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Home My WebLink AboutCOUNCIL - AGENDA ITEM - 10/16/2012 - ITEMS RELATING TO THE I-25/SH 392 INTERCHANGE PROJDATE: October 16, 2012 STAFF: Rick Richter Steve Roy AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL 25 SUBJECT Items Relating to the I-25/SH 392 Interchange Project. A. First Reading of Ordinance No. 117, 2012, Establishing a Special Fee to Be Paid by the Owners of Property Within Close Proximity to the Reconstructed Interchange at the Intersection of Interstate 25 and State Highway 392. B. First Reading of Ordinance No. 118, 2012, Approving the First Amended Intergovernmental Agreement Pertaining to the Development of the Interstate 25/State Highway 392 Interchange. EXECUTIVE SUMMARY On December 21, 2010, the City Council approved an Intergovernmental Agreement with the Town of Windsor (the “IGA”) pertaining to the development of the I-25 interchange at the intersection of State Highway 392 (the “Interchange”). The IGA states that, by March 31, 2011, the City and Windsor will take certain actions to implement the fee requirements identified in the IGA. City Council has adopted several resolutions extending this deadline, the most recent extension being to October 16, 2012. Ordinance No. 117, 2012, will establish the specifics of a special fee to be paid by the Property Owners near the interchange. The fee includes two parts and is summarized as follows: • The first part of the fee is in proportion to the anticipated appreciation in property value as a result of the interchange improvements. This amount has been determined from an appraisal report prepared by a licensed MAI appraiser (the "Foster Study"). • The second part of the fee is based on the relative impacts that the development or redevelopment of the properties will have on the Interchange, as measured by the estimated number of additional vehicular trips that will be generated by the developed use of the properties. Based on negotiation with the Property Owners, the City and Town have created a second option for Property Owners. Property Owners signing an agreement with the City would be permitted to defer payment of the entire amount of the fee until their properties are developed or redeveloped, the amount of their fee would be capped at the amount estimated in the agreement, and no interest would accrue on their fee for a period of two years from the date of execution of the agreement. Ordinance No. 118, 2012, adopts the modified IGA first approved by City Council on December 21, 2010, now revised to be consistent with the implementation of the fees as described above. Similar ordinances will be presented for consideration to the Windsor Town Board on October 22, 2012. BACKGROUND / DISCUSSION City Council and the Windsor Town Board held five joint work sessions to discuss the I-25 and State Highway 392 Interchange Improvements, System Level Study (1601 Process), and design. The System Level Study for this interchange was approved by the CDOT Transportation Commission on January 21, 2009. This approval, along with a signed IGA, has allowed the Project to move into the final design phase. The accelerated design process for this Project was completed in January 2010. The accelerated design process made this Project “shovel ready,” thereby enhancing the possibility of obtaining funding for construction. The design followed the intent of the guiding principles adopted by the City Council and the Town Board in August 2008, specifically the community character guiding principle that states: “The I-25/392 Interchange is an important ‘gateway’ feature for both Fort Collins and Windsor. It is viewed as Fort Collins’ southern gateway and the main October 16, 2012 -2- ITEM 25 gateway into the Town of Windsor. The design of the Interchange, sensitivity to view sheds and associated land development, shall enhance the gateway concept.” The total construction and right of way cost for the Project was estimated at $27.5 million. On May 20, 2010, the Colorado Transportation Commission authorized the allocation of $20 million for the construction of the Interchange. CDOT had previously identified $2.5 million of state FASTER funds to be used for right of way acquisition. The funding gap of $5 million has been met by the local communities. On December 21, 2010, City Council adopted Resolution 2010-077 authorizing the Mayor to execute the IGA. The primary purposes of the IGA are to set forth the respective financial contributions of the City of Fort Collins and Windsor related to the reconstruction of the Interchange, to provide for orderly land use and development within the area immediately surrounding the Interchange, to ensure that the property owners most directly benefitted by the Interchange improvements proportionally share in the cost of the improvements, and to provide for a revenue sharing formula between the City of Fort Collins and Windsor. The IGA establishes a Corridor Activity Center (“CAC”) around the Interchange, within which certain land uses have been agreed upon by the parties and a fee will be imposed to reimburse the City of Fort Collins and Windsor for their financial contributions to the construction of the Interchange and to help fund the construction and maintenance of improvements and services within the CAC. Staffs of the Town of Windsor and the City have continued to engage the public and the affected property owners regarding the implementation of the provisions of the IGA; and the documents accomplishing the final implementation of the provisions of the IGA are now complete. Under the IGA, the City and the Town have agreed to impose a fee upon the owners of properties located within the Corridor Activity Center (“CAC”), because such properties are located in close proximity to the Interchange and will especially benefit from the reconstruction of the Interchange, and because the development or redevelopment of those properties will add more traffic to the Interchange. In recognition of the fact that the Windsor and Fort Collins communities as a whole will also benefit from the construction of the Improvements, the City and the Town concluded that the amount of the fee to be assessed against said properties should be limited to approximately 50% of the total amount expended by the City and the Town for the Improvements. In order to fairly apportion the amount to be recovered from the Property Owners, the City and the Town commissioned a study by a licensed MAI appraiser to determine the amount of appreciation in value that will be experienced by the Benefitted Properties. The study (the “Foster Study”) was completed and submitted to the City and the Town and is attached to the amended IGA. The Foster Study indicates that the appreciation in value the Benefitted Properties will experience as a result of the reconstruction of the Interchange will be more than sufficient to support the imposition of a fee in the total amount of 50% of the local share of the cost of the Improvements. The City and Town staff recommend that the fee be apportioned not only according to the anticipated appreciation in value that the Benefitted Properties will experience as a result of the construction of the Interchange, but also according to the relative impacts that the development or redevelopment of such properties will have on the Interchange, as measured by the estimated number of additional vehicular trips that will be generated by the developed use of the properties. Staff further recommends that, upon adoption of this Ordinance, the Property Owners should immediately begin paying that portion of the fee that reflects the appreciation in value of their properties since the amount of that appreciation can be immediately determined on the basis of the Foster Study, and that the balance of each Property Owner’s fee should be deferred until the development or redevelopment of the Benefitted Properties, since the nature of the developed use of each such property, and the resulting increase in vehicular trips, will not be known until that point in time. In response to concerns expressed by some of the Property Owners about the authority of the City and the Town to impose the fee, staff of the City and the Town have negotiated an agreement that would give Property Owners who sign the agreement the ability to defer payment of the entire amount of the fee until their properties are developed or redeveloped. Under the agreement, the amount of the fee would also be capped at the amount estimated in the agreement, and no interest would accrue on the fee for a period of two years from the date of execution of the agreement. In exchange, the agreement would also contain a waiver of any claims against the City and the Town related to the fee. Some but not all of the Property Owners have expressed a willingness to enter into such an agreement. Therefore, staff recommends that the City Council proceed with the imposition of the fee and extend the period of time within which the Property Owners may elect to enter into the proposed agreement with the City and the Town upon the terms and conditions described above. October 16, 2012 -3- ITEM 25 Both the Ordinance and the Property Owner agreements contain a provision whereby the City will cease collecting the fee once the City and the Town have received $2.6 million in fee revenues, plus interest at the rate of 3.05% per annum from the effective date of the Ordinance. Ordinance No. 118, 2012, adopts the First Amended Intergovernmental Agreement that revises the IGA to be consistent with the above fees and agreements. Similar ordinances will be presented for consideration to the Windsor Town Board on October 22, 2012. FINANCIAL / ECONOMIC IMPACTS Project Cost Design & Right of Way State Funding $ 2.35 million Federal Funding $ 1.68 million Construction Federal Funding $18.34 million Fort Collins $ 2.30 million Windsor $ 2.30 million Enhancements $ 0.50 million Total Project Cost $26.97 million The approval of the First Amended IGA and the proposed assessment ordinance will allow the City to recover 50% of the amounts the City has appropriated for the construction of the I-25 Interchange and local improvements in the Interchange area. ENVIRONMENTAL IMPACTS In 2008 the Fort Collins City Council and the Windsor Town Board adopted Joint Principles by resolution; the environmental sustainability language below was part of those Principles. Environmental Sustainability/Resource Protection: Ensure that interchange improvements occur in such a way that it minimizes environmental impacts to the greatest extent possible and protects the physical and natural environment in and around the interchange including but not limited to the Fossil Creek Reservoir Area. Subsequently, the City of Fort Collins and Town of Windsor have jointly agreed that the Project will mitigate wetland impacts at a 3:1 ratio, this meaning that the estimated 0.4 acres of impacts from the Project will be mitigated with the creation of 1.2 acres of new wetlands. STAFF RECOMMENDATION Staff recommends adoption of the Ordinances on First Reading. PUBLIC OUTREACH Staff of both municipalities held several stakeholder meetings, most recently on April 21, 2011, August 10, 2011, and October 27, 2011, as well as numerous individual meeting with stakeholder representatives. October 16, 2012 -4- ITEM 25 ATTACHMENTS 1. Draft Property Owner Agreement (Undeveloped Property) 2. Draft Property Owner Agreement (Developed Property) 3. Vicinity Map 4. Powerpoint presentation - 1 - AGREEMENT CONCERNING THE FUNDING OF A CERTAIN PORTION OF THE COST OF THE IMPROVEMENTS TO THE INTERSTATE 25/COLORADO STATE HIGHWAY 392 INTERCHANGE (UNDEVELOPED PROPERTY) THIS AGREEMENT is entered into this day of , 2012, by and between the City of Fort Collins, Colorado, a Colorado home rule municipality (the “City”) and ________________________ (referred to hereinafter collectively as the “Property Owner”). RECITALS WHEREAS, on or about January 3, 2011, the City and the Town entered into an Intergovernmental Agreement (“the IGA”) concerning the funding and construction of improvements to the Interstate 25/State Highway 392 Interchange (“the Interchange”) and related enhancements (the “Local Enhancements”), collectively referred to herein as the “Improvements;” and WHEREAS, in recognition of the special benefit that properties in close proximity to the Interchange will realize from the construction of the Improvements, including the increased capacity that the reconstruction and expansion of the Interchange will provide, the IGA states that a fee will be imposed by the City and the Town upon such property owners to recoup at least a portion of the funding that the City and the Town have contributed to make the Improvements possible (the “Local Share”); and WHEREAS, in recognition of the fact that the Windsor and Fort Collins communities as a whole will also benefit from the construction of the Improvements, the City and the Town have concluded that the amount of the fee to be assessed against said properties should be limited to fifty percent (50%) of the Local Share; and WHEREAS, the Property Owner is the owner of a parcel of undeveloped real property in the immediate vicinity of the Interchange; and WHEREAS, the City and the Property Owner have informally agreed on the amount and methodology for the assessment of the above-referenced fee, and by the terms of this Agreement desire to formally agree to same. NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: SECTION 1. DEFINITIONS In this Agreement, unless a different meaning clearly appears from the context, the following definitions shall apply: 1.1. “Agreement” means this Agreement and its attachments. ATTACHMENT 1 - 2 - 1.2. “City” means the City of Fort Collins, Colorado. 1.3. “Corridor Activity Center” or “CAC” means that area described on Exhibit “A,” attached hereto and incorporated herein by this reference. 1.4. “Development” shall have the meaning ascribed to that term in Section 5.1.2 of the City’s Land Use Code. 1.5. “Development Proposal” means any proposal to develop the Property under the applicable laws and regulations of the City or Larimer County. 1.6. “Effective Date” means January 1, 2013. 1.7. “Fee” means the fee to be paid by the Property Owner under the terms and conditions of this Agreement. 1.8. “Foster Study” means that document with attachments prepared by Foster Valuation, LLC, attached hereto as Exhibit “B” and incorporated herein by this reference. 1.9. “Interchange” means the Interstate 25 and State Highway 392 interchange. 1.10. “Interchange Improvements” means those improvements to the Interchange which constitute the Project. 1.11. “Improvements” means the Interchange Improvements and the Local Enhancements. 1.12. “Local Enhancements” means improvements to and near the Interchange that are being constructed and maintained by the Town and/or City and that are not part of the Project. 1.13. “Project” means the construction by CDOT of a new Interchange at Interstate Highway 25 and Colorado State Highway 392. 1.14. “Property” means that certain real property described on Exhibit “C,” attached hereto and incorporated herein. 1.15. “Redevelopment Proposal” means any application for the redevelopment of the Property. 1.16. “Town” means the Town of Windsor, Colorado. SECTION 2. ASSESSMENT OF FEE 2.1 Assessment of Fee. The Property Owner agrees that there shall be a Fee assessed against the Property in the amount of $________ to help defray the costs of the Improvements, which amounts represents the Property Owners’ share of the cost of both the Interchange Improvements and the Local Enhancements. The Property Owner hereby acknowledges and agrees that the amount of the Fee is fair and reasonable in view of the special benefit that the Property will receive from the Improvements, and the increased amount of - 3 - vehicular traffic that the future use of the Property will likely contribute to the Interchange. 2.2 Payment of Fee. The entire amount of the Fee shall be payable in full as a condition of the issuance of the first building permit for any improvements to be constructed pursuant to an approved Development proposal for the Property; provided, however, that in the event the approved development proposal and the subsequently issued building permit are for less than the entire Property, the amount of the Fee shall be proportionally reduced to reflect the amount of Property for which the building permit is issued, related to the entire Property. 2.3 Interest on assessed amount. Interest on the amount of the Fee shall begin to accrue on a compounded basis two (2) years after the Effective Date; provided, however, that there shall be no interest due in the event that the Fee is paid in full during the first two-year period. Once interest commences, it shall accrue at the rate of 2.35% per annum for a period of eight (8) years. Thereafter, interest shall accrue at the rate of 3.05% and shall continue at that rate until the Fee, plus all accrued interest, is paid in full. Once a year during each year of the term of this Agreement, the Property Owners shall have the right to prepay all or a portion of the Fee, including accrued interest thereon, by sending a written request to the City for a statement of accrued interest to date. 2.4 Notwithstanding any provision of this Agreement that may be construed to the contrary, in the event that the total amount of fee revenues paid to the City and the Town by or on behalf of the CAC Property Owners, either under the provisions of this Agreement or under the provisions of Ordinance No. _____, 2012 (the “Ordinance”), equals or exceeds the sum of Two Million Five Hundred Fifty Thousand Dollars ($2,550,000.00), plus interest accrued at the rate of 3.05% from the effective date of the Ordinance, all CAC Property Owners shall be relieved of any further obligation to make the payments to the City under this Agreement, notwithstanding the fact that all or a portion of the Fee may remain unpaid. SECTION 3. ONLY FEE TO BE ASSESSED It is understood and agreed that the City and Town shall, for a period of at least twenty-five (25) years from the Effective Date, assess no further fees or other charges upon the Property Owner related to the Improvements; provided, however, that nothing herein shall be deemed to preclude the City from charging development fees and costs generally applicable in the City and unrelated to the Improvements. In the event that this Section 3, or any part thereof, is held by a court of competent jurisdiction to be illegal or otherwise unenforceable, then the Property Owner shall be entitled, during the term of this Agreement, to offset any and all amounts paid pursuant to the provisions of this Agreement against any new fee or other charge related to the Improvements. SECTION 4. NON-SIGNING PROPERTY OWNERS The City and the Property Owner acknowledge that there are a number of other property owners within the CAC who may choose not to sign this Agreement, although they have been afforded - 4 - an opportunity to do so, and that the governing bodies of the City and Town have each enacted an ordinance within their respective jurisdictions imposing a separate fee upon such property owners for the purpose of recovering their fair share of the cost of the Improvements (the “Ordinance”). In the event that the City for any reason is unable to collect any portion of the fee imposed by the Ordinance upon such other property owners, that failure shall not increase the amount of the Fee due from the Property Owner under this Agreement, and the Property Owner shall not be liable to the City for any portion of the other property owners’ share of the cost of the Improvements. SECTION 5. WAIVER AND RELEASE In consideration of the concessions and compromises made by the City and reflected in this Agreement, the Property Owner, on its own behalf and on behalf of its officers, employees, agents, successors and assigns, hereby releases the City, its officers, employees, agents and assigns from, and waives, any and all present and future liability, claims, causes of action, losses, costs or expenses of any kind whatsoever arising from or in any way relating to the construction of the Improvements, including but not limited to the creation of the CAC benefit area, the findings of the Foster Study, the methodology used by the City to calculate the Fee, or the assessment of the Fee. Specifically, and without limiting the generality of the foregoing, in the event that the fee imposed by the Fort Collins City Council under Ordinance No. 117, 2012, is held to be unconstitutional or otherwise invalidated by a court of competent jurisdiction, the Property Owner, on its own behalf and on behalf of its officers, employees, agents, successors and assigns, agrees not to seek a refund of any payments made by the Property Owner under this Agreement, either directly from the City or through the commencement of legal proceedings. SECTION 6. MISCELLANEOUS 6.1. Amendment. This Agreement is the entire and only agreement between the Parties regarding the assessment of fees for the Improvements. There are no promises, terms, conditions, or other obligations other than those contained in this Agreement. This Agreement may be amended only in writing signed by the City and the Property Owner. 6.2. Severability. Except as provided in this Agreement, if any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal or otherwise unenforceable, such illegality or unenforceability will not affect the validity of any other part, term, or provision of this Agreement and the rights of the Parties will be construed as if that part, term, or provision was never part of this Agreement. 6.3. Colorado Law. This Agreement is made and delivered within the State of Colorado, and the laws of the State of Colorado will govern its interpretation, validity, and enforceability. 6.4. Jurisdiction of Courts. Personal jurisdiction and venue for any civil action commenced by any of the Parties to this Agreement for actions arising out of or relating to this Agreement will be the District Court of Larimer County, Colorado. 6.5. Representatives and Notice. Any notice or communication required or permitted under the terms of this Agreement will be in writing and may be given to the Parties or their respective - 5 - legal counsel by (a) hand delivery; (b) deemed delivered three business days after being deposited in the United States mail, with adequate postage prepaid, and sent via registered or certified mail with return receipt requested; or (c) deemed delivered one business day after being deposited with an overnight courier service of national reputation have a delivery area of Northern Colorado, with the delivery charges prepaid. The representatives will be: If to the City: City Manager 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80524 With a copy to City Attorney 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80524 If to the Property Owner: 6.6. Good Faith. In the performance of this Agreement or in considering any requested approval, acceptance, or extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold, condition or delay any approval, acceptance or extension of time required or requested pursuant to this Agreement. 6.7. Authorization. The Parties affirm and warrant that they are fully authorized to enter into and execute this Agreement, and all necessary action, notices, meetings, and hearings pursuant to any law required to authorize their execution of this Agreement have been made. 6.8. Execution in Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original and all of which taken together will constitute one and the same agreement. 6.9. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, are strictly reserved to the Parties and nothing in this Agreement shall give or allow any claim or right or cause of action whatsoever by any other person not included in this Agreement. It is the express intention of the Parties that no person and/or entity, other than the Parties, receiving services or benefits under this Agreement shall be deemed any more than an incidental beneficiary only. 6.10. Recordation of Agreement. The City shall record a copy of this Agreement in the office of the Clerk and Recorder of Larimer County, Colorado. - 6 - 6.11. Execution of Other Documents. The Parties agree to execute any additional documents and to take any additional actions necessary to carry out the terms of this Agreement. - 7 - CITY OF FORT COLLINS ________________________________ Mayor ATTEST: _________________________________ City Clerk PROPERTY OWNER By: ___________________________________ - 8 - Legal Description goes here - 1 - AGREEMENT CONCERNING THE FUNDING OF A CERTAIN PORTION OF THE COST OF THE IMPROVEMENTS TO THE INTERSTATE 25/COLORADO STATE HIGHWAY 392 INTERCHANGE (DEVELOPED PROPERTY) THIS AGREEMENT is entered into this day of , 2012, by and between the City of Fort Collins, Colorado, a Colorado home rule municipality (the “City”) and ________________________ (referred to hereinafter collectively as the “Property Owner”). RECITALS WHEREAS, on or about January 3, 2011, the City and the Town entered into an Intergovernmental Agreement (“the IGA”) concerning the funding and construction of improvements to the Interstate 25/State Highway 392 Interchange (“the Interchange”) and related enhancements (the “Local Enhancements”), collectively referred to herein as the “Improvements;” and WHEREAS, in recognition of the special benefit that properties in close proximity to the Interchange will realize from the construction of the Improvements, including the increased capacity that the reconstruction and expansion of the Interchange will provide, the IGA states that a fee will be imposed by the City and the Town upon such property owners to recoup at least a portion of the funding that the City and the Town have contributed to make the Improvements possible (the “Local Share”); and WHEREAS, in recognition of the fact that the Windsor and Fort Collins communities as a whole will also benefit from the construction of the Improvements, the City and the Town have concluded that the amount of the fee to be assessed against said properties should be limited to fifty percent (50%) of the Local Share; and WHEREAS, the Property Owner is the owner of a parcel of developed real property in the immediate vicinity of the Interchange; and WHEREAS, the City and the Property Owner have informally agreed on the amount and methodology for the assessment of the above-referenced fee, and by the terms of this Agreement desire to formally agree to same. NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: SECTION 1. DEFINITIONS In this Agreement, unless a different meaning clearly appears from the context, the following definitions shall apply: 1.1. “Agreement” means this Agreement and its attachments. ATTACHMENT 2 - 2 - 1.2. “City” means the City of Fort Collins, Colorado. 1.3. “Corridor Activity Center” or “CAC” means that area described on Exhibit “A,” attached hereto and incorporated herein by this reference. 1.4. “Effective Date” means January 1, 2013. 1.5. “Fee” means the fee to be paid by the Property Owner under the terms and conditions of this Agreement. 1.6. “Foster Study” means that document with attachments prepared by Foster Valuation, LLC, attached hereto as Exhibit “B” and incorporated herein by this reference. 1.7. “Interchange” means the Interstate 25 and State Highway 392 interchange. 1.8. “Interchange Improvements” means those improvements to the Interchange which constitute the Project. 1.9. “Improvements” means the Interchange Improvements and the Local Enhancements. 1.10. “Local Enhancements” means improvements to and near the Interchange that are being constructed and maintained by the Town and/or City and that are not part of the Project. 1.11. “Project” means the construction by CDOT of a new Interchange at Interstate Highway 25 and Colorado State Highway 392. 1.12. “Property” means that certain real property described on Exhibit “C,” attached hereto and incorporated herein. 1.13. “Redevelopment” shall have the meaning ascribed to that term in Section 5.1.2 of the City’s Land Use Code. 1.14. “Redevelopment Proposal” means any application for the redevelopment of the Property. 1.15. “Town” means the Town of Windsor, Colorado. SECTION 2. ASSESSMENT OF FEE 2.1 Assessment of Fee. The Property Owner agrees that there shall be a Fee assessed against the Property in the amount of $____________ to help defray the costs of Improvements, which amount represents the Property Owner’s share of the cost of both the Interchange Improvements and the Local Enhancements. The Property Owner hereby acknowledges and agrees that the amount of the Fee is fair and reasonable in view of the special benefit that the Property will receive from the Improvements, and the increased amount of vehicular traffic that the use of the Property will likely contribute to the Interchange. 2.2 Payment of Fee. The entire amount of the Fee shall be payable as a condition of the issuance of the first building permit for any improvements to be constructed pursuant to - 3 - an approved Redevelopment Proposal for the Property, but only if the amount of traffic that will be generated by the Property, as redeveloped under such Redevelopment Proposal, will increase by at least thirty-five percent (35%) the current volume of traffic on Property as of the Effective Date. In order that the projected increase in traffic generation under the Redevelopment Proposal may be determined for the purpose of this provision, the Redevelopment Proposal shall include a traffic study if deemed necessary by the Traffic Engineer of the City. 2.3 Interest on assessed amount. Interest on the amount of the Fee shall begin to accrue on a compounded basis two (2) years after the Effective Date; provided, however, that there shall be no interest due in the event that the Fee is paid in full during the first two-year period. Once interest commences, it shall accrue at the rate of 2.35% per annum for a period of eight (8) years. Thereafter, interest shall accrue at the rate of 3.05% and shall continue at that rate until the Fee, plus all accrued interest, is paid in full. Once a year during each year of the term of this Agreement, the Property Owners shall have the right to prepay all or a portion of the Fee, including accrued interest thereon, by sending a written request to the City for a statement of accrued interest to date.’ 2.4 Notwithstanding any provision of this Agreement that may be construed to the contrary, in the event that the total amount of fee revenues paid to the City and the Town by or on behalf of the CAC Property Owners, either under the provisions of this Agreement or under the provisions of Ordinance No. ___, 2012 (the “Ordinance”), equals or exceeds the sum of Two Million Five Hundred Fifty Thousand Dollars ($2,550,000.00), plus interest accrued at the rate of 3.05% from the effective date of the Ordinance, all CAC Property Owners shall be relieved of any further obligation to make payments to the City under this Agreement, notwithstanding the fact that all or a portion of the Fee may remain unpaid. SECTION 3. ONLY FEE TO BE ASSESSED It is understood and agreed that the City and Town shall, for a period of at least twenty-five (25) years from the Effective Date, assess no further fees or other charges upon the Property Owner related to the Improvements; provided, however, that nothing herein shall be deemed to preclude the City from charging development fees and costs generally applicable in the City and unrelated to the Improvements. In the event that this Section 3, or any part thereof, is held by a court of competent jurisdiction to be illegal or otherwise unenforceable, then the Property Owner shall be entitled, during the term of this Agreement, to offset any and all amounts paid pursuant to the provisions of this Agreement against any new fee or other charge related to the Improvements. SECTION 4. NON-SIGNING PROPERTY OWNERS The City and the Property Owner acknowledge that there are a number of other property owners within the CAC who may choose not to sign this Agreement, although they have been afforded an opportunity to do so, and that the governing bodies of the City and Town have each enacted an ordinance within their respective jurisdictions imposing a separate fee upon such property owners for the purpose of recovering their fair share of the cost of the Improvements (the “Ordinance”). In the event that the City for any reason are unable to collect any portion of the - 4 - fee imposed by the Ordinance upon such other property owners, that failure shall not increase the amount of the Fee due from the Property Owner under this Agreement, and the Property Owner shall not be liable to the City for any portion of the other property owners’ share of the cost of the Improvements. SECTION 5. WAIVER AND RELEASE In consideration of the concessions and compromises made by the City and reflected in this Agreement, the Property Owner, on its own behalf and on behalf of its officers, employees, agents, successors and assigns, hereby releases the City, its officers, employees, agents and assigns from, and waives, any and all present and future liability, claims, causes of action, losses, costs or expenses of any kind whatsoever arising from or in any way relating to the construction of the Improvements, including but not limited to the creation of the CAC benefit area, the findings of the Foster Study, the methodology used by the City to calculate the Fee, or the assessment of the Fee. Specifically, and without limiting the generality of the foregoing, in the event that the fee imposed by the Fort Collins City Council under Ordinance No. 117, 2012, is held to be unconstitutional or otherwise invalidated by a court of competent jurisdiction, the Property Owner, on its own behalf and on behalf of its officers, employees, agents, successors and assigns, agrees not to seek a refund of any payments made by the Property Owner under this Agreement, either directly from the City or through the commencement of legal proceedings. SECTION 6. MISCELLANEOUS 6.1. Amendment. This Agreement is the entire and only agreement between the Parties regarding the assessment of fees for the Improvements. There are no promises, terms, conditions, or other obligations other than those contained in this Agreement. This Agreement may be amended only in writing signed by the City and the Property Owner. 6.2. Severability. Except as provided in this Agreement, if any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal or otherwise unenforceable, such illegality or unenforceability will not affect the validity of any other part, term, or provision of this Agreement, and the rights of the Parties will be construed as if that part, term, or provision was never part of this Agreement. 6.3. Colorado Law. This Agreement is made and delivered within the State of Colorado, and the laws of the State of Colorado will govern its interpretation, validity, and enforceability. 6.4. Jurisdiction of Courts. Personal jurisdiction and venue for any civil action commenced by any of the Parties to this Agreement for actions arising out of or relating to this Agreement will be the District Court of Larimer County, Colorado. 6.5. Representatives and Notice. Any notice or communication required or permitted under the terms of this Agreement will be in writing and may be given to the Parties or their respective legal counsel by (a) hand delivery; (b) deemed delivered three business days after being deposited in the United States mail, with adequate postage prepaid, and sent via registered or certified mail with return receipt requested; or (c) deemed delivered one business day after being - 5 - deposited with an overnight courier service of national reputation have a delivery area of Northern Colorado, with the delivery charges prepaid. The representatives will be: If to the City: City Manager 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80524 With a copy to City Attorney 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80524 If to the Property Owner: 6.6. Good Faith. In the performance of this Agreement or in considering any requested approval, acceptance, or extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold, condition or delay any approval, acceptance or extension of time required or requested pursuant to this Agreement. 6.7. Authorization. The Parties affirm and warrant that they are fully authorized to enter into and execute this Agreement, and all necessary action, notices, meetings, and hearings pursuant to any law required to authorize their execution of this Agreement have been made. 6.8. Execution in Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original and all of which taken together will constitute one and the same agreement. 6.9. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, are strictly reserved to the Parties and nothing in this Agreement shall give or allow any claim or right or cause of action whatsoever by any other person not included in this Agreement. It is the express intention of the Parties that no person and/or entity, other than the Parties, receiving services or benefits under this Agreement shall be deemed any more than an incidental beneficiary only. 6.10. Recordation of Agreement. The City shall record a copy of this Agreement in the office of the Clerk and Recorder of Larimer County, Colorado. 6.11. Execution of Other Documents. The Parties agree to execute any additional documents and to take any additional actions necessary to carry out the terms of this Agreement. - 6 - CITY OF FORT COLLINS ________________________________ Mayor ATTEST: _________________________________ City Clerk PROPERTY OWNER By: ___________________________________ - 7 - Legal Description goes here [_ I-25 & 392 Interchange COUNTY ROAD 5 KECHTER 4TH MAIN MASON COUNTY ROAD 7 COUNTY ROAD 3 COUNTY ROAD 30 BOARDWALK BOYD LAKE 71ST 66TH COUNTY ROAD 36 COUNTY ROAD 9 COUNTY ROAD 13 FAIRGROUNDS COUNTY ROAD 11 COUNTY ROAD 11C TROUTMAN PRIVATE DRIVE COUNTY ROAD 34E 65TH TIMBERLINE COUNTY ROAD 30 COUNTY ROAD 3 COUNTY ROAD 30 S SHIELDS ST INTERSTATE 25 S COLLEGE AVE E TRILBY RD S COUNTY ROAD 5 E COUNTY ROAD 30 S LEMAY AVE S TIMBERLINE RD E HARMONY RD CARPENTER RD E COUNTY ROAD 32 KECHTER RD ZIEGLER RD W TRILBY RD E COUNTY ROAD 38 STATE HIGHWAY 392 W HARMONY RD MAIN ST STRAUSS CABIN RD S COUNTY ROAD 3F S COUNTY ROAD 7 S US HIGHWAY 287 S L EMAY AVE E COUNTY ROAD 32 ZIEGLER RD INTERSTATE 25 S TIMBERLINE RD Legend Fort Collins City Limits Growth Management Area E 1 1 I-25 & SH392 INTERCHANGE Council Meeting October 16, 2012 2 I-25 & SH392 INTERCHANGE PROJECT COST Design & Right of Way State & Federal Funding $ 4.03 million Construction Federal Funding $18.34 million Fort Collins $ 2.30 million Windsor $ 2.30 million Enhancements $ 0.50 million Total Project Cost $26.97 million ATTACHMENT 4 2 3 I-25 & SH392 INTERCHANGE • Construction amount funded by Fort Collins and Windsor $5.1 million • 50% to be recovered thru fees ($2.6 million) 4 I-25 & SH392 INTERCHANGE KEY ELEMENTS OF 2010 IGA • Design standards for future development • Upfront cost-sharing contributions (City and Town) • Establishment of the Corridor Activity Center (“CAC”) • Revenue sharing from future development in the CAC 3 5 I-25 & SH392 INTERCHANGE Ordinance No. 118, 2012 Adopts the First amended intergovernmental agreement (IGA) with Windsor 6 I-25 & SH392 INTERCHANGE FIRST AMMENDED IGA • Provides for a community contribution from the City and Town, reducing the amount to be recovered thru a “special fee” • Eliminates Public Improvement Fee (“PIF”) • Includes enhancement costs in the fee to be paid by the owners of property 4 7 I-25 & SH392 INTERCHANGE FIRST AMMENDED IGA (cont.) • Establishes final CAC boundaries in accordance with Foster Study • Calls for a fee to be paid by the owners of property 8 I-25 & SH392 INTERCHANGE Ordinance No. 117, 2012 • Establishes the fee to be paid by the owners of property within the CAC 5 9 I-25 & SH392 INTERCHANGE SPECIAL FEE • Proximity Component – Properties in the CAC will benefit from the reconstruction of the Interchange – Amount of Proximity Component based on the Foster Study • Trip Generation Component – Properties will add more traffic to the Interchange – Determined by the number of vehicular trips generated by each property times $7.75 per trip 10 I-25 & SH392 INTERCHANGE FEE PAYMENT • The Proximity Component of the fee will be payable in equal quarterly installments, with interest, beginning March 31, 2013 thru March 31, 2020 • The Trip Generation Component for developed properties will also be payable in equal quarterly installments, with interest, beginning March 31, 2013 thru March 31, 2020 • The Trip Generation Component for undeveloped properties will be added to the quarterly payments 90 days after the date of the final approval of any development proposal and will be payable over seven years. 6 11 I-25 & SH 392 INTERCHANGE FEE PAYMENT • For properties currently in the County: – The first installment of the Proximity Component will be due 90 days after annexation and will be payable in quarterly installments over seven years. – For developed properties and properties with an approved development plan, the first installment of the Trip Generation Component will also begin 90 days after annexation and payable over seven years. – For undeveloped properties, the first installment of the Trip Generation Component will be payable 90 days after approval of a development proposal and will be payable over seven years 12 I-25 & SH392 INTERCHANGE PAYMENT BY AGREEMENT • Property Owners may elect to pay the fee thru a written agreement with the City instead of under the Ordinance • Under the Agreement: – No interest will be due on the principal amount of the fee for the first two years – A reduced interest rate will charged for the first 8 years – For undeveloped properties, payment of the fee and interest will be deferred until the first building permit 7 13 I-25 & SH392 INTERCHANGE PAYMENT BY AGREEMENT • Under the Agreement: – For developed properties, payment of the fee will not be required until redevelopment of the property increases trips generated by 35% – Any Property Owner electing to enter into the agreement must notify the City Manager on or before November 30, 2012, and the agreement must be approved by the City Council on or before December 31, 2012. 14 I-25/392 INTERCHANGE FEE REVENUES CAPPED Under both the Ordinance and the Agreement, the City would cease collecting the fee from Property Owners once the City and the Town have received $2.6 million in fee revenues, plus interest at the rate of 3.05% per annum 8 15 I-25 & SH392 INTERCHANGE Questions? 16 Page 1 ORDINANCE NO. 117, 2012 OF THE COUNCIL OF THE CITY OF FORT COLLINS ESTABLISHING A SPECIAL FEE TO BE PAID BY THE OWNERS OF PROPERTY WITHIN CLOSE PROXIMITY TO THE RECONSTRUCTED INTERCHANGE AT THE INTERSECTION OF INTERSTATE 25 AND STATE HIGHWAY 392 WHEREAS, on or about January 3, 2011, the City of Fort Collins (the “City”) and the Town of Windsor, Colorado, (the “Town”) entered into an intergovernmental agreement (the “Original IGA”) concerning, among other things, the reconstruction of the Interstate 25/State Highway 392 Interchange (the “Interchange); and WHEREAS, prior to the adoption of this Ordinance, the City Council has, by adoption of Ordinance No. 118, 2012, approved a First Amended Intergovernmental Agreement Pertaining to the Development of the Interstate 25/State Highway 392 Interchange (the “First Amended IGA”) restating and reaffirming those provisions of the Original IGA that the City and the Town desire to remain in full force and effect; and WHEREAS, the reconstruction of the Interchange was made possible by a combination of federal, state and local funding, totaling approximately $25 million, with the City and the Town jointly contributing approximately $4.6 million; and WHEREAS, the City and the Town have committed to expend an additional $500,000 to defray the costs of certain local enhancements to the Interchange (the “Local Enhancements”); and WHEREAS, the construction of the Interchange improvements and the Local Enhancements (collectively, the “Improvements”) is nearing completion; and WHEREAS, the City and the Town are home rule municipalities that, under Article XX, Section 6 of the Colorado Constitution, have the authority to enact fees to recover the cost of providing infrastructure or services to properties within their respective jurisdictions; and WHEREAS, the Colorado Supreme Court has affirmed this authority in several separate decisions of the Court, including Bloom v. City of Fort Collins, 784 P.2d 304 (Colo. 1989), and E-470 Public Highway Authority v. The 455 Company, 3 P.3d 18 (Colo. 2000); and WHEREAS, under the First Amended IGA, the City and the Town have agreed to impose a fee upon the owners of properties located within the Corridor Activity Center (“CAC”), which is shown on Exhibit “A,” attached hereto and incorporated herein by this reference, because such properties (the “Benefitted Properties”) are located in close proximity to the Interchange and will especially benefit from the reconstruction of the Interchange, and because the development or redevelopment of those properties will add more traffic to the Interchange; and WHEREAS, in recognition of the fact that the Windsor and Fort Collins communities as a whole will also benefit from the construction of the Improvements, the City and the Town have Page 2 concluded that the amount of the fee to be assessed against said properties should be limited to fifty percent (50%) of the total amount expended by the City and the Town for the Improvements; and WHEREAS, in order to fairly apportion the amount to be recovered from the property owners, the City and the Town have commissioned a study by a licensed MAI appraiser to determine the amount of appreciation in value that will be experienced by the Benefitted Properties, which study (the “Foster Study”) has been completed and submitted to the City and the Town and is attached hereto and incorporated herein by this reference as Exhibit “B”; and WHEREAS, the Foster Study indicates that the appreciation in value the Benefitted Properties will experience as a result of the reconstruction of the Interchange will be more than sufficient to support the imposition of a fee in the total amount of 50% of the local share of the cost of the Improvements; and WHEREAS, City and Town staff have recommended that the fee be apportioned not only according to the anticipated appreciation in value that the Benefitted Properties will experience as a result of the construction of the Interchange, but also according to the relative impacts that the development or redevelopment of such properties will have on the Interchange, as measured by the estimated number of additional vehicular trips that will be generated by the developed use of the properties; and WHEREAS, during staff’s outreach to the property owners, some of the property owners have questioned the legal validity of the proposed fee and have expressed an intention to challenge the imposition of the same through the commencement of legal proceedings; and WHEREAS, in order to avoid the expense of litigation, the staff of the City and the Town have attempted to negotiate a settlement agreement with the property owners and have proposed that, in exchange for the release of any such claims, the property owners signing the settlement agreement would be permitted to defer payment of the entire amount of the fee until their properties are developed or redeveloped, the amount of their fee would be capped at the amount estimated in the agreement, and no interest would accrue on their fee for a period of two years from the date of execution of the agreement; and WHEREAS, some but not all of the property owners have expressed a willingness to enter into such an agreement; and WHEREAS, the City Council believes it to be in the best interests of the City to proceed with the imposition of the fee and to extend the period of time within which the property owners may elect to enter into a settlement agreement with the City and the Town upon the terms and conditions described above. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Page 3 Section 1. Special fee. (a) Findings. The foregoing recitals are hereby adopted by the City Council as findings in support of the adoption of this Ordinance. (b) Definitions. The following definitions, together with the defined terms contained in the foregoing recitals, shall be applicable to the provisions of this Ordinance: (1) CAC Property shall mean a parcel of real property within the CAC. (2) Developed Property shall mean a CAC Property for which a development proposal has been approved as of the effective date of this Ordinance, either by the City or by Larimer County prior to annexation of the property to the City, whether or not any improvements have been constructed on such property. (3) Development Proposal shall mean an application for the development of an Undeveloped Property. (4) Foster Study shall mean that document, with attachments, prepared by Foster Valuation Company, LLC and attached hereto as Exhibit “B”. (5) Local Contribution shall mean the total contributions of the City and the Town to the reconstruction of the Interchange and the construction of the Local Enhancements, in the approximate amount of Five Million One Hundred Thousand Dollars ($5,100,000.00). (6) Property Owner shall mean and include the current and any future fee owner of a CAC Property. (7) Redevelopment Proposal shall mean an application for the redevelopment of a Developed Property. (8) Undeveloped Property shall mean a vacant CAC Property for which no development or redevelopment proposal plan of development has been approved as of the effective date of this Ordinance, either by the City or Larimer County prior to the annexation of the property to the City. (c) Imposition of the fee. (1) There is hereby established a special fee that shall be imposed pursuant to the provisions of this Ordinance upon the owners of all CAC Properties. Said fee shall consist of a Proximity Component and a Trip Generation Component. The Proximity Component of the fee is intended to reflect the relative benefit derived by each CAC Property from the construction of the Improvements, as determined Page 4 by the Foster Study, while the Trip Generation Component of the fee is intended to reflect the relative traffic impacts of each CAC Property. a. The Proximity Component of the fee for all Developed and Undeveloped Properties shall be in the amounts shown in the following spreadsheet. These amounts represent each CAC Property’s proportionate share of the sum of One Million Two Hundred Thousand Seventy-five Dollars ($1,275,000.00), which is one-half of the Property Owners’ share of the Local Contribution. b. The amount of the Trip Generation Component shall be calculated by identifying the number of vehicular trips per day that each CAC property, as developed or redeveloped, generates or will generate, using the ITE Trip Generation Manual, 8th Edition, as amended, and by multiplying that number by seven and seventy-five one-hundreths dollars per trip, which amount has been determined by dividing the remaining one-half of the Property Owners’ share of the Local Contribution by the estimated total number of trips generated in the CAC. (d) Payment of the fee. (1) For CAC properties currently located within the City limits. a. The Proximity Component of the fee shall be payable in equal quarterly installments, with the first such installment due and payable on or before March 31, 2013, and the last such installment due and payable on or before March 31, 2020. GROSS DEVELOPABLE TOTAL TOTAL LAND AREA LAND AREA FEE/SF FEE ZONE A 86150-00-007 INTERSTATE LAND HOLDINGS, LLC 645,519 297,910 $0.28 $82,892 $41,446 86220-00-014 VPD392/PRATO, LLC 186,550 186,550 $0.28 $51,907 $25,953 ZONE B 86222-47-701&2 LODGEPOLE INVESTMENTS, LLC 578,912 578,912 $0.21 $120,810 $60,405 ZONE B - 1 86150-00-009 B3 VENTURES LLC 407,722 336,499 $0.21 $70,222 $35,111 ZONE C 86150-00-005 FOSSIL POINT, LLC 1,026,879 955,151 $0.12 $110,736 $55,368 86150-00-013 BURNETTE/YOUNG INVESTMENTS 939,698 587,429 $0.12 $68,104 $34,052 86220-00-014 VPD392/PRATO, LLC 1,041,071 596,500 $0.12 $69,156 $34,578 86222-47-701 LODGEPOLE INVESTMENTS, LLC 244,668 81,404 $0.12 $9,438 $4,719 86222-47-702 LODGEPOLE INVESTMENTS, LLC 903,159 681,468 $0.12 $79,006 $39,503 86220-00-017 VAN CLEAVE, TERRY/MARY 1,708,402 1,576,365 $0.12 $182,757 $91,379 Larimer County Parcel # OWNER PROXIMITY COMPONENT OF FEE Page 5 b. The Trip Generation Component of the fee shall also be payable in equal quarterly installments. For Developed Properties, the first installment of the Trip Generation Component shall be due and payable on or before March 31, 2013, and the last such installment shall be due and payable on or before March 31, 2020. For Undeveloped Properties, the first installment of the Trip Generation Component shall be due and payable ninety (90) days after the date of the City’s final approval of any Development Proposal for such property, and the last installment shall be due and payable no later than seven (7) years thereafter. (2) For CAC Properties currently within unincorporated Larimer County. a. For Developed Properties, and for Undeveloped Properties for which a development proposal has been approved by Larimer County between the effective date of this Ordinance and the effective date of the annexation of the property to the City, both the Proximity Component and the Trip Generation Component of the fee shall be payable in equal quarterly installments within ninety (90) days after the effective date of the annexation, and the last such installment shall be due and payable no later than seven (7) years thereafter. The Trip Generation Component shall be based upon the approved development plan that exists as of the date of the annexation. b. For Undeveloped Properties for which no development proposal has been approved prior to the date of annexation, the first installment of the Proximity Installment of the Fee shall be due and payable within ninety (90) days of the effective date of annexation, and the last installment shall be due and payable no later than seven (7) years thereafter. The first installment of the Trip Generation Component shall be due and payable ninety (90) days after the date of the City’s final approval of any Development Proposal for such property, and the last installment shall be due and payable no later than seven (7) years thereafter. c. For the purposes of this Subsection (d)(2), the effective date of annexation shall be as provided in C.R.S. Section 31-12-113. (3) Interest on the foregoing payments shall accrue at the rate of three and five one-hundreths percent (3.05%) per annum from the effective date of this Ordinance until the principal amount of such payments has been paid in full. (4) Notwithstanding any provision of this Ordinance that may be construed to the contrary, in the event that the total amount of fee revenues paid to the City and the Town by or on behalf of the CAC Property Owners, either under the provisions of this Ordinance or under agreements executed pursuant to Section 2 of this Ordinance, equals or exceeds the sum of Two Million Five Hundred Fifty Thousand Dollars ($2,550,000.00), plus interest on said amount from the effective date of this Ordinance at the rate of three and five one-hundreths (3.05%), all CAC Property Owners shall be relieved of any further obligation to pay the fee imposed by this Ordinance, notwithstanding the fact that all or a portion of said fee may remain unpaid. Page 6 (e) Unpaid charges a lien. If any amount due and payable to the City under the provisions of this Ordinance is not paid on or before the due date specified in the billing notice sent to the Property Owner by the Financial Officer, penalty interest shall accrue and be payable on such amount at the rate of ten percent (10%) per annum, and the entire unpaid balance, plus interest and collection costs, if any, shall constitute a perpetual lien on the CAC Property to which the fee applies. (f) Appeals. Property Owners may appeal to the Financial Officer in writing at any time the question of whether properties owned or occupied by them are being charged the proper fee under the provisions of this Ordinance. The burden shall be on the appellant to provide substantial, competent evidence that the CAC Property that is the subject of the appeal is not being charged the proper fee. The Financial Officer may hold a hearing on the appeal in his or her discretion, and may consider other competent evidence provided by City staff. The Financial Officer‘s written decision shall be mailed to the applicant within thirty (30) days of receipt of the appeal. The appellant may appeal the Financial Officer’s decision to the City Manager pursuant to Division 3 of Chapter 2 of the City Code. (g) Fee not an impact fee or development charge subject to state regulation. It is the intention of the City Council that the fee imposed under the provisions of this Ordinance not be construed as an impact fee or development charge within the meaning of Section 29-20-104.5, C.R.S. but a special fee imposed under the home rule authority of the City. Accordingly, to the extent that any of the provisions of said Section 29-20-104.5 may conflict with the provisions of this Ordinance, the provisions of this Ordinance shall control. (h) Severability. If any section, clause, phrase, word or other provision of this Ordinance is for any reason held to be unconstitutional or otherwise invalid, such holding shall not affect the validity of the remaining sections, sentences, clauses, phrases, words or other provisions of this Article or the validity of this Article as an entirety, it being the legislative intent that this Article shall stand, notwithstanding the invalidity of any section, sentence, clause, phrase, word or other provision. Section 2. Payment by agreement. (a) In lieu of paying the fee imposed by this Ordinance according to the terms and conditions contained in Section 1 above, Property Owners may elect to pay the fee pursuant to the terms and conditions of a written agreement with the City, which agreement shall include the following provisions: (1) No interest accrue or be due on the principal amount of the fee for the first two years following the execution of the agreement; thereafter, interest will accrue at the rate of 2.35% for the first eight years and at the rate of 3.05% for each additional year until the fee, together with accrued interest, is paid in full. Page 7 (2) Payment of the full amount of the fee, and all interest due thereon, will be deferred, in its entirety, for Undeveloped Properties in the CAC until the first building permit is issued for such properties pursuant to an approved Development Proposal for the property. (3) Payment of the fee will not be required for Developed Properties in the CAC unless the amount of traffic that will be generated by such property, as redeveloped under a Redevelopment Proposal, will increase by at least thirty-five percent (35%), as compared to the amount of traffic generated by the current use of the property. (4) The total amount of the fee will be capped at the amount stated in the agreement. (b) No such agreement may be entered into by the City unless the Property Owner electing to enter into the same notifies the City Manager in writing of his or her desire to do so on or before November 30, 2012, and the agreement is approved by the City Council on or before December 31, 2012. Introduced, considered favorably on first reading, and ordered published this 16th day of October, A.D. 2012, and to be presented for final passage on the 6th day of November, A.D. 2012. _________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on the 6th day of November, A.D. 2012. _________________________________ Mayor ATTEST: _____________________________ City Clerk Page 8 PLACEHOLDER FOR Exhibit A CAC - Map Page 9 PLACEHOLDER FOR Exhibit B – Foster Study E C ounty Road 32 S County Road 5 E C ounty Road 30 !"`$ !"`$ ôZYXW ôZYXW Fossil Creek Reservoir 0 0.1 0.2 0.3 0.4 0.5 Miles © I25 - State HWY 392 Interchange Corridor Activity Center Land Use Commercial Employment Residential Natural Resource Buffer I-25 Setback Wetlands Boundaries CAC Fort Collins GMA Windsor GMA Parcels Proposed Interchange Redesign Interchange Footprint Right of Way Changes CITY OF FORT COLLINS GEOGRAPHIC INFORMATION SYSTEM MAP PRODUCTS These map products and all underlying data are developed for use by the City of Fort Collins for its internal purposes only, and were not designed or intended for general use by members of the public. The City makes no representation or warranty as to its accuracy, timeliness, or completeness, and in particular, its accuracy in labeling or displaying dimensions, contours, property boundaries, or placement of location of any map features thereon. THE CITY OF FORT COLLINS MAKES NO WARRANTY OF MERCHANTABILITY OR WARRANTY FOR FITNESS OF USE FOR PARTICULAR PURPOSE, EXPRESSED OR IMPLIED, WITH RESPECT TO THESE MAP PRODUCTS OR THE UNDERLYING DATA. Any users of these map products, map applications, or data, accepts them AS IS, WITH ALL FAULTS, and assumes all responsibility of the use thereof, and further covenants and agrees to hold the City harmless from and against all damage, loss, or liability arising from any use of this map product, in consideration of the City's having made this information available. Independent verification of all data contained herein should be obtained by any users of these products, or underlying data. The City disclaims, and shall not be held liable for any and all damage, loss, or liability, whether direct, indirect, or consequential, which arises or may arise from these map products or the use thereof by any person or entity. Printed: February 24, 2011 EXHIBIT A W. West Foster, MAI, CRE, SR/WA ♦ Sue Anne Foster, MAI, SRA Jon M. Vaughan, MAI, SR/WA ♦ Christine Antonio ♦ Michael Smith Certified General Real Estate Appraisers ♦ 910 54th Avenue, Suite 210, Greeley, Colorado 80634 Phone (970) 352-1117 ♦ FAX (970) 323-2753 October 3, 2012 Mr. Rick Richter Capital Projects Manager Engineering Department City of Fort Collins P.O. Box 580 Fort Collins, Colorado 80522-0580 John P. Frey, Esq. Frey McCargar & Plock, LLC The Historic Harmony Mill 131 Lincoln Avenue, Suite 100 Fort Collins, CO 80524 RE: Interstate 25 and Colorado State Highway 392 Reimbursement Study- Revised October 3, 2012 Dear Mr. Richter and Mr. Frey: At your request, I am submitting my revised appraisal consulting report, which involves a reimbursement study prepared to estimate an equitable manner to assess property owners within the Fort Collins Growth Management Area (GMA) and the Windsor GMA who benefit from the capital improvement project proposed to improve traffic flow and reduce congestion at the Interstate 25 and Colorado State Highway 392 interchange. Scope of the Assignment City of Fort Collins and Town of Windsor officials have committed to fund approximately $2.3 million as their share of the proposed interchange construction costs and an additional $250,000 for interchange enhancements. This study is to determine a fair and equitable manner for the two municipalities to assess property owners and be reimbursed based on the estimated influence the project is to have on the value of those properties in proximity to the project. The study involves making a determination of which properties within the City of Fort Collins and the Town of Windsor growth management areas in proximity to the Interstate 25 and Colorado State Highway 392 interchange are EXHIBIT B Mr. Rick Richter and John P. Frey, Esq. Page 2 October 3, 2012 being benefitted from the proposed interchange improvements and to what extent the properties are enhanced by the proposed access enhancements. The properties within the two growth management areas in proximity to the interchange were studied to formulate an opinion as to the extent they are estimated to benefit from the proposed interchange improvements. The areas of influence are reduced typically based on the diminished proximity to the interchange. The conclusion was reached that when confined to properties within both communities' growth management areas, the sites within the corridor activity center (CAC) boundary were those deemed to possess the most influence from the interchange improvements. The initial focus of my investigation was to study the influences on land value in proximity to newly developed interstate highway interchanges. The four interchanges that had the most significant and relevant data were in the Denver Metropolitan area. The two interchanges where the most significant data were found included the recently constructed Interstate 25 and 144th Avenue interchange and the Interstate 25 and 136th Avenue interchange. Data in proximity to the E-470 and East Smoky Hill Road interchange and the E-470 and the South Gartrell Road interchange were also studied. These data were then utilized to estimate the extent to which the land around this interchange would increase in value after the interchange improvements are made. Based on the data gathered at the four interchanges mentioned, it was concluded that there are four areas of influence, which I have labeled Value Enhancement Zones A through D. On the attached I25 - State Highway 392 Interchange Value Enhancement Zones map, Zones A and A-1 are highlighted in red, Zones B and B-1 are in orange, Zone C is shown in pale green, and Zone D is highlighted in darker green. Zones A and A-1 feature the best proximity to the interchange and, in my opinion, will benefit the greatest from the interchange improvements. Zone A consists of commercially-zoned land. Zone A-1 consists of commercial lots on the east side of Interstate 25 straddling Colorado State Highway 392. Based on the investigation of data surrounding the four interchanges discussed above, Zone A prices increased from the period before the interchanges were constructed to the period after the interchanges were nearing completion on the average of $7.00 to $7.50 per square foot. Mr. Rick Richter and John P. Frey, Esq. Page 3 October 3, 2012 Zones B and B-1 are slightly farther removed from the interchange, but still possess strong influence for potential commercial uses. Zone B consists strictly of vacant commercially-zoned land. The Zone B-1 parcel consists of a commercial site on the west side of Interstate 25 north of Colorado State Highway 392 that has been significantly improved with buildings. Zone B prices increased from the period before the interchanges were constructed to the period after the inter- changes were nearing completion on the average of $4.50 to $4.75 per square foot. Zone C is farther removed from the interchange, and the data at the interchanges studied suggest that these sites are influenced by interstate frontage and benefit from good accessibility. Zone C prices increased from the period before the interchanges were constructed to the period after the interchanges were nearing completion on the average of $3.50 to $4.00 per square foot. Zone D is yet farther removed from the interchange, and the data at the interchanges studied suggest that these sites are also influenced by interstate frontage and benefit from good accessibility due to the interchange improvements. Zone D prices increased from the period before the interchanges were constructed to the period after the interchanges were nearing completion on the average of $2.00 to $2.25 per square foot. The preceding data are generated from newly developed interchanges where none previously existed. The value increases at the Interstate 25 and Colorado State Highway 392 interchange are not expected to be quite as dramatic. Value Enhancement Fee Estimates Each property within the four primary zones discussed above is shown in the attached Value Enhancement Zone Analysis spreadsheet and is identified by Larimer County assessor's parcel number and ownership as indicated in county records. The gross land area has been calculated using the best available information; and the non-developable areas have been calculated using City of Fort Collins Geographical Information System (GIS) data, which then results in a developable land area calculation per square foot. The value enhancement fees will be assessed based on developable land area per square foot at the time the sites are developed or when the sites are redeveloped. Mr. Rick Richter and John P. Frey, Esq. Page 4 October 3, 2012 At the newly constructed interchanges studied, the Zone A prices increased on the average of $7.00 to $7.50 per square foot. Since no interchanges existed before, these average increases are greater than what would be expected at Interstate 25 and Colorado State Highway 392 when the interchange improvements are completed since that interchange already exists. Using 25 to 50 percent of the $7.00 to $7.50 per square foot estimated value after the interchange improvements are made results in a forecast increase from $1.88 to $3.75 per square foot for Zones A and A-1. There are 1,576,345 square feet of developable land area in Zones A and A-1. It is forecast that value increases in Zone A category will be from just over $2.9 million to nearly $6 million. In Zones B and B-1 prices increased on the average of $4.50 to $4.75 per square foot at the interchanges studied. Again, since an interchange already exists at Interstate 25 and Colorado State Highway 392, the increase is not expected to be as great. If a range of 25 to 50 percent is utilized again, it results in a forecast increase from $1.16 to $2.32 per square foot within Zones B and B-1. There are 4,333,889 square feet of developable land area in Zones B and B-1. It is forecast that value increases in Zones B and B-1 will be from $5.0 to nearly $10.1 million. Land prices in Zone C at the interchanges studied increased on the average of $3.50 to $4.00 per square foot due to the new interchange construction. Again, since the Interstate 25 and Colorado State Highway 392 interchange already exists, the increase is not expected to be as great. If a range in forecast value increases of 25 to 50 percent is utilized again, it results in a forecast increase from $0.94 to $1.88 per square foot within Zone C. There are 6,682,600 square feet of developable land area in Zone C. It is forecast that value increases in the Zone C category will be from $6.3 to nearly $12.6 million. At the interchanges studied, land prices in Zone D increased on the average of $2.00 to $2.25 per square foot as a result of the new interchange being constructed. As with the preceding zones analyzed, since the Interstate 25 and Colorado State Highway 392 interchange already exists, the increase is not expected to be as great. If a range in forecast value increases of 25 to 50 percent is utilized again, it results in a forecast increase from $0.53 to $1.06 per square foot within Zone D. There are 9,320,291 square feet of developable land area in Zone D. It is forecast that value increases in the Zone C category will be from $4.9 to nearly $9.9 million. Mr. Rick Richter and John P. Frey, Esq. Page 5 October 3, 2012 It is clear from the data gathered at the four interchanges studied that the improvements proposed at the Interstate 25 and Colorado State Highway 392 interchange will enhance property values within the CAC at a minimum of $19.1 million, which is greater than the $2.55 million being assessed. Exhibit A: I25 - State HWY 392 Interchange Map Exhibit B: Value Enhancement Zone Analysis spreadsheet Exhibit C: Qualifications of W. West Foster Exhibit D: Certification E C ounty Road 32 S County Road 5 E C ounty Road 30 !"`$ !"`$ ôZYXW ôZYXW F o s s i l C r e e k R e s e r v o i r 0 0.1 0.2 0.3 0.4 0.5Miles © I25 - State Value HWY Enhancement 392 Interchange Zones Value Zone Enhancement A Zone Zone B C Zone No Use D Areas Boundaries CAC Fort Windsor Collins GMA GMA Parcels Wetlands Proposed Interchange Interchange Footprint Redesign Right of Way Changes CITY GEOGRAPHIC These and were map OF not products FORT designed and INFORMATION COLLINS or all intended underlying for general data SYSTEM are use developed by members MAP for use PRODUCTS of the by the public. City The of Fort City Collins makes for no its representation internal purposes or only, warranty dimensions, as to contours, its accuracy, property timeliness, boundaries, or completeness, or placement and of location in particular, of any its map accuracy features in thereon. labeling or THE displaying CITY OF FORT COLLINS PARTICULAR MAKES PURPOSE, NO WARRANTY EXPRESSED OF MERCHANTABILITY OR IMPLIED, WITH OR RESPECT WARRANTY TO THESE FOR FITNESS MAP PRODUCTS OF USE FOR OR THE UNDERLYING FAULTS, and assumes DATA. Any all responsibility users of these of map the use products, thereof, map and applications, further covenants or data, and accepts agrees them to hold AS the IS, City WITH harmless ALL from made and this against information all damage, available. loss, Independent or liability arising verification from any of all use data of contained this map product, herein should in consideration be obtained of by the any City's users having of these liability, products, whether or direct, underlying indirect, data. or consequential, The City disclaims, which and arises shall or not may be arise held from liable these for any map and products all damage, or the loss, use thereof or by any person or entity. Printed: August 10, 2011 GROSS NON-DEV DEVELOPABLE TOTAL TOTAL PROXIMITY OWNER LAND AREA LAND AREA LAND AREA FEE/SF FEES COMPONENT OF FEE REMARKS ZONE A 86150-00-007 INTERSTATE LAND HOLDINGS, LLC 645,519 347,609 297,910 $0.28 $82,892 $41,446 NWQ of I-25 and SH 392 Interchange 86154-05-001 WINDSOR INVESTMENTS LTD 73,410 0 73,410 $0.28 $20,426 $10,213 Ptarmigan Business Park Developed Lot 86154-05-002 WINDSOR INVESTMENTS LTD 73,324 0 73,324 $0.28 $20,402 $10,201 Ptarmigan Business Park Developed Lot 86154-07-001 BANK OF CHOICE 55,889 0 55,889 $0.28 $15,551 $7,775 Ptarmigan Business Park Developed Lot 86154-07-002 WINDSOR INVESTMENTS LTD 74,479 0 74,479 $0.28 $20,723 $10,362 Ptarmigan Business Park Developed Lot 86154-05-007 BUSINESS PARK I OF 392 49,185 0 49,185 $0.28 $13,686 $6,843 Ptarmigan Business Park Developed Lot 86220-00-014 VPD392/PRATO, LLC 186,550 0 186,550 $0.28 $51,907 $25,953 Prime SW Quadrant of I-25 and SH 392 ZONE A-1 86154-05-003 KHUONG HUONG TANG, et al 26,196 0 26,196 $0.28 $7,289 $3,644 Ptarmigan Business Park Developed and Improved Lot 86154-05-004 WESTGATE PARTNERS LLC 36,568 0 36,568 $0.28 $10,175 $5,087 Ptarmigan Business Park Developed and Improved Lot 86154-05-006 WESTGATE PARTNERS LLC 60,807 0 60,807 $0.28 $16,919 $8,460 Ptarmigan Business Park Developed and Improved Lot 86221-45-002 MICHAEL I. MAXWELL, et al 55,178 0 55,178 $0.28 $15,353 $7,677 Westgate Commercial Center Developed and Improved Lot 86221-45-001 THE BAILEY COMPANY 43,963 0 43,963 $0.28 $12,233 $6,116 Westgate Commercial Center Developed and Improved Lot 86221-43-001 SCHRADER PROPERTIES, LLC 66,211 0 66,211 $0.28 $18,423 $9,211 Westgate Commercial Center Developed and Improved Lot 86221-43-002 TACO JOHNS INTERNATIONAL INC 49,223 0 49,223 $0.28 $13,696 $6,848 Westgate Commercial Center Developed and Improved Lot 86221-45-003 FORMER TCE, LLC 100,887 0 100,887 $0.28 $28,071 $14,036 Westgate Commercial Center Developed and Improved Lot 86221-45-004 WESTGATE HOSPITALITY LLC 96,118 0 96,118 $0.28 $26,744 $13,372 Westgate Commercial Center Developed and Improved Lot 86221-47-001 MEYERS 4701 LLC 152,444 0 152,444 $0.28 $42,417 $21,208 Westgate Commercial Center Developed and Improved Lot 86221-43-003 KINDERCARE LEARNING CENTERS 78,003 0 78,003 $0.28 $21,704 $10,852 Westgate Commercial Center Developed and Improved Lot ZONE B 86154-06-001 WINDSOR INVESTMENTS LTD 772,886 21,283 751,603 $0.21 $156,848 $78,424 I-25 Frontage in NEQ of interchange 86150-00-014 YEAGER, NANCY L TRUSTEE 786,783 53,648 733,135 $0.21 $152,994 $76,497 North side of SH 392 east of Bus. Park 86154-08-001 WINDSOR INVESTMENTS LTD 653,873 242,410 411,463 $0.21 $85,866 $42,933 East of Frontage Rd. N. of SH 392 86222-47-701&2 LODGEPOLE INVESTMENTS, LLC 578,912 0 578,912 $0.21 $120,810 $60,405 West of Frontage Rd. S. of SH 393 86221-47-002 POUDRE VALLEY HEALTH CARE INC 995,327 85,593 909,734 $0.21 $189,847 $94,924 Frontage on east side of I-25 S. Of SH 392 86220-00-003 POUDRE VALLEY HEALTH CARE INC 1,324,499 711,956 612,543 $0.21 $127,828 $63,914 Frontage on east side of I-25 S. Of SH 392 ZONE B - 1 86150-00-009 B3 VENTURES LLC 407,722 71,223 336,499 $0.21 $70,222 $35,111 I-25 Frontage N of SH 392 in NWQ of interchange ZONE C 86150-00-005 FOSSIL POINT, LLC 1,026,879 71,728 955,151 $0.12 $110,736 $55,368 Frontage on west side of I-25 N. Of SH 392 86150-00-013 BURNETTE/YOUNG INVESTMENTS 939,698 352,269 587,429 $0.12 $68,104 $34,052 Frontage on east side of I-25 N. Of SH 392 86154-06-003 WINDSOR INVESTMENTS LTD 126,260 85,128 41,132 $0.12 $4,769 $2,384 East of I-25 and North of SH 392 86154-06-004 WINDSOR INVESTMENTS LTD 317,882 15,897 301,985 $0.12 $35,011 $17,505 East of I-25 and North of SH 392 86154-06-005 WINDSOR INVESTMENTS LTD 291,695 0 291,695 $0.12 $33,818 $16,909 East of I-25 and North of SH 392 86154-06-006 WINDSOR INVESTMENTS LTD 37,858 0 37,858 $0.12 $4,389 $2,195 East of I-25 and North of SH 392 86150-00-017 JBT ASSOCIATES, LLC 1,767,708 236,095 1,531,613 $0.12 $177,569 $88,784 West Side of LC Road 5 N. of SH 392 86220-00-014 VPD392/PRATO, LLC 1,041,071 444,571 596,500 $0.12 $69,156 $34,578 South of SH 392; West of Wetlands 86222-47-701 LODGEPOLE INVESTMENTS, LLC 244,668 163,264 81,404 $0.12 $9,438 $4,719 West of Frontage Rd. S. of SH 393; West of wetlands 86222-47-702 LODGEPOLE INVESTMENTS, LLC 903,159 221,691 681,468 $0.12 $79,006 $39,503 West of Frontage Rd. S. of SH 393; West of wetlands 86220-00-017 VAN CLEAVE, TERRY/MARY 1,708,402 132,037 1,576,365 $0.12 $182,757 $91,379 Farther South of SH 392 West of I-25 ZONE D 86220-00-004 WINDSOR GOLD COAST LLC 2,544,953 224,297 2,320,656 $0.05 $107,619 $53,809 Farther South of SH 392 on east side of I-25 86150-00-021 HORTON, MARY A/ET AL 1,555,303 501,653 1,053,650 $0.05 $48,862 $24,431 Farther North of SH 392 on east side of I-25 86100-00-016 HORTON, MARY A/ET AL 1,030,219 419,817 610,402 $0.05 $28,307 $14,153 Farther North of SH 392 on east side of I-25 86100-00-011 THREE T INVESTMENTS LLLP 1,045,838 486,358 559,480 $0.05 $25,945 $12,973 Farther North of SH 392 on east side of I-25 86150-00-001 THREE T INVESTMENTS LLLP 1,444,331 381,052 1,063,279 $0.05 $49,309 $24,654 Farther North of SH 392 on east side of I-25 86100-00-002 THREE T INVESTMENTS LLLP 94,626 69,233 25,393 $0.05 $1,178 $589 Farther North of SH 392 on east side of I-25 86100-00-015 HORTON FEEDLOTS INC 1,625,207 469,646 1,155,561 $0.05 $53,588 $26,794 Farther North of SH 392 east of I-25 to LC Road 5 86150-00-020 HORTON FEEDLOTS INC 3,452,929 921,059 2,531,870 $0.05 $117,414 $58,707 Farther North of SH 392 east of I-25 to LC Road 5 21,913,125 $2,550,000 $216,111 ATTACHMENT ONE - VALUE ENHANCEMENT ZONE ANALYSIS September 2012 Foster Valuation Company LLC QUALIFICATIONS OF W. WEST FOSTER Education M.S. Degree in Regional Economics, Colorado State University. B.S. Degree in General Business, Colorado State University. All of the basic courses required for the MAI designation given by the American Institute of Real Estate Appraisers; Course III (Rural Properties); Course IV (Litigation Valuation); Course VI (Real Estate Investment Analysis); Course VII (Industrial Valuation); Course 520 (Highest and Best Use and Market Analysis); Course 550 (Advanced Applications); and all Litigation courses offered in the Professional Development Program. This partial list of courses was all given by the Appraisal Institute or its predecessor organizations. Principles of Real Estate Engineering, The Appraisal of Partial Acquisitions, and several relocation courses, given by the International Right of Way Association. Management and Leasing of Shopping Centers, by the Institute of Real Estate Management. Advanced Ranch Appraisal, by the American Society of Farm Managers and Rural Appraisers. Seminars: Computer-Enhanced Cash Flow Modeling, Subdivision Appraisal, Uniform Appraisal Standards for Federal Land Acquisitions, plus numerous real estate seminars given by the American Institute of Real Estate Appraisers and later by the Appraisal Institute. Memberships and Designations Appraisal Institute: Designated Member (MAI) 1982 to 1986 - National Division of Curriculum 1986 to 1987 - National committee to write The Appraisal of Real Estate, 9th Edition 1987 to 1991 - Board of Examiners, General Demonstration Appraisal Reports 1987 to 1994 - Regional Member, Review and Counseling Division 1991 to 1994 - Regional Representative, Region II 1992 to 2008 - Contributor to The Appraisal of Real Estate, 10th through 13th Editions 1995 - National Vice Chair, Review and Counseling Division 1995 - Vice Chair, Region II and National Board of Directors 1996 to 1997 - Chair, Region II and National Board of Directors 1996 - National Chair, Ethics Administration Division 1997 to 2008 - National Chair, Professional Ethics and Counseling Committee American Society of Real Estate Counselors: Counselor of Real Estate (CRE) 1994 - Vice Chair, Colorado Chapter 1995 - Chair, Colorado Chapter International Right of Way Association: Senior Right of Way Professional (SR/WA) Northern Colorado Commercial Association of Realtors Certified General Real Estate Appraiser: State of Colorado, #CG00001795 Professional Experience Foster Valuation Company: Fee Appraiser, April 1981 to present, specializing in valuation and counseling with respect to a variety of nonresidential properties. Robert J. Mitchell, MAI, & Associates: Fee Appraiser, March 1976 to March 1981, specializing in rural and income property valuation. Qualified in District and Federal Courts as an Expert Valuation Witness. CERTIFICATION I certify that, to the best of my knowledge and belief: 1. The statements of fact contained in this report are true and correct. 2. The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions, and are my personal, impartial, and unbiased professional analyses, opinions, conclusions, and recommendations. 3. I have no present or prospective interest in the property that is the subject of this report, and I have no personal interest with respect to the parties involved. 4. I have performed no services, as an appraiser or in any other capacity, regarding the property that is the subject of this report within the three-year period immediately preceding acceptance of this assignment. 5. I have no bias with respect to any property that is the subject of this report or to the parties involved with this assignment. 6. My engagement in this assignment was not contingent upon developing or reporting predetermined results. 7. My compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal consulting assignment. 8. My analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice. 9. I have made a personal inspection of the property that is the subject of this report. 10. No one provided significant real property appraisal or appraisal consulting assistance to the person signing this certification. 11. The use of this report is subject to the requirements of the Appraisal Institute relating to review by its duly authorized representatives. 12. As of the date of this appraisal consulting report, I have completed the requirements of the continuing education program of the Appraisal Institute. I estimate the reimbursement amounts to be based as shown on the attached Value Enhancement Zone Analysis, as of October 3, 2012, to be as shown in the attached: ORDINANCE NO. 118, 2012 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING THE FIRST AMENDED INTERGOVERNMENTAL AGREEMENT PERTAINING TO THE DEVELOPMENT OF THE INTERSTATE 25/STATE HIGHWAY 392 INTERCHANGE WHEREAS, on January 3, 2011, the City of Fort Collins (the "City") and the Town of Windsor (the "Town") entered into an Intergovernmental Agreement (the "Original Agreement") setting forth certain understandings between the City and the Town with regard to the development of the Interstate 25/State Highway 392 Interchange; and WHEREAS, the Original Agreement anticipated the future adoption of ordinances and resolutions by the City and the Town necessary to implement the provisions of that Agreement; and WHEREAS, since the adoption of the Original Agreement, staff of the City and the Town have developed a number of proposed changes to the Original Agreement; and WHEREAS, the proposed changes are of sufficient substance to require a full amendment of the Original Agreement; and WHEREAS, the City Council believes that the changes recommended by staff are in the best interests of the City. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the First Amended Intergovernmental Agreement Pertaining to the Development of the Interstate 25/State Highway 392 Interchange, in substantially the form attached hereto as Exhibit “A” and incorporated herein by this reference, is hereby approved by the City Council, with such changes in form or substance as the City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City, and the Mayor is hereby authorized to execute the same on behalf of the City. Introduced, considered favorably on first reading, and ordered published this 16th day of October, A.D. 2012, and to be presented for final passage on the 6th day of November, A.D. 2012. _________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on the 6th day of November, A.D. 2012. _________________________________ Mayor ATTEST: _____________________________ City Clerk 1 FIRST AMENDED INTERGOVERNMENTAL AGREEMENT PERTAINING TO THE DEVELOPMENT OF THE INTERSTATE 25/STATE HIGHWAY 392 INTERCHANGE THIS AGREEMENT is entered into this day of , 2012, by and between the City of Fort Collins, Colorado, a Colorado home rule municipality (the “City”), and the Town of Windsor, Colorado, a Colorado home rule municipality (the “Town”), collectively referred to herein as the “Parties”. RECITALS WHEREAS, the City and the Town are situated on opposite sides of Interstate 25 and are both committed to planned and orderly development; to regulating the location and activities of development which may result in increased demand for services; to providing for the orderly development and extension of urban services; to simplifying governmental structure when possible; to promoting the economic vitality of both municipalities; to protecting the environment; and to raising revenue sufficient to meet the needs of their citizens; and WHEREAS, on January 3, 2011, the City and the Town entered into an Intergovernmental Agreement (“the Original Agreement”) setting forth certain understandings between the City and the Town with regard to the development of the Interstate 25/State Highway 392 Interchange; and WHEREAS, the Original Agreement anticipated the future adoption of ordinances and resolutions by the City and the Town necessary to implement the provisions of that Agreement; and WHEREAS, since the adoption of the Original Agreement, the City and the Town have agreed upon a number of changes to the Original Agreement; and WHEREAS, the changes agreed to are of sufficient substance to require a full amendment of the Original Agreement; and WHEREAS, this First Amended Intergovernmental Agreement (‘this Agreement”) reflects the changes agreed to by the City and the Town as well as restating and reaffirming those provisions of the Original Agreement which the City and the Town desire to remain in full force and effect; and WHEREAS, the Colorado Constitution, Section 29-20-101 et seq., of the Colorado Revised Statutes, and the home rule charters of both the City and Town authorize the City and the Town to enter into mutually binding and enforceable agreements regarding the joint exercise of planning, zoning and related powers as those powers are exercised in the provisions of this Agreement. EXHIBIT A Page 2 of 14 NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereto agree as follows. SECTION 1. DEFINITIONS In this Agreement, unless a different meaning clearly appears from the context, the following definitions shall apply: 1.1. “Agreement” means this First Amended Intergovernmental Agreement and attachments hereto. 1.2. “City” means the City of Fort Collins, Colorado. 1.3. “CDOT” means the Colorado Department of Transportation. 1.4. “Corridor Activity Center” or “CAC” means that joint planning area referred to above and more fully described on Exhibit “A,” attached hereto and incorporated herein by this reference. 1.5. “Developable Land” means that portion of each parcel of real property within the CAC upon which buildings, infrastructure or other improvements may lawfully be constructed, taking into consideration the physical characteristics of the property and all applicable state and local laws and regulations. 1.6. “Development Proposal” means an application for the development of a parcel of land within the CAC. 1.7. “Effective Date” means the date that the last party signs this Agreement, or ten days after the final approval by the last governing board of the City or Town. 1.8. “Enhanced Improvements” means any improvements within the vicinity of the Interchange that are deemed necessary or appropriate by the governing bodies of the City and the Town, which improvements shall be constructed and maintained by the City and the Town. 1.9. “Foster Study” means the report prepared by Foster Valuation Company, LLC, attached hereto as Exhibit “B” 1.10. “Interchange” means the Interstate 25 and State Highway 392 interchange. 1.11. “Original Agreement” means the Intergovernmental Agreement between the City and the Town dated January 3, 2011. 1.12. “Project” means the construction by CDOT of a new Interchange at Interstate Highway 25 and Colorado State Highway 392. Page 3 of 14 1.13. “Property Owner” shall mean and include the current and any future fee owner of a CAC property. 1.14. “Property Tax Increment” means the net new revenue generated by property taxes on real property located within the boundaries of the CAC, using as the baseline a base rate of 9.797 mils, as applied to the assessed valuation developed by Larimer County as of the Effective Date. 1.15. “Redevelopment Proposal” means an application for the redevelopment of a previously developed parcel of land within the CAC. 1.16. “Sales Tax Increment” means the net new sales tax revenues generated by sales within the boundaries of the CAC, using as the baseline a base rate of 2.25% and the amount of tax revenue received in the twelve (12) months immediately preceding the Effective Date. 1.17. “Town” means the Town of Windsor, Colorado. SECTION 2. CONFIGURATION OF THE CAC For the purposes of this Agreement, the Parties have agreed upon the boundaries of the CAC and those boundaries are more fully described on Exhibit “A” to this Agreement. SECTION 3. REVIEW OF DEVELOPMENT AND REDEVELOPMENT PROPOSALS 3.1. Permitted uses. Pursuant to the Original Agreement, the Parties have by ordinance adopted approved land uses for the CAC. Except by written agreement approved by both Parties, the Parties hereby agree that for a term of twenty-five (25) years from the date of the execution of this Agreement, neither Party shall repeal or otherwise amend their respective ordinances adopting these land uses. 3.2. Applicable Standards. Pursuant to the Original Agreement, the Parties have lawfully adopted standards and guidelines for development of the properties in the CAC, including, but not limited to, the standards contained in the Northern Colorado Regional I-25 Corridor Plan (2001). These standards and guidelines are referred to herein collectively as the CAC Design Standards. Except by written agreement approved by both Parties, these CAC Design Standards shall remain in full force and effect for a term of twenty-five (25) years. 3.3. Review and Approval of Site Specific Development Proposals. 3.3.1 In order to promote and maintain the commitments of the City and Town with regard to development within the CAC, the Parties hereby jointly agree to the following review process for Development or Redevelopment Proposals for property within the CAC. Page 4 of 14 a. Neither the City nor Town shall, without the prior written consent of the other Party, approve the construction of any improvements within the CAC which are inconsistent with the CAC Design Standards. b. Plans and specifications for any Development or Redevelopment Proposal on land located within the CAC that are received by either Party after the Effective Date shall, no later than thirty (30) business days prior to taking action, be submitted by the Party having jurisdiction over the proposal to the other Party for review and comment; provided, however, that the Parties may mutually agree to a shorter or longer review and comment period. c. Such plans and specifications shall include a brief written description of the Development or Redevelopment Proposal and the surrounding vicinity, development maps and graphics, and renderings of all proposed improvements. d. The receiving Party shall review the materials and respond to the other Party with written comments within the aforementioned thirty (30) business days. Each party agrees that it shall use its best efforts to provide comments in a timely fashion. However, the Parties expressly agree that any delay in submitting comments shall not require the delay of hearings or decisions by the party having jurisdiction over the Development Proposal. e. The Parties shall designate a single point of contact for the communication of materials and comments contemplated by this Section. f. The review and comment provided for herein is intended to be cooperative in nature, and is not intended to be binding upon the party having jurisdiction to grant, modify, or deny a Development or Redevelopment Proposal and shall not preclude the approval of any such proposal that is consistent with the CAC Design Standards and the provisions of this Agreement. 3.3.2. Notice of Incentives. In the event that either Party extends, or agrees to extend, to any applicant for approval of a Development or Redevelopment Proposal within the CAC, any financial or other incentives in connection with such Development or Redevelopment Proposal, such Party shall provide the other Party with a detailed description of such financial or other incentives prior to the formal approval of the same, excluding only such information as is proprietary in nature. The provision and funding of any such incentives shall be the sole responsibility of the Party having jurisdiction over the Development or Redevelopment Proposal, unless the Parties agree to the contrary in a written amendment to this Agreement. Page 5 of 14 SECTION 4. COST SHARING 4.1. Funding of the Project. 4.1.1 The Project, which is now nearing completion, has been constructed, managed, and in large part funded by CDOT. Each of the Parties has appropriated the necessary amounts to complete the funding of the Project pursuant to an Intergovernmental Agreement between the Parties and CDOT dated January 3, 2011. In addition to this contribution to the funding of the construction of the Project, the City and the Town have also appropriated funds for the construction of the Enhanced Improvements. The Enhanced Improvements shall not include enhanced wetland mitigation on the west side of Interstate 25. The City may, in its discretion, pay for the cost of such enhanced wetland mitigation, and the Town shall have no obligation to help fund such mitigation. 4.1.2 The Parties have agreed to recover an amount not to exceed Fifty Percent (50%) of the actual contribution made by the City and the Town for the construction of the Project and the Enhanced Improvements from the Property Owners in the CAC. The City and the Town shall each adopt ordinances authorizing such recovery and establishing fees and appropriate methodologies for such recovery. 4.1.3 There shall be no further contributions to the Project by the Parties except by a written agreement approved by the governing bodies of both Parties. 4.2. CAC Fee Revenue Fund. 4.2.1 The Parties shall, within sixty (60) days after collecting any fee revenues from Property Owners as described in Section 4 of this Agreement, deposit such revenues into a CAC Fee Revenue Fund (“Fee Revenue Fund”) to be established and administered by one of the Parties pursuant to a written administrative agreement approved by the Town Manager and the City Manager, which agreement shall include a provision whereby the Parties will equitably share the costs incurred in administering the Fee and managing the Fee Revenue Fund. The amounts deposited into the Fee Revenue Fund shall be disbursed annually to the Parties in equal amounts, without regard to whether the properties that generated the Fee revenues are located with the territorial limits of the City or the Town. Such disbursements shall continue until the City and the Town have been fully reimbursed in accordance with the provisions of Section 4 of this Agreement. 4.2.2 Either Party may elect to forego the collection of all or any portion of the fee revenues due from a particular Property Owner in exchange for the Property Owner's provision of a reciprocal benefit to such Party, which benefit may include, but need not be limited to, the setting aside or Page 6 of 14 dedication to the public of a portion of the developable land within the parcel for purposes such as wetlands, open space, parks or other improvements or amenities. In the event that either party elects to forego the collection of any fee revenue pursuant to this provision, such Party shall nonetheless pay into the Fee Revenue Fund the full amount of the Fee that would have been due from the Property Owner had such election not been made. SECTION 5. REVENUE SHARING 5.1. Terms and Conditions. The Parties shall, pursuant to the following terms and conditions, share the Property Tax Increment and Sales Tax Increment generated by properties and businesses located within the boundaries of the CAC. 5.1.1 All tax revenues generated by the Property Tax Increment and Sales Tax Increment shall be deposited by each Party in a separate account and shall not be intermingled with any other funds of that Party. 5.1.2 Sixty-five percent (65%) of the Property and Sales Tax Increment revenues generated in the CAC shall be retained by each Party for use as that Party sees fit. The remaining thirty-fix percent (35%) of such revenues shall be transferred to the other Party within sixty (60) days of December 31 of each year. Annual statements showing calendar year total receipts of all such revenues from each of the Property Owners and retailers within the CAC shall be shared with the other Party within thirty (30) days of December 31 of each year, and the Parties agree that these statements are being disclosed solely for tax-related purposes and are therefor to remain confidential. 5.1.3 Any interest earned on deposits in the account described in Section 5.1.1 above shall remain the property of the Party that collected the revenue upon which the interest was earned and shall not be shared. 5.1.4 The share distribution shall begin on the Effective Date. 5.1.5 Any increase or decrease in the sales or property tax rates of either the City or the Town shall not affect the Property Tax Increment or the Sales Tax Increment due from the City or the Town for the revenue sharing purposes of this Section. 5.1.6 In the event either the City or the Town creates one or more exemptions from sales taxes or property taxes, and such exemption(s) results in a reduction in the amount of revenue collected by such Party in the CAC, the Party creating the exemption(s) shall include the exempted amount in its calculation of the amount of Property and Sales Tax Increment revenue that is due to the other Party under this Section as if the exemption(s) had not been created. Page 7 of 14 5.1.7 To the extent permitted by law, this sharing of revenues shall continue in perpetuity. 5.2. Cooperation in Attracting New Development. The Parties acknowledge and agree that they may need to cooperate in an effort to attract desirable development. Nothing herein shall preclude the Parties from entering into a subsequent agreement modifying the within Section and creating incentives for development in the CAC beneficial to both Parties. This shall include, but shall not be limited to, an agreement to reduce or eliminate the revenue sources identified in this Section. Any such agreement shall be in writing and set forth the terms under which a modification of this Section will occur. 5.3. Bonding. Nothing in this Agreement is intended to restrict either Party from being able to utilize its sixty-five percent (65%) share of the Property Tax Increment revenue and Sales and Use Tax Increment revenue as collateral or use in underwriting any bond, note, debenture, or other municipal borrowing. SECTION 6. INSPECTION OF RECORDS. The City and the Town shall each have the right to inspect and audit the tax revenue and fee collection records of the other pertaining to this Agreement. If any discrepancy is discovered, the auditing Party shall provide written notice, including a copy of the audit report, to the other Party. Any amount due must be paid within thirty (30) days following the written notice or the Parties must engage in negotiations regarding the discrepancy. If a mutual agreement is not reached in sixty (60) days, the provisions of Section 8 below will apply. To the extent permitted by law, all tax and revenue collection information which is obtained by and pursuant to the inspection and audit provisions of this Agreement shall be deemed privileged, confidential and proprietary information and is being disclosed solely for tax-related purposes, including the calculation of revenue sharing payments pursuant to this Agreement. The Parties agree that they will not disclose any information to any person not having a legitimate need-to-know for purposes authorized by this Agreement. The period of limitation for the recovery of any funds payable under this Agreement shall be three (3) years from the date on which the payment is due. Upon the expiration of this period of limitation and any action for collection or recovery of unpaid revenue sharing funds shall be barred. Each Party and its authorized agents may, upon thirty (30) days’ advance written notice to the other, audit the other’s records of those taxes and fees which are collected within the CAC and which are being shared pursuant to this Agreement. Page 8 of 14 SECTION 7. ANNEXATION 7.1. Amendment of Growth Management Area Boundaries. In order to promote ongoing cooperation and collaboration between the Parties with respect to land use planning on both sides of Interstate 25, and to further the purposes contained in C.R.S. Section 31-12-102 of the Municipal Annexation Act of 1965, the Parties agree that Interstate 25 shall become the boundary between the Fort Collins Growth Management Area (“FCGMA”) and the Windsor Growth Management Area (“WGMA”). Accordingly, after the Effective Date, neither Party shall annex, or accept any petition to annex, property within the other Party’s growth management area as amended in accordance with this provision. Nor shall either Party annex, or accept any petition to annex, or include within its growth management area, the right of way for Interstate 25 adjacent to the other Party’s growth management area without the prior written consent of the other Party. Any future amendments to the contiguous boundaries of the FCGMA and the WGMA shall be made only if agreed upon in writing by both Parties. 7.2. County Approval of GMA Boundary Amendments. Both Parties have heretofore entered into intergovernmental agreements with Larimer County that establish the growth management areas of the Parties, which agreements provide for, among other things, the way in which development applications for properties within the FCGMA and the WGMA will be processed by Larimer County. Accordingly, in order to ensure the cooperation of Larimer County in implementing the provisions of this Section, each Party shall, within one (1) year of the Effective Date, seek the approval of Larimer County to amend its agreement with Larimer County so as to reflect the amendments to the FCGMA and WGMA required hereunder. However, the failure of Larimer County to approve either or both such amendments shall not affect the obligation of the Parties to refrain from annexing territory within the FCGMA, the WGMA or the right of way for Interstate 25 as required in Section 7.1 above. 7.3. Effect on Prior Annexation Agreements. The provisions of this Section shall supersede and take precedence over any conflicting provisions contained in those certain agreements between the Parties entitled “Intergovernmental Agreement (Regarding Annexations East of Interstate Highway 25)” and “Intergovernmental Agreement (Regarding Annexations in the Fort Collins Cooperative Planning Area Adjacent to Fossil Creek Reservoir), both of which are dated June 28, 1999. SECTION 8. MEDIATION/ARBITRATION 8.1. Enforceability of Agreement. The parties acknowledge that agreements between municipalities for the purposes set forth herein are mutually binding and enforceable. The parties likewise acknowledge that the unique nature of agreements between municipalities often require equally unique remedies to ensure compliance with the provisions of such agreements while preserving the obligations of the parties to one and other and promoting the continued existence and effectiveness of such agreements. It is the intent of the parties to this Agreement to provide enforcement remedies through a Page 9 of 14 combination of alternative dispute methodologies including mediation and binding arbitration, and thereby eliminate the necessity of judicial enforcement of this Agreement. Nothing herein shall be deemed to preclude either party from seeking judicial enforcement of any mediation agreement reached between the parties or binding arbitration order entered as a result of the alternate dispute methodologies set forth herein. 8.2. Mediation/Arbitration Process in General. Should either party fail to comply with the provisions of this Agreement, the other party, after providing written notification to the non-complying party, and upon the failure of the non-complying party to achieve compliance within forty five (45) days after said notice, the issue of non-compliance shall be submitted to mediation and thereafter, assuming no resolution has been reached through the mediation process, shall be submitted to binding arbitration. The mediation and binding arbitration processes shall in accordance with the provisions hereinafter set forth. These mediation and arbitration provisions shall be in addition to questions of non- compliance as aforesaid, apply to all disagreements or failure of the parties to reach agreement as may be required by the terms of this Agreement. This shall include, but shall not be limited to, the creation of joint land use designs and standards, approval or rejection of Development Proposals, and disputed matters concerning shared revenues. 8.3. Sharing of Costs. All costs of the mediation/binding arbitration process shall be divided equally between the Parties. 8.4. Mediation Process. The dispute resolution process shall commence with the appointment of a mediator who shall be experienced in matters of local government and the legal obligations of local government entities. In the event the parties are unable to agree upon a mediator within fifteen (15) days of the commencement of the process, each party shall within five (5) days appoint an independent third party, and the third parties so appointed shall select a mediator within fifteen (15) days of their appointment. Mediation shall be completed no later than sixty (60) days after a mediator is selected by the parties or by the independent third parties. The procedures and methodology for mediation shall be determined by the mediator, but shall be in compliance with applicable law. 8.5. Binding Arbitration Process. In the event the parties are unable to reach agreement through the mediation process, the matter in dispute shall be submitted to binding arbitration. The parties agree that the order resulting from the arbitration process shall be deemed a final and conclusive resolution of the matter in dispute. The parties shall agree on the appointment of an arbitrator who shall be experienced in matters of local government and the legal obligations of local government entities. It is understood and agreed that the parties may agree upon the appointment of that person who conducted the mediation portion of this process as the arbitrator, but are not bound to do so. In the event the parties are unable to agree upon an arbitrator within fifteen (15) days, each party will appoint an independent third party, and the third parties so appointed shall select a mediator within fifteen (15) days of their appointment. Arbitration shall be completed no later than ninety (90) days after an arbitrator is selected by the parties or by Page 10 of 14 the independent third parties. The procedures and methodology for binding arbitration shall be determined by the arbitrator, but shall be in compliance with applicable law. SECTION 9. CONTINGENT ON APPROPRIATIONS The obligations of the City and Town do not constitute an indebtedness of the City or Town within the meaning of any constitutional or statutory limitation or provision. The obligations of the City and Town for payment of the Sales Tax Increment under this Agreement shall be from year to year only and shall not constitute a mandatory payment obligation of the City or Town in any fiscal year beyond the present fiscal year. This Agreement shall not directly or indirectly obligate the City or Town to make any payments of Sales Tax Increment beyond those appropriated for any fiscal year in which this Agreement shall be in effect. The City and Town Manager (or any other officer or employee at the time charged with the responsibility of formulating budget proposals) is hereby directed to include in the budget proposals and appropriation ordinances submitted to the City Council and the Town Board, in each year prior to expiration of this Agreement, amounts sufficient to meet its obligations hereunder, but only if it shall have received such amounts in the form of Sales Tax Increment, it being the intent, however, that the decision as to whether to appropriate such amounts shall be at the discretion of the City Council and Town Board. SECTION 10. MISCELLANEOUS 10.1. Amendment. This Agreement is the entire and only agreement between the Parties regarding the sharing of (1) costs for the Project; and (2) net new tax revenues generated with the CAC boundaries. There are no promises, terms, conditions, or other obligations other than those contained in this Agreement. This Agreement may be amended only in writing signed by the Parties. 10.2. Severability. Except as otherwise provided in this Agreement, if any part, term, or provision of this Agreement is held by the courts to be illegal or otherwise unenforceable, such illegality or unenforceability will not affect the validity of any other part, term, or provision of this Agreement and the rights of the Parties will be construed as if that part, term, or provision was never part of this Agreement. 10.3. Colorado Law. This Agreement is made and delivered with the State of Colorado and the laws of the State of Colorado will govern its interpretation, validity, and enforceability. 10.4. Jurisdiction of Courts. Personal jurisdiction and venue for any civil action commenced by any of the Parties to this Agreement for actions arising out of or relating to this Agreement will be the District Court of Larimer County, Colorado. 10.5. Representatives and Notice. Any notice or communication required or permitted under the terms of this Agreement will be in writing and may be given to the Parties or their respective legal counsel by (a) hand delivery; (b) deemed delivered three business days after being deposited in the United States mail, with adequate postage prepaid, and Page 11 of 14 sent via registered or certified mail with return receipt requested; or (c) deemed delivered one business day after being deposited with an overnight courier service of national reputation have a delivery area of Northern Colorado, with the delivery charges prepaid. The representatives will be: If to the City: City Manager 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80524 With a copy to City Attorney 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80524 If to the Town: Town Manager Windsor Town Hall 301 Walnut Street Windsor, CO 80550 With a copy to Town Attorney c/o Town Manager Windsor Town Hall 301 Walnut Street Windsor, CO 80550 10.6. Good Faith. In the performance of this Agreement or in considering any requested approval, acceptance, or extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold, condition or delay any approval, acceptance or extension of time required or requested pursuant to this Agreement. 10.7. Authorization. The signatories to this Agreement affirm and warrant that they are fully authorized to enter into and execute this Agreement, and all necessary action, notices, meetings, and hearings pursuant to any law required to authorize their execution of this Agreement have been made. 10.8. Assignment. Neither this Agreement, nor the City or Towns’ rights, obligations or duties may be assigned or transferred in whole or in part by either Party without the prior written consent of the other Party. 10.9. Execution in Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original and all of which taken together will constitute one and the same agreement. Page 12 of 14 10.10. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, are strictly reserved to the Parties and nothing in this Agreement shall give or allow any claim or right or cause of action whatsoever by any other person not included in this Agreement. It is the express intention of the Parties that no person and/or entity, other than the undersigned Parties, receiving services or benefits under this Agreement shall be deemed any more than an incidental beneficiary only. 10.11. Recordation of Agreement. The City shall record a copy of this Agreement in the office of the Clerk and Recorder of Larimer County, Colorado. 10.12. Execution of Other Documents. The Parties agree to execute any additional documents and to take any additional actions necessary to carry out the terms of this Agreement. Approved as to Form: CITY OF FORT COLLINS ________________________________ ______________________________ City Attorney Mayor ATTEST: _________________________________ City Clerk TOWN OF WINDSOR ______________________________ Mayor ATTEST: ___________________________________ Town Clerk Page 13 of 14 PLACEHOLDER FOR Exhibit A – Map Page 14 of 14 PLACEHOLDER FOR Exhibit B –Foster Study E C ounty Road 32 S County Road 5 E C ounty Road 30 !"`$ !"`$ ôZYXW ôZYXW Fossil Creek Reservoir 0 0.1 0.2 0.3 0.4 0.5 Miles © I25 - State HWY 392 Interchange Corridor Activity Center Land Use Commercial Employment Residential Natural Resource Buffer I-25 Setback Wetlands Boundaries CAC Fort Collins GMA Windsor GMA Parcels Proposed Interchange Redesign Interchange Footprint Right of Way Changes CITY OF FORT COLLINS GEOGRAPHIC INFORMATION SYSTEM MAP PRODUCTS These map products and all underlying data are developed for use by the City of Fort Collins for its internal purposes only, and were not designed or intended for general use by members of the public. The City makes no representation or warranty as to its accuracy, timeliness, or completeness, and in particular, its accuracy in labeling or displaying dimensions, contours, property boundaries, or placement of location of any map features thereon. THE CITY OF FORT COLLINS MAKES NO WARRANTY OF MERCHANTABILITY OR WARRANTY FOR FITNESS OF USE FOR PARTICULAR PURPOSE, EXPRESSED OR IMPLIED, WITH RESPECT TO THESE MAP PRODUCTS OR THE UNDERLYING DATA. Any users of these map products, map applications, or data, accepts them AS IS, WITH ALL FAULTS, and assumes all responsibility of the use thereof, and further covenants and agrees to hold the City harmless from and against all damage, loss, or liability arising from any use of this map product, in consideration of the City's having made this information available. Independent verification of all data contained herein should be obtained by any users of these products, or underlying data. The City disclaims, and shall not be held liable for any and all damage, loss, or liability, whether direct, indirect, or consequential, which arises or may arise from these map products or the use thereof by any person or entity. Printed: February 24, 2011 EXHIBIT A to the Amended IGA W. West Foster, MAI, CRE, SR/WA ♦ Sue Anne Foster, MAI, SRA Jon M. Vaughan, MAI, SR/WA ♦ Christine Antonio ♦ Michael Smith Certified General Real Estate Appraisers ♦ 910 54th Avenue, Suite 210, Greeley, Colorado 80634 Phone (970) 352-1117 ♦ FAX (970) 323-2753 October 3, 2012 Mr. Rick Richter Capital Projects Manager Engineering Department City of Fort Collins P.O. Box 580 Fort Collins, Colorado 80522-0580 John P. Frey, Esq. Frey McCargar & Plock, LLC The Historic Harmony Mill 131 Lincoln Avenue, Suite 100 Fort Collins, CO 80524 RE: Interstate 25 and Colorado State Highway 392 Reimbursement Study- Revised October 3, 2012 Dear Mr. Richter and Mr. Frey: At your request, I am submitting my revised appraisal consulting report, which involves a reimbursement study prepared to estimate an equitable manner to assess property owners within the Fort Collins Growth Management Area (GMA) and the Windsor GMA who benefit from the capital improvement project proposed to improve traffic flow and reduce congestion at the Interstate 25 and Colorado State Highway 392 interchange. Scope of the Assignment City of Fort Collins and Town of Windsor officials have committed to fund approximately $2.3 million as their share of the proposed interchange construction costs and an additional $250,000 for interchange enhancements. This study is to determine a fair and equitable manner for the two municipalities to assess property owners and be reimbursed based on the estimated influence the project is to have on the value of those properties in proximity to the project. The study involves making a determination of which properties within the City of Fort Collins and the Town of Windsor growth management areas in proximity to the Interstate 25 and Colorado State Highway 392 interchange are EXHIBIT B to the Amended IGA Mr. Rick Richter and John P. Frey, Esq. Page 2 October 3, 2012 being benefitted from the proposed interchange improvements and to what extent the properties are enhanced by the proposed access enhancements. The properties within the two growth management areas in proximity to the interchange were studied to formulate an opinion as to the extent they are estimated to benefit from the proposed interchange improvements. The areas of influence are reduced typically based on the diminished proximity to the interchange. The conclusion was reached that when confined to properties within both communities' growth management areas, the sites within the corridor activity center (CAC) boundary were those deemed to possess the most influence from the interchange improvements. The initial focus of my investigation was to study the influences on land value in proximity to newly developed interstate highway interchanges. The four interchanges that had the most significant and relevant data were in the Denver Metropolitan area. The two interchanges where the most significant data were found included the recently constructed Interstate 25 and 144th Avenue interchange and the Interstate 25 and 136th Avenue interchange. Data in proximity to the E-470 and East Smoky Hill Road interchange and the E-470 and the South Gartrell Road interchange were also studied. These data were then utilized to estimate the extent to which the land around this interchange would increase in value after the interchange improvements are made. Based on the data gathered at the four interchanges mentioned, it was concluded that there are four areas of influence, which I have labeled Value Enhancement Zones A through D. On the attached I25 - State Highway 392 Interchange Value Enhancement Zones map, Zones A and A-1 are highlighted in red, Zones B and B-1 are in orange, Zone C is shown in pale green, and Zone D is highlighted in darker green. Zones A and A-1 feature the best proximity to the interchange and, in my opinion, will benefit the greatest from the interchange improvements. Zone A consists of commercially-zoned land. Zone A-1 consists of commercial lots on the east side of Interstate 25 straddling Colorado State Highway 392. Based on the investigation of data surrounding the four interchanges discussed above, Zone A prices increased from the period before the interchanges were constructed to the period after the interchanges were nearing completion on the average of $7.00 to $7.50 per square foot. Mr. Rick Richter and John P. Frey, Esq. Page 3 October 3, 2012 Zones B and B-1 are slightly farther removed from the interchange, but still possess strong influence for potential commercial uses. Zone B consists strictly of vacant commercially-zoned land. The Zone B-1 parcel consists of a commercial site on the west side of Interstate 25 north of Colorado State Highway 392 that has been significantly improved with buildings. Zone B prices increased from the period before the interchanges were constructed to the period after the inter- changes were nearing completion on the average of $4.50 to $4.75 per square foot. Zone C is farther removed from the interchange, and the data at the interchanges studied suggest that these sites are influenced by interstate frontage and benefit from good accessibility. Zone C prices increased from the period before the interchanges were constructed to the period after the interchanges were nearing completion on the average of $3.50 to $4.00 per square foot. Zone D is yet farther removed from the interchange, and the data at the interchanges studied suggest that these sites are also influenced by interstate frontage and benefit from good accessibility due to the interchange improvements. Zone D prices increased from the period before the interchanges were constructed to the period after the interchanges were nearing completion on the average of $2.00 to $2.25 per square foot. The preceding data are generated from newly developed interchanges where none previously existed. The value increases at the Interstate 25 and Colorado State Highway 392 interchange are not expected to be quite as dramatic. Value Enhancement Fee Estimates Each property within the four primary zones discussed above is shown in the attached Value Enhancement Zone Analysis spreadsheet and is identified by Larimer County assessor's parcel number and ownership as indicated in county records. The gross land area has been calculated using the best available information; and the non-developable areas have been calculated using City of Fort Collins Geographical Information System (GIS) data, which then results in a developable land area calculation per square foot. The value enhancement fees will be assessed based on developable land area per square foot at the time the sites are developed or when the sites are redeveloped. Mr. Rick Richter and John P. Frey, Esq. Page 4 October 3, 2012 At the newly constructed interchanges studied, the Zone A prices increased on the average of $7.00 to $7.50 per square foot. Since no interchanges existed before, these average increases are greater than what would be expected at Interstate 25 and Colorado State Highway 392 when the interchange improvements are completed since that interchange already exists. Using 25 to 50 percent of the $7.00 to $7.50 per square foot estimated value after the interchange improvements are made results in a forecast increase from $1.88 to $3.75 per square foot for Zones A and A-1. There are 1,576,345 square feet of developable land area in Zones A and A-1. It is forecast that value increases in Zone A category will be from just over $2.9 million to nearly $6 million. In Zones B and B-1 prices increased on the average of $4.50 to $4.75 per square foot at the interchanges studied. Again, since an interchange already exists at Interstate 25 and Colorado State Highway 392, the increase is not expected to be as great. If a range of 25 to 50 percent is utilized again, it results in a forecast increase from $1.16 to $2.32 per square foot within Zones B and B-1. There are 4,333,889 square feet of developable land area in Zones B and B-1. It is forecast that value increases in Zones B and B-1 will be from $5.0 to nearly $10.1 million. Land prices in Zone C at the interchanges studied increased on the average of $3.50 to $4.00 per square foot due to the new interchange construction. Again, since the Interstate 25 and Colorado State Highway 392 interchange already exists, the increase is not expected to be as great. If a range in forecast value increases of 25 to 50 percent is utilized again, it results in a forecast increase from $0.94 to $1.88 per square foot within Zone C. There are 6,682,600 square feet of developable land area in Zone C. It is forecast that value increases in the Zone C category will be from $6.3 to nearly $12.6 million. At the interchanges studied, land prices in Zone D increased on the average of $2.00 to $2.25 per square foot as a result of the new interchange being constructed. As with the preceding zones analyzed, since the Interstate 25 and Colorado State Highway 392 interchange already exists, the increase is not expected to be as great. If a range in forecast value increases of 25 to 50 percent is utilized again, it results in a forecast increase from $0.53 to $1.06 per square foot within Zone D. There are 9,320,291 square feet of developable land area in Zone D. It is forecast that value increases in the Zone C category will be from $4.9 to nearly $9.9 million. Mr. Rick Richter and John P. Frey, Esq. Page 5 October 3, 2012 It is clear from the data gathered at the four interchanges studied that the improvements proposed at the Interstate 25 and Colorado State Highway 392 interchange will enhance property values within the CAC at a minimum of $19.1 million, which is greater than the $2.55 million being assessed. Exhibit A: I25 - State HWY 392 Interchange Map Exhibit B: Value Enhancement Zone Analysis spreadsheet Exhibit C: Qualifications of W. West Foster Exhibit D: Certification E C ounty Road 32 S County Road 5 E C ounty Road 30 !"`$ !"`$ ôZYXW ôZYXW F o s s i l C r e e k R e s e r v o i r 0 0.1 0.2 0.3 0.4 0.5Miles © I25 - State Value HWY Enhancement 392 Interchange Zones Value Zone Enhancement A Zone Zone B C Zone No Use D Areas Boundaries CAC Fort Windsor Collins GMA GMA Parcels Wetlands Proposed Interchange Interchange Footprint Redesign Right of Way Changes CITY GEOGRAPHIC These and were map OF not products FORT designed and INFORMATION COLLINS or all intended underlying for general data SYSTEM are use developed by members MAP for use PRODUCTS of the by the public. City The of Fort City Collins makes for no its representation internal purposes or only, warranty dimensions, as to contours, its accuracy, property timeliness, boundaries, or completeness, or placement and of location in particular, of any its map accuracy features in thereon. labeling or THE displaying CITY OF FORT COLLINS PARTICULAR MAKES PURPOSE, NO WARRANTY EXPRESSED OF MERCHANTABILITY OR IMPLIED, WITH OR RESPECT WARRANTY TO THESE FOR FITNESS MAP PRODUCTS OF USE FOR OR THE UNDERLYING FAULTS, and assumes DATA. Any all responsibility users of these of map the use products, thereof, map and applications, further covenants or data, and accepts agrees them to hold AS the IS, City WITH harmless ALL from made and this against information all damage, available. loss, Independent or liability arising verification from any of all use data of contained this map product, herein should in consideration be obtained of by the any City's users having of these liability, products, whether or direct, underlying indirect, data. or consequential, The City disclaims, which and arises shall or not may be arise held from liable these for any map and products all damage, or the loss, use thereof or by any person or entity. Printed: August 10, 2011 GROSS NON-DEV DEVELOPABLE TOTAL TOTAL PROXIMITY OWNER LAND AREA LAND AREA LAND AREA FEE/SF FEES COMPONENT OF FEE REMARKS ZONE A 86150-00-007 INTERSTATE LAND HOLDINGS, LLC 645,519 347,609 297,910 $0.28 $82,892 $41,446 NWQ of I-25 and SH 392 Interchange 86154-05-001 WINDSOR INVESTMENTS LTD 73,410 0 73,410 $0.28 $20,426 $10,213 Ptarmigan Business Park Developed Lot 86154-05-002 WINDSOR INVESTMENTS LTD 73,324 0 73,324 $0.28 $20,402 $10,201 Ptarmigan Business Park Developed Lot 86154-07-001 BANK OF CHOICE 55,889 0 55,889 $0.28 $15,551 $7,775 Ptarmigan Business Park Developed Lot 86154-07-002 WINDSOR INVESTMENTS LTD 74,479 0 74,479 $0.28 $20,723 $10,362 Ptarmigan Business Park Developed Lot 86154-05-007 BUSINESS PARK I OF 392 49,185 0 49,185 $0.28 $13,686 $6,843 Ptarmigan Business Park Developed Lot 86220-00-014 VPD392/PRATO, LLC 186,550 0 186,550 $0.28 $51,907 $25,953 Prime SW Quadrant of I-25 and SH 392 ZONE A-1 86154-05-003 KHUONG HUONG TANG, et al 26,196 0 26,196 $0.28 $7,289 $3,644 Ptarmigan Business Park Developed and Improved Lot 86154-05-004 WESTGATE PARTNERS LLC 36,568 0 36,568 $0.28 $10,175 $5,087 Ptarmigan Business Park Developed and Improved Lot 86154-05-006 WESTGATE PARTNERS LLC 60,807 0 60,807 $0.28 $16,919 $8,460 Ptarmigan Business Park Developed and Improved Lot 86221-45-002 MICHAEL I. MAXWELL, et al 55,178 0 55,178 $0.28 $15,353 $7,677 Westgate Commercial Center Developed and Improved Lot 86221-45-001 THE BAILEY COMPANY 43,963 0 43,963 $0.28 $12,233 $6,116 Westgate Commercial Center Developed and Improved Lot 86221-43-001 SCHRADER PROPERTIES, LLC 66,211 0 66,211 $0.28 $18,423 $9,211 Westgate Commercial Center Developed and Improved Lot 86221-43-002 TACO JOHNS INTERNATIONAL INC 49,223 0 49,223 $0.28 $13,696 $6,848 Westgate Commercial Center Developed and Improved Lot 86221-45-003 FORMER TCE, LLC 100,887 0 100,887 $0.28 $28,071 $14,036 Westgate Commercial Center Developed and Improved Lot 86221-45-004 WESTGATE HOSPITALITY LLC 96,118 0 96,118 $0.28 $26,744 $13,372 Westgate Commercial Center Developed and Improved Lot 86221-47-001 MEYERS 4701 LLC 152,444 0 152,444 $0.28 $42,417 $21,208 Westgate Commercial Center Developed and Improved Lot 86221-43-003 KINDERCARE LEARNING CENTERS 78,003 0 78,003 $0.28 $21,704 $10,852 Westgate Commercial Center Developed and Improved Lot ZONE B 86154-06-001 WINDSOR INVESTMENTS LTD 772,886 21,283 751,603 $0.21 $156,848 $78,424 I-25 Frontage in NEQ of interchange 86150-00-014 YEAGER, NANCY L TRUSTEE 786,783 53,648 733,135 $0.21 $152,994 $76,497 North side of SH 392 east of Bus. Park 86154-08-001 WINDSOR INVESTMENTS LTD 653,873 242,410 411,463 $0.21 $85,866 $42,933 East of Frontage Rd. N. of SH 392 86222-47-701&2 LODGEPOLE INVESTMENTS, LLC 578,912 0 578,912 $0.21 $120,810 $60,405 West of Frontage Rd. S. of SH 393 86221-47-002 POUDRE VALLEY HEALTH CARE INC 995,327 85,593 909,734 $0.21 $189,847 $94,924 Frontage on east side of I-25 S. Of SH 392 86220-00-003 POUDRE VALLEY HEALTH CARE INC 1,324,499 711,956 612,543 $0.21 $127,828 $63,914 Frontage on east side of I-25 S. Of SH 392 ZONE B - 1 86150-00-009 B3 VENTURES LLC 407,722 71,223 336,499 $0.21 $70,222 $35,111 I-25 Frontage N of SH 392 in NWQ of interchange ZONE C 86150-00-005 FOSSIL POINT, LLC 1,026,879 71,728 955,151 $0.12 $110,736 $55,368 Frontage on west side of I-25 N. Of SH 392 86150-00-013 BURNETTE/YOUNG INVESTMENTS 939,698 352,269 587,429 $0.12 $68,104 $34,052 Frontage on east side of I-25 N. Of SH 392 86154-06-003 WINDSOR INVESTMENTS LTD 126,260 85,128 41,132 $0.12 $4,769 $2,384 East of I-25 and North of SH 392 86154-06-004 WINDSOR INVESTMENTS LTD 317,882 15,897 301,985 $0.12 $35,011 $17,505 East of I-25 and North of SH 392 86154-06-005 WINDSOR INVESTMENTS LTD 291,695 0 291,695 $0.12 $33,818 $16,909 East of I-25 and North of SH 392 86154-06-006 WINDSOR INVESTMENTS LTD 37,858 0 37,858 $0.12 $4,389 $2,195 East of I-25 and North of SH 392 86150-00-017 JBT ASSOCIATES, LLC 1,767,708 236,095 1,531,613 $0.12 $177,569 $88,784 West Side of LC Road 5 N. of SH 392 86220-00-014 VPD392/PRATO, LLC 1,041,071 444,571 596,500 $0.12 $69,156 $34,578 South of SH 392; West of Wetlands 86222-47-701 LODGEPOLE INVESTMENTS, LLC 244,668 163,264 81,404 $0.12 $9,438 $4,719 West of Frontage Rd. S. of SH 393; West of wetlands 86222-47-702 LODGEPOLE INVESTMENTS, LLC 903,159 221,691 681,468 $0.12 $79,006 $39,503 West of Frontage Rd. S. of SH 393; West of wetlands 86220-00-017 VAN CLEAVE, TERRY/MARY 1,708,402 132,037 1,576,365 $0.12 $182,757 $91,379 Farther South of SH 392 West of I-25 ZONE D 86220-00-004 WINDSOR GOLD COAST LLC 2,544,953 224,297 2,320,656 $0.05 $107,619 $53,809 Farther South of SH 392 on east side of I-25 86150-00-021 HORTON, MARY A/ET AL 1,555,303 501,653 1,053,650 $0.05 $48,862 $24,431 Farther North of SH 392 on east side of I-25 86100-00-016 HORTON, MARY A/ET AL 1,030,219 419,817 610,402 $0.05 $28,307 $14,153 Farther North of SH 392 on east side of I-25 86100-00-011 THREE T INVESTMENTS LLLP 1,045,838 486,358 559,480 $0.05 $25,945 $12,973 Farther North of SH 392 on east side of I-25 86150-00-001 THREE T INVESTMENTS LLLP 1,444,331 381,052 1,063,279 $0.05 $49,309 $24,654 Farther North of SH 392 on east side of I-25 86100-00-002 THREE T INVESTMENTS LLLP 94,626 69,233 25,393 $0.05 $1,178 $589 Farther North of SH 392 on east side of I-25 86100-00-015 HORTON FEEDLOTS INC 1,625,207 469,646 1,155,561 $0.05 $53,588 $26,794 Farther North of SH 392 east of I-25 to LC Road 5 86150-00-020 HORTON FEEDLOTS INC 3,452,929 921,059 2,531,870 $0.05 $117,414 $58,707 Farther North of SH 392 east of I-25 to LC Road 5 21,913,125 $2,550,000 $216,111 ATTACHMENT ONE - VALUE ENHANCEMENT ZONE ANALYSIS September 2012 Foster Valuation Company LLC QUALIFICATIONS OF W. WEST FOSTER Education M.S. Degree in Regional Economics, Colorado State University. B.S. Degree in General Business, Colorado State University. All of the basic courses required for the MAI designation given by the American Institute of Real Estate Appraisers; Course III (Rural Properties); Course IV (Litigation Valuation); Course VI (Real Estate Investment Analysis); Course VII (Industrial Valuation); Course 520 (Highest and Best Use and Market Analysis); Course 550 (Advanced Applications); and all Litigation courses offered in the Professional Development Program. This partial list of courses was all given by the Appraisal Institute or its predecessor organizations. Principles of Real Estate Engineering, The Appraisal of Partial Acquisitions, and several relocation courses, given by the International Right of Way Association. Management and Leasing of Shopping Centers, by the Institute of Real Estate Management. Advanced Ranch Appraisal, by the American Society of Farm Managers and Rural Appraisers. Seminars: Computer-Enhanced Cash Flow Modeling, Subdivision Appraisal, Uniform Appraisal Standards for Federal Land Acquisitions, plus numerous real estate seminars given by the American Institute of Real Estate Appraisers and later by the Appraisal Institute. Memberships and Designations Appraisal Institute: Designated Member (MAI) 1982 to 1986 - National Division of Curriculum 1986 to 1987 - National committee to write The Appraisal of Real Estate, 9th Edition 1987 to 1991 - Board of Examiners, General Demonstration Appraisal Reports 1987 to 1994 - Regional Member, Review and Counseling Division 1991 to 1994 - Regional Representative, Region II 1992 to 2008 - Contributor to The Appraisal of Real Estate, 10th through 13th Editions 1995 - National Vice Chair, Review and Counseling Division 1995 - Vice Chair, Region II and National Board of Directors 1996 to 1997 - Chair, Region II and National Board of Directors 1996 - National Chair, Ethics Administration Division 1997 to 2008 - National Chair, Professional Ethics and Counseling Committee American Society of Real Estate Counselors: Counselor of Real Estate (CRE) 1994 - Vice Chair, Colorado Chapter 1995 - Chair, Colorado Chapter International Right of Way Association: Senior Right of Way Professional (SR/WA) Northern Colorado Commercial Association of Realtors Certified General Real Estate Appraiser: State of Colorado, #CG00001795 Professional Experience Foster Valuation Company: Fee Appraiser, April 1981 to present, specializing in valuation and counseling with respect to a variety of nonresidential properties. Robert J. Mitchell, MAI, & Associates: Fee Appraiser, March 1976 to March 1981, specializing in rural and income property valuation. Qualified in District and Federal Courts as an Expert Valuation Witness. CERTIFICATION I certify that, to the best of my knowledge and belief: 1. The statements of fact contained in this report are true and correct. 2. The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions, and are my personal, impartial, and unbiased professional analyses, opinions, conclusions, and recommendations. 3. I have no present or prospective interest in the property that is the subject of this report, and I have no personal interest with respect to the parties involved. 4. I have performed no services, as an appraiser or in any other capacity, regarding the property that is the subject of this report within the three-year period immediately preceding acceptance of this assignment. 5. I have no bias with respect to any property that is the subject of this report or to the parties involved with this assignment. 6. My engagement in this assignment was not contingent upon developing or reporting predetermined results. 7. My compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal consulting assignment. 8. My analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice. 9. I have made a personal inspection of the property that is the subject of this report. 10. No one provided significant real property appraisal or appraisal consulting assistance to the person signing this certification. 11. The use of this report is subject to the requirements of the Appraisal Institute relating to review by its duly authorized representatives. 12. As of the date of this appraisal consulting report, I have completed the requirements of the continuing education program of the Appraisal Institute. I estimate the reimbursement amounts to be based as shown on the attached Value Enhancement Zone Analysis, as of October 3, 2012, to be as shown in the attached: ATTACHMENT 3