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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/21/2007 - RESOLUTION 2007-075 APPROVING THE INTERGOVERNMENTA ITEM NUMBER: 25 AGENDA ITEM SUMMARY DATE: August 21, 2007 FORT COLLINS CITY COUNCIL STAFF: Dave Gordon SUBJECT Resolution 2007-075 Approving the Intergovernmental Agreement Between the Cities of Fort Collins and Loveland, and with Bohemian Companies,LLC,Regarding Taxiway Improvements at the Fort Collins-Loveland Municipal Airport. RECOMMENDATION Staff recommends adoption of this Resolution. FINANCIAL IMPACT The repairs to the cross wind taxiway will cost $310,000. The Bohemian Companies, LLC will reimburse the City's this amount of rrioney so the work can be completed. A Supplemental budget for the Airport was approved earlier is year by both Cities for the expenditure of these funds and the Bohemian Companies was identified as the revenue source for the reimbursement of this expense. Under the proposed Taxiway Reimbursement Agreement, copy attached, between Bohemian and the Cities,the Cities will seek reimbursement from the other property owners located in the off-Airport Triad Taxiway Service Area. Funds that are collected from the other off-Airport property owners will be reimbursed to Bohemian Companies, LLC. EXECUTIVE SUMMARY The Cities of Loveland and Fort Collins jointly own and operate the Airport. In connection with their joint operation, the Cities desire to perform needed maintenance to a cross wind taxiway that was constructed approximately 22 years ago by the Triad Development Company. Per the original agreement Triad was responsible for constructing a taxiway on City-owned airport land to gain access from Triad's private property to the Airport's runway. The agreement identified 75 lots on the Triad property that would have access to the Airport via the taxiway, these 75 lot owners are responsible for maintenance/repair costs on the taxiway improvements built on Airport property. The Bohemian Companies, LLC owns three of these lots. Currently,the Cities do not have sufficient funds available to upfront the costs to perform the needed maintenance. Bohemian Companies, LLC is willing to advance the Cities money necessary to proceed with the repairs/maintenance to the taxiway, subject to the terms and conditions of the proposed Taxiway Reimbursement Agreement. Upon completion of the repairs to the taxiway,the i August 21, 2007 -2- Item No. 25 Cities will reimburse Bohemian Companies the funds that are recovered from the other property owners in the Taxiway Service Area. The Cities are not required to pay Bohemian Companies any funds which are not collected from the other property owners. The taxiway is in very bad condition and needs immediate repair. The taxiway is also used on occasion as a cross wind runway for small single-engine aircraft. The taxiway is made of asphalt and is 2,240 feet long by 40 feet wide. The repairs to be completed under this project will greatly improve safety. The repairs will include the following: • Repair of the cracks in the asphalt surface • Placement of an asphalt leveling course • Installation of a stress absorbing fiber membrane on the entire surface • Placement of a two inch asphalt overlay • Placement of dirt along the pavement edges • Application of paint markings City staff has reviewed the agreement and recommends City Council approval of the agreement. RESOLUTION 2007-075 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING THE INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITIES OF FORT COLLINS AND LOVELAND, AND WITH BOHEMIAN COMPANIES, LLC, REGARDING TAXIWAY IMPROVEMENTS AT THE FORT COLLINS-LOVELAND MUNICIPAL AIRPORT WHEREAS, the Cities of Loveland and Fort Collins ("Cities")jointly own and manage certain real property in Larimer County that is the site of the Fort Collins-Loveland Municipal Airport (the "Airport"); and rP WHEREAS, in connection with their joint operation of the Airport, the Cities entered into an"Amended Taxiway Improvement and Easement Agreement'dated May 4, 1984,("the Taxiway Agreement')with Triad Development Corporation, Inc. ("Triad"); and WHEREAS, the Taxiway Agreement authorized Triad to construct certain taxiway improvements upon the Airport (the "Improvements") in exchange for receiving a right of direct access to the improvements from land located adjacent to the Airport owned by Triad("the Taxiway Access Area"); and WHEREAS, since 1984, the Taxiway Access Area has been developed and platted into approximately seventy five (75) individual lots, all of which are privately owned; and WHEREAS,pursuant to the Taxiway Agreement,the Cities are responsible for maintaining the Improvements and the cost of such maintenance is to be shared equitably by all of the property owners within the Taxiway Access Area; and WHEREAS, the Improvements are in need of significant maintenance work at a total cost of approximately THREE-HUNDRED TEN THOUSAND DOLLARS ($310,000.00); and WHEREAS, the Cities are willing to complete the maintenance work, but lack adequate funding to proceed; and WHEREAS, Bohemian Companies, LLC is currently an owner of three lots within the Taxiway Access Area and is willing to pay the Cities its equitable share of the costs for the maintenance work and advance the Cities the cost of the remaining maintenance work, upon the terms and conditions of a Taxiway Reimbursement Agreement, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference(the"Agreement'); and WHEREAS,Section 29-1-203,C.R.S.authorizes the Cities to contract for the joint exercise of any function, service, or facility lawfully authorized to each entity; and WHEREAS,the City Council desires to approve the Agreement on behalf of the City of Fort Collins for the purpose of completing the necessary taxiway improvements. NOW, THEREFORE,BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the City Manager is hereby authorized to enter into the Taxiway Reimbursement Agreement on behalf of the City,in substantially the form which is attached hereto and incorporated herein by this reference as Exhibit A,subject to such modifications in form or substance as the City Manager,in consultation with the City Attorney,may deem necessary to effectuate the purposes of this Resolution or to protect the interests of the City. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 21 st day of August, A.D. 2007. Mayor ATTEST: City Clerk EXHIBIT "A" TAXIWAY REIMBURSEMENT AGREEMENT This TAXIWAY REIMBURSEMENT AGREEMENT ("Agreement') is made and entered into this,day of , 2007, by and between the City of Loveland, Colorado, a municipal corporation ("Loveland"), the City of Fort Collins, Colorado, a municipal corporation ("Fort Collins"), and Bohemian Companies, LLC, a Colorado limited liability company("the Company"). WHEREAS, Fort Collins and Loveland shall hereafter be referred to jointly as "the Cities'; and WHEREAS, since 1963 the Cities have jointly owned and operated the Fort Collins- Loveland Municipal Airport ("the Airport"); and WHEREAS, in connection with their joint operation of the Airport, the Cities entered into that certain "Amended Taxiway Improvement and Easement Agreement' dated May 4, 1984, with Triad Development Corporation, Inc., an Arizona Corporation ("Triad"), which Agreement was recorded on April 15, 1985 at Reception Number 85017518 of the Larimer County, Colorado records, a copy of which Agreement is attached hereto as Exhibit A and incorporated herein by reference("the Taxiway Agreement'); and WHEREAS, Section 2 of the Taxiway Agreement authorized Triad to construct certain taxiway improvements upon the Airport, which improvements were completed approximately twenty two years ago ("the Taxiway Improvements"); and WHEREAS, as is described in Section 4 of the Taxiway Agreement, at the time the Taxiway Agreement was entered into, Triad was the owner and developer of land adjacent to the Airport which had direct access to the Taxiway Improvements, which land is specifically Taxiway Reimb Agr.8/14/2007 1 described in Section 4 of the Taxiway Agreement and is referred to in the Taxiway Agreement and hereafter in this Agreement as the "Taxiway Access Area"; and WHEREAS, since 1984, the Taxiway Access Area has been developed and platted into individual lots of which there are approximately seventy five (75) lots, all of which are currently privately owned; and WHEREAS, pursuant to Section 6 of the Taxiway Agreement,eement, the Cities conveyed an Y access easement to Triad, and to subsequent owners of lots within the Taxiway Access Area, a non-exclusive easement and right-of-way through the Airport property for aircraft and ground service vehicles to access the Airport's taxiway and runway system ("the Easement"); and WHEREAS, Section 7 of the Taxiway Agreement provides that the Cities are responsible for maintaining the Taxiway Improvements but that the cost of such maintenance is to be shared equitably by all of the property owners within the Taxiway Access Area having the benefit of Easement and that each such property owner within the Taxiway Access Area is responsible for reimbursement to the Cities for the property owner's share of the maintenance cost calculated pursuant to the formula set forth in Section 7.1 of the Taxiway Agreement; and WHEREAS, the Taxiway Improvements are currently in need of significant maintenance work at a total contract cost of $310,000.00, which work would include crack filling, asphalt overlay of the entire surface, painting and shouldering work("the Maintenance Work"); and WHEREAS, the Cities are willing to proceed with the Maintenance Work, but there are currently no funds to perform the Maintenance Work; and Taxiway Reimb Agr.8/14/2007 2 WHEREAS, the Company, which is currently an owner of three lots within the Taxiway Access Area, is willing to pay to the Cities, in accordance with the Taxiway Agreement, its equitable share of the costs for the Maintenance Work in the amount of$17,758.00 in advance of the Cities beginning the Maintenance Work; and WHEREAS, the Company is also willing to advance to the Cities the sum of $292,242.00 for the remaining cost of the Maintenance Work on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of their mutual covenants and promises contained herein, and other good and valuable considerations, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. Company's Share of Maintenance Work Costs. Upon the execution of this Agreement, the Company agrees to pay to the Cities the sum of $17,758.00 representing its equitable share required by the Taxiway Agreement for the cost for the Maintenance Work. 2. Advance to Cities. Upon the execution of this Agreement, the Company shall pay and advance to the Cities the additional sum of$292,242.00 to be repaid to the Company by the Cities, without any interest accruing, in accordance with the provisions of paragraphs 4. and 5. of this Agreement and subject to the provisions of paragraph 6. of this Agreement ("the Advance"). 3. Use of the Company's Funds. The Cities agree to use all of the funds provided to them by the Company under this Agreement to only pay the cost of the Maintenance Work. The Taxiway Reimb Agr.8/14/2007 3 Cities agree to proceed with due diligence to commence and complete the Maintenance Work, no later than November 1, 2007, subject to the provisions of Paragraph 14 hereof. 4. Cities' Repayment of Advance. The Cities shall only be obligated to repay the Advance to the Company, at no interest, to the extent that the Cities are able to collect all or any amount of the Advance from the other property owners within the Taxiway Access Area in accordance with the applicable and legally enforceable terms of the Taxiway Agreement. The Cities' collection efforts shall be pursued in good faith and at the Cities' costs, but the Cities shall not be required to pursue any claim or cause of action against any property owner within the Taxiway Access Area under the Taxiway Agreement if any state or federal law or controlling decision of the Supreme Court of the United States, Tenth Circuit Court of Appeals, Supreme Court of the State of Colorado, or Colorado Court of Appeals prevents the Cities from collecting from any property owner that owner's share of the Maintenance Work costs under the Taxiway Agreement; or if the Cities reasonably determine that the out-of-pocket costs they will incur in commencing or pursuing litigation including, but not limited to, court costs and fees for any needed outside counsel, will approach or exceed the amount being collected. The Company also agrees that, with respect to any claims made or causes of action brought against a property owner to collect the property owner's share of the Maintenance Work costs, the Cities, after consultation with the Company, may compromise any payment from a property owner under the Taxiway Agreement as the Cities deem necessary based upon the legal merits of such claims. In addition and based upon individual hardship circumstances, the Cities may also defer such payments or allow for payments in installments, provided that any such deferred or installment payments shall not extend beyond a twelve (12) month period from the date of the demand letter from the City to the affected property owner without the written consent of the Company. Taxiway Reimb Agr.8/14/2007 4 Accordingly, the Company agrees that the Cities are not required under this Agreement to commence or maintain any claim or cause of action in the courts or to deny use of the Easement with respect to any property owner within the Taxiway Access Area to order to collect the property owner's equitable share of the Maintenance costs under the Taxiway Agreement if the Cities do not have a good faith claim under the law to pursue such claim or cause of action or to deny use of the Easement or if the Cities determine that it is not cost-effective to pursue such claim or cause of action as described above in this Paragraph. At the written request of the Company, the Cities will assign any or all of their monetary claims for reimbursement under the Taxiway Agreement to the Company for the Maintenance Work costs. This assignment provision shall be the Company's only recourse against the Cities in the event that the Company believes that the Cities have not adequately pursued the collection specified in this Paragraph. 5. Payment of Collected Funds. The Cities agree that if they are successful in collecting any funds from any of the other property owners within the Taxiway Access Area for their respective shares of the Maintenance Work costs, the Cities shall pay such amounts to the Company within sixty (60) days after receiving them. The Cities shall be responsible for maintaining a record of payments. 6. Multi-Fiscal Year Obligation. Any obligations of the Cities to make payments under this Agreement shall be from year to year only and shall not constitute a mandatory payment obligation of the Cities in any fiscal year beyond the present year. This Agreement shall not directly or indirectly obligate the Cities to make any payments to the Company beyond those appropriated for any fiscal year for which this Agreement is in effect. Notwithstanding the foregoing, the Cities agree that their respective City Managers are hereby directed to include in any annual budget and appropriation proposals submitted to their respective City Councils for Taxiway Reimb Agr.8/14/2007 5 each year during the term of this Agreement, amounts sufficient to meet any and all financial obligations of the Cities under this Agreement conditioned on the Cities successfully collecting the funds owed under the Taxiway Agreement as contemplated under this Agreement, it being the intent and agreement of the parties, however, that the decisions as to whether to budget and appropriate such amounts shall be in the sole discretion of the Cities' respective City Councils. 7. Jurisdiction and Venue. The parties stipulate and agree that in the event of any dispute arising out of this Agreement, that jurisdiction over such dispute and venue shall be proper and that all proceedings under this Agreement shall be brought in the State District Court, Eighth Judicial District, County of Larimer, State of Colorado. 8. Assignment. This Agreement shall not be assigned by any of the parties without the prior written consent of the other two parties. 9. Applicable Law and Enforceability. This Agreement shall be construed in accordance with the laws of the State of Colorado. In addition, the parties recognize and acknowledge the legal constraints imposed upon Loveland and Fort Collins by the constitutions, statutes, and rules and regulations of the State of Colorado and of the United States, and those imposed upon Loveland and Fort Collins by their respective Charters and Codes, and that, subject to such constraints, the parties intend to carry out the terms and conditions of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, in no event shall any of the parties exercise any power or take any action which shall be prohibited by applicable law. Whenever possible, each provision of this Agreement shall be interpreted in such manner so as to be effective and valid under applicable law. Taxiway Reimb Agr.8/14/2007 10. Notices. Whenever written notice is given in connection with this Agreement by one party to another, it shall be given effect by hand delivery or by mailing the same by certified mail, return receipt requested, to the party to whom given. Notices shall be addressed as follows: If to Fort Collins: Darin Atteberry, City Manager City of Fort Collins City Hall West 300 LaPorte Avenue Fort Collins, CO 80521 With a copy to: Steve Roy, City Attorney City of Fort Collins City Hall West 300 LaPorte Avenue, 2"d Floor Fort Collins, CO 80521 If to Loveland: Don Williams, City Manager City of Loveland 500 East Third Street, Suite 330 Loveland, CO 80537 With a copy to: John Duval, City Attorney City of Loveland 500 East Third Street, Suite 330 Loveland, CO 80537 If to Bohemian Companies, LLC: Joseph C. Zimlich Bohemian Companies, LLC 103 West Mountain Avenue Fort Collins, CO 80521 Taxiway Reimb Agr.8/14/2007 7 With a copy to: Lucia Liley, Attorney at Law Liley Rogers &Martell, LLC 300 South Howes Street Fort Collins, CO 80521 Any party hereto may at any time designate a different person or address for the purpose of receiving notice by so informing the other parties in writing. Notice by certified mail shall be deemed effective upon actual receipt thereof or three days after being deposited in the United States mail, whichever first occurs. 11. Third Party Beneficiaries. The rights created in favor of the parties under this Agreement are not intended to benefit any person or entity that is not a party to this Agreement. 12. Construction. This Agreement shall be construed according to its fair meaning and as if it was prepared by all of the parties and shall be deemed to be and contain the entire Agreement between the parties. There shall be deemed to be no other terms, conditions, promises, understandings, statements, or representations, expressed or implied, concerning this Agreement, except as set forth in writing and signed by all of the parties. The paragraph headings in this Agreement are to be as a reference only and shall in no way define, limit or prescribe the scope or intent of any provision of this Agreement. 13. Term. Whether or not the Company has been repaid under this Agreement for the full amount of the Advance, this Agreement and all of its terms, conditions and obligations shall terminate on September 1, 2013. 14. Force Majeure. Notwithstanding anything contained herein to the contrary, it is agreed that in the event and to the extent of fire, flood, earthquake, natural catastrophe, explosion, acts, war, illegality, act of God, or any other cause beyond the control of any party Taxiway Reimb Agr.8/14/2007 8 hereto, or strikes or labor troubles (whether or not within the power of the party affected to settle the same) prevents or delays performance by any party to this Agreement, such party shall be relieved of the consequences thereof without liability, so long as and to the extent that performance is prevented by such cause; provided, however, that such party shall exercise due diligence in its efforts to resume performance within a reasonable period of time. 15. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. IN WITNESS WHEREOF, the parties have executed this Taxiway Reimbursement Agreement as of the date and year first above written. THE CITY OF LOVELAND, COLORADO, a municipal corporation By: Don Williams, City Manager ATTEST: Teresa Andrews, City Clerk APPROVED AS TO FORM: John Duval, City Attorney Taxiway Reimb Agr.8/14/2007 9 THE CITY OF FORT COLLINS, COLORADO, a municipal corporation By: Darin Atteberry, City Manager ATTEST: Wanda M. Krajicek, City Clerk APPROVED AS TO FORM: Steve Roy, City Attorney BOHEMIAN COMPANIES, LLC, a Colorado limited liability company By: Joseph C. Zimlich, Manager Taxiway Reimb Agr.8/14/2007 10 fo %11 x i why ,�Eiinpuks&k4v,T— AMENDED TAXIWAY IMPROVEMENT AND EASEMENT AGREEMENT This amended Agreement , made and entered into effective May 4, 1984, is by and between TRIAD DEVELOPMENT CORPORATION, INC. , an Arizona Corporation (hereinafter referred to as "Triad"); the CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, and the CITY OF LOVELAND. COLORADO, a Municipal Corporation; and the FORT COLLINS - LOVELAND AIRPORT AUTHORITY, a Public Airport Authority (hereinafter referred to as "Owner") . which now operates the Fort Collins - Loveland Municipal Airport (hereinafter "Airport") , pursuant to the terms of an Agreement dated December 20, 1983 with the Cities of Loveland, Colorado, and Fort Collins , Colorado , who shall be deemed the "Owner" in the event the Fort Collins - Loveland Airport Authority s P y ceases to operate the Airport. WITNESSETH: In consideration of the premises and covenants herein contained and payments to be made hereunder, the parties agrees as follows : 1 . Triad and the Cities have previously entered into a Taxiway Improvement and Easement Agreement dated May 4, 1982 which is recorded at Book 2172 , Page 1459, Records of Larimer County Clerk and Recorder, hereinafter referred to as "Taxiway Agreement". This Agreement supersedes and supplants the said "Taxiway Agreement". _ 2. Taxiway Improvements . Triad is hereby authorized to construct upon the Loveland - Fort Collins Airport taxiway improvements located as shown upon Exhibit "1" attached hereto , to have a paved surface no less than forty feet (40') in width and be constructed substantially in accordance with Exhibit "2" or the then applicable (if different than Exhibit "2") Federal Aviation Administration design specifications at the time of construction for taxiways accommodating dual wheel gear aircraft with a maximum gross weight of 60,000 pounds , whichever specifications render the greatest load bearing capacity. Triad shall include in such construction reflectors or other FAA approved marking devices , other than lights , to mark the taxiway. A portion of the cost of such construction and marking shall be eligible for refunding in accordance with paragraph 3 below. Triad , in its discretion, and at its sole expense , may at anytime oversize the taxiway improvements but shall have no obligation to do so. All improvements shall be constructed in accordance with specifications and plans approved by the Owner, which approval shall not be unreasonably withheld. 2.1 . Upon completion of the taxiway improvements , that portion of the taxiway which is to be used as a combination of temporary crosswind runway and taxiway shall be appropriately marked to designate such usage. The Owner anticipates at sometime in the future that a permanent crosswind runway will be constructed , but the Owner shall have no obligation to do so and the taxiway may be - 1 - used indefinitely as a runway and taxiway. At such time as such permanent runway is completed , the taxiway improvements completed by Triad shall revert solely to taxiway use and the taxiway will be appropriately remarked at no cost to Triad or its successors or assigns. 2.2. The installation of the taxiway improvements shall be performed in a good and workmanlike fashion, and the contractor performing such work shall guarantee the materials and workmanship for a period of not less than one (1) year. The Owner shall have the right to inspect the work during construction and upon completion of the work. Upon its completion and provision to the Owner of evidence sufficient to show title to the work unencumbered by any encumbrances or liens, all such improvements located upon the Airport property shall thereupon be conveyed free of all liens and encumbrances to the Owner. Title shall vest in Owner upon acceptance of such conveyance by Owner, which shall not be unreasonably withheld. 3. Refunding. It is agreed that Triad shall have the right and opportunity to recoup a maximum of fifty percent (50%) of the costs eligible for refunding. In order to provide such reimbursement, at such time as any portion of the land within the "taxiway use zone" (as shown upon Exhibit "3") , is first leased by the governing body of the Fort Collins - Loveland Municipal Airport for use for aeronautical related activities, there shall be paid to Triad by the Cities a sum to be calculated by multiplying fifty percent (50%) of the cost of the taxiway improvements installed by Triad times a fraction in which the numerator is the square footage of the leased area, and the denominator is the total square footage in the taxiway use zone which the Owner plans to use or make available for use for aeronautical related activities . 3 .1 . The Owner agrees that, at the time any land in the "taxiway use zone" is first leased or improved for aeronautical activities , the Owner will define the area within the "taxiway use zone" which will be assessed for reimbursement. Such area will include all land within the "taxiway use zone" which will be reasonably expected to benefit from the taxiway improvements installed by Triad, but shall not include automobile service stations , rental auto offices , or public auto parking lots and roadways . The area so determined shall hereafter be called the "taxiway contribution area". 3.2. Triad shall, within one hundred and twenty (120) days after completion of any improvements constructed pursuant to this Agreement, supply to the Owner a statement of the total costs of such improvements , and support documentation if requested by the Owner. 3 .3. The obligation of the Owner to provide reimbursement to Triad hereunder shall extend for a period of fifteen (15) years 9 2 from the date of completion of the improvements, and shall terminate without any act of the parties at the expiration of said period unless extended in writing by the Owner. 4. Use and Fee Covenants. The real property being developed by Triad is known as the Loveland - Fort Collins Industrial Airpark, and certain portions of the Airpark shall have direct access to the taxiway improvements which are the subject of this Agreement. Those portions of the real property having such direct access are hereinafter referred to as the "taxiway access area" and are described as Block 3 of the Master Plan of the Loveland - Fort Collins Industrial Airpark, dated November 4, 1981 , as revised December 15, 1981 (hereinafter "Master Plan") , and no amendment to such Master Plan shall affect the terms of this Agreement unless approved in writing by Owner. Triad agrees to impose covenants upon the taxiway access area, prohibiting uses of the property for commercial aeronautical activities (as hereafter defined) , and prohibiting sale of aviation fuel to the public. Such covenants shall not prevent aeronautical uses which are secondary or incidental to the primary use of the property which is not a commercial aeronautical use, and shall not prevent any aircraft operator from adjusting , repairing , refueling, cleaning, and otherwise servicing his own aircraft. In the event such covenants or any other covenants or agreements required to be created by Triad pursuant to the terms of this Agreement are not recorded, then this Agreement shall be construed as creating such restrictions on the Taxiway Access Area. In the event of any conflict between such covenants and this Agreement, this Agreement shall control. 4.1. For the purposes of this Agreement, the following shall constitute "commercial aeronautical activities" if provided to the public: airtaxi, charter, and aircarrier service operations; pilot training; aircraft rental; aerial sightseeing, spraying, and advertising; aircraft sales and service; aircraft storage; sale of aircraft parts; repair and maintenance of aircraft; sale or dispensing of aviation petroleum products; rental of motor vehicles. The Owner shall have a right to inspection of the property and improvements in the taxiway access area for the purpose of insuring compliance with this Agreement. 4.2. The Owner covenants and agrees that ❑o owner of property in said taxiway access area shall be charged any direct fee, rental, or other charge which is used to directly defray or directly reimburse any of the reimbursable costs of taxiway improvements installed by Triad in accordance with this Agreement. 5. Control of Access . 5.1 . The parties agree that in the event that any party hereto, or the owners in the taxiway access area find it desirable to provide a means by which access between the taxiway access area and the Airport is controlled in order to protect and preserve the - 3 - !D property and interest of the owners of land in the taxiway access area or to preserve the Owner's interest in protecting the general welfare and safety and the operation of the Airport, then the Owner may establish reasonable methods and procedures designed to insure that access to and from Airport facilities and the taxiway access area, by use of the taxiway improvements installed by Triad, may be gained only by the owners of property in the taxiway access area. 5.2. As a condition for access onto the Airport from the taxiway access area, each property owner or user shall be obligated to abide by the covenants placed upon the property by the owners . Further, as an additional condition for gaining access to the Airport from the taxiway access area, each property owner or user shall be prohibited from engaging in the commercial aeronautical activities described in paragraph 4.1 above on the property contained in the taxiway access area. 5.3. It is specifically understood and agreed that the provisions of this Section 5 shall be enforceable against each lot owner individually, or each person gaining access to the Airport from the taxiway access area. 6. Grant of Easement. The Owner agrees that upon commencement of the construction by Triad of the improvements described in this Agreement, the Owner shall forthwith execute and deliver to Triad an access easement in the form attached hereto as Exhibit "4". The time of commencement for such improvements shall occur at such time as required by the terms of the Subdivision Improvements Agreement effecting the taxiway improvements as entered into between Triad and the County of Larimer in connection with the approval by the County of Larimer of the Loveland - Fort Collins Industrial Airpark, and such Subdivision Improvements Agreement may hereafter be amended, extended , or modified, or May 4, 1988, whichever first occurs . 7. Maintenance. The Owner shall, subsequent to acceptance of the improvements by the Owner, maintain the completed improvements constructed by Triad on Airport land; however it is agreed that the costs of such maintenance should be shared equitably by property owners in the taxiway access area having a taxiway easement and others having access to the taxiway as follows: 7 .1 . The property owners in the taxiway access area shall be responsible for reimbursement to the Owner for that portion of the maintenance costs incurred subsequent to acceptance of the improvements by the Owner calculated by multiplying the total costs of such maintenance times a fraction whose numerator is the square footage of property in the taxiway access area adjacent to taxiway systems in the taxiway access area, and whose denominator is equivalent to the sum of the numerator plus the square footage of land in the "taxiway contribution area" (as defined in 4 - paragraph 3.1 above) which has been leased or improved by the Owner for use for aeronautical related activities on or before the time such maintenance costs are incurred. 7 .2. Triad agrees to impose covenants upon the land in the taxiway access area requiring the property owners in that portion of the taxiway access area, subject to reimbursement of maintenance costs as set forth above, to provide payment monthly, or at longer intervals as may be selected by the Owner, to the Owner for the costs of maintenance as calculated in paragraph 7 .1 . above within thirty (30) days following written notification by Owner of the amount of costs for which they are responsible, together with supporting documentation. Such payments shall be collected by and remitted to Owner by a property owners association composed of those subject to the obligation for such reimbursement, which association Triad hereby agrees to create in connection with the covenants imposed. Failure of the Association to collect and pay over to Owner the maintenance assessments owing may, at the Owner's option, result in closure of the point of access to the taxiway until such assessments are paid. 7 .3. "Maintenance" costs, for the purposes of this Agreement, shall mean all costs incurred by the Owner for snow removal, sweeping, repair, lighting, electricity, resurfacing, and all other expenses necessary to maintain such improvements. 8. Fuel Fees. 8.1. Each property owner located in the taxiway access area shall comply with the standards of construction and operation of self-fueling facilities , and remit to the Owner the fuel fees in the amount and fashion set forth in Exhibit "5"; provided that if there is hereafter established by the Owner different standards or different fuel fees for such operations on Airport property, then such different standards and fees shall be applicable to the property owners located in the taxiway access area. 8.2. Nothing herein shall be construed to prevent the Owner from imposing reasonable and fair fees, rates , tolls, and charges for the use of the Airport facilities except as is provided in paragraph 4.2 above. 8.3. Failure of any property owner or user to remit payment for said rates , fees , rental, or other charges imposed herein or by rule or regulation shall be grounds upon which the Owner can deny the same access to the Airport, in addition to all other remedies which Owner may have. 8.4. Upon request of the Owner, the Owner's Association, referred to in paragraph 7.2 above, shall collect the fuel fees payable pursuant to paragraph 8.1 and remit the same to the Owner. Failure - 5 of the Association to collect and remit such fees following request of the Owner, may, at the Owner's option, result in closure of the point of access to the taxiway until such remittance has been made. 9. Annual Fee. Triad shall, as further consideration to Owner for this Amended Agreement, make payment to Owner of the sum of One Hundred Dollars ($100.00) annually until the taxiway improvements have been completed. The first such payment shall be made within thirty (30) days of the time that this Agreement has been executed by each party, and thereafter such payment shall be made on June I of each year in which this Agreement is in effect and the taxiway improvements have not been completed. 10. Aircraft Registration. The owners or pilots of all aircraft that are normally based , stored, or serviced shall register such aircraft with, and provide the Owner with such information as may be requested, on a form to be prescribed by Owner. In addition to any other remedy which may be available to the Owner against the person or persons failing to comply with this section, such noncompliance shall be grounds upon which the Owner may deny access to the Airport for the aircraft which have ❑ot been so registered. 11 . Access Easement to Owner. Triad covenants and agrees that at such time as the taxiway easement described in paragraph 6 is granted by Owner, Triad shall provide for permanent access by Owner to the Airport lands lying North of the taxiway easement. Such permanent access may be in the form of dedicated public streets or rights-of-way, or by grant of a nonexclusive easement to Owner, for access along the Northern boundary of the land described in the Master Plan, or at such other location selected by Triad as will provide access from a dedicated and improved public road. Improvement and maintenance of any such access easement shall be the responsibility of Owner. Improvement and maintenance of any access street dedicated to the public in connection with subdivision of land in the Master Plan shall be in accordance with any requirements regarding the same established at the time of subdivision; provided that if Owner desires such street to be improved prior to the time the street would otherwise be required to be improved in connection with subdivision, then the cost and maintenance thereof shall be borne by the Owner. 12. Term, Effect. Integration. and Severability. This Amended Taxiway Improvement and Easement Agreement constitutes the entire agreement of the parties hereto and replaces and supersedes the Taxiway Improvement and Easement Agreement above identified which was entered into on May 4, 1982 between the Cities and Triad. This Agreement shall be recorded in the records of the Office of the Larimer County Clerk and Recorder, and the cost for such recording shall be paid by Triad. 12.1. The terms of this Agreement shall be binding upon and inure to the benefit of the successors , representatives, and assigns of - 6 /3 the parties hereto, including each user or owner of property located in the taxiway access area. 12.2. This Agreement may be altered, amended, or otherwise revised only by written agreement of the parties hereto. 12.3. If any provisions, sentence, phrase, or word in this Agreement shall be determined to be void, invalid, or unenforceable by a final judgment of a court of competent jurisdiction, such determination shall not affect any other remaining provision, portion of provision, sentence, phrase, or word; provided that, notwithstanding the foregoing, should determination be made that taxiway access to the Airport from the taxiway access area of the Loveland - Fort Collins Industrial Airpark is not available in perpetuity, then the provisions regarding maintenance costs to be paid by property owners in the taxiway access area of the Airpark shall be deemed unenforceable and void. IN WITNESS WHEREOF, the parties have executed this Agreement effective on the day and year first set forth above. TRIAD DEVELOPMENT CORPORATION, INC. By RAIPH OGBDRN, President DATE: ATT T: Secretary CITY OF FORT COLLINS, COLORADO, A Municipal [Corporation By MAYOR i ft DATE: <`�„(,",_�Y�«�'`�ti J ATTEST: - 7 - Approved As To Form: (J- 1 ,�- City orney, City of Fo Collins , Colorado CITY OF LOVELAHD, COLORADO, A Municipal Corporation ByMAYOR DATE: � ATTEST: etaryGi�cGu-<— Approved As To Form: City Attorney, City of Loveland Colorado FORT COLLINS — LOVEL91® AIRPORT AUTHORITY, A Public Airport Authority / B4�2 e thairman of the Board of the Fort Collins — Loveland Airport Authority DATED. ATTEST /� q", Secr tary to lru (It[xlxt +f. I n nl u � > o[3L 11rllw 01 f to teat.u1 pnVnMt 11.lw> I •II+ f nn Nrl nl eftwKl 11 e1 IIMf la rtrt I[Iftlnl rrnl[rlr I , IM .npn111[n let•YAtllan II.III 1tn Ln, lnlnr(eenIlr•(a lnuae, of'It n r rlr Iuvl✓Ir On"If'! n Ifllf•u Len 111l ly Inf lul Ilnl rr IM SI 1/1 ff IIII Lfllan !1. n M✓rn1 n 00'01' IP I wl r10 '1' erolpf wnulnU nerlln .rinly I . .u. (auKn<In! 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TAUNAv nMEnE VT•-�-� / SMN LINE 01 Sf:M•' SE<OfNGE tE a c6 [Owl La fIl nl.rwf Inky O.OlL ul(\'♦rl—^4!r` EXEIIBTT "Irl - Ah1E1VDED TAXIWAY I1R� AND EASIIIENI' AGREE NT between TRIAD DEVELOR�DT NRFORATION, INC.; and CITIES OF LOVE AND and FORT ODLLINS; and FORT COLLINS - LOVELAND ADU}FT ALTIJRTIY - EXHIBIT "27 \ AMENDED TAMAY IMPKOVQ•M AND \ EASEPIENL' AIREFI.W between 'TRIAD DEMOF 1QILI' CY,"MON, INC.; \ \' (TM OF LOVE7AND and FORT ROLL C; 1 �\ )% and FORT COLMS - LOVELAND ALRfCxtT \ \a ALnUORHY \ Do nil . !p I. i I In N • \ o s=;5 z It Ac L < I I AIRPORT PROP(AiT -_- 7 TRIAO PROq RTT "� c -71 1�jf L_ I j �� \ \ r __ rrimm�rminm+t�aa�a}ss►+aswurai14a14491M - APPX. EXTENT OF AREA CONTRIBUTING TO TAXIWAY REPAYMENT E HDIT "3" - AM= TAXIWAY DIMVEY07' AND EAS= AG2TEIVT between 'TRIAD DEVIIDIMWT'NRFDRATTON, BE.; = OF IDVECAND and FORT MUJNS; and FORT OD= - TDVELAND AIRPORT AUTHORITY