Mulberry). (b) Fort Collins shall, within one (1) year following the date hereof, seek the approval of Larimer County to amend the boundaries of the FCGMA in accordance with Section 2.2(a) above. In addition, and irrespective of whether or not Larimer County approves such amendment, Fort Collins shall within the same period take all actions necessary to amend the boundaries of the FCGMA as it exists independently of the Intergovernmental Agreement between Fort Collins and Larimer County, Colorado dated November 21, 2000, to conform the FCGMA to the limitations of Section 2.2(a) above, it being the intention and agreement of the parties that the requirements of Section 2.1 shall apply to the (as hereby described and amended) FCGMA boundaries irrespective of any action by Larimer County. 2.3 Timnath Growth Management Area. (a) The boundaries of the TGMA shall be located exclusively on the east side of I-25 and outside the FCGMA as amended pursuant to Section 2.2 and as shown on Exhibit 7, attached hereto and incorporated herein. (b) Timnath shall amend the TGMA in accordance with Section 2.3(a) above within one (1) year following the date hereof. 5 ARTICLE 3 RIVERWALK AND GATEWAY ANNEXATIONS 3.1 The Riverwalk Annexation. Timnath shall forthwith provide written notice to Stoner that Timnath does not intend to proceed with the Riverwalk Annexation or otherwise annex the Stoner Property, and Timnath shall request that Stoner withdraw the Riverwalk Petition currently pending before the Timnath Town Council. If Stoner nevertheless elects to continue to pursue the Riverwalk Petition, the Timnath Town Council shall deny the Riverwalk Petition and shall take no further action to annex the property that is the subject of the Riverwalk Annexation. 3.2 Dismissal of the District Court Petition. Promptly upon the withdrawal or denial of the Riverwalk Petition, Timnath and Fort Collins shall file with the District Court in and for the Eighth Judicial District of Colorado, a stipulation of dismissal with prejudice and proposed order granting the stipulation of dismissal with prejudice, for the dismissal of the District Court Petition. Upon the District Court's dismissal of the District Court Petition, Fort Collins may complete its annexation of Harmony Road up to the west access ramps of I-25, as more specifically shown on Exhibit 9, and Timnath may annex Harmony Road up to the east access ramps of 1-25, as more specifically shown on Exhibit 9, which Exhibits are attached hereto and incorporated herein by reference. 3.3 Gateway Second and Third Annexations/1-25 Annexations. Fort Collins shall take no further action to annex any portions of the 1-25 right-of-way in connection with the Fort Collins Gateway Second and Third Annexations. Similarly, Timnath shall take no further action to annex any portion of the I-25 right-of-way that is adjacent to the FCGMA, except that portion of the I-25 right-of-way, if any, that has been conveyed to Timnath by the Colorado Department of Transportation in connection with the vacation of the former I-25 frontage road at the southeast comer of the intersection of I-25 and Harmony Road. ARTICLE 4. FUTURE COOPERATION 4.1 Cooperation on Certain Improvements. The parties shall work cooperatively to study, design, and plan the implementation of a proposed pedestrian and transit connection between the Riverwalk Project and the property opposite the Riverwalk Project on the east side of 1-25, which connection may include a pedestrian bridge across 1-25. Notwithstanding the foregoing, the parties acknowledge that any such agreement to cooperate in the study, design and plan for the implementation of those certain improvements shall not be deemed to be a commitment by either party to provide financing for the planning, design, engineering, right-of- way acquisition or construction of any such improvements. 4.2 Plan Review and Revenue Sharin¢. Absent a future agreement to the contrary, neither party shall be entitled to any share of the revenues generated by any parcel of property located in the other party's GMA, nor shall either party be entitled to any design or development .review, other than such statutory review as both parties agree is applicable to home-rule municipalities and such review as may be required by the municipal code of one party, in its sole and exclusive discretion, in granting review rights to the other. 6 ARTICLE 5 CONSERVATION EASEMENTS 5.1 Joint Management. Fort Collins shall work diligently, reasonably and cooperatively with Timnath in response to any proposal provided to Fort Collins by Timnath within one-hundred and eighty (180) days after the Effective Date that would: (1) create a legally permissible structure for the joint management of the Conservation Easements and related sharing of management costs, whether through the creation of a third-party entity or through certification of Timnath as a "qualified conservation organization," as defined under the Internal Revenue Service Code and the Colorado Revised Statutes, and (2) transfer to, or contract for, management of the Conservation Easements by such entity or structure within one (1) year following the date hereof. The parties shall prepare and execute such documentation and take such actions as will be required to effectuate the joint management of the Conservation Easements within such one-year period, which documentation shall establish a mechanism for resolving any disputes that may arise between the parties with regard to such management. 5.2 Restrictions on Assignment. The parties acknowledge that the documents creating the Conservation Easements contain certain restrictions on the assignment of such Conservation Easements. The parties shall work within those restrictions in creating any joint management structure set forth in Section 5.1 above. 5.3 Compliance with this Article 5. So long as the parties work diligently and cooperatively following the Effective Date of this Agreement to effectuate the provisions of this Article 5, both parties will be deemed to have complied with the provisions hereof even if no joint ownership or management structure has been devised which meets all of the criteria set forth in this Article 5. ARTICLE 6 OPTION TO PURCHASE 6.1 Option to Purchase. During the twelve (12) month period immediately following the Effective Date of this Agreement (the "Option Period"), Timnath may, at its option, exercise the right to purchase the Vangbo Property from Fort Collins ("Purchase Option") for the amount of$1,417,664.00 plus interest on such amount from August 15, 2005 (the date that Fort Collins acquired the Vangbo Property) to the closing date of the Option Transaction (collectively, the "Option Purchase Price") by providing written notice to Fort Collins within the Option Period of the exercise of its Purchase Option ("Option Notice"). The interest rate, which is designed to recover for the Fort Collins Natural Areas fund the amount of interest that would have been generated had the amount of $1,417,664.00 not been used by Fort Collins to purchase the Vangbo Property, shall be calculated based on the average interest that would have been earned on such amount in each calendar year (the "Average Annual Interest Rate"), and shall be capped at the rate of four percent (4.0%). For purposes of calculating the interest rate, Fort Collins shall provide Timnath with evidence of the Annual Average Interest Rate. In the event Timnath exercises its Purchase Option, the parties shall cooperate in the preparation and execution of any necessary documentation to effectuate the purchase and sale of the Vangbo Property and the transfer of title to Timnath (the "Option Transaction') and shall close the Option Transaction within one (1) year following the date of the Option Notice. 7 6.2 Proposed Use Alternative. During the Option Period, as an alternative to Timnath's Purchase Option set forth above, Timnath may, at its option, submit to Fort Collins a written proposal setting forth Timnath's proposed use for all or a portion of the Vangbo Property (the "Vangbo Proposal"), which use shall conform with the Fort Collins Natural Area Guidelines. Fort Collins, in its sole discretion, may reject or accept Timnath's Vangbo Proposal by sending written notice of such rejection or acceptance to Timnath within thirty (30) days of receipt of the Vangbo Proposal. In the event Fort Collins accepts the Vangbo Proposal, the parties shall jointly prepare and execute such documentation as is reasonably necessary for the joint implementation of the Vangbo Proposal and management of the Vangbo Property, and all associated costs, shall thereafter be as set forth in the Vangbo Proposal. In the event Fort Collins rejects the Vangbo Proposal, Fort Collins shall provide written notice setting forth its reasons for such rejection, and Timnath shall be entitled to resubmit a revised Vangbo Proposal at any time during the remainder of the Option Period. 6.3 No Action. During the Option Period, Fort Collins shall not sell, develop, or otherwise encumber the Vangbo Property, including, without limitation, the acquisition of a conservation easement on the Vangbo Property without the written consent of Timnath. 6.4 Expiration of Option Period. If during the Option Period Timnath fails to exercise its Purchase Option, or if Fort Collins fails to accept any Vangbo Proposal, then Timnath's Purchase Option and right to submit a Vangbo Proposal shall expire at the end of the Option Period and Fort Collins shall no longer be bound by any restrictions or obligations contained in this Article 6. In such event, however, the Vangbo Property shall nonetheless remain within the TGMA and the restrictions and obligations contained in Section 2.1 shall apply. Upon Timnath's annexation of the Vangbo Property, Timnath shall have land use jurisdiction over any future development or use of the Vangbo Property. ARTICLE 7 BOXELDER OVERFLOW PROJECT 7.1 Grant of Easement. If and to the extent required by the engineering and design of the Boxelder Overflow Project, Fort Collins shall grant to Timnath an easement through a portion of the Arapahoe Bend Natural Area east of 1-25 in a location and upon terms and conditions to be mutually agreed upon by the parties for the purpose of westerly flow of stormwater from the Boxelder Creek (the "Boxelder Easement"). The location, size and impacts of the Boxelder Easement and improvements built on and in the vicinity of said Natural Area shall be minimized to the extent reasonably possible. Fort Collins shall execute such documents and take such action as will be required to effectuate the Boxelder Easement; provided, however, that such documents shall include a requirement that Timnath carry out its activities on the Boxelder Easement in a manner that is sensitive to the natural features of the affected property and restore, at its own expense, the area impacted by construction activities within the Boxelder Easement to pre-construction natural condition to the extent reasonably possible, using native vegetation. 7.2 Federal Emergency Management Agency Application. Fort Collins shall not oppose or interfere with Timnath's application to FEMA in connection with the Boxelder Overflow Project. In addition, Fort Collins will provide a letter to FEMA stating that, as an 8 affected property owner, Fort Collins supports the Project, subject to the requirements of, and without waiving any of its rights under applicable federal law or Colorado statute, as the same may be amended from time to time, and if necessary for FEMA approval, will support the application through signature or other reasonable mechanism. Fort Collins will also provide a similar letter of support to the Larimer County Flood Review Board as to Fort Collins' position on the Project. 7.3 Cost Sharing. Subject to the following conditions, Fort Collins agrees to reimburse Timnath for up to fifty percent (50%) of the costs actually incurred by Timnath in the design, engineering, right-of-way acquisition and construction of the Boxelder Overflow Project ("Fort Collins' Contribution"), but in no event shall Fort Collins' Contribution exceed Two Million and 00/1001h Dollars ($2,000,000.00). Said amount shall be appropriated by Fort Collins or placed in reserve as irrevocably pledged to meet the obligations of Fort Collins hereunder, pursuant to the following schedule: • $1,200,000 shall be appropriated and $800,000 in existing non-departmental appropriations or other available funds shall be irrevocably set aside in reserves contemporaneously with approval of this Agreement • $200,000 of the foregoing $800,000 shall be appropriated on or before February 1, 2010 • an additional $200,000 of the foregoing $800,000 shall be appropriated on or before February 1, 2011 • an additional $200,000 of the foregoing $800,000 shall be appropriated on or before February 1, 2012 • an additional $200,000 of the foregoing $800,000 shall be appropriated on or before February 1, 2013 Upon appropriation of the foregoing funds, Fort Collins agrees to deposit the same into a federally insured escrow account with an institution to be mutually agreed upon by the parties, and such funds shall be disbursed by the institution pursuant to the provisions hereof as necessary to meet Fort Collins' reimbursement obligation under paragraph (c) of this Section 7.3. (a) Fort Collins' Stormwater Utility staff will provide technical review of the engineering documents for the Boxelder Overflow Project so as to provide assistance with the costs-effectiveness and regulatory review of the Project. (b) Contemporaneously with the approval of this Agreement, the Fort Collins City Council shall consider an ordinance appropriating the initial $1.2 Million Dollars necessary to satisfy the Fort Collins' 2009 financial obligation under this Article 7 and, to the extent such funds are appropriated from Fort Collins' Stormwater Utility fund, make a determination and finding that the expenditure of such funds for the purposes stated herein is for a specific utility purpose that is beneficial to the ratepayers of said utility, as required by Article XII, Section 6 of the Fort Collins City Charter. The City Council's failure to approve such appropriation shall not 9 constitute a violation of this Article 7 or a breach of this Agreement. However, the parties acknowledge that the City Council's appropriation of the initial $1.2 Million Dollars constitutes a condition precedent to Timnath's execution of this Agreement. (c) Upon appropriation of the necessary funds by the City Council, payment by Fort Collins to Timnath shall be on a reimbursement basis and shall be tendered within ninety (90) days of Fort Collins' receipt of documentation evidencing Timnath's expenditure of amounts for design, engineering, right-of-way acquisition or construction of the Project totaling at least twice the amount requested from Fort Collins for each such payment. Timnath shall be entitled to reimbursement under this provision for design, engineering, and right-of-way acquisition costs incurred up to and including the Effective Date, notwithstanding the fact that such costs have been incurred prior to FEMA approval of the Project. However, Timnath shall obtain FEMA approval and all other applicable permits and approvals for the Project before being entitled to reimbursement for any construction costs for the Project. (d) Prior to requesting payment of any amounts hereunder, Timnath shall ensure that the Riverwalk Annexation petition has been withdrawn by Stoner or, if not, the Timnath Town Council shall have denied said petition as provided in Section 3.1. (e) It is the intent of the parties that the Fort Collins Contribution fully satisfies any obligation that Fort Collins may have to Timnath to contribute to the management of storm drainage waters flowing from Boxelder Creek insofar as such waters or the floodplain related thereto, may affect property within Timnath's municipal boundaries or within the TGMA. Accordingly, in consideration of the City Councils.appropriation of the funds referenced in this Section 7.3 and the deposit of the same into escrow, Timnath hereby releases Fort Collins and its officers, employees, agents and assigns, from any and all claims or causes of action of any kind whatsoever for any monetary damages or for any other remedy at law or in equity arising from, connected with or in any way related to the flow, blockage or diversion of storm waters from Boxelder Creek, the installation, operation and maintenance of culverts and other storm water facilities related to that portion of 1-25 that is adjacent to the TGMA, or the determination of rainfall standards for areas within Timnath's municipal boundaries or the TGMA, insofar as such claim or cause of action is based upon any acts or omissions of Fort Collins or any of its officers, employees, agents or assigns, on or before the Effective Date. (f) The parties acknowledge and agree that, in the 1980's, at Fort Collins' request, the Colorado Department of Highways (CDOT) installed two additional box culverts under I-25 at a location that would, if the culverts were opened, allow a substantially greater volume of storm waters to flow from Boxelder Creek under I-25 and into portions of the Fort Collins GMA and municipal limits and that such increased flows could do considerable damage to property within such area and that, in order to properly manage and contain such flows, Fort Collins would need to construct extensive new storm water facilities at great expense to Fort Collins. The parties also acknowledge and agree that one of the primary justifications for Fort Collins paying a portion of the cost of the Project is to avoid such outcome. Accordingly, Timnath agrees that, if Fort Collins appropriates or irrevocably pledges funds in the amounts and in the manner set forth in this Section 7.3 and deposits the same into escrow as required hereunder, neither Timnath nor any of its officers, employees, agents or assigns, shall attempt, directly or indirectly, at any time after the execution of this Agreement, to persuade CDOT to 10 take any action that would reasonably be expected to result in the opening of said culverts. In addition, if a third party takes, or attempts to take, any such action, Timnath agrees to support Fort Collins' opposition to such action by providing a letter to CDOT to that effect upon the request of Fort Collins. 7.4 The parties acknowledge that, notwithstanding Fort Collins' Contribution to the Project, Timnath shall retain sole control and decision-making authority with regard to all aspects of the Project, including, without limitation, engineering, planning, timing, and construction. Accordingly, Timnath shall also be responsible for obtaining all necessary permits and approvals for the Project and for issuing a notice of award for construction activities for the Project by a qualified contractor. In the event that any claim is filed against Fort Collins or any of its officers or employees by any person or entity in connection with or in'any way related to or arising from the design, engineering approval, construction, maintenance or operation of the Project, Timnath will, to the extent permitted by law and without waiving its rights or protections pursuant to the Colorado Governmental Immunity Act (§ 24-10-101 et seq. C.R.S.), as amended from time to time, indemnify Fort Collins, its officers, agents, employees, representatives, successors and assigns from all such claims and liability, including reasonable attorneys' fees and costs. 7.5 Nothing in this Section or elsewhere in this Agreement shall in any way or manner be construed as an admission of liability by Fort Collins or its officers or employees for any claim or damages arising from or in any way related to the construction of the Boxelder Overflow Project, the overflow of waters from Boxelder Creek, FEMA's designation of certain areas within the TGMA as being within a floodplain, or any related matters, nor shall anything herein be construed as a waiver of any defenses, limitations and immunities established pursuant to the Colorado Governmental Immunity Act (§24-10-101, et seq. C.R.S.), the United States and Colorado Constitutions, or under the common law or laws of the State of Colorado or of the United States, including but not limited to Section 42 U.S.C. 1983. ARTICLE 8 REPRESENTATIONS AND WARRANTIES 8.1 Representations by and Warranties of Timnath. Timnath represents and warrants that: (a) Timnath is a home rule town, duty organized and validly existing under the laws of the State of Colorado. (b) Timnath has the power to enter into and has taken all actions required to authorize this Agreement and to carry out its obligations hereunder. (c) Except for the District Court Petition, there is no litigation, proceeding or investigation contesting the power or authority of Timnath or its officials to enter into or consummate the transactions contemplated by this Agreement, and Timnath is unaware of any such litigation, proceeding or investigation that has been threatened. (d) The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not (a) 11 conflict with or contravene any law, order, rule or regulation applicable to Timnath, or (b) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which Timnath is a party or by which it may be bound or affected. 8.2 Representations by and Warranties of Fort Collins. Fort Collins represents and warrants that: (a) Fort Collins is a home rule municipal corporation duly organized and validly existing under the laws of the State of Colorado. (b) Fort Collins has the power to enter into and has taken all actions required to authorize this Agreement and to carry out its obligations hereunder. (c) There is no litigation, proceeding or investigation contesting the power or authority of Fort Collins or its officials to enter into or consummate the transactions contemplated by this Agreement, and Fort Collins is unaware of any such litigation, proceeding or investigation that has been threatened. (d) Fort Collins holds fee title to the Vangbo Property. (e) The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not (a) conflict with or contravene any law, order, rule or regulation applicable to Fort Collins, or (b) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which Fort Collins is a party or by which it may be bound or affected. ARTICLE 9 TABOR 9.1 Notwithstanding other provisions in this Agreement to the contrary, the parties understand and acknowledge that they are subject to TABOR. (a) The parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. (b) It is understood and agreed that this Agreement does not create a multi- fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the parties are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the parties' current fiscal period ending upon the next succeeding December 31. (c) Financial obligations of the parties payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with ordinances and resolutions of the responsible party and other applicable law. 12 ARTICLE 10 MISCELLANEOUS 10.1 Default; Remedies. Upon the failure of either party to comply with any of its obligations contained herein (a "Default'), the non-defaulting party shall provide written notice of the Default to the defaulting party. Immediately upon receipt of such notice, the defaulting party shall promptly proceed to cure such Default within thirty (30) days, or if not susceptible of cure within thirty (30) days, within such time as agreed upon by the non-defaulting party for the cure of such Default. If the defaulting party fails to cure or remedy the Default within the time period prescribed, the non-defaulting party may proceed to protect and enforce any or all of its rights and the obligations of the defaulting party under this Agreement by suit in equity or action at law, in a court of competent jurisdiction, whether for the specific performance of any covenants or agreements contained in this Agreement or otherwise, or take any action authorized or permitted under applicable law, and shall be entitled to require and enforce the performance of all acts and things required to be performed hereunder by the other party. Each and every remedy of either party shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity. 10.2 Amendments. This Agreement may only be amended, changed, modified or altered in writing signed by both parties hereto. 10.3 Binding Agreement. Both Timnath and Fort Collins intend that this shall Agreement be binding upon them. 10.4 Implementing Agreements and Further Assurances. The parties hereto agree to execute such documents, and take such action, as will be reasonably requested by the other party hereto to confirm or clarify the intent of the provisions hereof and to effectuate the agreements herein contained. 10.5 Term; Termination. This Agreement shall remain in force and effect for a period of twenty (20) years from the Effective Date. Thereafter, it shall be automatically renewed for successive five (5) year terms unless, at least six (6) months prior to its scheduled expiration, either party notifies the other party, in writing, of its decision that the Agreement not be renewed. 10.6 No Third Party Beneficiaries. No term or provision of this Agreement is intended to, or shall, be for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder. 10.7 Severability. In the event either party is prevented by court order from performing or enforcing any provision of this agreement, or enforcing any regulations, both parties shall have the option of terminating this Agreement upon mutual consent. 10.8 Prior Agreements. This Agreement supersedes all prior agreements between the parties with regard to annexation, growth management and development. 10.9 Jointly Drafted; Rules of Construction. The parties hereto agree that this Agreement was jointly drafted, and, therefore, waive the application of any law, regulation, 13 holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document. 10.10 Notices. All notices, certificates or other communications to be given hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by certified, registered or overnight mail, postage prepaid, addressed as follows: If to Timnath: Town of Timnath 4800 Goodman Timnath CO 80547 Attn: Town Manager with a copy to: Murray, Dahl, Kuechenmeister& Renaud LLP 2401 151h Street, Suite 200 Denver, Colorado 80202 Attn: Gerald E. Dahl, Esq. If to Fort Collins: City of Fort Collins 300 Laporte Avenue P.O. Box 580 Fort Collins, CO 80522-0580 Attn: City Manager with a copy to: City Attorney's Office 300 LaPorte Avenue PO Box 580 Fort Collins, Colorado 80522 Attn: Stephen J. Roy, Esq. and Hayes, Phillips, Hoffmann & Carberry, P.C. 1350 171h Street, Suite 450 Denver, CO 80202-1 5 1 7 Attn: Corey Y. Hoffmann, Esq. The parties may, by written notice, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. 14 10.11 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 10.12 Section Headings. The captions or headings herein are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement. 10.13 Usage of Terms. When the context in which words are used herein indicates that such is the intent, words in the singular number shall include the plural and vice versa. All pronouns and any variations thereof shall be deemed to refer to all genders. 10.14 Execution in Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 10.15 Exhibits, Riders & Addenda. The exhibits, riders and addenda set forth below shall be deemed to be a part of this Lease and are hereby incorporated herein: Exhibit 1 — Boxelder Overflow Project Exhibit 2— Fort Collins Gateway Second and Third Annexations Exhibit 3 —Riverwalk Annexation Exhibit 4—Vangbo Property Exhibit 5 —FCGMA Exhibit 6—Properties to be Included in FCGMA Exhibit 7—TGMA Exhibit 8 —Permitted I-25 Ramp Annexation (Fort Collins) Exhibit 9 — Permitted I-25 Ramp Annexation (Timnath) [Remainder of Page Intentionally Left Blank. Signature Pages Follow.] 15 IN WITNESS WHEREOF, the Town of Timnath and the City of Fort Collins have executed this Agreement as of the day and year first above written. THE TOWN OF TIMNATH, COLORADO By: Mayor ATTEST: Town Clerk APPROVED AS TO FORM: Town Attorney [Signatures Continue On Following Page] THE CITY OF FORT COLLINS, COLORADO By: Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attomey Exhibits to the Intergovernmental Agreement were provided on First Reading, January 20, 2009. ORDINANCE NO. 012, 2009 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING $L2 MILLION PRIOR YEAR RESERVES IN THE STORMWATER FUND, AND SELF-INSURANCE FUND AND IRREVOCABLY PLEDGING AN ADDITIONAL$800,000 IN UNDESIGNATED RESERVES TO BE CONTRIBUTED TO THE TOWN OF TINMATH, COLORADO FOR IMPROVEMENTS TO THE BOXELDER OVERFLOW PROJECT WHEREAS,a dispute has arisen between the City of Fort Collins(the"City")and the Town of Timnath(the"Town") with regard to a number of land use and storm drainage issues and related matters,which dispute has been the subject of protracted mediation between the City and the Town; and WHEREAS, officials of the City and Town have, in the interest of regional cooperation, worked diligently to resolve these issues and have reached an agreement that has been approved by the City Council this same date by the adoption of Ordinance No.011, 2009(the"Agreement');and WHEREAS,pursuant to the Agreement,the City Council has agreed to appropriate the sum of$1.2 million and to irrevocably pledge an additional$800,000 in General Fund reserves,to be paid to the Town as partial reimbursement for storm drainage improvements the Town intends to construct for the purposes of: (a) mitigating the flow of storm waters from portions of Boxelder Creek adjacent to the Town;and(b)removing certain areas within the Timnath Growth Management Area from the Boxelder Creek floodplain (the "Project'); and WHEREAS, the Agreement provides that such funds,as appropriated,are to be placed into an escrow account to be maintained by an independent institution, with the understanding that the Town will be eligible for reimbursement from such account for one-half of the costs it incurs for design, engineering, right-of-way acquisition and construction costs incurred by the Town in connection with the Project up to a maximum of$2 million over the next four years: and WHEREAS, there is considerable benefit to the ratepayers of the Storrnwater Utility in resolving any outstanding differences between the City and the Town with regard to the manner in which the disposition of storm waters from Boxelder Creek have historically been handled or the manner in which the current rainfall standards and floodplain were established for the areas adjacent to and within the Town; and WHEREAS, in particular, the Agreement benefits the Stomwater Utility ratepayers by expediting and faciliting the Project,thereby eliminating a longstanding dispute as to whether stoma waters should be allowed to flow through two currently closed box culverts under Interstate 25 and alleviating the possible need to manage such additional flows by constructing within the city new storm drainage facilities at an estimated cost of over $4 million; and WHEREAS, there are other benefits to be derived by the City from the Agreement, such as avoiding costly litigation involving the competing annexations of contested areas, and fostering a long-term collaborative relationship with the Town; and WHEREAS, in recognition of the foregoing benefits to both the Stormwater Utility ratepayers and the general citizenry, the City Council believes it to be in the best interests of the Stormwater Utility ratepayers and of the residents of the City to appropriate the funds necessary to fund the City's financial obligations under the Agreement; and WHEREAS, funds to satisfy the City's obligations under the Agreement are available from prior year reserves in the Stormwater Fund, General Fund and Self-Insurance Fund; and WHEREAS, the City's Self-Insurance Program Fund exists for the purpose of covering potential costs and attorneys'fees that may be incurred by the City in defending against various kinds of liability claims and,pursuant to the recommendation of the City Manager and City Attorney,the City Council believes it to be appropriate to fund a portion of the City's contribution to the Boxelder Overflow Project from such fund; and WHEREAS,Article V, Section 9,of the Charter of the City of Fort Collins permits the City Council to appropriate by ordinance at any time during the fiscal year such funds for expenditure as may be available from reserves accumulated in prior years, notwithstanding that such reserves were not previously appropriated. NOW,THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That, pursuant to Article XII, Section 6 of the City Charter,the City Council hereby finds and determines that the appropriation of One Million and No/100 Dollars ($1,000,000.00)from the Stormwater Fund Prior Year Reserves and the expenditure of said amount to Timnath for the Project will be beneficial to the ratepayers of said utility, for the reasons stated above, and that said appropriation and expenditure are in the best interests of the City. Section 2. That there is hereby appropriated for expenditure from the Stormwater Fund Prior Year Reserves the sum of ONE MILLION DOLLARS ($1,000,000) to be contributed to the Town of Tinmath, Colorado for improvements to the Boxelder Overflow Project. Section 3. That there is hereby appropriated for expenditure from the Self-Insurance Fund in the sum of TWO HUNDRED THOUSAND DOLLARS($200,000)to be contributed to the Town of Tinmath, Colorado for improvements to the Boxelder Overflow Project. Section 4. That the City Council hereby irrevocably pledges the sum of Eight Hundred Thousand Dollars ($800,000.00) in undesignated General Fund Reserves for the purpose of satisfying the City's financial obligations under Section 7.3 of the Agreement, pursuant to the terms and conditions stated therein. -2- Introduced, considered favorably on first reading, and ordered published this 20th day of January, A.D. 2009, and to be presented for final passage on the 3rd day of February, A.D. 2009. May ATTEST: City Clerk Passed and adopted on final reading on the 3rd day of February, A.D. 2009. Mayor ATTEST: City Clerk -3-