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COUNCIL - COMPLETE AGENDA - 11/17/2015 - COMPLETE AGENDA
City of Fort Collins Page 1 Wade Troxell, Mayor City Council Chambers Gerry Horak, District 6, Mayor Pro Tem City Hall West Bob Overbeck, District 1 300 LaPorte Avenue Ray Martinez, District 2 Fort Collins, Colorado Gino Campana, District 3 Kristin Stephens, District 4 Cablecast on City Cable Channel 14 Ross Cunniff, District 5 on the Comcast cable system Carrie Daggett Darin Atteberry Wanda Winkelmann City Attorney City Manager City Clerk The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221-6515 (TDD 224- 6001) for assistance. Regular Meeting November 17, 2015 (Revised November 16, 2015) Proclamations and Presentations 5:30 p.m. A. Proclamation Declaring November 20, 2015 as Bob Coonts Day. Regular Meeting 6:00 p.m. PLEDGE OF ALLEGIANCE CALL MEETING TO ORDER ROLL CALL A moment of silence will be observed to honor the victims of the Paris terrorist attacks. AGENDA REVIEW: CITY MANAGER City Manager Review of Agenda. City of Fort Collins Page 2 Consent Calendar Review This Review provides an opportunity for Council and citizens to pull items from the Consent Calendar. Anyone may request an item on this calendar be “pulled” off the Consent Calendar and considered separately. o Council-pulled Consent Calendar items will be considered before Discussion Items. o Citizen-pulled Consent Calendar items will be considered after Discussion Items. CITIZEN PARTICIPATION Individuals may comment regarding items scheduled on the Consent Calendar and items not specifically scheduled on the agenda. Comments regarding land use projects for which a development application has been filed should be submitted in the development review process** and not to the Council. Those who wish to speak are asked to sign in at the table in the lobby (for recordkeeping purposes). All speakers will be asked by the presiding officer to identify themselves by raising their hand, and then will be asked to move to one of the two lines of speakers (or to a seat nearby, for those who are not able to stand while waiting). The presiding officer will determine and announce the length of time allowed for each speaker. Each speaker will be asked to state his or her name and general address for the record, and to keep comments brief. Any written comments or materials intended for the Council should be provided to the City Clerk. A timer will buzz once and the timer light will turn yellow to indicate that 30 seconds of speaking time remain, and will buzz again and turn red when a speaker’s time to speak has ended. [**For questions about the development review process or the status of any particular development, citizens should consult the Development Review Center page on the City’s website at fcgov.com/developmentreview, or contact the Development Review Center at 221-6750.] CITIZEN PARTICIPATION FOLLOW-UP Consent Calendar The Consent Calendar is intended to allow the City Council to spend its time and energy on the important items on a lengthy agenda. Staff recommends approval of the Consent Calendar. Anyone may request an item on this calendar to be "pulled" off the Consent Calendar and considered separately. Agenda items pulled from the Consent Calendar will be considered separately under Pulled Consent Items. Items remaining on the Consent Calendar will be approved by City Council with one vote. The Consent Calendar consists of: ● Ordinances on First Reading that are routine; ● Ordinances on Second Reading that are routine; ● Those of no perceived controversy; ● Routine administrative actions. 1. Consideration and Approval of the Minutes of the October 20, 2015 Regular Council Meeting. City of Fort Collins Page 3 The purpose of this item is to approve the minutes from the October 20, 2015 Regular Council meeting. 2. Second Reading of Ordinance No. 135, 2015, Adopting the 2016 Budget and Appropriating the Fort Collins Share of the 2016 Fiscal Year Operating and Capital Improvement Funds for the Fort Collins- Loveland Municipal Airport. This Ordinance, unanimously adopted on First Reading on November 3, 2015, appropriates the City’s 50% share ($549,279) of the annual appropriation for fiscal year 2016 for the Fort Collins- Loveland Municipal Airport budget. The 2016 annual operating budget for the Airport totals $931,890, and will be funded from Airport operating revenues, contributions from the Cities of Fort Collins and Loveland ($177,500 from each City), and interest earnings. The budgeted 2016 Airport capital funds, totaling $166,668, will be used to complete a major Airport improvement, including the second phase of the construction of a snow removal equipment storage facility. 3. Second Reading Ordinance No. 136, 2015, Appropriating Prior Year Reserves in the General Fund to Reimburse Custom Blending, Inc. For Use Taxes and Business Personal Property Taxes as Provided in the Business Investment Agreement. This Ordinance, unanimously adopted on First Reading on November 3, 2015, appropriates $13,130 of prior year reserves in the General Fund for a rebate to Custom Blending for use tax and business personal property tax rebates under an agreement approved by City Council on August 20, 2013 (Resolution 2013-073). The Agreement provides business investment assistance for the expansion of Custom Blending’s manufacturing facility and investment in additional manufacturing equipment. Custom Blending has retained or created 63 primary jobs in the city. 4. Second Reading of Ordinance No. 137, 2015, Authorizing the City Manager and the Mayor to Enter Into an Agreement Regarding the City Ditch, Including the Quit Claim of a Portion of the City Ditch and the Granting of an Updated Easement Across the Waterworks Property. This Ordinance, unanimously adopted on First Reading on November 3, 2015, requests approval of a proposed agreement between the City, the Larimer County Canal No. 2 Irrigating Company (“Ditch Company”), and The James S. Brinks Trust formed under the Trust Agreement dated November 30, 2007 (“Trust”), the quit claim of a portion of the City Ditch, the granting of an updated easement across the Waterworks property, and the City’s acquisition of carriage rights. 5. Items Relating to the Design of the Police Regional Training Facility. A. Second Reading of Ordinance No. 138, 2015, Appropriating Prior Year Reserves in the General Fund of the Design of the Police Regional Training Facility. B. Resolution 2015-102 Authorizing the Mayor to Enter into an Intergovernmental Agreement with the City of Loveland for the Purpose of Sharing the Cost Related to the Design Phase of the Police Regional Training Facility. Ordinance No. 138, 2015, unanimously adopted on First Reading on November 3, 2015, will appropriate funding for the design phase of the Police Regional Training Facility. The request is for $810,000 and authorization for funding for the Fort Collins portion of the design phase. Resolution 2015-102 will authorize the Mayor to execute an intergovernmental agreement between the City of Fort Collins and the City of Loveland for the purpose of sharing the cost related to the design phase of the Police Regional Training Facility. 6. Items Relating to Utility Rates, Fees and Charges for 2016. A. Second Reading of Ordinance No. 140, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Electric Rates, Fees and Charges. City of Fort Collins Page 4 B. Second Reading of Ordinance No. 141, 2015, Amending Chapter 26 of the Code of the City of Fort Collins Regarding Calculation and Collection of Development Fees Imposed for New or Modified Electric Service Connections. C. Second Reading of Ordinance No. 142, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Water Rates, Fees and Charges. D. Second Reading of Ordinance No. 143, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Water Plant Investment Fees. E. Second Reading of Ordinance No. 144, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Wastewater Rates, Fees and Charges. (Option A was adopted on First Reading) F. Second Reading of Ordinance No. 145, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Sewer Plant Investment Fees. G. Second Reading of Ordinance No. 146, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Stormwater Plant Investment Fees. These Ordinances, unanimously adopted on First Reading on November 3, 2015, set the 2016 rate changes for electric and wastewater rates, and electric capacity fees, water plant investment fees (PIFs), wastewater PIFs and stormwater PIFs, along with other Code clarifications and formatting changes. 7. First Reading of Ordinance No. 147, 2015, Appropriating Prior Year Reserves in the General Fund to Reimburse Avago Wireless Technologies (U.S.A.) Manufacturing, Inc. For Use and Business Personal Property Taxes as Provided in Business Investment Agreements. The purpose of this item is to appropriate $467,663 of prior year reserves from the General Fund for a rebate to Avago Wireless Technologies (USA) Mfg. for use tax and business personal property tax rebates under two business investment agreements. The agreements provide business investment assistance to Avago for the expansion and retrofit of Avago’s Building 4 for a wafer fabrication facility in 2012 and for a FBAR clean room facility in 2013. These two projects created an additional 227 primary jobs in the city. 8. First Reading of Ordinance No. 148, 2015, Amending the Code of the City of Fort Collins to Increase the Amounts of the Capital Improvement Expansion Fees Contained in Chapter 7.5 of the City Code so as to Reflect Inflation in Associated Costs of Services. The purpose of this item is to update the City Code, which requires an annual adjustment to certain building permit related fees. Capital Improvement Expansion fees and Neighborhood Parkland fees are to reflect the changes in the Denver-Boulder-Greeley Consumer Price Index (CPI). Street Oversizing fees are adjusted by the changes posted in the Engineering News Record (ENR). The CPI has increased 1.0% since its last adjustment and the ENR has not changed significantly enough to warrant an adjustment. These increases will go into effect on January 1, 2016. 9. Postponement of First Reading of Ordinance No. 107, 2015, Amending Section 23-130 of the Code of the City of Fort Collins Regarding the Disposition of Lost, Abandoned or Other Unclaimed Property Indefinitely. Staff requests an indefinite postponement of First Reading of Ordinance No. 107, 2015. Adoption of a motion to postpone indefinitely will kill this agenda item. Based on direction from the City Manager’s office, staff will explore and develop a different approach to modifying City Code pertaining to abandoned personal property. Staff will bring the item back to Council for its consideration in the first quarter of 2016. City of Fort Collins Page 5 10. First Reading of Ordinance No. 149, 2015, Authorizing the Conveyance of an Easement on Maxwell Natural Area to the Board of Governors of the Colorado State University System. The purpose of this item is to authorize conveyance of a permanent easement to Colorado State University on Maxwell Natural Area that will replace a 99-year lease for access to maintain the Aggie “A” on the Natural Area. The Natural Areas Department proposes that the City enter into a permanent easement agreement with the Board of Governors of the Colorado State University System (CSU) on Maxwell Natural Area. The easement will replace a 99-year lease that provided CSU with access to maintain the Aggie “A” on the Natural Area. The easement will also enable CSU and its students to carry out two other group activities that currently require annual permits from Natural Areas. CSU’s current access typically has minimal impact to the Natural Area and no additional impacts are anticipated. No other access rights are to be conveyed. 11. First Reading of Ordinance No. 150, 2015, Vacating Portions of Redwood Street Right-of-Way Consisting of a Portion of Right-of-Way Dedicated on the Replat (No. 1) Evergreen Park plat; the Right-of-Way Dedicated at Book 1607, Page 766 of the Larimer County Records; and a Portion of Right-of-Way Dedicated at Reception No. 20060034597 of the Larimer County Records. THIS ITEM HAS BEEN WITHDRAWN FROM THE AGENDA The purpose of this item is to vacate portions of Redwood Street right-of-way, located at the northeast corner of Linden/Redwood and Vine Streets, that are no longer needed and that do not contain the existing roadway. 12. Resolution 2015-099 Authorizing the Purchasing Agent to Lease Additional Vehicles and Equipment Under the City's Standard Master Lease Agreement with Pinnacle Public Financing, Inc. For Schedule of Equipment No. 10. The purpose of this item is to request approval of the lease-purchase of vehicles and equipment for the cost of $1,315,000 under the City’s Master Lease Agreement with Pinnacle Public Finance and the “First Amendment” to that Agreement (jointly, the “Agreement”). Quarterly payments of $69,524 at the 2.15% interest rate will not exceed $278,095 in 2016. Money for 2016 lease-purchase payments is included and will be appropriated as part of the 2016 budget. A competitive process was used to select Pinnacle Public Finance for this Agreement. A 2015 Finance Department analysis of current and historical equipment lease financing arrangements showed that lease-purchase is in the best interest of the City given the interest rate offered for the lease. Staff believes acceptance of this lease rate is in the City's best interest. 13. Resolution 2015-100 Supporting the Larimer County Proposal to Use County Mill Levy Funds for Interstate 25 (I-25) Improvements. The purpose of this item is to provide a Council Resolution supporting Larimer County’s proposal to reassign a portion of its Road and Bridge Levy funds specifically for improvements to I-25 for a period of five years. This proposal does not modify the total mill levy or decrease the amount of Road and Bridge funds shared with Fort Collins. This item supports Council Priority for I-25 funding; Strategic Plan Objective Transportation 6.1, 6.4. END CONSENT CONSENT CALENDAR FOLLOW-UP This is an opportunity for Councilmembers to comment on items adopted or approved on the Consent Calendar. STAFF REPORTS City of Fort Collins Page 6 A. Recognition of the Utilities as recipient of the Association of Metropolitan Water Agencies' 2015 Gold Award (staff: Kevin Gertig) B. One Village One Family Program with Homeward 2020. (staff: Beth Sowder, Vanessa Fenley, Homeward 2020 Director) COUNCILMEMBER REPORTS CONSIDERATION OF COUNCIL-PULLED CONSENT ITEMS Discussion Items The method of debate for discussion items is as follows: ● Mayor introduces the item number, and subject; asks if formal presentation will be made by staff ● Staff presentation (optional) ● Mayor requests citizen comment on the item (three minute limit for each citizen) ● Council questions of staff on the item ● Council motion on the item ● Council discussion ● Final Council comments ● Council vote on the item Note: Time limits for individual agenda items may be revised, at the discretion of the Mayor, to ensure all citizens have an opportunity to speak. Please sign in at the table in the back of the room. The timer will buzz when there are 30 seconds left and the light will turn yellow. It will buzz again at the end of the speaker’s time. 14. Second Reading of Ordinance No. 139, 2015, Being the Annual Appropriation Ordinance Relating to the Annual Appropriations for the Fiscal Year 2016; Amending the Budget for the Fiscal Year Beginning January 1, 2016, and Ending December 31, 2016; and Fixing the Mill Levy for Fiscal Year 2016. (staff: Lawrence Pollack, Darin Atteberry, Mike Beckstead; no staff presentation; 15 minute discussion) This Ordinance, unanimously adopted on First Reading on November 3, 2015, amends the adopted 2016 Budget and set the amount of $563,538,909 to be appropriated for fiscal year 2016. Including the 2016 adopted budgets for the General Improvement District No. 1 (“GID No. 1”) of $193,877, the Skyview General Improvement District No. 15 (“GID No. 15”) of $1,000, and the revised Urban Renewal Authority (URA) budget of $2,889,600, the total City appropriations amount to $566,623,386. The Net City Budget, which excludes the GID No.1, GID No. 15, URA, and internal transfers between City funds, is $448,536,933 for 2016. 15. Resolution 2015-101 Downtown Hotel Parking Structure Partnership. (staff: Josh Birks, Mike Beckstead; 5 minute staff presentation; 25 minute discussion) The purpose of this item is for City Council to consider a resolution authorizing the City Manager to execute a purchase and sale agreement to acquire over 200 public parking spaces. In addition, the Resolution instructs staff to prepare a financing strategy and plan for presentation to City Council late 2016 or early 2017. CONSIDERATION OF CITIZEN-PULLED CONSENT ITEMS OTHER BUSINESS City of Fort Collins Page 7 A. Council will consider a motion designating two Councilmembers to represent the City Council in discussions regarding regionalization prospects and cooperation among water providers. B. Possible consideration of the initiation of new ordinances and/or resolutions by Councilmembers (Three or more individual Councilmembers may direct the City Manager and City Attorney to initiate and move forward with development and preparation of resolutions and ordinances not originating from the Council's Policy Agenda or initiated by staff.) ADJOURNMENT A. Council will consider a motion to adjourn the meeting until after the General Improvement District No. 1 meeting, Skyview South General Improvement District No. 15 meeting and the Urban Renewal Authority meeting and then may consider a possible executive session to continue the yearly evaluations of the City Manager, City Attorney and Municipal Judge. Every Council meeting will end no later than 10:30 p.m., except that: (1) any item of business commenced before 10:30 p.m. may be concluded before the meeting is adjourned and (2) the City Council may, by majority vote, extend a meeting until no later than 12:00 a.m. for the purpose of considering additional items of business. Any matter which has been commenced and is still pending at the conclusion of the Council meeting, and all matters scheduled for consideration at the meeting which have not yet been considered by the Council, will be continued to the next regular Council meeting and will be placed first on the discussion agenda for such meeting. PROCLAMATION WHEREAS, the City of Fort Collins recognizes that the Fort Collins Museum of Art, a non-profit organization, has, for over thirty years, uniquely served the Fort Collins community and Colorado with the most innovative and engaging local, regional and national art exhibitions and educational programming; and WHEREAS, the Fort Collins Museum of Art is exhibiting the original paintings and sculptures of renown Fort Collins artist and graphic designer Bob Coonts from November 20, 2015 through January 10, 2016; and WHEREAS, Bob Coonts is a Fort Collins institution, treasure, mentor, and teacher through his Fort Collins business, Bob Coonts Graphic Design, Inc and his affiliate faculty status at Colorado State University for over 35 years; and WHEREAS, Bob’s artistic talent and generosity have influenced generations of students and designers in the Fort Collins community and beyond. NOW, THEREFORE, I, Wade Troxell. Mayor of the City of Fort Collins do hereby proclaim Friday, November 20, 2015 as BOB COONTS DAY IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the City of Fort Collins this 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _________________________________ City Clerk Packet Pg. 8 Agenda Item 1 Item # 1 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Wanda Winkelmann, City Clerk SUBJECT Consideration and Approval of the Minutes of the October 20, 2015 Regular Council Meeting. EXECUTIVE SUMMARY The purpose of this item is to approve the minutes from the October 20, 2015 Regular Council meeting. ATTACHMENTS 1. October 20, 2015 (PDF) 1 Packet Pg. 9 City of Fort Collins Page 247 October 20, 2015 COUNCIL OF THE CITY OF FORT COLLINS, COLORADO Council-Manager Form of Government Regular Meeting – 6:00 PM ROLL CALL PRESENT: Martinez, Stephens, Overbeck, Campana, Troxell, Cunniff, Horak Staff Present: Darin Atteberry, Carrie Daggett, Wanda Winkelmann AGENDA REVIEW: CITY MANAGER City Manager Atteberry noted Consent Agenda Item No. 12, Public Hearing and First Reading of Ordinance No. 133, 2015, Amending the Zoning Map of the City of Fort Collins by Changing the Zoning Classification for that Certain Property Known as the Houska Automotive Rezoning, is a public hearing. CITIZEN PARTICIPATION Mary Kopco, Fort Collins Symphony Executive Director, thanked Council for funding Master Works and Outside the Box programs. Heidi Mausbach, Fort Collins Symphony, performed a cello solo. Elaine Burritt discussed the proposed amendment to the IGA for the I-25/Highway 392 interchange and opposed the inclusion of car dealerships at that location. Jack Daniels thanked Council for making Fort Collins a wonderful place to live. Donald Burritt opposed the inclusion of car dealerships at the I-25/Highway 392 interchange. Eric Tamme discussed the negative impacts of non-owner occupied, short-term vacation rentals on neighborhoods. Jana Anderson opposed the inclusion of car dealerships at the I-25/Highway 392 interchange. Lynn Thompson, Fort Collins Homeless Coalition, thanked Beth Sowder for her recent memo on the topic of homelessness in our community and opposed the criminalization of homelessness. Mary Kay Morrison opposed the inclusion of car dealerships at the I-25/Highway 392 interchange. Cheryl Distaso, Fort Collins Community Action Network, discussed a meeting the Homeless Coalition had with shelter providers in Fort Collins. She expressed concern regarding the lack of shelter space for the winter and opposed the criminalization of homelessness. Lynn Barker expressed concern regarding the lack of shelter space for the upcoming winter. 1.1 Packet Pg. 10 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 248 CITIZEN PARTICIPATION FOLLOW-UP Councilmember Overbeck requested follow-up regarding the overflow shelters in the city. Beth Sowder, Social Sustainability Director, replied the overflow shelter plan has reflected the work of non-profit shelter providers and stated additional women’s bed and family options will be provided at Catholic Charities, men’s beds at the Mission, and hotel vouchers for families. Mayor Pro Tem Horak asked about the real-time need plan. Sowder replied the shelters have a goal to turn no one away and work together as much as possible to make that happen. Mayor Pro Tem Horak asked how the City is working with the shelters during those times. Sowder replied her staff received daily updates of availability and noted shelters do allow Police Services to bring people in throughout the night, if needed. Councilmember Cunniff discussed the importance of keeping camping out of the Natural Areas and supported the additional options. He requested information regarding the I-25/Highway 392 interchange. City Manager Atteberry replied Council directed staff to work on a joint meeting with the Town of Windsor, which has been scheduled for November 2. The meeting will involve a conversation between the Windsor town Board and Council; however no decisions will be made at that meeting. Atteberry noted subsequent action would be needed to modify the IGA. Additionally, Atteberry stated Council does not have decision making authority around the land use component, just the master plan and mutual agreement with Windsor on the allowed uses. Mayor Pro Tem Horak encouraged the use of a joint public engagement process, should potential changes come forward. Councilmember Overbeck noted Council will be addressing the short-term rental issue next week and thanked the Fort Collins Symphony for its performance. CONSENT CALENDAR Mayor Troxell opened the public hearing for Item No. 12, Public Hearing and First Reading of Ordinance No. 133, 2015, Amending the Zoning Map of the City of Fort Collins by Changing the Zoning Classification for that Certain Property Known as the Houska Automotive Rezoning. Mayor Pro Tem Horak made a motion, seconded by Councilmember Cunniff, to adopt and approve all items on the Consent Agenda. RESULT: CONSENT CALENDAR ADOPTED [UNANIMOUS] MOVER: Gerry Horak, District 6 SECONDER: Ross Cunniff, District 5 AYES: Martinez, Stephens, Overbeck, Campana, Troxell, Cunniff, Horak Mayor Troxell closed the public hearing for Item No. 12, Public Hearing and First Reading of Ordinance No. 133, 2015, Amending the Zoning Map of the City of Fort Collins by Changing the Zoning Classification for that Certain Property Known as the Houska Automotive Rezoning. 1.1 Packet Pg. 11 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 249 1. Consideration and Approval of the Minutes of the September 29, 2015 Special Council Meeting and the October 6, 2015 Regular Council Meeting. (Adopted) The purpose of this item is to approve the minutes from the September 29, 2015 Special Council meeting and the October 6, 2015 Regular Council meeting. 2. Second Reading of Ordinance No. 113, 2015, Appropriating Prior Year Reserves in the General Fund to Reimburse Woodward, Inc. For Development Fees and Capital Improvement Expansion Fees. (Adopted) This Ordinance, unanimously adopted on First Reading on October 6, 2015, appropriates $180,994 of prior year reserves from the General Fund for a rebate to Woodward for fees under an agreement that City Council approved on April 2, 2013 (Ordinance No. 055, 2013). The agreement provides business investment assistance for the relocation of Woodward’s headquarters, as well as an expansion of its manufacturing and office facilities to a new location at the corner of Lincoln Avenue and Lemay Avenue. The project will retain or create between 1,400 and 1,700 primary jobs in the City. Changes have been made to this Ordinance to edit language amended on First Reading reflecting that all of the prior year reserves to be appropriated will be from the General Fund and not from affected capital improvement expansion fee funds. 3. Second Reading of Ordinance No. 123, 2015, Appropriating Prior Year Reserves and Unanticipated Revenue in Various City Funds and Authorizing the Transfer of Appropriated Amounts between Funds or Projects. (Adopted) This Ordinance, unanimously adopted on First Reading on October 6, 2015, combines dedicated and unanticipated revenues or reserves that need to be appropriated before the end of the year to cover the related expenses that were not anticipated and, therefore, not included in the 2015 annual budget appropriation. The unanticipated revenue is primarily from fees, charges, rents, contributions and grants that have been paid to City departments to offset specific expenses. 4. Second Reading of Ordinance No. 124, 2015, Appropriating Prior Year Reserves in the Street Oversizing Fund for Transfer to the Capital Project Fund for the Lemay and Vine Intersection Project. (Adopted) This Ordinance, unanimously adopted on First Reading on October 6, 2015, appropriates $244,723 of prior year reserves from the Street Oversizing Fund and authorizes the transfer of appropriations from the Street Oversizing Fund into the Capital Project Fund for the Lemay and Vine Intersection Project. The Engineering Department is currently working on the conceptual design and alternatives analysis for realigned Lemay Avenue and Suniga Drive, northeast of the existing Lemay and Vine intersection. The City has an opportunity to purchase road right-of-way and utility easements for realigned Lemay Avenue and Suniga Drive within the Kederike parcel. The purchase of the road right-of-way and easements has been portioned out between an Engineering Capital obligation and a Street Oversizing obligation. 5. Second Reading of Ordinance No. 126, 2015, Appropriating Unanticipated Grant Revenue into the Storm Drainage Fund for the Flood Warning System Enhancements Project. (Adopted) This Ordinance, unanimously adopted on First Reading on October 6, 2015, appropriates $125,037 in grant revenues from the State of Colorado Department of Homeland Security - Office of Emergency Management. The project consists of Stormwater Flood Warning System capital outlays that include purchase of new data management software, new communications hardware, and installation of three new gauges. 6. Second Reading of Ordinance No. 127, 2015 Authorizing a Lease of City-Owned Property at City Park North Ball Field to Verizon Wireless (VAW) LLC for the Installation of Antennas and Related Facilities, and Associated Access and Utility Easements. (Adopted) 1.1 Packet Pg. 12 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 250 This Ordinance, unanimously adopted on First Reading on October 6, 2015, adds an antenna array to an existing City-owned light pole, located at City Park north ball field, 137 South Bryan Avenue, and authorizes the lease of 375 square feet of ground space to Verizon Wireless. The array will be located approximately 65 feet above the ground and accompany two other arrays currently on the pole. Additional ground space for related communication equipment cabinets will be installed adjacent to the current carriers’ equipment. 7. First Reading of Ordinance No. 128, 2015, Being the Annual Appropriation Ordinance for the Fort Collins Downtown Development Authority Relating to the Annual Appropriations for the Fiscal Year 2016 and Fixing Mill Levy for the Downtown Development Authority for Fiscal Year 2016. (Adopted) The purpose of this item is to set the Downtown Development Authority (“DDA”) Budget. The following amounts will be appropriated: DDA Public/Private Investments & Programs $ 725,394 DDA Operations & Maintenance $ 791,717 Revolving Line of Credit Draws $ 2,100,000 DDA Debt Service Fund $ 4,521,012 The Ordinance sets the 2016 Mill Levy for the Fort Collins DDA at five (5) mills, unchanged since tax year 2002. The approved Budget becomes the Downtown Development Authority’s financial plan for 2016. 8. First Reading of Ordinance No. 129, 2015, Appropriating Prior Year Reserves in the Downtown Development Authority Fund for Expenditure on Projects and Programs in Fiscal Year 2015 in Accordance with the Downtown Plan of Development. (Adopted) The purpose of this item is to appropriate unanticipated revenue from interest earnings in the amount of $13,508 and from project savings in the amount of $63,836 for a total appropriation of $77,344. The Downtown Development Authority (“DDA”) Board has authorized the expenditure of these funds for various DDA projects and programs in fiscal year 2015. 9. First Reading of Ordinance No. 130, 2015, Appropriating Prior Year Reserves in the Transit Services Fund and Prior Year Reserves in the Transportation Fund and Authorizing the Transfer of Appropriations into the Capital Projects Fund and Appropriating Therein for the Mason Corridor Project for the Purchase of Two Rapid Transit Buses. (Adopted) The purpose of this item is to request appropriations and transfers in the amount of $1,473,887 to help pay for two recently-delivered Bus Rapid Transit (BRT) 60-foot Compressed Natural Gas (CNG) buses for MAX. The total cost for the two buses is $1,734,598 and the balance will be paid from an existing Capital Projects Fund appropriation of $260,711. The requested funding sources and amounts are as follows: Transportation Fund Reserves in the amount of $741,288; and Transit Fund Reserves in the amount of $732,599. The appropriated amounts would then be transferred to the Capital Projects Fund. 10. First Reading of Ordinance No. 131, 2015, Amending Section 25-75(a) of the Code of the City of Fort Collins to Extend the Expiration Date of the City's 0.25% Street Maintenance Sales and Use Tax as Approved by the Voters at the City's April 7, 2015, Regular Election and to Correct an Error in the Expiration Date of the City's 0.85% Sales and Use Tax Increase Approved by the Voters at the City's November 2, 2010, Special Election. (Adopted) The purpose of this item is to amend Section 25-75(a) of the City Code to reflect the appropriate tax expirations dates as approved by the electors. The expiration date of the street maintenance tax needs to reflect the extension to December 31, 2025. The expiration date for the Keep Fort Collins Great (KFCG) tax increase of .85% needs to be corrected to December 30, 2020. 1.1 Packet Pg. 13 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 251 11. First Reading of Ordinance No. 132, 2015, Amending Section 25-65 of the Code of the City of Fort Collins to Change the Application Filing Deadline for the City's Manufacturing Equipment Use Tax Rebate Program. (Adopted) The purpose of this item is to amend City Code Section 25-65 to change the deadline for filing with the City an application for the manufacturing equipment use tax rebate (MUTR) from December 31st to June 30th. 12. Public Hearing and First Reading of Ordinance No. 133, 2015, Amending the Zoning Map of the City of Fort Collins by Changing the Zoning Classification for that Certain Property Known as the Houska Automotive Rezoning. (Adopted) The purpose of this item is to rezone one parcel of land, 1005 Riverside Drive, near the southwest corner of the Riverside Drive and Lemay Avenue intersection. Existing zoning is N-C, Neighborhood Commercial District. Proposed zoning is C-L, Limited Commercial District. The parcel is 2.5 acres in size and is currently vacant. 13. Resolution 2015-089 Supporting the Colorado Department of Transportation’s Northern Colorado Connectivity Project and Recommending it be Submitted for Federal Grant Funding Consideration. (Adopted) The purpose of this item is to consider a Resolution and letter in support for a Colorado Department of Transportation (CDOT) grant application for federal resiliency funds (Northern Colorado Connectivity Project) to be used to improve I-25 infrastructure. These funds will help make improvements needed to maintain critical I-25 connectivity to Northern Colorado in times of emergency, weather event, disaster, or crisis. 14. Resolution 2015-090 Setting for December 1, 2015, a Noticed Public Hearing for the City Council's Consideration of a Resolution to Substantially Modify the Midtown Urban Renewal Plan. (Adopted) The purpose of this item is for City Council to consider the adoption of a resolution setting a public hearing date for December 1, 2015 to consider two modifications of the Midtown Urban Renewal Plan (the “Midtown Plan”). One modification would reduce the Midtown Plan area by removing territory that is currently not in either of the two approved tax increment financing (TIF) districts within the Midtown Plan (Prospect South and Foothills Mall). The other modification would amend wording in the Midtown Plan to clarify that the Plan identifies and describes only one urban renewal project. Adoption of the Resolution only sets the public hearing date for December 1, 2015, for Council’s consideration of these modifications and does not take any action on either of the two modifications. 15. Resolution 2015-091 Adopting Amended Rules of Procedure Governing the Conduct of City Council Meetings and Council Work Sessions. (Adopted) The purpose of this item is to amend the rules of procedure for City Council meetings for review of Additional Permitted Uses and Rezonings of 640 acres or less. The amended rules also provide for the order of items for special Council meetings. END CONSENT CONSENT CALENDAR FOLLOW-UP Councilmember Cunniff supported future discussion with the Council Finance Committee regarding best practices and techniques for dealing with the loss of federal grant funding, in reference to Item No. 9, First Reading of Ordinance No. 130, 2015, Appropriating Prior Year 1.1 Packet Pg. 14 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 252 Reserves in the Transit Services Fund and Prior Year Reserves in the Transportation Fund and Authorizing the Transfer of Appropriations into the Capital Projects Fund and Appropriating Therein for the Mason Corridor Project for the Purchase of Two Rapid Transit Buses. COUNCILMEMBER REPORTS Councilmember Martinez reported on the memo from Dan Weinheimer, Policy and Project Manager, regarding last week’s CML meeting. Councilmember Overbeck reported on the Bridging the Gap meeting and a documentary called Alive Inside. Councilmember Cunniff reported on the Larimer County Solid Waste Forum. Councilmember Stephens reported on the screening of Fort Collins: The Choice City for Whom?, a documentary about racism and discrimination in the community. Councilmember Overbeck reported on the documentary screening and stated the community needs to reinforce its commitment to cultural diversity. Councilmember Martinez requested information regarding what the City has done previously regarding cultural relationships. Mayor Troxell reported on the third meeting of the Northern Colorado Airport Commission and an event hosted by Senator Bennett regarding railroads. Mayor Pro Tem Horak reported on a neighborhood meeting held by CSU regarding its new facilities, including the stadium. He suggested Council receive the materials from this and subsequent meetings. DISCUSSION ITEMS 16. Second Reading of Ordinance No. 125, 2015, Appropriating Prior Year Reserves in the Capital Project Fund for the Building on Basics Intersection Improvements and the Street Oversizing Fund into the Capital Projects Fund for the Timberline Road–Drake Road to Prospect Road Improvement Project, and the Cultural Services and Facilities Fund for the Art in Public Places Program. (Adopted as Amended on Second Reading) This Ordinance, unanimously adopted on First Reading on October 6, 2015 (Campana recused) appropriates $1,300,000 of prior year reserves from the Building on Basics Fund and appropriates $200,000 of prior year reserves from the Street Oversizing Fund into the Capital Project Fund for the “Timberline Road-Drake Road to Prospect Road” Improvement Project. The initial budget for this project was established in 2013. Between conceptual planning in early 2013 and final design in late 2015, construction prices have risen between 30% and 50%. This appropriation allows staff to finalize the design and construction of safety, multi-modal, operational, and landscape improvements. The project will be constructed in 2016. Councilmember Campana withdrew from the discussion of this item due to a conflict of interest. Mayor Pro Tem Horak made a motion, seconded by Councilmember Cunniff, to adopt Ordinance No. 125, 2015, on Second Reading. 1.1 Packet Pg. 15 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 253 RESULT: ORDINANCE NO. 125, 2015, ADOPTED ON SECOND READING [6 TO 0] MOVER: Gerry Horak, District 6 SECONDER: Ross Cunniff, District 5 AYES: Martinez, Stephens, Overbeck, Troxell, Cunniff, Horak RECUSED: Campana 17. Resolution 2015-088 Stating the Intent of the City of Fort Collins to Annex Certain Property and Initiating Enclave Annexation Proceedings for Such Property to be Known as the Wood Street Second Annexation. (Adopted) The purpose of this item is to initiate the annexation process for the Wood Street Second Annexation. This is a City-initiated request to annex a 16.267 acre parcel at 832 Wood Street, owned by Jeffrey Lebesch, into the City of Fort Collins. The parcel became an enclave with the annexation of the Pateros Creek subdivision on September 18, 2012. As of September 18, 2015, the City is authorized to initiate and annex the enclave in accordance with State Statute 31-12-106. Councilmember Campana withdrew from the discussion of this item due to a conflict of interest. Clay Frickey, Associate Planner, noted this is an enclave annexation which is required per state statute and the IGA with Larimer County. He stated the property will be zoned Urban Estate. Mayor Pro Tem Horak made a motion, seconded by Councilmember Overbeck, to adopt Resolution 2015-088. Councilmember Martinez asked about the use of cool air from the lake bottom for climate control at the utility building. Kevin Gertig, Utility Services Executive Director, replied this project will involve using plates submerged in the pond on the annexed site for water circulation and climate control at the 700 Wood Street Utilities building. RESULT: RESOLUTION 2015-088 ADOPTED [6 TO 0] MOVER: Gerry Horak, District 6 SECONDER: Bob Overbeck, District 1 AYES: Martinez, Stephens, Overbeck, Troxell, Cunniff, Horak RECUSED: Campana 18. First Reading of Ordinance No. 134, 2015, Making Certain Amendments to Section 17-142 of the Code of the City of Fort Collins Related to Public Nudity. (Option 1 or Option 2) (Adopted as Amended on First Reading) The purpose of this item is to bring forth two potential options to the current City Code provisions concerning public nudity for consideration in light of recent citizen concerns regarding the prohibition on female toplessness in Fort Collins. Both options would update the section of the Code to read as “Public Nudity” rather than “Public Indecency.” Both options also include exceptions to the provisions for young children, changing areas, medical situations, and performance venues. Option 1 would keep the provision in the Code that does not allow for female toplessness, while adding exceptions, including an exception for breastfeeding mothers. Option 2 would update the Code provisions by allowing female toplessness within the City and specifically prohibiting all nudity below the waist for both sexes, with certain limited exceptions. Tyler Marr, Graduate Management Assistant, stated this issue has come forward as the result of citizens expressing concern regarding the gender inequality of the City’s existing public 1.1 Packet Pg. 16 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 254 indecency ordinance. He detailed the two options brought forth by staff; the first is referenced as the “enhanced status quo,” which does not allow women to be topless with the exception of breast feeding mothers. The second option would be a change in policy which would allow women to be topless in the City. Marr discussed the public input process and noted the Women’s Commission and Human Relations Commission both expressed support for the second option to change the policy. Marr presented the results from an on-line survey which showed 60% of participants supporting option one and 40% supporting option two. In terms of common themes of public comments, four main categories emerged: concerns regarding family values and modesty, the possibility of a third option which would require men to wear shirts in public, concerns regarding discrimination, and concerns regarding looking at this issue at all. Marr stated both of the options presented make exceptions for young children, performance venues, changing areas, and those undergoing medical emergencies. Additionally, both options would change the phrase “public indecency” to “public nudity.” Katie Peters spoke about the value of the empowerment of women and stated changing this policy highlights sameness rather than promoting equality. She opposed changes to the existing Ordinance. Bryan Prouty opposed changes to the existing Ordinance stating allowing women to go topless would degrade the atmosphere in Fort Collins. Ray Stockton opposed changes to the existing Ordinance. Pam Prouty opposed changes to the existing Ordinance stating it will negatively affect downtown businesses. Traver Shaw discussed the scientific reasons for women’s breasts and stated male and female chests are different. He stated allowing women to go topless would put women at risk for assault or unwanted sexual advances. Barb Myers opposed changing the existing Ordinance stating nudity will not support the fabric of the community and will not support those who choose to instill the value of modesty to their families. Kristin Semmens questioned the demographic of the 40% of the on-line survey respondents who supported allowing women to go topless and questioned whether or not those opinions would change should those individuals have children. Roy Bearden discussed distracted driving and opposed changing the existing Ordinance. Chet Daniel spoke about the threat of sexual temptations to faithfulness. Roberta Croft stated equality is not sameness and opposed changing the Ordinance as allowing women to go topless would impede on her ability to enjoy the community. 1.1 Packet Pg. 17 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 255 Lori Merkley opposed changes to the Ordinance and spoke of the importance of valuing human beings based on who they are rather than what they wear or do not wear. David Harris stated America is a place of freedom but questioned what happens when freedoms limit or impede other freedoms. Brad Gilliland stated these changes would be detrimental to the City’s growth and health and to the safety of women. Additionally, he expressed concern regarding additional short and long- term issues. Matt Simpson opposed Option Two, citing concerns regarding women’s safety and children’s exposure. Mitch Majeski stated this issue deals with the balancing of values and suggested there may be another way to accomplish increasing the value of women. He supported Option One. Aaron Hoaglund stated Colorado and other neighboring municipalities do not criminalize toplessness. Additionally, he spoke of the importance of protecting the minority from the oppressive will of the majority. He expressed concern regarding non-detailed definitions in Option One. Ken Burns opposed changes to the existing Ordinance citing the importance of the legacy being left for the future. Samantha Six discussed the importance of equality and stated the existing policy sexualizes women without their consent. Janice Burns opposed changes to the existing Ordinance and discussed the effect of changes on sex offenders. Rosie Nazeck spoke of the importance of the “swim suit” talk with small children and opposed changes to the existing Ordinance. Lynn (no last name given) stated she would not bring her grandchildren into the downtown area if the proposed Option Two passes. Jacob Nazeck opposed changes to the existing Ordinance noting there are differences between men and women in all areas. Chuck Patchin stated this is not a debate about equality and argued passing Option Two would make women less safe. Rachel Dozier stated she is not unequal because she keeps her breasts covered and opposed adoption of Option Two. Tom Selkin opposed changes to the existing Ordinance stating there are differences between males and females. 1.1 Packet Pg. 18 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 256 Fred Wagner opposed changes to the existing Ordinance stating it would lead to disrespect for women. Pat Dubai noted the number of citizens who have taken time from their day to discuss this issue and opposed changes to the existing Ordinance in order to protect children. Jason LeVasseur stated equality does not mean sameness and opposed adoption of Option Two. Deborah (no last name given) opposed adoption of Option Two stating it would not empower women. Tom Russell suggested there are many citizens with no knowledge of this potential change and opposed Option Two, expressing concern about increased crime. Robyn Hoxie opposed Option Two stating allowing toplessness will not affect equality. Leif Youngs supported Option Two stating women may not necessarily opt to go topless, but giving them the ability to do so would give women equal power and equal rights. Dan Houser opposed Option Two stating the agenda of a minority should not dictate how the majority lives. Luke Kovias opposed changes to the existing Ordinance stating it would not be in the best interest of the community. Erin Kisling opposed Option Two stating it would not promote equality. Jamie Amundgaard opposed Option Two stating its adoption would change where and how shopping is done in the community and would negatively impact youth in the community. Tom Elliott questioned if this is what Fort Collins wants to be known for and stated there is a clear connection between human trafficking and pornography. Brittany Hoaglund supported adoption of Option Two and stated allowing this choice and right to women will not harm anyone. Patrick Hall stated the male upper body was once just as criminalized as the female upper body is today. He supported the adoption of Option Two in order to provide equality in terms of choice. Scott Smith opposed changing the existing Ordinance stating adoption of either option would not fit into Fort Collins’ community values. Cole Straylo opposed adoption of Option Two. Lisa Smith expressed concern that adoption of Option Two would set a precedent for the future. Scottie Hollingsworth stated adoption of Option Two would lead to objectification of women. 1.1 Packet Pg. 19 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 257 Anders Crane stated this is a difficult subject but argued equality is equality and supported adoption of Option Two. Monte Knoble asked about the highlighted text in the proposed Ordinance and opposed adoption of either option. Additionally, he requested clarification on the definitions of nudity and decency. Eric Messerle opposed adoption of Option Two stating it would not help in respect for women. Christine Hays questioned what exceptions would be included and noted exposure of cleavage or any part of the breast is currently illegal under the existing Ordinance. Jimmy Trapp commented on the culturally-constructed idea that female breasts are indecent and stated adoption of Option Two would be a good step toward ensuring the female breast does not have to be sexualized. Susan (no last name given) opposed the analysis of the on-line survey which removed surveys from the same IP address. She opposed adoption of Option Two. (Secretary’s Note: Council took a brief recess at this point in the meeting.) Mayor Pro Tem Horak requested information as to the meaning of the yellow highlighted sections on the two options. City Attorney Daggett replied there are both strike-outs of existing Code language and new proposed language, highlighted in yellow, in both options. Mayor Pro Tem Horak asked why staff has suggested replacing the word “indecency” with “nudity.” City Attorney Daggett replied that change was recommended because of a state law relating to public indecency which addresses a much broader group of offenses. Mayor Pro Tem Horak asked about the inclusion of a reference to performance venues. City Attorney Daggett replied performance venues are described to mean theater, concert hall, museum, school or similar establishment serving as a performance venue. Mayor Pro Tem Horak asked about the exceptions included in option one. City Attorney Daggett replied breast feeding was added due to the state law which identifies breast feeding as a protected activity. Additionally, she noted each of the exceptions have been seen in other jurisdictions and for activities which the City is not intending to make illegal; for example, the need for medical care, children under the age of 10, and locker rooms. Councilmember Campana commended Marr on his presentation and requested additional information regarding what parts of the breast need to be exposed in order for a Code violation to be considered. City Attorney Daggett replied the specific definition of what parts of the breast need to be exposed in order to violate the Code was not particularly considered. She noted language could be added to make a more explicit definition. Additionally, she discussed the state law, which calls for an intent and requires that the exposure be with the intent to arouse or satisfy the sexual desire of any person, and behavior that violates that state law is still illegal under state law whether or not it’s a violation of the City Code. 1.1 Packet Pg. 20 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 258 Councilmember Stephens asked about the penalty for a woman going topless under the current Code. City Attorney Daggett replied a range of penalties exist in municipal court and a first offense calls for a $250 fine. Councilmember Martinez asked if the Human Relations Commission or Women’s Commission involved public outreach in its decision. Marr replied it is not his understanding that occurred and stated the Women’s Commission weighed in via email while the Human Relations Commission voted on the issue at its last meeting. Councilmember Martinez asked if citizens must be a certain age to buy magazines showing nudity. Bronwyn Scurlock, Assistant City Attorney, replied there is a state law which prohibits the sale of pornography or obscenity to minors. Councilmember Martinez asked why minors should be exposed to live nudity when they are not allowed to be exposed to print nudity. Councilmember Campana made a motion, seconded by Councilmember Martinez, to adopt Ordinance No. 134, 2015, Option One, with the definition of a breast similar to that of Loveland, be included. Councilmember Campana thanked the citizens who spoke and encouraged continuation of the dialogue. Councilmember Stephens thanked the citizens who spoke and stated it is important to talk about these issues because differing opinions do exist. Additionally, she noted the importance of validating the fact that some citizens find this law discriminatory. She encouraged those citizens to continue to work with additional equal rights issues. Mayor Troxell credited Council for listening to citizens and therefore bringing this topic forward. He supported gender equity but stated it is not the same as gender neutrality. Additionally, he cited the importance of the many comments of the women of the community in opposition to option two. Councilmember Martinez cited the importance of the rights of all citizens. Mayor Pro Tem Horak commended Ms. Hoaglund for bringing the issue forward resulting in an examination of the need for changes to the existing Code. Councilmember Cunniff stated he would support the motion. City Attorney Daggett reviewed the language changes requested by Councilmember Campana. 1.1 Packet Pg. 21 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 259 RESULT: ORDINANCE NO. 134, 2015, ADOPTED AS AMENDED ON FIRST READING [UNANIMOUS] MOVER: Gerry Horak, District 6 SECONDER: Ray Martinez, District 2 AYES: Martinez, Stephens, Overbeck, Campana, Troxell, Cunniff, Horak 19. Resolution 2015-092 Appointing Three Councilmembers to Serve on an Ad Hoc Council Committee to Study and Consider Election Code Changes. (Adopted) The purpose of this item is to appoint three City Councilmembers to the ad hoc Election Code Changes Council Committee. City Clerk Winkelmann stated staff has recommended election Code changes due to a new House Bill relating to uniform and overseas voters and because of the “plan, go, check, act” process following the April municipal election. Eric Sutherland stated Fort Collins needs to determine what laws it is using to manage elections and stated if the City was truly using the Uniform Election Code, it would have been required to verify signatures against the Secretary of State’s records. Mayor Pro Tem Horak made a motion, seconded by Councilmember Campana, to adopt Resolution 2015-092, inserting the names of Councilmembers Cunniff, Stephens and Overbeck. RESULT: RESOLUTION 2015-092 ADOPTED [UNANIMOUS] MOVER: Gerry Horak, District 6 SECONDER: Gino Campana, District 3 AYES: Martinez, Stephens, Overbeck, Campana, Troxell, Cunniff, Horak OTHER BUSINESS Councilmember Campana stated several municipalities are adopting ordinances dealing with construction defects. He requested, and received, support for directing staff to work on a similar ordinance. City Attorney Daggett requested information regarding how Council would like the issue to be presented. Councilmember Campana replied he would like to see a matrix of the options in other municipalities. Councilmember Cunniff requested comparative data on options. Mayor Troxell noted the Colorado Municipal League could be a good resource for information. Mayor Pro Tem Horak noted Council’s read-before packet had information regarding the upcoming regional meeting with Larimer County about changes in the mill levy in order to provide funds for the I-25 project as well as a major road project in Fort Collins. City Manager Atteberry noted staff is supportive of this proposal and plans to bring the plan before the Finance Committee in November. 1.1 Packet Pg. 22 Attachment: October 20, 2015 (3787 : Minutes-10/20) October 20, 2015 City of Fort Collins Page 260 ADJOURNMENT The meeting adjourned at 9:15 PM. ______________________________ Mayor ATTEST: ________________________________ City Clerk 1.1 Packet Pg. 23 Attachment: October 20, 2015 (3787 : Minutes-10/20) Agenda Item 2 Item # 2 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Mike Beckstead, Chief Financial Officer Jason Licon, Airport Director SUBJECT Second Reading of Ordinance No. 135, 2015, Adopting the 2016 Budget and Appropriating the Fort Collins Share of the 2016 Fiscal Year Operating and Capital Improvement Funds for the Fort Collins-Loveland Municipal Airport. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on November 3, 2015, appropriates the City’s 50% share ($549,279) of the annual appropriation for fiscal year 2016 for the Fort Collins-Loveland Municipal Airport budget. The 2016 annual operating budget for the Airport totals $931,890, and will be funded from Airport operating revenues, contributions from the Cities of Fort Collins and Loveland ($177,500 from each City), and interest earnings. The budgeted 2016 Airport capital funds, totaling $166,668, will be used to complete a major Airport improvement, including the second phase of the construction of a snow removal equipment storage facility. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, November 3, 2015 (PDF) 2. Ordinance No. 137, 2015 (PDF) 2 Packet Pg. 24 Agenda Item 8 Item # 8 Page 1 AGENDA ITEM SUMMARY November 3, 2015 City Council STAFF Mike Beckstead, Chief Financial Officer Jason Licon, Airport Director SUBJECT First Reading of Ordinance No. 135, 2015, Adopting the 2016 Budget and Appropriating the Fort Collins Share of the 2016 Fiscal Year Operating and Capital Improvement Funds for the Fort Collins-Loveland Municipal Airport. EXECUTIVE SUMMARY The 2016 annual operating budget for the Airport totals $931,890, and will be funded from Airport operating revenues, contributions from the Cities of Fort Collins and Loveland ($177,500 from each City), and interest earnings. This Ordinance appropriates the City of Fort Collins 50% share of the 2016 Airport budget, which totals $465,945. This Ordinance also appropriates the City’s 50% share of capital funds, totaling $83,334 for the Airport from Federal and State grants; contributions from Fort Collins and Loveland; and the Airport General Fund. The budgeted 2016 Airport capital funds, totaling $166,668, will be used to complete a major Airport improvement including the second phase of the construction of a snow removal equipment storage facility. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION In 1963, the City of Fort Collins and the City of Loveland agreed to the establishment of a regional aviation facility and became owners and operators of the Fort Collins-Loveland Municipal Airport, located approximately 16 miles southeast of downtown Fort Collins, just west of Interstate 25 on Earhart Road. The Airport is operated as a joint venture between the City of Fort Collins and the City of Loveland, with each city retaining a 50% ownership interest, sharing equally in policy-making and management, and with each assuming responsibility for 50% of the capital and operating costs associated with the Airport. The Airport’s mission is to provide a safe and efficient air transportation airport facility to the general public and aviation community by providing airport facilities that meet Federal Aviation Administration (FAA) safety standards and to implement a plan that ensures the efficient development of the Airport to meet the needs of the Fort Collins and Loveland communities. According to a 2013 State of Colorado study, the Fort Collins – Loveland Airport provides a local economic impact of $129.4 million annually. Airport revenues cover operating costs and capital projects. Each city contributes equal funding for Airport operating and capital needs as agreed upon within the Intergovernmental agreement between the Cities of Fort Collins and Loveland. Airport capital funds are also received, for eligible projects, from the FAA and the Colorado Department of Transportation, Division of Aeronautics. ATTACHMENT 1 2.1 Packet Pg. 25 Attachment: First Reading Agenda Item Summary, November 3, 2015 (3778 : SR 135 Airport Budget) Agenda Item 8 Item # 8 Page 2 The annual operating costs for 2016 for the Airport are $931,890, and the City of Fort Collins contribution is $177,500. In addition, the Airport Manager is recommending additional capital expenditures and has identified the following funding sources: FAA Entitlement Grant $150,000 State Grant 8,334 Airport Revenues 8,334 Total $166,668 The capital expenditures will be used to complete major Airport improvement projects, such as the second phase of construction of a snow removal equipment storage facility estimated at $166,668. Thus, the City of Fort Collins appropriation for the capital expenditures identified above is $83,334 (50% of the total). The City of Loveland’s City Council has approved an ordinance appropriating the 2016 Airport budget on October 20, 2015. CITY FINANCIAL IMPACTS This Ordinance appropriates the City’s 50% share ($549,279) of the annual appropriation for fiscal year 2016 for the Fort Collins-Loveland Municipal Airport budget. The City of Loveland manages the Airport’s budget and finances; however, since the City of Fort Collins owns 50% of the Airport, it is necessary for the City to appropriate its 50% portion of the Airport budget. The contribution from the City of Fort Collins for the operation of the Airport has not increased since 2013 and remains $177,500. 2.1 Packet Pg. 26 Attachment: First Reading Agenda Item Summary, November 3, 2015 (3778 : SR 135 Airport Budget) ORDINANCE NO.135, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS ADOPTING THE 2016 BUDGET AND APPROPRIATING THE FORT COLLINS SHARE OF THE 2016 FISCAL YEAR OPERATING AND CAPITAL IMPROVEMENT FUNDS FOR THE FORT COLLINS-LOVELAND MUNICIPAL AIRPORT WHEREAS, in 1963, the City of Fort Collins and the City of Loveland (the “Cities”) agreed to establish a regional general aviation facility and became owners and operators of the Fort Collins-Loveland Municipal Airport (the “Airport”); and WHEREAS, the Airport is operated as a joint venture between the Cities, with each city retaining a 50% ownership interest, sharing equally in policy-making and management, and each assuming responsibility for 50% of the Airport’s capital and operating costs; and WHEREAS, pursuant to the Amended and Restate Intergovernmental Agreement for the Joint Operation of the Fort Collins-Loveland Municipal Airport dated January 22, 2015 (the “IGA”), the Airport Manager is responsible for preparing the Airport’s annual operating budget and submitting it to the Cities for their approval; and WHEREAS, under the IGA, the City’s share of existing and unanticipated Airport revenue is to be held and disbursed by the City of Loveland as an agent on behalf of the Cities, since the City of Loveland provides finance and accounting services for the Airport; and WHEREAS, under the IGA, each City’s share of the Airport‘s annual operating budget and the Airport capital improvement plan shall be appropriated by each City and transferred or otherwise paid into the designated account to be used for Airport funding on an annual basis; and WHEREAS, in accordance with Article V, Section 8(b), of the City Charter, any expense or liability entered into by an agent of the City on behalf of the City, shall not be made unless an appropriation for the same has been made by the City Council; and WHEREAS, the Airport Manager has submitted for City Council consideration a 2016 Airport operating budget totaling $931,890, of which the City’s share is $465,945; and WHEREAS, the City Council is in the process of considering the City’s 2016 budget and Ordinance No 139, 2015, which appropriates $177,500 in City funds to be transferred to the Airport operating fund in accordance with the IGA (the “Fort Collins Contribution”); and WHEREAS, pursuant to the IGA, the City of Loveland holds on behalf of the City of Fort Collins the revenues of, and other financial contributions to, the Airport, in a fund designated for the operating and capital expenses of the Airport (the “Airport Fund”); and WHEREAS, it is the desire of the City Council to appropriate the City’s share of the necessary funds for the Airport’s operating costs, totaling $465,945 for the fiscal year beginning January 1, 2016, and ending December 31, 2016; and 2.2 Packet Pg. 27 Attachment: Ordinance No. 137, 2015 (3778 : SR 135 Airport Budget) WHEREAS, the Airport Manager also recommends capital expenditures totaling $166,668 for Airport improvement projects in 2016 which will be used to complete a major Airport improvement, including the second phase of the construction of a snow removal equipment storage facility; and WHEREAS, funding for the 2016 capital improvements has been identified as follows: FAA Entitlement Grant $150,000 State Grant 8,334 Airport Revenues 8,334 Total $166,668; and WHEREAS, the City’s 50% share of the 2016 capital improvement costs, held in the Airport Fund, is $83,334. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby approves and adopts the 2016 Airport operating and capital budget (totaling $931,890 for operations and $166,668 for capital), a copy of which is on file with the City of Fort Collins City Clerk. Section 2. That the City Council hereby appropriates in the Airport Fund FOUR HUNDRED SIXTY-FIVE THOUSAND NINE HUNDRED FORTY-FIVE DOLLARS ($465,945) to be expended to defray the City’s share of the 2016 operating costs of the Fort Collins-Loveland Municipal Airport. Section 3. That the City Council hereby appropriates in the Airport Fund EIGHTY THREE THOUSAND THREE HUNDRED THIRTY-FOUR DOLLARS ($83,334) to be used for the City’s share of the 2016 capital improvements at the Fort Collins-Loveland Municipal Airport. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, A.D. 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 17th day of November, A.D. 2015. 2.2 Packet Pg. 28 Attachment: Ordinance No. 137, 2015 (3778 : SR 135 Airport Budget) __________________________________ Mayor ATTEST: _______________________________ City Clerk 2.2 Packet Pg. 29 Attachment: Ordinance No. 137, 2015 (3778 : SR 135 Airport Budget) Agenda Item 3 Item # 3 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Seonah Kendall, Economic Policy & Project Manager SUBJECT Second Reading Ordinance No. 136, 2015, Appropriating Prior Year Reserves in the General Fund to Reimburse Custom Blending, Inc. For Use Taxes and Business Personal Property Taxes as Provided in the Business Investment Agreement. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on November 3, 2015, appropriates $13,130 of prior year reserves in the General Fund for a rebate to Custom Blending for use tax and business personal property tax rebates under an agreement approved by City Council on August 20, 2013 (Resolution 2013-073). The Agreement provides business investment assistance for the expansion of Custom Blending’s manufacturing facility and investment in additional manufacturing equipment. Custom Blending has retained or created 63 primary jobs in the city. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, November 3, 2015 (PDF) 2. Ordinance No. 136, 2015 (PDF) 3 Packet Pg. 30 Agenda Item 9 Item # 9 Page 1 AGENDA ITEM SUMMARY November 3, 2015 City Council STAFF Seonah Kendall, Economic Policy & Project Manager SUBJECT First Reading Ordinance No. 136, 2015, Appropriating Prior Year Reserves in the General Fund to Reimburse Custom Blending, Inc. For Use Taxes and Business Personal Property Taxes as Provided in the Business Investment Agreement. EXECUTIVE SUMMARY The purpose of this item is to appropriate $13,130 of prior year reserves in the General Fund for a rebate to Custom Blending for use tax and business personal property tax rebates under an agreement approved by City Council on August 20, 2013 (Resolution 2013-073). The Agreement provides business investment assistance for the expansion of Custom Blending’s manufacturing facility and investment in additional manufacturing equipment. Custom Blending has retained or created 63 primary jobs in the city. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION Agreement Summary On August 20, 2013, City Council adopted Resolution 2013-073, approving an Economic Development Project Agreement between the City and Custom Blending Inc. The Agreement provides that Custom Blending is eligible for a rebate in two areas: Use tax on new eligible manufacturing equipment (up to 75%) for the period beginning August 20, 2013 and ending December 31, 2014, subject to a limit on the total use tax rebate amount for the project of thirty-one thousand, one hundred thirty dollars ($31,130). The use tax rebate will be paid over a period of three (3) years, with the initial installment of thirty-three and one-third percent (33.3%) or $10,376. Business Personal Property Tax Rebate (up to 50%) for a seven-year period for the eligible manufacturing equipment purchased for the period beginning August 20, 2013 and ending December 31, 2014. A limit on each annual payment is two thousand, seven hundred fifty-four ($2,754). Employment Level Requirements The two rebate categories were offered with the stipulation that Custom Blending’s employment levels must be maintained at the same number of employees within its Fort Collins facility as Custom Blending employed as of June 30, 2013 (35 employees), with the intent of creating approximately 16 net new jobs as of December 31, 2015. Currently, Custom Blending has sixty-three (63) employees. ATTACHMENT 1 3.1 Packet Pg. 31 Attachment: First Reading Agenda Item Summary, November 3, 2015 (3782 : SR 136 Custom Blending) Agenda Item 9 Item # 9 Page 2 Rebate Schedule as agreed upon with Custom Blending Staff has developed a rebate schedule with Custom Blending which is consistent with the Agreement whereby two rebate applications will be processed each year. CITY FINANCIAL IMPACTS The total rebate amount for 2015 is $13,130, of which $10,376 is use tax and $2,754 is business personal property tax. 3.1 Packet Pg. 32 Attachment: First Reading Agenda Item Summary, November 3, 2015 (3782 : SR 136 Custom Blending) ORDINANCE NO. 136, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING PRIOR YEAR RESERVES IN THE GENERAL FUND TO REIMBURSE CUSTOM BLENDING, INC. FOR USE TAXES AND BUSINESS PERSONAL PROPERTY TAXES AS PROVIDED IN THE BUSINESS INVESTMENT AGREEMENT WHEREAS, the City and Custom Blending, Inc. (“Custom Blending”) entered into that certain “Agreement with Custom Blending, Inc.” dated August 20, 2013 (the “Agreement”), which Agreement provides business investment assistance for the expansion of Custom Blending’s headquarters in Fort Collins; and WHEREAS, the Agreement specifies that Custom Blending is eligible for reimbursement from the City for the following paid by it to the City: (1) Use Tax on new Eligible Equipment, (2) Business Personal Property Tax on Eligible Manufacturing Equipment; and WHEREAS, under the Agreement, Custom Blending can apply for reimbursement biannually for both; and WHEREAS, all funds reimbursed must be appropriated by Council as part of the rebate process; and WHEREAS, the Agreement was approved by City Council pursuant to Resolution No. 2013-073, on August 20, 2013; and WHEREAS, the current reimbursement due to Custom Blending for the period of August 20, 2013, through December 31, 2014, is $13,130 for eligible Use Tax and Business Personal Property Tax; and WHEREAS, staff has determined that the requested amount of $13,130 is available from prior year reserves in the General Fund to reimburse Custom Blending in accordance with the Agreement; and WHEREAS, Article V, Section 9, of the City Charter also permits the City Council to appropriate by ordinance at any time during the fiscal year such funds for expenditure as may be available from reserves accumulated in prior years, notwithstanding that such reserves were not previously appropriated. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that there is hereby appropriated for expenditure from prior year reserves in the General Fund the sum of THIRTEEN THOUSAND ONE HUNDRED THIRTY DOLLARS ($13,130) to reimburse Custom Blending for Use Tax and Business Personal Property Tax as required by the Agreement. 3.2 Packet Pg. 33 Attachment: Ordinance No. 136, 2015 (3782 : SR 136 Custom Blending) Introduced, considered favorably on first reading, and ordered published this 3rd day of November, A.D. 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 3.2 Packet Pg. 34 Attachment: Ordinance No. 136, 2015 (3782 : SR 136 Custom Blending) Agenda Item 4 Item # 4 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Carol Webb, Water Resources/Treatmnt Opns Mgr SUBJECT Second Reading of Ordinance No. 137, 2015, Authorizing the City Manager and the Mayor to Enter Into an Agreement Regarding the City Ditch, Including the Quit Claim of a Portion of the City Ditch and the Granting of an Updated Easement Across the Waterworks Property. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on November 3, 2015, requests approval of a proposed agreement between the City, the Larimer County Canal No. 2 Irrigating Company (“Ditch Company”), and The James S. Brinks Trust formed under the Trust Agreement dated November 30, 2007 (“Trust”), the quit claim of a portion of the City Ditch, the granting of an updated easement across the Waterworks property, and the City’s acquisition of carriage rights. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (PDF) 2. Ordinance No. 137, 2015 (PDF) 4 Packet Pg. 35 Agenda Item 10 Item # 10 Page 1 AGENDA ITEM SUMMARY November 3, 2015 City Council STAFF Carol Webb, Water Resources/Treatmnt Opns Mgr SUBJECT First Reading of Ordinance No. 137, 2015, Authorizing the City Manager and the Mayor to Enter Into an Agreement Regarding the City Ditch, Including the Quit Claim of a Portion of the City Ditch and the Granting of an Updated Easement Across the Waterworks Property. EXECUTIVE SUMMARY The purpose of this item is to request approval of a proposed agreement between the City, the Larimer County Canal No. 2 Irrigating Company (“Ditch Company”), and The James S. Brinks Trust formed under the Trust Agreement dated November 30, 2007 (“Trust”), the quit claim of a portion of the City Ditch, the granting of an updated easement across the Waterworks property, and the City’s acquisition of carriage rights. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The City built the City Ditch from the Poudre River to the City’s first waterworks facility for treated water supply in 1882-1883. That now retired waterworks facility is located on the City’s Waterworks Parcel, south of Bingham Hill Road and west of North Overland Trail. The District Court of Larimer County issued a Court order on September 15, 1892, which was recorded in the real property records of Larimer County at Book 87, Pages 556 through 559 (“1892 Decree”). Under the 1892 Decree, the City was granted fee ownership of the strip of land containing the City Ditch. The original point of diversion of the Larimer County Canal No. 2 (also known as the “Larimer No. 2 Ditch”) was located shortly downstream of the point of diversion of the City Ditch. In 1906, the Ditch Company and the City entered into a 99-year lease authorizing the Ditch Company to use the City Ditch as the initial portion of the Larimer No. 2 Ditch. After the 99-year lease expired, the Ditch Company and the City entered into several one-year extensions and, in 2010, entered into a permanent Easement Deed with Terms and Conditions, which was recorded in the real property records of Larimer County on August 3, 2010, at Reception No. 20100044752 (“2010 Easement Agreement”). The 2010 Easement Agreement applies to the City Ditch Parcel, which extends from the Poudre River to Bingham Hill Road, and to the Larimer No. 2 Ditch as it traverses the Waterworks Parcel. The Trust owns the Trust Parcel, which comprises lands north of Bingham Hill Road surrounding the City Ditch Parcel. The Trust disputes the City’s claim of fee ownership of the City Ditch Parcel. The dispute between the City and the Trust regarding the City Ditch Parcel has various potential negative consequences for the City both directly and as a shareholder in the Ditch Company. The favorable resolution would serve the public. The three parties have negotiated an agreement on the various issues raised by and associated with the 1892 Decree and the City Ditch Parcel. ATTACHMENT 1 4.1 Packet Pg. 36 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3779 : SR 137 City Ditch-Brinks Agreement) Agenda Item 10 Item # 10 Page 2 PROPOSED AGREEMENT The proposed agreement is a multi-part agreement, which is attached to the Ordinance. There is an Umbrella Agreement and Exhibits A, B, C, and D of the Umbrella Agreement. The Umbrella Agreement provides a road map of the various components of the agreement and serves as an agreement to simultaneously execute various documents, which are Exhibits B, C, and D of the Umbrella Agreement. Exhibit A of the Umbrella Agreement is a map of the City Ditch Parcel. Exhibit B of the Umbrella Agreement is a quitclaim deed from the City to the Trust for the City Ditch Parcel. While the City owns the City Ditch Parcel, the land and its fee ownership by the City are not part of current or planned Utilities’ operations. Under the proposed agreement, in exchange for the conveyance of the City Ditch Parcel, the City will acquire more certain and more usable rights to convey water through the City/Larimer No. 2 Ditch as it traverses the Trust and Waterworks Parcels, as well as through the entire length of the Larimer No. 2 Ditch, as discussed below. It is the opinion of staff that, through the agreement, the City will receive value in an amount greater than the fair market value of the City Ditch Parcel. It is also the opinion of staff that the conveyance of the City Ditch Parcel is in the best interests of the City and will not materially impair the viability of the water utility system as a whole, and will be for the benefit of the citizens of the City. Exhibit C of the Umbrella Agreement is an easement for the Ditch Company from the Trust across the City Ditch/Trust Parcel. As noted above, the Ditch Company currently operates under the 2010 Easement Agreement across this parcel. Exhibit C would replace the 2010 Easement Agreement across this parcel and allow the Ditch Company to continue to operate the Larimer No. 2 Ditch across this parcel with a greater level of certainty regarding the Ditch Company’s rights. The Ditch Company would also benefit from various terms in Exhibit C, which would allow the Ditch Company to have fewer restrictions on its operations. The City owns approximately 71.1% of the stock in the Ditch Company. Exhibit D of the Umbrella Agreement is an easement for the Ditch Company from the City across the Waterworks Property. As noted above, the Ditch Company currently operates under the 2010 Easement Agreement across this parcel. Exhibit D would replace the 2010 Easement Agreement across this parcel. Certain terms and conditions from the 2010 Easement Agreement that are intended to protect the Waterworks Property from damages are carried through into Exhibit D. City staff and the Ditch Company have agreed to some revisions to these protective terms and conditions and, in the interest of completing the transaction in a more timely manner, have further agreed to review some of these terms in the near term to fully evaluate whether their subsequent modification would better serve both the City and the Ditch Company. It is the opinion of staff that, through the agreement, the City will receive value in an amount greater than the fair market value of the replacement easement. It is also the opinion of staff that the granting of the replacement easement is in the best interests of the City and will not materially impair the viability of the water utility system as a whole, and will be for the benefit of the citizens of the City. Exhibits C and D both confirm the City’s rights to use the unused capacity of the entire length of the Larimer No. 2 Ditch. This will facilitate future projects, including potential future gravel pit storage projects, such as the project that is being considered as an alternative for the Halligan Water Supply Project. Exhibits C and D also both provide the Ditch Company with greater flexibility in its operations, including its ability to run other water users’ water in the Larimer No. 2 Ditch. This may facilitate the ability of the East Larimer County Water District and the Fort Collins-Loveland Water District to acquire the rights to use the Larimer No. 2 Ditch to fill their Overland Trail Reservoirs, which are reclaimed gravel pit reservoirs below the ditch. NEXT STEPS If City Council approves the proposed agreement, City staff will work with the Trust and the Ditch Company to close the transaction. 4.1 Packet Pg. 37 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3779 : SR 137 City Ditch-Brinks Agreement) Agenda Item 10 Item # 10 Page 3 CITY FINANCIAL IMPACTS Exhibit B of the Umbrella Agreement is a quitclaim deed from the City to the Trust for the City Ditch Parcel. It is the opinion of staff that, through the agreement, the City will receive value in an amount greater than the fair market value of the City Ditch Parcel. It is also the opinion of staff that the conveyance of the City Ditch Parcel is in the best interests of the City and will not materially impair the viability of the water utility system as a whole, and will be for the benefit of the citizens of the City. Exhibit C would replace the 2010 Easement Agreement across this parcel and allow the Ditch Company to continue to operate the Larimer No. 2 Ditch across this parcel with a greater level of certainty regarding the Ditch Company’s rights. The Ditch Company would also benefit from various terms in Exhibit C, which would allow the Ditch Company to have fewer restrictions on its operations. The City owns approximately 71.1% of the stock in the Ditch Company. BOARD / COMMISSION RECOMMENDATION At its October 15, 2015 meeting the Water Board voted 7-0 to recommend City Council approve the agreement regarding the City Ditch Parcel as described above. PUBLIC OUTREACH Over the past several years, City staff has worked extensively with representatives of the Ditch Company and the Trust on the issues addressed in the proposed agreement, as well as on the specific terms and conditions of the proposed agreement itself. Such work has included extensive correspondence, numerous discussions and meetings, and several site visits. City staff also presented the proposed agreement to Water Board on October 15, 2015 following the required public notice. ATTACHMENTS 1. Vicinity map (PDF) 2. Water Board minutes, October 15, 2015 (PDF) 4.1 Packet Pg. 38 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3779 : SR 137 City Ditch-Brinks Agreement) ORDINANCE NO. 137, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CITY MANAGER AND THE MAYOR TO ENTER INTO AN AGREEMENT REGRADING THE CITY DITCH, INCLUDING THE QUIT CLAIM OF A PORTION OF THE CITY DITCH AND THE GRANTING OF AN UPDATED EASEMENT ACROSS THE WATERWORKS PROPERTY WHEREAS, the City is the fee owner of certain real property described in and pursuant to a Court Order issued on September 15, 1892, by the District Court of Larimer County, Colorado and recorded in the real property records of Larimer County at Book 87, Pages 556 through 559 (“Subject Land” and “1892 Decree”); and WHEREAS, the City is the fee owner of certain real property described in the Warranty Deed, dated September 18, 1889, and recorded in the real property records of Larimer County on April 30, 1891, at Reception Number 36766, Book 78, Page 490 (“Waterworks Parcel”); and WHEREAS, the City Ditch traverses the Subject Land and the Waterworks Parcel; and WHEREAS, the Larimer County Canal No. 2 Irrigating Company (“Ditch Company”) is the operator of the Larimer County Canal No. 2; and WHEREAS, in 1906, the Ditch Company entered into a 99-year lease agreement with the City that allowed the Ditch Company to operate the Larimer County Canal No. 2 in the location of the City Ditch as it crosses the Subject Land and the Waterworks Parcel; and WHEREAS, following the expiration of the 99-year lease, the City and the Ditch Company entered into several short-term extension agreements and, thereafter, a long-term easement agreement in 2010, which was recorded in the real property records of Larimer County on August 3, 2010, at Reception No. 20100044752 (“2010 Easement Agreement”); and WHEREAS, the City is a major shareholder in the Ditch Company; and WHEREAS, the James S. Brinks Trust formed under the Trust Agreement dated November 30, 2007 (“Trust”) is fee owner of the lands generally to the west and east of the Subject Land; and WHEREAS, the Trust disputes the City’s fee ownership of the Subject Land and claims that the City only owns a right-of-way on the Subject Land under the 1892 Decree; and WHEREAS, the dispute between the City and the Trust regarding ownership of the Subject Land has various potential negative consequences for the City both directly and as a shareholder in the Ditch Company, the favorable resolution of which would serve the public; and WHEREAS, the City, the Ditch Company, and the Trust have negotiated an agreement, attached hereto as Exhibit “A” (the “Agreement”), whereby the three parties would address and 4.2 Packet Pg. 39 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) resolve the various issues associated with the City Ditch and the 1892 Decree in a manner that is favorable to all three parties; and WHEREAS, as part of that Agreement, the City would convey the Subject Land to the Trust by quitclaim deed in the form attached as Exhibit “B” to the Agreement (the “Deed”), replace the 2010 Easement Agreement on the Waterworks Parcel with an easement in the form attached as Exhibit “D” to the Agreement (the “Waterworks Easement”), and receive various other benefits, as set forth in the Agreement; and WHEREAS, City Code Section 23-111(a) states that the City Council is authorized to convey interests in real property owned in the name of the City provided that the City Council finds first, by ordinance, that such conveyance is in the best interest of the City; and WHEREAS, City Code Section 23-111(b) states that, with respect to real property that is part of the City’s water or utility systems, the City Council must also find that the disposition will not materially impair the viability of the particular utility as a whole and will be for the benefit of the citizens of the City; and WHEREAS, City Code Section 23-114 states that any conveyance of property interests approved under Sections 23-111(a) and (b) must be for an amount equal to or greater than the fair market value; and WHEREAS, staff has determined that, under the Agreement, in exchange for the Subject Land and the granting of the Waterworks Easement, the City would receive carriage rights in the Larimer County Canal No. 2 that have a value equal to or greater than the fair market value of the Subject Land and the Waterworks Easement; and WHEREAS, the Water Board has reviewed the Agreement and, at its October 15, 2015, meeting, unanimously recommended that the City Council approve the Agreement; and WHEREAS, the City Manager and City staff have recommended to the City Council that it approve the Agreement as set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. City Council finds, pursuant to Section 23-111(a) of the City Code, that the disposition of the Subject Land and the Waterworks Easement pursuant to an agreement that is substantially similar to the attached Agreement is in the best interests of the City. Section 2. City Council finds, pursuant to Section 23-111(b) of the City Code, that the disposition of the Subject Land and the Waterworks Easement pursuant to an agreement that is substantially similar to the attached Agreement will not materially impair the viability of the water utility system as a whole and that it will be for the benefit of the citizens of the City. 4.2 Packet Pg. 40 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) Section 3. City Council finds, pursuant to Section 23-114 of the City Code, that the disposition of the Subject Land and the Waterworks Easement pursuant to an agreement that is substantially similar to the attached Agreement will result in the City receiving a value in an amount equal to or greater than the fair market value of the Subject Land and the Waterworks Easement. Section 4. City Council authorizes the City Manager to execute the Agreement in substantially the form attached hereto as Exhibit AA@, with such additional terms and conditions as the City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City or effectuate the purpose of this Ordinance. Section 5. The Mayor is hereby authorized to execute the Deed in substantially the form of Exhibit B to the attached Agreement to convey the Subject Land, provided that such quitclaim deed is executed as part of an Agreement as set forth in Section 4 above. Section 6. That the Mayor is hereby authorized to execute the Waterworks Easement in substantially the form of Exhibit “D” to the attached Agreement, provided that such easement is executed as part of an Agreement as set forth in Section 4 above. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, A.D. 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 4.2 Packet Pg. 41 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) AGREEMENT (The City of Fort Collins, The Larimer County Canal No. 2 Irrigating Company, and The James S. Brinks Trust formed under the Trust Agreement dated November 30, 2007) This AGREEMENT is made this ____ day of __________________, 2015 between the LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY (“Company”), a Colorado nonprofit corporation, the CITY OF FORT COLLINS, COLORADO (“City”), a Colorado municipal corporation, and the JAMES S. BRINKS TRUST formed under the Trust Agreement dated November 30, 2007, c/o Rose L. Brinks, Trustee of the James S. Brinks Trust (“Trust”) all of which are sometimes referred to herein as the “Parties.” FACTUAL RECITALS A. The City is the owner of certain real property described in and pursuant to a Court Order issued on September 15, 1892, by the District Court of Larimer County, Colorado and recorded in the real property records of Larimer County at Book 87, Pages 556 through 559 (“Subject Land” and “1892 Decree”). The Subject Land is generally located in the north half (N1/2) of Section 32, Township 8 North, Range 69 West, 6 th P.M., and a portion of the southwest quarter (SW1/4) of Section 29 Township 8 North, Range 69 West, 6 th P.M., Larimer County, Colorado, the approximate location of which is shown on Exhibit A, attached hereto and incorporated herein by this reference. B. The Parties acknowledge and agree that they each possess the following mutual interests in the Subject Land: 1. The City claims fee owner of the Subject Land pursuant to the 1892 Decree. The Trust claims that the City only owns a right-of-way on the Subject Land under the 1892 Decree. 2. The Trust is fee owner of the lands generally to the west and east of the Subject Land. 3. The Company is the operator of a canal or ditch known as the Larimer County No. 2 Canal (“Ditch”). The Ditch passes through portions of the Subject Land in a ditch channel originally operated by the City and originally referred to as the “City Ditch,” which is located as approximately shown on ExhibitA. The Company entered into a 99-year lease agreement with the City that allowed the Company to operate the Ditch in the location of the City Ditch as it crosses the Subject Land (“Lease Agreement”). Following expiration of the Lease Agreement, the City and the Company entered into an easement agreement in 2010, whereby the City granted an easement to the Company on, over, under and across the Subject Land for the operation, maintenance and utilization of the portion of the Ditch that traversed the Subject Land, which easement was recorded in the real property records of Larimer County on August 3, 2010, at Reception No. 20100044752 (“2010 Easement Agreement”). 1 EXHIBIT A 4.2 Packet Pg. 42 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) C. The Parties wish to resolve any disputes related to interests in the Subject Land. To that end, the City desires to quitclaim its ownership interests in the Subject Land to the Trust, pursuant to the terms and conditions set forth in the Quit Claim Deed attached hereto as Exhibit B and referred to hereinafter as the “Quitclaim Deed.” D. In exchange for the City quitclaiming the Subject Land to the Trust and the City and the Company terminating and replacing the 2010 Easement Agreement respect to the Subject Land, Rose L. Brinks, as Trustee of the Trust, agrees to enter into a new easement agreement with the City and Company on behalf of the Trust, with the goal of recognizing and memorializing in writing the mutual interests and correlative rights of the Parties in the Subject Land as set forth in the Easement Agreement attached hereto as Exhibit C and incorporated herein (“2015 Easement Agreement”). E. The City and the Company also desire to terminate and abandon the 2010 Easement Agreement with respect to the Subject Land and with respect to the following parcel of land also subject to the 2010 Easement Agreement: certain real property conveyed to Grantor by Warranty Deed on September 18, 1889, and recorded in the real property records of Larimer County on April 30, 1891, at Reception Number 36766, Book 78, Page 490, generally located in the northwest quarter (NW1/4) of the southeast quarter (SE1/4) of Section 32, Township 8 North, Range 69 West, 6 th P.M., Larimer County (“Waterworks Land”). The Trust has no interest in the Waterworks Land or the agreement regarding the same as contemplated herein. F. In exchange for the various mutual covenants, covenants, agreements, representations, and warranties referred to herein, the City and the Company further agree to enter into a new easement agreement, with the goal of recognizing and memorializing in writing the mutual interests and correlative rights of the City and the Company in the Waterworks Land as set forth in the Easement Agreement attached hereto as ExhibitD and incorporated herein (“Waterworks Agreement”). AGREEMENT NOW THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Factual Recitals. The above recitals are hereby incorporated herein by reference as if fully set forth. 2. The City’s Representations and Warranties. The City hereby represents that it has full legal power, authority and right to enter into this Agreement affecting the Subject Land and the Waterworks Land, and to carry out the terms of this Agreement. 3. The Company’s Representations and Warranties. The Company hereby represents and warrants that it has full legal power, authority and right to enter into this 2 4.2 Packet Pg. 43 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) Agreement affecting the Subject Land and the Waterworks Land and to carry out terms of this Agreement. 4. The Trust Representations and Warranties. Rose L. Brinks, as Trustee of the Trust, hereby represents and warrants that the Trust is the owner of the Brinks Property and that she, as Trustee of the Trust, has full legal power, authority and right on behalf of the Trust to enter into this Agreement affecting the Subject Land, and to carry out its terms. 5. Quitclaim Deed, Easement Deed and Agreement. a. The City hereby agrees to relinquish its rights to the Subject Land, conditioned upon the execution and recording of the 2015 Easement Agreement as set forth herein. To this end, simultaneous with the execution of this Agreement, the City shall execute and deliver to the Trust, at the closing specified below, the accompanying Quitclaim Deed attached hereto as Exhibit B. b. Additionally, the City and the Company hereby agree to terminate the 2010 Easement Agreement on the Subject Land, as set forth herein, and in exchange for, the 2015 Easement Agreement attached hereto as ExhibitC that shall replace the 2010 Easement Agreement on the Subject Land. c. In exchange for the quitclaim of the Subject Land by the City to the Trust and the termination and replacement of the 2010 Easement Agreement by the City and the Company, Rose L. Brinks, acting as Trustee of the Trust, shall execute and deliver to the City and the Company at the closing specified below, the accompanying 2015 Easement Agreement. The Parties acknowledge the purpose of the 2015 Easement Agreement is to define, recognize and memorialize in writing the Parties’ mutual interests in the Subject Land, including the City’s retention and reservation of its rights in the Subject Land as further set out in the Quitclaim Deed and 2015 Easement Agreement, and the Company’s rights to continue for the use and enjoyment of the portion of the Ditch that is located on the Subject Land as set forth in the 2015 Easement Agreement. 6. Waterworks Agreement. In exchange for the various mutual covenants, covenants, agreements, representations, and warranties referred to herein, the City and the Company agree to enter into the Waterworks Agreement, attached hereto as Exhibit D at closing specified below. The City and the Company acknowledge the purpose of the Waterworks Agreement is to define, recognize and memorialize in writing the City’s and the Company’s mutual interests in the Waterworks Land, and the Company’s rights to continue for the use and enjoyment of the portion of the Ditch that is located on the Waterworks Land as set forth in the Waterworks Agreement. The Trust has no interest in the Waterworks Land or the Waterworks Agreement. 7. Closing. The closing of the conveyances and agreements described herein shall take place at the following date, time, and location: ________________________. Immediately upon full execution and delivery of the Quit Claim Deed, the 2015 Easement Agreement, and the Waterworks Agreement, consistent with this Agreement, the 2015 Easement Agreement, and the 3 4.2 Packet Pg. 44 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) Waterworks Agreement, __________________ shall cause said instruments to be recorded in the real property records of the Larimer County Clerk and Recorder in the order so stated. The cost of such recording shall be borne equally by the City and the Company. 8. Relationship of the Parties. The Parties to this Agreement are not employees, agents, joint venturers, or partners for any purpose whatsoever. Nothing in this Agreement shall authorize or empower any of the Parties to create or assume any obligation or responsibility whatsoever, express or implied, in the name of or on behalf of the others, nor make any representation, warranty or agreement in the name of or on behalf of the others. 9. Additional Acts. The Parties agree to perform any lawful additional acts, including but limited to, execution of additional documents as are reasonably necessary to effectuate the entirety or any part of this Agreement. 10. Modification and Waiver. Any waiver, modification, amendment, discharge or change in this Agreement, except as otherwise provided herein, must be in writing and signed by the party against whom the enforcement of such modification, waiver, amendment, discharge or change is sought. Notwithstanding the foregoing, it is the express intention, agreement and covenant of each party hereto that none of the parties hereto shall at any time, or in any way, seek to enforce, prove or benefit from any claim or assertion of any verbal or unwritten modification, amendment or waiver of any term in this Agreement, and further, that it is the express covenant and warranty of each party hereto that such attempt shall be void and of no effect whatsoever. 11. Entire Agreement. This Agreement, and the attachments hereto, represents the complete and final expression of the agreements and undertakings related hereto between the Parties. 12. Successor and Assigns. This Agreement and the rights of the Parties hereunder shall be binding upon and shall inure to the benefit of the Parties hereto and their heirs, legal representatives and successors. 13. Governing Law. This Agreement shall be governed by, and construed in accordance, with, the law of the State of Colorado. IN WITNESS WHEREOF, the Parties have executed this Agreement upon the date set forth above. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] 4 4.2 Packet Pg. 45 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) THE CITY OF FORT COLLINS, a municipal corporation. By:___________________________ _______________ Mayor ATTEST: _________________________ City Clerk APPROVED AS TO FORM: _________________________ Deputy City Attorney STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this ______ day of _________________, 2015, by _______________as Mayor of The City of Fort Collins, Colorado, a municipal corporation. WITNESS my hand and official seal. ________________________________ Notary Public My commission expires: ____________ 5 4.2 Packet Pg. 46 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) THE LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY, a Colorado nonprofit corporation By:_________________________________ ________________, President STATE OF COLORADO ) ) ss. COUNTY OF ____________) The foregoing instrument was acknowledged before me this ______ day of _________________, 2015, by __________________, President of the Larimer County Canal No. 2 Irrigating Company, a Colorado nonprofit corporation. WITNESS my hand and official seal. ________________________________ Notary Public My commission expires: ____________ 6 4.2 Packet Pg. 47 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) THE JAMES S. BRINKS TRUST By:_________________________________ Rose L. Brinks, as Trustee of the James S. Brinks Trust, formed under the Trust Agreement dated November 30, 2007 STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this ______ day of ___________________, 2015, by Rose L. Brinks, Trustee of the James S. Brinks Trust formed under the Trust Agreement dated November 30, 2007. WITNESS my hand and official seal. ________________________________ Notary Public My commission expires: ____________ 7 4.2 Packet Pg. 48 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) EXHIBIT A TO AGREEMENT (The above image is from a Court Order issued on September 15, 1892, by the District Court of Larimer County, Colorado and recorded in the real property records of Larimer County at Book 87, Pages 556 through 559, with said image appearing on page 557.) 4.2 Packet Pg. 49 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) [EXHIBIT B TO AGREEMENT] QUIT CLAIM DEED This QUIT CLAIM DEED, made this ___ day of , 2015, between the CITY OF FORT COLLINS, COLORADO, a municipal corporation (“Grantor”), whose mailing address for the purpose of this Quit Claim Deed is 300 LaPorte Avenue, Fort Collins, Colorado 80521, and JAMES S. BRINKS TRUST formed under the Trust Agreement dated November 30, 2007, c/o Rose L. Brinks, Trustee of the James S. Brinks Trust (“Grantee”), whose mailing address for the purpose of this Quit Claim Deed is P.O. Box 710, LaPorte, Colorado 80535. WITNESSETH: That Grantor, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and pursuant to City Council Ordinance No. ___, 2015, which was approved and adopted on ______________, 2015, has remised, released, sold, conveyed, and quit claimed, and by these presents does remise, release, sell, convey, and QUIT CLAIM unto Grantee, its heirs, and assigns, forever, all the right, title, interest, claim and demand which Grantor has in and to the real property, together with improvements, if any, situate, lying, and being in the County of Larimer, State of Colorado described as follows: Any and all interests granted in the Court Order issued on September 15, 1892, by the District Court of Larimer County, Colorado and recorded in the real property records of Larimer County at Book 87, Pages 556 through 559, which property is generally located in the north half (N1/2) of Section 32, Township 8 North, Range 69 West, 6 th P.M., and a portion of the southwest quarter (SW1/4) of Section 29 Township 8 North, Range 69 West, 6 th P.M., Larimer County; TO HAVE AND TO HOLD the same, together with all and singular the appurtenances and privileges thereunto belonging or in anywise thereunto appertaining, and all the estate, right, title, interest, and claim whatsoever of Grantor, either in law or equity, in its current condition and on an “as is” basis to the only proper use, benefit, and behalf of Grantee, its heirs, personal representatives, and assigns, forever. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] QUIT CLAIM DEED Page 1 of 2 4.2 Packet Pg. 50 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) GRANTOR: CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: _________________________ _______________ ATTEST: Mayor _______________________ City Clerk APPROVED AS TO FORM: Assistant City Attorney STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this _____ day of _____________, 2015 by ____________________, as Mayor of the City of Fort Collins, and ________________, as City Clerk of the City of Fort Collins. WITNESS my hand and official seal. My commission expires: Notary Public QUIT CLAIM DEED Page 2 of 2 4.2 Packet Pg. 51 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) [EXHIBIT C TO AGREEMENT] EASEMENT AGREEMENT This EASEMENT AGREEMENT (“Agreement”) is entered into as of the _____ day of ______________, 2015, between THE JAMES S. BRINKS TRUST formed under the Trust Agreement dated November 30, 2007, c/o Rose L. Brinks, Trustee of the James S. Brinks Trust, (“Trust”), and the CITY OF FORT COLLINS, COLORADO, a municipal corporation (“City”) and the LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY, a Colorado nonprofit company (“Company”). The Trust, the City, and the Company are collectively referred to herein as the “Parties.” RECITALS A. Pursuant to the Quitclaim Deed between the Trust and the City, dated __________ and recorded in the Larimer County Clerk and Recorder’s under Reception No. ________________ on ____________________ (the “Quitclaim Deed”), the Trust became the owner of certain real property described in a Court Order issued on September 15, 1892, by the District Court of Larimer County, Colorado and recorded in the real property records of Larimer County at Book 87, Pages 556 through 559 (“Subject Land”), which is generally located in the north half (N1/2) of Section 32, Township 8 North, Range 69 West, 6 th P.M., and a portion of the southwest quarter (SW1/4) of Section 29 Township 8 North, Range 69 West, 6 th P.M., Larimer County, Colorado, the approximate location of which is shown on Exhibit 1, attached hereto and incorporated herein by this reference. B. The City originally constructed in the 1880s a ditch channel on the Subject Land known as the “City Ditch” and has since the time of construction continued to operate, or allow others to operate, a ditch using the City Ditch channel and related improvements, including the operation of the Larimer County Canal No. 2, as described herein below. The City Ditch channel traverses a portion of the Subject Land as described herein and shown on Exhibit 1. C. The Company is the operator of a canal or ditch known as the Larimer County Canal No. 2, and certain water diversion and conveyance structures, culverts, pipes, equipment and other improvements used in connection with the operation of such ditch (the “Larimer No. 2 Ditch”). All diversions, structures, culverts, pipes, equipment and other improvements of the Company or the City associated with the Larimer No. 2 Ditch or the City Ditch on the Subject Land shall be referred to collectively as the “Ditch.” D. Beginning in 1906, the City leased the City Ditch to the Company. Subsequently, the City entered into an Easement Deed with the Company on June 21, 2010, whereby the City granted the Company certain rights related to the Company’s use and enjoyment of the City Ditch for operation of the Ditch in accordance with specified terms and conditions and reserved its own interests in the Subject Land and the City Ditch, recorded in the real property records of Larimer County on August 3, 2010, at Reception No. 20100044752 (“2010 Easement Agreement”). E. By this Agreement, the City and the Company wish to terminate and replace the 2010 Easement Agreement and abandon any rights and interests affecting the Subject Land thereunder. 4.2 Packet Pg. 52 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) F. The Parties also wish to document and incorporate the prescriptive rights arising from historical use and operation of the Ditch on the Subject Land. G. The Parties agree that the Company has a valid existing easement and right of way for the Ditch on the Subject Land and sufficient lands on each side of the Ditch to allow it to fully enjoy and utilize the Ditch, subject to the City’s rights to use the Ditch as set forth herein. In an effort to better describe the extent of the easement and right of way for the Ditch enjoyed by the Companyon the Subject Land, subject to the City’s rights to use the Ditch as set forth herein, and to define, recognize and memorialize in writing the mutual interests and correlative rights the Parties have in the Subject Land, the Parties enter into this Agreement. AGREEMENT NOW, THEREFORE, for good and valuable consideration received by them, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows: 1. Recitals. The factual recitals above are hereby incorporated by reference as though fully set forth. 2. Abandonment of 2010 Easement Agreement. By this Agreement the City and the Company terminate and abandon any rights under the 2010 Easement Agreement on the Subject Land. The Parties understand and acknowledge that this Agreement, and the terms and conditions contained herein, supersedes and replaces the 2010 Easement Agreement as it relates to the Subject Land and any rights on, over, under or across the Subject Land. 3. Grant of “Brinks Easement” on the Subject Land by the Trust – Consideration. For and in consideration of the covenants and agreements herein set forth, the sum of Ten Dollars ($10.00), and other good and valuable consideration, the receipt and adequacy of which the Trust acknowledges, the Trust grants, sells and conveys to the Company, its successors and assigns, as is, subject to all existing rights and claims of right, and without warranty of any kind, a perpetual, non- exclusive easement and right-of-way on, over, under and across the Brinks Easement Area on the Subject Land, as defined below in Paragraph 4.1, for the uses stated herein, subject to the conditions and restrictions set forth below, and subject to the City’s rights to use the Ditch as set forth herein (referred to herein as the “Brinks Easement” because it crosses land now owned by the Trust). 4. Brinks Easement on the Subject Land. 4.1. Scope of Brinks Easement. The Parties agree and acknowledge that the Trust’s conveyance of the Brinks Easement on the Subject Land includes an easement and right-of-way for the purposes set forth herein, together with sufficient lands on each side of the Ditch for its maintenance, repair, operation, improvement, enlargement, access (including, without limitation, vehicular and pedestrian), and includes the right to carry out any actions reasonably necessary to fully utilize and enjoy the easement and right of way; however, in no event shall said easement and right-of-way on the Subject Land be less than twenty-five feet in width on the east side of the Ditch, measured as twenty-five feet (25’) from the top of the bank of the Ditch and twenty feet (20’) on the west side of the Ditch 2 4.2 Packet Pg. 53 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) measured from the top of the bank of the Ditch (“Brinks Easement Area”). The approximate location of the Brinks Easement Area is shown on Exhibit 1. Nothing herein is intended to grant an easement across the Subject Land for general public. 4.2. Point of Reference for the Location of Brinks Easement. The centerline of the Ditch varies significantly throughout the Subject Land, and, therefore, may not provide a consistent or practical reference point. Instead, the top of the bank of the Ditch as it exists at any given point in time shall be the point of reference. 4.3. Right of Ingress and Egress. The Company shall also have the right of ingress and egress to and from the Ditch and Brinks Easement over and across the Subject Land by means of roads and lanes thereon, if such exist or as such may be constructed by the Trust in the future, otherwise by such route or routes as shall occasion the least practicable damage and inconvenience to the Trust. The Company agrees than certain trees may be permitted to remain in the Brinks Easement on the Subject Land, and therefore the Company may go outside of the Brinks Easement where necessary to avoid obstructions. 4.4. No Obstructions on Brinks Easement. The Trust, its heirs, successors, and/or assigns, shall not erect nor place any building, structure, drainage pipes, improvement, fence, landscaping, shrubbery, or tree on or within the Ditch and/or Brinks Easement or alter the Brinks Easement Area in any way, except as expressly set forth herein. The Company shall not be liable for damage to any unauthorized alterations of the Brinks Easement Area, and the Company may remove any of the same. The Trust shall be liable to the Company for any damages or costs resulting from the alteration of the Brinks Easement Area in violation of this provision. However, the Trust shall have certain rights and obligations related to the Brinks Easement, as set forth below in Paragraph 6.2. 4.5. Brinks Easement Inclusions. The Brinks Easement described herein includes, but is not limited to, the Ditch, the beds, banks, slopes, roadway, head gates, diversion boxes, flumes, spillways, and erosion and structural support systems, whether presently existing or constructed in the future. The Trust, its heirs, successors, and/or assigns, shall take no action that reduces in size, disturbs or otherwise affects the Brinks Easement. 4.6. Repair and Maintenance of Ditch. In the event it is necessary for the Company to repair or maintain the Ditch due to the actions of the Trust, its employees, invitees, successors, and/or assigns, the Trust shall reimburse the Company for such repair or maintenance. Determination of whether repair or maintenance is necessary shall be at the discretion of the Company. Any disputes related to determining which party is responsible for damage to the Ditch shall be resolved in accordance with the terms and conditions of this Agreement. 4.7. The Company as Owner of Ditch and Appurtenances. The Trust acknowledges and understands that the Company is the owner of the Ditch and other appurtenances related to the operation, maintenance, and administration of the Ditch. The Company shall have full power to operate, maintain, alter, enlarge, clean and manage the Ditch and Brinks Easement, subject to the provisions of Paragraph 8 of this Agreement. In 3 4.2 Packet Pg. 54 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) the event, however, that any such action on the part of the Company could reasonably be expected to affect the Trust’s interest in the Subject Land, except in the event of emergency repairs, the Company agrees to give prior notice to the Trust and to reasonably cooperate with the Trust to avoid damages to the Subject Land. In the event of emergency repairs, the Company agrees to provide notice of the emergency repair to the Trust as soon as reasonably practicable. 5. Other Company Improvements on the Subject Land. The Company shall be entitled to install roads and other types of improvements and structures in the Brinks Easement Area on the Subject Land, provided that installation of any impervious pavement shall be subject to the consent of the Trust (or the Trust’s successor in title to the Subject Land, if applicable). The Company shall have the right to mark the boundaries of the Brinks Easement Area and to install or utilize signs on or over the Brinks Easement Area. 6. Limitations on the Trust Uses and Improvements on the Subject Land. The Trust acknowledges and agrees that the use and improvement of the Subject Land by the Trust, and its heirs or successors in-title, shall be limited as follows: 6.1. No Interference. The Trust, and its heirs or successors in-title, shall not use or modify the Subject Land in any manner that unreasonably interferes with the full enjoyment and exercise by the Company and persons with which the Company has contracted for the use of the Ditch, including the City under this Agreement (“Contractees”). 6.2. Permitted Uses. The Trust, and its heirs or successors in-title, shall be entitled to access and use the Brinks Easement Area provided that such access or use is not inconsistent or incompatible with the rights of the Company and its Contractees, as the Company may expressly permit or authorize and subject to such limitations and conditions as the Company deems necessary or appropriate, including: 6.2.1. The right of the Trust, at its sole cost and expense, to make limited crossing of the Brinks Easement Area on the Subject Land and construct such limited improvements as may be necessary for personal access by the Trust and its invitees to adjacent property owned by the Trust; provided, however, that any such crossing shall be consistent with and shall not interfere with the Company’s and its Contractees’ existing or prospective use of the Brinks Easement Area, and shall be subject to the express written consent of the Company, in its reasonable discretion, and further provided that the Company acknowledges that two (2) existing bridges in the northwest quarter (NW1/4) of the northwest quarter (NW1/4) of Section 32, Township 8 North, Range 69 West, 6 th P.M., Larimer County, have been previously constructed across the Brinks Easement Area for the benefit of the Trust, and the Company hereby consents to the continued use and maintenance of the same, subject to the condition that the Trust, at its own sole cost, expense and risk maintain the same in a safe and secure condition and prevent any damage to the Ditch or the Brinks Easement Area or any interference with the use of the Brinks Easement Area by the Company or those taking under the Company, and further consent to the replacement or relocation of said existing bridges to locations and consistent with 4 4.2 Packet Pg. 55 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) designs and specifications determined to be acceptable by the Company, in writing, in its reasonable discretion; 6.2.2. The right of the Trust, at its sole cost, expense and risk, to prune and remove woody material from such trees as may from time to time be present upon the Brinks Easement Area on the Subject Land, including but not limited to the trees referred to in Paragraph 4.4 above, and to harvest fruit from such fruit-bearing trees as may from time to time be present upon the Brinks Easement Area; provided, however, that such right for the benefit of the Trust is not intended to, and does not create, any obligation of the Company to maintain, retain or take or refrain from taking any action related to any such trees, and provided further that the exercise of said limited right by the Trust or its successors-in-interest to the Subject Land shall constitute an ongoing waiver of any claims against the Company, and shall be conditioned upon agreement by the Trust to be liable for, any damage or injury in connection with Grantor’s exercise of the said limited right; 6.2.3. The right of the Trust, at its sole cost, expense and risk, to continue the use, if any, of the following structures that cross and convey water across the Brinks Easement Area, all of which are in existence at the time of this Agreement: (i) a pipe associated with the Burns Ditch, which was the subject of Case No. W- 5429, District Court, Water Division 1; (2) a flume/pipe comprising a portion of the ditch running from Claymore Lake Reservoir to the Cache la Poudre River; and (3) an existing flume comprising a portion of a lateral from the Pleasant Valley and Lake Canal; and 6.2.4. The right of the Trust, at its sole cost, expense and risk, to continue the use, if any, of an existing lateral from the Larimer No. 2 Ditch on the Brinks Easement Area to carry the Trust’s rights to Larimer No. 2 irrigation flows, to the extent such crossing is present and such rights exist as of the date of this Agreement. 7. Overhead Power Transmission Lines in the Brinks Easement Area. The Trust and the Company each agree that the installation of overhead power transmission lines on the Brinks Easement Area on the Subject land shall be subject to the consent of the Trust or its successors-in- title to the Subject Land, and the Company, each in its reasonable discretion. 8. The Company’s and the City’s Use of the Ditch. Before the execution of this Agreement, the Company and the City have been entitled to use the Easement on the Subject Land and the Ditch to convey such water as they deem appropriate, and have been entitled to determine their respective rights and obligations in connection with the Easement, all without the consent or agreement of the Trust. The Company and the City agree that their respective rights to use the Ditch on the Subject Land, and other lands over which the Ditch traverses (i.e., the entire Ditch), shall be as follows: 8.1. The Company’s Rights to the Use of the Ditch Up to Its Capacity and to Enter Into Agreements With Other Parties for the Rights to the Use of the Ditch Up to Its Capacity. The Company shall have the right, at any time and from time to time, to use the Ditch up to 5 4.2 Packet Pg. 56 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) its Capacity, as defined below, for the conveyance of water. The Company shall also have the right to enter into agreements with Contractees to authorize their use of the Ditch up to its Capacity, as defined below, subject to the terms and conditions of this Agreement. For the purposes of this Agreement, the “Capacity” is defined as the maximum amount of water that can be carried in the Ditch absent any enlargement of the Ditch. The Company shall determine, in its sole discretion, the amount of Capacity at any given time. 8.1.1. Priority of Use of the Capacity. The rights to the use of the Capacity shall be based on a priority system. Under this priority system, if a party with a prior right to the use of the Capacity is not using all or part of the Capacity, the party with the next priority shall be entitled to the use of any unused portion of the Capacity. Any agreements that the Company enters into with Contractees shall be pursuant to the priority system described herein. 8.1.1.1. First Priority: Company Water for Delivery to Shareholders. The Company shall have the first priority to use the Capacity to meet its operational obligations and to carry water attributable to water rights and contractual rights held by the Company for delivery to its shareholders on a pro rata basis. Such water may be attributable to, but not necessarily limited to: (i) diversions to the Ditch under Ditch Priority #57 with an adjudication date of April 11, 1882 and an appropriation date of April 1, 1873, originally decreed for direct irrigation; (ii) water carried by the Company by arrangement with and for the benefit of the Warren Lake Reservoir Company pursuant to existing priorities for storage as follows: (a) Ditch Priority #76 for five hundred fifty (550) acre-feet with an adjudication date of April 11, 1882 and an appropriation date of April 15, 1875; (b) Reservoir Priority #31 for one thousand five hundred forty-five (1,545) acre-feet with an adjudication date of December 9, 1904 and an appropriation date of January 10, 1893; and (c) Reservoir Priority #100 for eight hundred eighteen (818) acre-feet with an adjudication date of April 22, 1922 and an appropriation date of July 27, 1908, totaling two thousand nine hundred thirteen (2,913) acre-feet with no right of refill; (iii) the Company’s historical deliveries of water during the irrigation season pursuant to contractual or leased rights to water available from the Colorado-Big Thompson Project, or pursuant to exchanges listed in the Decree in Case No. W-8086-75, Water Division No. 1, entered on March 24, 1978; and (iv) water historically carried for the benefit of the owner(s) of the John R. Brown Ditch pursuant to Ditch Priority #14 with an adjudication date of April 11, 1882 and an appropriation date of May 1, 1865, decreed for direct irrigation at a flow rate of three and five/tenths (3.5) cubic feet per second (cfs). 8.1.1.2. Second Priority: Excess Capacity Belonging to Company Shareholders. If there is Capacity that is not being used by the Company under its first priority described in the previous paragraph, such unused capacity shall be deemed “Excess Capacity,” and the shareholders in the Company shall have the second priority to use the Excess Capacity to 6 4.2 Packet Pg. 57 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) carry water attributable to any water rights and contractual rights that may be lawfully delivered through the Ditch, and the amount of such Excess Capacity shall belong to the shareholders in the Company on a pro rata basis as determined by the Company. A shareholder’s use of Excess Capacity shall be made pursuant to an arrangement with the Company. By way of illustration only, if there is 100 cfs of the Capacity that is not being used by the Company, and a shareholder owns 5% of the shares in the Company, said shareholder may have the right to use 5 cfs of such Excess Capacity upon arrangement with the Company. By way of illustration further only, if said shareholder desires to use more than 5 cfs of the Capacity that is not being used by the Company, said shareholder must secure the right to use the “Residual Excess Capacity” as described in the following paragraph. 8.1.1.3. Third Priority: Residual Excess Capacity. If there is Capacity that is not being used by the Company under its first priority described above and is not being used by shareholders under their second priority described in the previous paragraph, such unused capacity shall be deemed “Residual Excess Capacity,” and Contractees shall have the right to use said Residual Excess Capacity pursuant to an agreement with the Company. The rights to the Residual Excess Capacity shall be based on a priority system, under which if a party with a prior right to the use of the Residual Excess Capacity is not using all or part of the Residual Excess Capacity, the party with the next priority shall be entitled to the use of any unused portion of the Residual Excess Capacity. 8.2. The City’s Rights to the Use of the Capacity of the Ditch. The City understands and agrees that Company’s first obligations are to their stockholders as described above and use of Capacity will be permitted only if such uses would in no way be detrimental to the Company or its stockholders. The City shall be entitled to use the Ditch (being its entire length) as a shareholder in the Company and as a Contractee with the Company, as follows: 8.2.1. Excess Capacity Rights. The City currently owns 104.21171 shares of the Company (approximately 71.1%) and therefore currently has such a pro rata entitlement to the use of the Excess Capacity in the Ditch, as described above. The City’s entitlement to the use of the Excess Capacity in the Ditch as described above shall be based on its pro rata ownership of shares in the Company, as that may change from time to time. 8.2.2. Residual Excess Capacity Rights. The City currently has no rights to Residual Excess Capacity in the Ditch. Nothing in this Agreement shall preclude the Company from granting and the City from acquiring Residual Excess Capacity in the Ditch in the future. 8.2.3. Terms and Conditions on the City’s Use of CapacityUnder Its Excess Capacity Rights. 7 4.2 Packet Pg. 58 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) 8.2.3.1. The City shall be entitled to use Capacity under its Excess Capacity Rights for the carriage and conveyance of any water to which the City is entitled to use pursuant to an appropriation (whether decreed or undecreed), lease, contract, and/or any other legal entitlement or right (“City Water”). Said rights to use Capacity are limited to direct uses by the City and may not be assigned or used by the City for the carriage of water for others. 8.2.3.2. So long as the City is the majority owner of shares in the Company, the City shall not be charged for use of Capacity under its Excess Capacity Rights except for assessments associated with the City’s shares of stock and as set forth in Paragraph 8.2.3.5. 8.2.3.3. At times when the City desires to utilize Capacity under its Excess Capacity Rights, the City shall communicate the details of its desired use to the Company (including the point of inflow, source and amount of water, timing, release, point of delivery, and other relevant information reasonably requested by the Company) and request review and approval from the Company, which request shall be timely considered, and approval shall not be unreasonably withheld so long as such request is consistent with this Agreement and will not interfere with Company operations. 8.2.3.4. The Company may assess the evaporation, seepage, and similar transportation losses (also known as “shrink”) on City Water carried in the Ditch under the City’s Excess Capacity Rights. If City Water is the only water being carried in the Ditch, the City will physically incur all of the transportation losses and the Company will not charge any additional transportation losses. If water other than City Water is being carried in the Ditch when City Water is being carried in the Ditch, the City Water will be assessed for transportation losses at the same rate as assessed to other users of the Ditch, at a reasonable rate determined by the Company. 8.2.3.5. Pursuant to the terms and conditions of this Paragraph, the Company may charge the City for the costs of the City carrying water in the Ditch under the City’s Excess Capacity Rights, which may include administrative, engineering, legal, and personnel costs. Such costs shall not exceed the annual limit. The annual limit shall be $1,500 initially and may be adjusted by the Company to reflect any inflation occurring since the date of this Agreement and the date that the Company charges the City under this Agreement. The inflation index to be used shall be the ENR Index – Construction Costs, or if that index is discontinued, the Company shall use a comparable inflation index agreed upon by the parties. Such costs 8 4.2 Packet Pg. 59 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) shall be charged to the City by written invoice no less than yearly and shall be paid by the City within 60 days of the receipt of said invoice. The Company shall provide the City with invoices and additional documentation to substantiate such charges. 8.3. Enlargement of the Ditch. The Company shall have the right to enlarge the Ditch, or to contract with third parties for the enlargement of the Ditch, provided, however, that any such enlargement shall not adversely affect the rights of the Company shareholders, Contractees, and the City. For example, and not by means of limitation, if the ability of the Ditch to carry water were reduced for whatever reason and over whatever period of time, and if the Company were to increase the ability of the Ditch to carry water to an amount that the Ditch at one time historically carried water, such increased capacity would not be an enlargement of the Ditch, but would instead be maintenance and the restoration of existing Capacity in which Company shareholders, Contractees, and the City have rights. The City may not construct facilities on or in, or operate or modify the Ditch, its headgate, or any other reservoir, ditch, facility or other structure or property owned, controlled or operated by the Company, unless the written approval of the Company’s Board of Directors is obtained. Such approval may be withheld or denied in the sole and absolute discretion of the Board. The Company, and not the City, shall operate the Ditch to effectuate City’s utilization of its Capacity permitted herein. 9. Notice. Any notice required or permitted hereunder shall be deemed effective when deposited in the United States mail, postage prepaid, first class and addressed to the party to whom notice is to be given, as follows: If to the Trust: James S. Brink Trust c/o Rose L. Brinks, Trustee ______________________ ______________________ If to the Company: The Larimer County Canal No. 2 Irrigating Company c/o President ________________________ ________________________ If to the City: The City of Fort Collins c/o _____________________ ________________________ ________________________ In the event a different person or entity than the person or entity listed above shall be given notice, the other party shall be notified of this change in writing pursuant to this paragraph. 9 4.2 Packet Pg. 60 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) 10. Covenant Running with Land. This Agreement, and all of its provisions, is binding upon and shall inure to the benefit of the parties, their heirs, successors and assigns, and shall be a covenant running with the Subject Land. 11. Recordation. This Agreement shall be recorded in the records of the Clerk and Recorder of Larimer County, Colorado. The cost of such recording shall be borne equally by the Company and the City. 12. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado, excluding conflicts of interest principles. 13. Severability. If any term, covenant, condition or provision of this Agreement or the application thereof to any person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and shall be enforced to the fullest extent permitted by law. 14. Costs of Legal Proceedings. In the event any of the parties institute legal proceedings with respect to this Agreement or the enforcement thereof, or of any term and condition contained herein, the prevailing party shall be entitled to court costs and reasonable attorneys’ fees incurred by such party in connection with such legal provisions. 15. Waiver. The failure of any Party to exercise any right or power given hereunder, or to insist upon strict compliance by the other Party with its obligations set forth herein and/or any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver of either Party’s rights to demand strict compliance with the terms and conditions of this Agreement. 16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] 10 4.2 Packet Pg. 61 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) THE JAMES S. BRINKS TRUST By: _______________________________________ Rose L. Brinks, as Trustee of the James S. Brinks Trust, formed under the Trust Agreement dated November 30, 2007 STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this ______ day of ___________________, 2015, by Rose L. Brinks, Trustee of the James S. Brinks Trust formed under the Trust Agreement dated November 30, 2007. WITNESS my hand and official seal. ________________________________ Notary Public My commission expires: ______ 11 4.2 Packet Pg. 62 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) THE CITY OF FORT COLLINS, a municipal corporation. By: ___________________________________ ________________________________ Mayor ATTEST: _________________________ City Clerk APPROVED AS TO FORM: _________________________ Assistant City Attorney STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this ______ day of _________________, 2015, by _________________________, as Mayor of The City of Fort Collins, Colorado, a municipal corporation. WITNESS my hand and official seal. ________________________________ Notary Public My commission expires: ____________ 12 4.2 Packet Pg. 63 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) THE LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY, a Colorado nonprofit corporation By:_________________________________ ________________, President STATE OF COLORADO ) ) ss. COUNTY OF ____________) The foregoing instrument was acknowledged before me this ______ day of _________________, 2015, by __________________, President of the Larimer County Canal No. 2 Irrigating Company, a Colorado nonprofit corporation. WITNESS my hand and official seal. ________________________________ Notary Public My commission expires: ____________ 13 4.2 Packet Pg. 64 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) Parcel Number: 9832100020 Owner: Brinks James S Trust Parcel Number: 9832100020 Owner: Brinks James S Trust Parcel Number: 9832000009 Owner: Brinks James S Trust Parcel Number: 9832000009 Owner: Brinks James S Trust Larimer Co u nty C a nal # 2 Cache l a P ou d r e Riv e r Cl a y m o r e L a k e New M ercer Di t c h City of Fort Collins Exhibit 1 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 [EXHIBIT D TO AGREEMENT] EASEMENT AGREEMENT This EASEMENT AGREEMENT (“Agreement”) is entered into as of the _____ day of ______________, 2015, between the CITY OF FORT COLLINS, COLORADO, a municipal corporation (“City”) and the LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY, a Colorado nonprofit company (“Company”). The City and the Company are collectively referred to herein as the “Parties.” RECITALS A. The City originally constructed in the 1880s a ditch channel known as the “City Ditch” and has since the time of construction continued to operate, or allow others to operate, a ditch using the City Ditch channel and related improvements, including the operation of the Larimer County Canal No. 2, as described herein below. B. The Company is the operator of a canal or ditch known as the Larimer County Canal No. 2, and certain water diversion and conveyance structures, culverts, pipes, equipment and other improvements used in connection with the operation of such ditch (the “Larimer No. 2 Ditch”). All diversions, structures, culverts, pipes, equipment and other improvements of the Company or the City associated with the Larimer No. 2 Ditch or the City Ditch shall be referred to collectively as the “Ditch.” C. Beginning in 1906, the City leased the City Ditch to the Company. Subsequently, the City entered into an Easement Deed with the Company on June 21, 2010, whereby the City granted the Company certain rights related to the Company’s use and enjoyment of the City Ditch for operation of the Ditch in accordance with specified terms and conditions and reserved its own interests in the Waterworks Land, as defined below, and the City Ditch, recorded in the real property records of Larimer County on August 3, 2010, at Reception No. 20100044752 (“2010 Easement Agreement”). D. By this Agreement, the City and the Company wish to terminate and replace the 2010 Easement Agreement and abandon any rights and interests thereunder affecting the following parcel of land subject to the 2010 Easement Agreement which is traversed by the Ditch: certain real property conveyed to Grantor by Warranty Deed on September 18, 1889, and recorded in the real property records of Larimer County on April 30, 1891, at Reception Number 36766, Book 78, Page 490, generally located in the northwest quarter (NW1/4) of the southeast quarter (SE1/4) of Section 32, Township 8 North, Range 69 West, 6 th P.M., Larimer County (“Waterworks Land”). E. The Parties also wish to document and incorporate the prescriptive rights arising from historical use and operation of the Ditch on the Waterworks Land. F. The Parties agree that the Company has a valid existing easement and right of way for the Ditch on the Waterworks Land and sufficient lands on each side of the Ditch to allow it to fully enjoy and utilize the Ditch, subject to the City’s rights to use the Ditch as set forth herein. In an effort to better describe the extent of the easement and right of way for the Ditch enjoyed by the 4.2 Packet Pg. 66 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) Company on the Waterworks Land, subject to the City’s rights to use the Ditch as set forth herein, and to define, recognize and memorialize in writing the mutual interests and correlative rights the Parties have in the Waterworks Land, the Parties enter into this Agreement. AGREEMENT NOW, THEREFORE, for good and valuable consideration received by them, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows: 1. Recitals. The factual recitals above are hereby incorporated by reference as though fully set forth. 2. Abandonment of 2010 Easement Agreement. By this Agreement the City and the Company terminate and abandon any rights under the 2010 Easement Agreement on the the Waterworks Land. The Parties understand and acknowledge that this Agreement, and the terms and conditions contained herein, supersedes and replaces the 2010 Easement Agreement as it relates to the Waterworks Land and any rights on, over, under or across the the Waterworks Land. 3. Grant of “Waterworks Easement” on the Waterworks Land by the City – Consideration. For and in consideration of the covenants and agreements herein set forth, the sum of Ten Dollars ($10.00), and other good and valuable consideration, the receipt and adequacy of which the City acknowledges, the City grants, sells and conveys to the Company, its successors and assigns, as is, subject to all existing rights and claims of right, and without warranty of any kind, a perpetual, non-exclusive easement and right-of-way on, over, under and across the Waterworks Easement Area on the Waterworks Land, as defined below in Paragraph 4, for the uses stated herein, subject to the conditions and restrictions set forth below, and subject to the City’s rights to use the Ditch as set forth herein (referred to herein as the “Waterworks Easement” because it crosses the City’s Waterworks Land). 4. Scope of Waterworks Easement. The Parties agree and acknowledge that the City’s conveyance of the Waterworks Easement on the Waterworks Land includes an easement and right- of-way for the purposes set forth herein. The location of the “Waterworks Easement Area” is set forth in Exhibit 1, comprising seven (7) pages and “Exhibits A, B, and C,” which is incorporated by this reference. 5. The Company’s Rights in the Waterworks Easement Area. In addition to the right to convey water in the Ditch as set forth in Paragraph 8, the Company shall have the following rights in the Waterworks Easement Area. 5.1. Right of Ingress and Egress. The Company shall have the right of ingress to and egress from the Waterworks Easement Area over and the Waterworks Land by means of any roads and lanes thereon and otherwise in a manner reasonably expected to minimize disturbance and impacts to the Waterworks Land or the improvements upon or natural features thereof. 2 4.2 Packet Pg. 67 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) 5.2. Improvements. The Company shall have the right from time to time to improve, reconstruct and replace the Ditch and related improvements with improvements of a like number, size and nature, either in the original location or at an alternate location or locations within the Waterworks Easement Area satisfactory to the City in its sole discretion, for the authorized purposes set forth herein, provided that the Company must give the City advance notice of any change in the type, number or location of improvements and cannot proceed until the City has provided its written consent, which shall not be unreasonably withheld or delayed. 5.3. Gates. The Company shall have the right to install, maintain and use gates in all fences which now cross or shall hereafter cross the Waterworks Easement Area. 6. The City’s Rights in the Waterworks Easement Area. In addition to the right to convey water in the Ditch as set forth in Paragraph 8, the City shall have the following rights in the Waterworks Easement Area. 6.1. Non-Interference. The City reserves the right to use the Waterworks Easement Area for purposes that will not unreasonably interfere with the Company’s full enjoyment of the rights granted herein. 6.2. Trails and Roads. The City reserves the right to install roads, trails, paths, whether or not paved or hard-surfaced, and other types of improvements in the Waterworks Easement Area and over the Company’s improvements subject to the written consent of the Company, which consent shall not be unreasonably withheld or delayed. 6.3. Structures. The Cityreserves the right to install permanent buildings or structures on the Waterworks Easement Area subject to the written consent of the Company, which consent shall not be unreasonably withheld or delayed. 6.4. Signs. The City reserves the right to install or utilize signs on or over the Waterworks Easement Area, subject to the written consent of the Company, which consent shall not be unreasonably withheld or delayed. 6.5. Maintenance of City Improvements. The Company shall not be responsible for maintenance of improvements of the City, except as specifically provided herein, but shall be responsible for repair, restoration and replacement of such improvements in the event they are damaged or destroyed by the Company or any person acting under the Company’s rights hereunder. 7. The Company’s Obligations Regarding the Waterworks Easement Area. The Company shall have the following obligations regarding the Waterworks Easement Area. 7.1. Coordination. All activities by the Company on the Waterworks Easement Area, including access across the City’s Property, must be carried out in a manner and on a schedule reasonably expected to minimize disturbance to the natural 3 4.2 Packet Pg. 68 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) features of said property, any improvements thereon, and the City’s intended purposes therefor. 7.2. Maintenance. The Company must maintain the Improvements used by the Company in the Waterworks Easement Area, including but not limited to the ditch channel and any structures installed in the ditch for the Company’s use, in an good condition, and a reasonably safe manner, with the Parties recognizing the inherent dangers of an earthen irrigation canal, and repair the Improvements as reasonably necessary to ensure the Improvements do not cause injury or damage to persons or property. 7.3. Inspection and Maintenance. Other than for routine inspection, operations, repair, and reasonably noninvasive maintenance, with the Parties recognizing that routine inspection, operations, repair, and maintenance are by their nature moderately invasive to the adjacent properties, the Company shall notify the City at least five (5) business days prior to performing work (including, but not limited to, construction, maintenance, and repair) on or within the Waterworks Easement Area. For the purposes of this Agreement, and by way of example and not by limitation, the following activities shall not be considered to be routine inspection, operations, repair, and reasonably noninvasive maintenance and shall require prior notice to the City under this paragraph: the removal of tree(s) with a trunk diameter larger than one inch (1”), any excavations, and burning or spraying of the Ditch. In advance of any nonemergency work (excluding routine inspection and noninvasive maintenance), the Company shall submit a work plan and schedule to the City for approval, which approval shall not be unreasonably delayed or withheld. The Company will need a Temporary Construction Easement from the City if working on any property of the Cityoutside of the Waterworks Easement Area. Notwithstanding these notification requirements, in cases of emergency repair, the Company shall notify the City of the emergency and provide related construction plans and schedules as soon as reasonably practicable. 7.4. Damages. In the event damage occurs from the Company’s use of or activities over or within the Waterworks Easement Area, including but not limited to the installation, maintenance, or operation of the Improvements within the Waterworks Easement Area, the Company agrees to make such repairs or take such other action as may be necessary to restore the Waterworks Easement Area and the Waterworks Land to a condition comparable to their condition prior to the Company’s activities in the Waterworks Easement Area, including but not limited to the reseeding and replanting of any disturbed areas in a manner reasonably satisfactory to the City, and the provision of ongoing maintenance of any seeded or planted areas, correction of any subsidence, and restoration of any other improvements or conditions impacted by the Company’s activities, until such time as any such repair and restoration is fully established and stabilized. 7.5. Indemnity and Insurance. The Company agrees to indemnify the City, its officers, agents, employees, representatives, successors and assigns from all 4 4.2 Packet Pg. 69 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) claims and liability, including but not limited to the City’s reasonable legal fees and costs, including attorneys’ fees, for claims made by third persons for personal injury, death or property damage resulting from or arising out of the Company’s use of the Waterworks Easement Area or other activities of the Company on the Waterworks Land, including but not limited to the construction, installation, operation, repair, and maintenance of improvements within the Waterworks Easement Area, and for any actions or omissions by the Company in violation of this Agreement. 7.6. The City agrees to undertake a good faith review of the terms and conditions of Paragraph 7.5 in order to determine whether such terms and conditions should be revised by a subsequent agreement of the Parties to address the issues addressed in that paragraph in a manner that is more advantageous to the Parties. The City shall confer with Company representatives regarding the City’s review within three (3) months of the execution of this Agreement, unless the parties agree to modify the timing of such conferral. Any such agreement shall be recorded in the records of the Clerk and Recorder of Larimer County, Colorado. THE COMPANY’S AND THE CITY’S USE OF THE DITCH 8. The Company’s and the City’s Use of the Ditch. The Company and the City agree that their respective rights to use the Ditch on the Waterworks Land and other lands over which the Ditch traverses (i.e., the entire Ditch), shall be as follows: 8.1. The Company’s Rights to the Use of the Ditch Up to Its Capacity and to Enter Into Agreements With Other Parties for the Rights to the Use of the Ditch Up to Its Capacity. The Company shall have the right, at any time and from time to time, to use the Ditch up to its Capacity, as defined below, for the conveyance of water. The Company shall also have the right to enter into agreements with Contractees to authorize their use of the Ditch up to its Current Capacity, as defined below, subject to the terms and conditions of this Agreement. For the purposes of this Agreement, the “Capacity” is defined as the maximum amount of water that can be carried in the Ditch absent any enlargement of the Ditch. The Company shall determine, in its sole discretion, the amount of Capacity at any given time. 8.1.1. Priority of Use of the Capacity. The rights to the use of the Capacity shall be based on a priority system. Under this priority system, if a party with a prior right to the use of the Capacity is not using all or part of the Capacity, the party with the next priority shall be entitled to the use of any unused portion of the Capacity. Any agreements that the Company enters into with Contractees shall be pursuant to the priority system described herein. 8.1.1.1. First Priority: Company Water for Delivery to Shareholders. The Company shall have the first priority to use the Capacity to meet its operational obligations and to carry water attributable to water rights and contractual rights held by the Company for delivery to its shareholders on a pro rata basis. Such water may be attributable to, but not necessarily limited to: (i) diversions to the Ditch under Ditch Priority #57 with an adjudication date of April 11, 1882 and an appropriation date of April 5 4.2 Packet Pg. 70 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) 1, 1873, originally decreed for direct irrigation; (ii) water carried by the Company by arrangement with and for the benefit of the Warren Lake Reservoir Company pursuant to existing priorities for storage as follows: (a) Ditch Priority #76 for five hundred fifty (550) acre-feet with an adjudication date of April 11, 1882 and an appropriation date of April 15, 1875; (b) Reservoir Priority #31 for one thousand five hundred forty-five (1,545) acre-feet with an adjudication date of December 9, 1904 and an appropriation date of January 10, 1893; and (c) Reservoir Priority #100 for eight hundred eighteen (818) acre-feet with an adjudication date of April 22, 1922 and an appropriation date of July 27, 1908, totaling two thousand nine hundred thirteen (2,913) acre-feet with no right of refill; (iii) the Company’s historical deliveries of water during the irrigation season pursuant to contractual or leased rights to water available from the Colorado-Big Thompson Project, or pursuant to exchanges listed in the Decree in Case No. W-8086-75, Water Division No. 1, entered on March 24, 1978; and (iv) water historically carried for the benefit of the owner(s) of the John R. Brown Ditch pursuant to Ditch Priority #14 with an adjudication date of April 11, 1882 and an appropriation date of May 1, 1865, decreed for direct irrigation at a flow rate of three and five/tenths (3.5) cubic feet per second (cfs). 8.1.1.2. Second Priority: Excess Capacity Belonging to Company Shareholders. If there is Capacity that is not being used by the Company under its first priority described in the previous paragraph, such unused capacity shall be deemed “Excess Capacity,” and the shareholders in the Company shall have the second priority to use the Excess Capacity to carry water attributable to any water rights and contractual rights that may be lawfully delivered through the Ditch, and the amount of such Excess Capacity shall belong to the shareholders in the Company on a pro rata basis as determined by the Company. A shareholder’s use of Excess Capacity shall be made pursuant to an arrangement with the Company. By way of illustration only, if there is 100 cfs of the Capacity that is not being used by the Company, and a shareholder owns 5% of the shares in the Company, said shareholder may have the right to use 5 cfs of such Excess Capacity upon arrangement with the Company. By way of illustration further only, if said shareholder desires to use more than 5 cfs of the Capacity that is not being used by the Company, said shareholder must secure the rights to use the “Residual Excess Capacity” as described in the following paragraph. 8.1.1.3. Third Priority: Residual Excess Capacity. If there is Capacity that is not being used by the Company under its first priority described above and is not being used by shareholders under their second priority described in the previous paragraph, such unused capacity shall be deemed “Residual Excess Capacity,” and Contractees shall have the right to use said Residual Excess Capacity pursuant to an agreement with the Company. The rights to the Residual Excess Capacity shall be based on a priority system, under which if a party with a prior right to the use of the 6 4.2 Packet Pg. 71 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) Residual Excess Capacity is not using all or part of the Residual Excess Capacity, the party with the next priority shall be entitled to the use of any unused portion of the Residual Excess Capacity. 8.2. The City’s Rights to the Use of the Capacity of the Ditch. The City understands and agrees that Company’s first obligations are to their stockholders as described above and use of Capacity will be permitted only if such uses would in no way be detrimental to the Company or its stockholders. The City shall be entitled to use the Ditch (being its entire length) as a shareholder in the Company and as a Contractee with the Company, as follows: 8.2.1. Excess Capacity Rights. The City currently owns 104.21171 shares of the Company (approximately 71.1%) and therefore currently has such a pro rata entitlement to the use of the Excess Capacity in the Ditch, as described above. The City’s entitlement to the use of the Excess Capacity in the Ditch as described above shall be based on its pro rata ownership of shares in the Company, as that may change from time to time. 8.2.2. Residual Excess Capacity Rights. The City currently has no rights to Residual Excess Capacity in the Ditch. Nothing in this Agreement shall preclude the Company from granting and the City from acquiring Residual Excess Capacity in the Ditch in the future. 8.2.3. Terms and Conditions on the City’s Use of Capacity Under Its Excess Capacity Rights. 8.2.3.1. The City shall be entitled to use Capacity under its Excess Capacity Rights for the carriage and conveyance of any water to which the City is entitled to use pursuant to an appropriation (whether decreed or undecreed), lease, contract, and/or any other legal entitlement or right (“City Water”). Said rights to use Capacity are limited to direct uses by the City and may not be assigned or used by the City for the carriage of water for others. 8.2.3.2. So long as the City is the majority owner of shares in the Company, the City shall not be charged for use of Capacity under its Excess Capacity Rights except for assessments associated with the City’s shares of stock and as set forth in Paragraph 8.2.3.5. 8.2.3.3. At times when the City desires to utilize Capacity under its Excess Capacity Rights, the City shall communicate the details of its desired use to the Company (including the point of inflow, source and amount of water, timing, release, point of delivery, and other relevant information reasonably requested by the Company) and request review and approval from the Company, 7 4.2 Packet Pg. 72 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) which request shall be timely considered, and approval shall not be unreasonably withheld so long as such request is consistent with this Agreement and will not interfere with Company operations. 8.2.3.4. The Company may assess the evaporation, seepage, and similar transportation losses (also known as “shrink”) on City Water carried in the Ditch under the City’s Excess Capacity Rights. If City Water is the only water being carried in the Ditch, the City will physically incur all of the transportation losses and the Company will not charge any additional transportation losses. If water other than City Water is being carried in the Ditch when City Water is being carried in the Ditch, the City Water will be assessed for transportation losses at the same rate as assessed to other users of the Ditch, at a reasonable rate determined by the Company. 8.2.3.5. Pursuant to the terms and conditions of this Paragraph, the Company may charge the City for the costs of the City carrying water in the Ditch under the City’s Excess Capacity Rights, which may include administrative, engineering, legal, and personnel costs. Such costs shall not exceed the annual limit. The annual limit shall be $1,500 initially and may be adjusted by the Company to reflect any inflation occurring since the date of this Agreement and the date that the Company charges the City under this Agreement. The inflation index to be used shall be the ENR Index – Construction Costs, or if that index is discontinued, the Company shall use a comparable inflation index agreed upon by the parties. Such costs shall be charged to the City by written invoice no less than yearly and shall be paid by the City within 60 days of the receipt of said invoice. The Company shall provide the City with invoices and additional documentation to substantiate such charges. 8.3. Enlargement of the Ditch. The Company shall have the right to enlarge the Ditch, or to contract with third parties for the enlargement of the Ditch, provided, however, that any such enlargement shall not adversely affect the rights of the Company shareholders, Contractees, and the City. For example, and not by means of limitation, if the ability of the Ditch to carry water were reduced for whatever reason and over whatever period of time, and if the Company were to increase the ability of the Ditch to carry water to an amount that the Ditch at one time historically carried water, such increased capacity would not be an enlargement of the Ditch, but would instead be maintenance and the restoration of existing Capacity in which Company shareholders, Contractees, and the City have rights. The City may not construct facilities on or in, or operate or modify the Ditch, its headgate, or any other reservoir, ditch, facility or other structure or property owned, controlled or operated by the Company, unless the written approval of the Company’s Board of Directors is obtained. Such approval may be withheld or denied in the sole and 8 4.2 Packet Pg. 73 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) absolute discretion of the Board. The Company, and not the City, shall operate the Ditch to effectuate City’s utilization of its Capacity permitted herein. ADDITIONAL TERMS 9. Notice. Any notice required or permitted hereunder shall be deemed effective when deposited in the United States mail, postage prepaid, first class and addressed to the party to whom notice is to be given, as follows: If to the Company: The Larimer County Canal No. 2 Irrigating Company c/o President ________________________ ________________________ If to the City: The City of Fort Collins c/o _____________________ ________________________ ________________________ In the event a different person or entity than the person or entity listed above shall be given notice, the other party shall be notified of this change in writing pursuant to this paragraph. 10. Covenant Running with Land. This Agreement, and all of its provisions, is binding upon and shall inure to the benefit of the parties, their heirs, successors and assigns, and shall be a covenant running with the Waterworks Land. 11. Recordation. This Agreement shall be recorded in the records of the Clerk and Recorder of Larimer County, Colorado. The cost of such recording shall be borne equally by the Company and the City. 12. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado, excluding conflicts of interest principles. 13. Severability. If any term, covenant, condition or provision of this Agreement or the application thereof to any person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and shall be enforced to the fullest extent permitted by law. 14. Costs of Legal Proceedings. In the event any of the parties institute legal proceedings with respect to this Agreement or the enforcement thereof, or of any term and condition contained herein, the prevailing party shall be entitled to court costs and reasonable attorneys’ fees incurred by such party in connection with such legal provisions. 9 4.2 Packet Pg. 74 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) 15. Waiver. The failure of any Party to exercise any right or power given hereunder, or to insist upon strict compliance by the other Party with its obligations set forth herein and/or any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver of either Party’s rights to demand strict compliance with the terms and conditions of this Agreement. 16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] 10 4.2 Packet Pg. 75 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) THE CITY OF FORT COLLINS, a municipal corporation. By: ___________________________________ ________________________________ Mayor ATTEST: _________________________ City Clerk APPROVED AS TO FORM: _________________________ Assistant City Attorney STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this ______ day of _________________, 2015, by _________________________, as Mayor of The City of Fort Collins, Colorado, a municipal corporation. WITNESS my hand and official seal. ________________________________ Notary Public My commission expires: ____________ 11 4.2 Packet Pg. 76 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) THE LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY, a Colorado nonprofit corporation By:_________________________________ ________________, President STATE OF COLORADO ) ) ss. COUNTY OF ____________) The foregoing instrument was acknowledged before me this ______ day of _________________, 2015, by __________________, President of the Larimer County Canal No. 2 Irrigating Company, a Colorado nonprofit corporation. WITNESS my hand and official seal. ________________________________ Notary Public My commission expires: ____________ 12 4.2 Packet Pg. 77 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) &9)*#*5 4.2 Packet Pg. 78 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) 4.2 Packet Pg. 79 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) 4.2 Packet Pg. 80 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) 4.2 Packet Pg. 81 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) 4.2 Packet Pg. 82 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) 4.2 Packet Pg. 83 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) 4.2 Packet Pg. 84 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement) Agenda Item 5 Item # 5 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Jerry Schiager, Police Deputy Chief John Hutto, Police Chief SUBJECT Items Relating to the Design of the Police Regional Training Facility. EXECUTIVE SUMMARY A. Second Reading of Ordinance No. 138, 2015, Appropriating Prior Year Reserves in the General Fund of the Design of the Police Regional Training Facility. B. Resolution 2015-102 Authorizing the Mayor to Enter into an Intergovernmental Agreement with the City of Loveland for the Purpose of Sharing the Cost Related to the Design Phase of the Police Regional Training Facility. Ordinance No. 138, 2015, unanimously adopted on First Reading on November 3, 2015, will appropriate funding for the design phase of the Police Regional Training Facility. The request is for $810,000 and authorization for funding for the Fort Collins portion of the design phase. Resolution 2015-102 will authorize the Mayor to execute an intergovernmental agreement between the City of Fort Collins and the City of Loveland for the purpose of sharing the cost related to the design phase of the Police Regional Training Facility. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading and adoption of the Resolution. BACKGROUND / DISCUSSION A memo is attached (Attachment 2) that provides answers to questions raised by Council at First Reading of Ordinance No. 138, 2015 on November 3, 2015. ATTACHMENTS 1. First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (PDF) 2. Staff memo re: Response to Council questions and comments on First Reading (PDF) 5 Packet Pg. 85 Agenda Item 16 Item # 16 Page 1 AGENDA ITEM SUMMARY November 3, 2015 City Council STAFF Cory Christensen, Police Deputy Chief John Hutto, Police Chief SUBJECT First Reading of Ordinance No. 138, 2015, Appropriating Prior Year Reserves in the General Fund for the Design of the Police Regional Training Facility. EXECUTIVE SUMMARY The purpose of this item is to seek adoption of the appropriation ordinance to fund the design phase of the Police Regional Training Facility. The request is for $810,000 and authorization for funding for the Fort Collins portion of the design phase. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The City has experienced considerable growth over the past several years, which is expected to continue. Over the next 20 to 25 years it is expected that the population will grow by about 100,000 more citizens. This anticipated growth will need to be met by continued growth in the core services necessary to meet those citizens’ expectations. This means that Fort Collins Police Services will experience considerable growth in personnel in the next 20 to 25 years to meet those needs and expectations. The highest liability areas for providing police services is in the area of skills used by those officers. Three skill areas require regular, consistent and safe training so that officers respond in a controlled and professional manner. All of the skills areas require specialized facilities for the safe and effective training environment necessary to learn and maintain those skills. Those skill areas are weapons (both lethal and less than lethal), arrest control and defensive tactics, and driving. Fort Collins Police Services has been using the same facility for weapons training since 1990. At the time the facility was purchased there were 105 sworn officers; today that number is almost double at 203 sworn officers. That facility has been outgrown and is in need of repair to provide a safe training environment. An upgrade and repair of the facility will still not meet the current needs of Fort Collins Police Services and will cost tens of thousands of dollars. Due to the current inadequate facilities, Fort Collins Police Services has been traveling long distances in order to train on specific weapons in a safe manner. This leads to thousands of miles traveled, as well as valuable training time spent on travel alone. This has resulted in inefficient use of personnel time, wear and tear on police vehicles and extra cost to the organization. Currently officers are required to drive 40 miles, one way, multiple times per year to safely participate in specific weapons training. Fort Collins Police Services has never had a dedicated resource designed specifically to teach driving skills. Officers once practiced their driving skills at the vacant parking lot of the now demolished, dog racing track. When this resource was no longer available Fort Collins Police Services used the closed Fort Collins Municipal Airport runway. Although the resource was sub-par, driving training was possible at this location. That resource ATTACHMENT 1 5.1 Packet Pg. 86 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3784 : SR 138 Police Training Facility) Agenda Item 16 Item # 16 Page 2 is no longer available and the only alternative has been to travel 60 miles (one way) to Adams County to use a dedicated driving track. This facility is in very high demand and scheduling is problematic. It was not possible for Fort Collins Police Services to provide any driving training in 2014 due to the scheduling conflicts. Fort Collins Police Services must plan to meet these needs for now and into the future. Options include Fort Collins building or repairing its own venue for these training needs or entering into a partnership to combine resources to build a facility that will meet those needs. Due to the known deficiencies and inadequate training facilities, Fort Collins Police Services has been actively looking for opportunities to relieve this issue. The Loveland Police Department is also facing critical shortfalls in adequate training facilities for both driving and weapons training. Out of these needs a partnership was developed between the two police agencies to explore a joint training facility that would meet the current and future skills training needs of both agencies. The parties have negotiated an Intergovernmental Agreement for the sharing of costs of preliminary design, design development, construction drawings, and construction administration relating to the construction of a joint regional training facility. The Intergovernmental Agreement will be presented for Council approval along with Second Reading of this proposed appropriation ordinance. A comprehensive needs study was completed and conceptual design developed for a facility that provides adequate and safe training for both Fort Collins Police Services and Loveland Police Department. The estimated capital cost to construct this facility is $18.5 million and it is intended that the capital cost be shared equally between the two cities. Though other law enforcement agencies were approached to join the partnership, all have declined. There is some additional capacity to sell facility use time to other partners in the region. This would assist in partially offsetting the operation and maintenance cost of the facility. Letters of intent for using the facility have been signed by 11 additional regional agencies, representing 1,100 officers. The footprint of the training facility is based solely on the needs of Fort Collins Police Services and Loveland Police Department. The training facility takes into account the planned growth in both communities that will also require growth in officers who are in need of this skills training. A comprehensive, and conservative, business plan has been prepared to show the training space needs, capital and ongoing costs and possible offsetting revenue of this facility. The research and planning stages have been completed with a conceptual design for all aspects of the facility, a comprehensive business plan, letters of intent from 11 area agencies and location of the facility. On January 27, 2015, a work session with City Council was held outlining the business plan and future use of this facility. On February 12, 2015, a joint session of Fort Collins City Council and Loveland City Council was held to further discuss the plans and regional nature of the Regional training Facility. On October 6, 2015 Loveland City Council approved $1.075 million to begin work on construction design. CITY FINANCIAL IMPACTS If approved, $810,000 will be appropriated out of the General Fund Reserves to cover the design costs of the facility. Fort Collins’ additional share of the total capital cost would be $8.5 million and would be financed using municipal bonds. Depending on the loan term, the debt service will cost $622,000 to $967,000 per year. Outside user facility rental is expected to generate revenue of approximately $200,000/year; sustaining O&M is approximately $700,000 per year. Fort Collins and Loveland will split the facility cost based on percentage of officers and is expected to be approximately $340,000/year for Fort Collins. 5.1 Packet Pg. 87 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3784 : SR 138 Police Training Facility) Agenda Item 16 Item # 16 Page 3 PUBLIC OUTREACH Considerable outreach has been accomplished over the last 24 months with stakeholders who would use the RTC for a rental fee. ATTACHMENTS 1. Letter from Larimer County re: participation in Range (PDF) 2. Poudre Fire Authority letter re: participation in Range (PDF) 3. Memo re: New Training Campus Informal Survey of Police Services employees (PDF) 4. Work Session Summary, January 27, 2015 (PDF) 5. Powerpoint presentation (PDF) 5.1 Packet Pg. 88 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3784 : SR 138 Police Training Facility) ATTACHMENT 2 5.2 Packet Pg. 89 Attachment: Staff memo re: Response to Council questions and comments on First Reading (3784 : SR 138 Police Training Facility) 5.2 Packet Pg. 90 Attachment: Staff memo re: Response to Council questions and comments on First Reading (3784 : SR 138 Police Training Facility) ORDINANCE NO. 138, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING PRIOR YEAR RESERVES IN THE GENERAL FUND FOR THE DESIGN OF THE POLICE REGIONAL TRAINING FACILITY WHEREAS, the City has been experiencing and will continue to experience a considerable increase in its population, which means that Fort Collins Police Services will need to increase their personnel accordingly in the next 20 to 25 years to continue successfully serving the citizens of this community; and WHEREAS, with an increasing population, it is imperative that police officers regularly participate in weapons, arrest control/defensive tactics and driving training to learn and maintain high skill levels in the areas that have been identified as posing the greatest risk of liability; and WHEREAS, such training should take place in a safe and effective environment, which requires specialized training facilities; and WHEREAS, Fort Collins Police Services purchased a training facility in approximately 1990, and it is still currently being used by officers for some of their training purposes; and WHEREAS, since 1990, the number of sworn officers has almost doubled, and as a result, the training facility is inadequate; and WHEREAS, the training facility needs significant repair that is cost prohibitive, and the facility does not provide a safe environment for weapons or driving training, forcing officers to drive long distances to attend appropriate training; and WHEREAS, the Loveland Police Department is also facing critical shortfalls in adequate training facilities for both driving and weapons training; and WHEREAS, Fort Collins Police Services and the Loveland Police Department have joined together to investigate the feasibility of a joint training facility that would meet the current and future training needs of both agencies; and WHEREAS, over the past year, both agencies have been working together to developdeveloped an Intergovernmental Agreement for the sharing ofthat shares the costs of preliminary design, design development, construction drawings, and construction administration relating to the construction of a joint regional training facility that is being presented to Council for consideration and approval; and WHEREAS, Resolution 2015-102 is also being presented to Council in conjunction with Second Reading of this Ordinance to authorize the Mayor to sign the Intergovernmental Agreement; and Packet Pg. 91 WHEREAS, the Intergovernmental Agreement will be presented to Council for consideration and approval upon the second reading of this appropriation ordinance; and WHEREAS, a comprehensive study and conceptual design was completed to develop a proposed facility that would provide adequate and safe training for both Fort Collins Police Services and the Loveland Police Department; and WHEREAS, the estimated capital cost to construct such a facility is $18.5 million to be shared equally between Fort Collins and Loveland; and WHEREAS, on October 6, 2015, the Loveland City Council approved $1.075 million to begin work on construction design; and WHEREAS, staff is seeking Council’s approval of $810,000 to be appropriated out of the General Fund Reserves to cover the design costs of the facility; and WHEREAS, Article V, Section 9 of the City Charter permits the City Council to appropriate by ordinance at any time during the fiscal year such funds for expenditure as may be available from reserves accumulated in prior years, notwithstanding that such reserves were not previously appropriated. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that there is hereby appropriated for expenditure from prior year reserves in the General Fund the total sum of EIGHT HUNDRED TEN THOUSAND DOLLARS ($810,000) for the design cost for the Regional Training Facility. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, A.D. 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 92 Passed and adopted on final reading on this 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 93 RESOLUTION 2015-102 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE MAYOR TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE CITY OF LOVELAND FOR THE PURPOSE OF SHARING THE COST RELATED TO THE DESIGN PHASE OF THE POLICE REGIONAL TRAINING FACILITY WHEREAS, the City Council has on this date adopted Ordinance No. 138, 2015, appropriating prior year reserves in the General Fund for the design of a Police Regional Training Facility in cooperation with the City of Loveland; and WHEREAS, Fort Collins and Loveland staffs have negotiated an intergovernmental agreement by and between the City of Fort Collins and the City of Loveland to outline how the two cities will share the cost of the preliminary design, design development, construction drawings, and construction administration relating to the construction of the Police Regional Training Facility; and WHEREAS, City Code Section 1-22 requires, with certain exceptions, intergovernmental agreements to be submitted to the City Council for review and approval by ordinance or resolution; and WHEREAS, the City Council has determined that the Police Regional Training Facility is in the best interests of the City and that the Mayor should be authorized to execute an intergovernmental agreement in support thereof. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the Mayor is hereby authorized to execute an intergovernmental agreement between the City of Fort Collins and the City of Loveland for the purpose of sharing the cost related to the preliminary design, design development, construction drawings, and construction administration of the Police Regional Training Facility, in substantially the form attached hereto as Exhibit AA@, with such additional terms and conditions as the City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City or effectuate the purpose of this Resolution. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 17th day of November, A.D. 2015. _________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 94 1 INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITIES OF LOVELAND AND FORT COLLINS, COLORADO FOR THE SHARING OF THE COST OF THE PRELIMINARY DESIGN, DESIGN DEVELOPMENT, CONSTRUCTION DRAWINGS, AND CONSTRUCTION ADMINISTRATION RELATING TO THE CONSTRUCTION OF A REGIONAL TRAINING CAMPUS THIS AGREEMENT is made and entered into this ____ day of ______________, 2015, between THE CITY OF LOVELAND, COLORADO, a municipal corporation, hereafter “Loveland,” and THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, hereafter “Fort Collins,” and hereinafter collectively referred to as "Cities". W I T N E S S E T H: WHEREAS, the Cities are each home-rule municipalities that maintain police departments to provide law enforcement services to their respective citizens and employ police employees who participate in ongoing training regarding weapons and vehicle use in order to maintain and improve the skills necessary to perform police functions; and WHEREAS, currently each of the Cities’ police employees conduct weapons training and vehicle/driver training separately and combining such training at one facility will create cost efficiencies for both police departments; and WHEREAS, Loveland considers it a priority to plan, construct and operate a public safety training campus and improvements thereto that will better meet the needs of the Loveland Police Department and the northern Colorado community as a whole; and WHEREAS, Fort Collins agrees that a centralized public safety training campus for use by law enforcement agencies serving the northern Colorado community would benefit the citizens of Fort Collins and, therefore desires to partner with Loveland in the preliminary design, design development, construction drawings and construction administration of a public safety training campus; and WHEREAS, it is the Cities’ intent that the public safety training campus would serve as a regional training facility for several other governmental agencies in and around Colorado’s Northern Front Range, including Larimer County Sheriff, Weld County Sheriff, Greeley Police, Windsor Police, Colorado State University Police, and others; and WHEREAS, pursuant to Section 29-1-203 of the Colorado Revised Statutes, the Cities are authorized by law to contract with one another to provide for the joint exercise of any function, service or facility lawfully authorized to each of the Cities if such contracts are approved by their governing bodies; and WHEREAS, it is the Cities’ intent that the regional public safety training campus will be owned, designed, constructed, operated, maintained, and managed jointly by the Cities, with other EXHIBIT A 1 Packet Pg. 95 Attachment: Exhibit A (3806 : SR 138 Police Training Facility RESO) 2 agencies paying the Cities for their use of the facilities; and WHEREAS, the Cities have participated in extensive discussions and other activities focused on planning, developing, and establishing a regional training campus, including budgeting and appropriating approximately $1.620 million dollars by the Cities to complete Phase 1; and WHEREAS, the Cities seek by this Agreement to memorialize the terms on which they have agreed, in a collaborative manner, to engage in the design of a regional training campus, with the intent that their collaborative undertaking shall continue for many years to come and include the construction, operation and management of the campus. NOW, THEREFORE, IT IS AGREED by and between the parties hereto as follows: 1. Mutual Undertaking. The parties agree that the construction and ownership of the regional training campus ("Training Campus") will be a mutual undertaking between the Cities, with construction, ownership, operation and management responsibilities and authority to be determined by the Cities at a future date. 2. Training Campus Phase 1 Funding. Each City acknowledges that funding for the preliminary design, design development, construction drawings and construction administration of the Training Campus will be necessary and each City agrees to fund Phase 1 of the Training Campus project as provided herein. A. Phase 1 of the Training Campus project shall include: preliminary design, design development, construction drawings and construction administration. B. The Cities agree to equally share the cost of completing Phase 1 of the project. Any financial commitment made by the Cities to third parties in furtherance of this Agreement shall either be supported by existing appropriations or upon the future appropriation of necessary funds by the Cities. Financial contributions to fund Phase 1 of the Training Campus project shall be shared equally between the Cities and shall not exceed a combined cost of $1.62 million except upon completion of the construction drawings both parties must approve continuation of Phase 1 before start of any construction administration activities or associated costs. The not to exceed combined cost for Phase 1 includes $1.3 million, plus $320,000 for construction administration. C. Fort Collins will pay its share of the cost of Phase 1 into the designated Loveland account to be used by Loveland for the Phase 1 funding upon invoice from Loveland. Loveland shall provide finance and accounting administrative services for each budget year until the funds have been fully expended. D. Loveland may collect, hold, and disburse funds belonging to Fort Collins only as an 1 Packet Pg. 96 Attachment: Exhibit A (3806 : SR 138 Police Training Facility RESO) 3 agent of Fort Collins, and subject to the general duties and responsibilities of an agency relationship. Accordingly, Loveland shall, with respect to such funds of Fort Collins, be under the control of Fort Collins Financial Officer and shall make monthly reports to such Financial Officer not later than ten (10) days after each month, which reports shall contain a detailed accounting of all such funds collected, held, invested and disbursed by Loveland for the period of time covered by such report. E. The financial obligations of the Cities under this Agreement are subject to the annual appropriation by each City Council of sufficient funds therefor, which appropriations shall be in the Cities’ sole discretion. F. Each party will appoint a Project Manager/Representative who shall be responsible for communicating decisions of his or her respective Party to the other Party regarding those matters calling for a joint decision in this Agreement. 3. Provision of Administrative Services. A, It is agreed that the Cities shall provide Administrative Services to Phase 1 of the Training Campus project and each City is responsible for its own costs in doing so. It is agreed that such services shall include but shall not be limited to, personnel, salary and benefits administration, legal services, accounting, budget preparation assistance, engineering, risk management, purchasing and other similar administrative services. All employees of each City who perform any services in relation to the Training Campus and this Agreement shall remain the employees solely of the City which employed them to perform such services and not of the other City. The employing City shall be solely responsible for all pay and benefits, including workers’ compensation coverage, for its employees. B. The parties agree that Loveland may enter into purchasing, consulting and other contracts pertaining to Phase 1 of the Training Campus project on behalf of both Cities as sole signatory except that both Cities must approve any lease or other agreement for possession and use of property for the Training Campus prior to execution of such lease or agreement. Prior to entering into any contract or contract change, Loveland will provide Fort Collins with reasonable opportunity to review and provide input and will obtain Fort Collins’ approval of the contract or contract change. Unless otherwise agreed to by the Parties, all contracts executed by Loveland pertaining to Phase 1 shall include Fort Collins as an additional insured under any insurance policies in amounts mutually agreed by the parties. Each City may participate equally in the vendor selection process in accordance with a competitive purchasing process mutually agreed by the parties. C. In Phase 1, pursuant to Article 3 of the AIA Agreement between Loveland and the Architect dated as of ________, 2015, the Architect is required to provide certain deliverables and notices to Loveland for approval. Such deliverables include but are not limited to Article 3, paragraphs 3.1.3 (schedule); 3.2.4 (Preliminary Design); 3.2.5/3.2.7 (Schematic 1 Packet Pg. 97 Attachment: Exhibit A (3806 : SR 138 Police Training Facility RESO) 4 Design); 3.2.6 (Cost of the Work); 3.3.1/3.3.3 (Design Development Documents); 3.4.1 (Construction Documents), 3.4.5 (Construction Documents and Cost of Work). Loveland shall provide Fort Collins with reasonable opportunity, not to exceed 10 business days to review and provide input for all such deliverables. 4. Future Provisions for the Construction, Ownership, Operation, Maintenance and Management Phases of the Training Campus. It is the intent of the parties that due to the investment by each City into Phase 1 of the Training Campus project, upon completion of Phase 1 of the Training Campus project, the Cities shall enter into a separate intergovernmental agreement wherein each City’s rights, obligations, and responsibilities, including funding obligations, with regard to the construction, ownership, ongoing operation, maintenance and management phases of the Training Campus project will be specified. 5. Term, Modifications, Extensions. This Agreement shall remain in full force and effect through completion of Phase 1 of the Training Campus project which is anticipated to take approximately ten months through the construction drawings component, unless earlier terminated by mutual written agreement of the parities or as set forth below. This Agreement may be modified only by the written agreement of the parties except that it may be extended either by written agreement of the parties or automatically for a one year period by virtue of each City, in its respective annual budget, having appropriated funds to support Phase 1 of the Training Campus project for the ensuing budget year in accordance with the provisions of this Agreement. 6. Termination. A. If either party fails to perform its obligations under the terms of this Agreement, the non-defaulting party may provide the defaulting party with written notice of the nature and extent of the default. If the default remains uncorrected after thirty (30) days from the date the notice is received, then the non-defaulting party may elect to bring an action for specific performance, or to pursue any other remedies provided for in this Agreement or available at law or equity. B. If the parties fail to reach agreement upon any decision which must be reached by mutual agreement under this Agreement, either party may terminate this agreement upon not less than thirty (30) days written notice to the other party. Each party will equally share and be obligated to pay any financial costs related to Phase 1 that have incurred up to the date of termination. C. The Cities are committed to negotiating in good faith in attempting to reach the agreements that are called for in this Agreement. 7. Notices. Any notice, request, demand, consent, or approval, or other communication required or permitted hereunder, shall be in writing and shall be deemed to have been given when personally delivered, faxed, emailed, or deposited in the United States mail with proper postage and addressed as follows: 1 Packet Pg. 98 Attachment: Exhibit A (3806 : SR 138 Police Training Facility RESO) 5 If to Loveland: Chief of Police City Manager Loveland Police Department with a copy to: Loveland City Attorney 810 E. 10 th Street City of Loveland Loveland, CO 80537 500 E. 3 rd Street Loveland, CO 80537 If to Fort Collins: Chief of Police City Manager Fort Collins Police Services with a copy to: Fort Collins City Attorney 2221 S. Timberline Road City of Fort Collins Fort Collins, Colorado 80525 300 LaPorte Avenue P.O. Box 580 Fort Collins, CO 80522 8. Relationship of Parties, Non-liability of Individuals, Benefit, No Assignment. The parties enter into this Agreement as separate, independent governmental entities and maintain such status throughout. No officer, agent or employee of either party shall be charged personally or held contractually liable by or to the other party under any term or provision of this Agreement or of any supplement, modification or amendment to this Agreement because of any breach thereof, or because of his, her or their execution or attempted execution of the same. This Agreement is made for the sole and exclusive benefit of the Cities, their successors and assigns, and is not made for the benefit of any third party. The parties covenant and agree that they will not assign this Agreement, any interest or part thereof or any right or privilege pertinent thereto, without written consent of the other party first having been obtained. 9. Entire Agreement/Ambiguities. This Agreement embodies the entire agreement of the parties. The parties shall not be bound by or be liable for any statement, representation, promise, inducement or understanding of any kind or nature not set forth herein. No changes, amendments or modifications of any of the terms or conditions of this Agreement shall be valid unless reduced to writing and executed by both parties. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 10. Applicable Law, Severability. The laws of the State of Colorado shall be applied in the interpretation, execution and enforcement of this Agreement. Any provision rendered null and void by operation of law shall not invalidate the remainder of this Agreement to the extent that this Agreement is capable of execution. 11. Counterpart Signatures. The parties agree that counterpart signatures of this Agreement shall be acceptable and that execution of the Agreement in the same form by each and every party shall be deemed to constitute full and final execution of the Agreement. 1 Packet Pg. 99 Attachment: Exhibit A (3806 : SR 138 Police Training Facility RESO) 6 1 Packet Pg. 100 Attachment: Exhibit A (3806 : SR 138 Police Training Facility RESO) 7 IN WITNESS HEREOF, this Intergovernmental Agreement has been executed that day and year first above written. THE CITY OF LOVELAND, COLORADO A Municipal Corporation ATTEST: By: __________________________ ______________________ Mayor Deputy City Clerk APPROVED AS TO FORM: ______________________ Assistant City Attorney THE CITY OF FORT COLLINS, COLORADO A Municipal Corporation ATTEST: ______________________ By: ______________________________ City Clerk Mayor APPROVED AS TO FORM: ___________________________ Fort Collins City Attorney 1 Packet Pg. 101 Attachment: Exhibit A (3806 : SR 138 Police Training Facility RESO) Agenda Item 6 Item # 6 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Randy Reuscher, Utility Rate Analyst Lance Smith, Strategic Financial Planning Manager SUBJECT Items Relating to Utility Rates, Fees and Charges for 2016. EXECUTIVE SUMMARY A. Second Reading of Ordinance No. 140, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Electric Rates, Fees and Charges. B. Second Reading of Ordinance No. 141, 2015, Amending Chapter 26 of the Code of the City of Fort Collins Regarding Calculation and Collection of Development Fees Imposed for New or Modified Electric Service Connections. C. Second Reading of Ordinance No. 142, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Water Rates, Fees and Charges. D. Second Reading of Ordinance No. 143, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Water Plant Investment Fees. E. Second Reading of Ordinance No. 144, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Wastewater Rates, Fees and Charges. (Option A was adopted on First Reading) F. Second Reading of Ordinance No. 145, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Sewer Plant Investment Fees. G. Second Reading of Ordinance No. 146, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Stormwater Plant Investment Fees. These Ordinances, unanimously adopted on First Reading on November 3, 2015, set the 2016 rate changes for electric and wastewater rates, and electric capacity fees, water plant investment fees (PIFs), wastewater PIFs and stormwater PIFs, along with other Code clarifications and formatting changes. STAFF RECOMMENDATION Staff recommends adoption of the Ordinances on Second Reading. BACKGROUND / DISCUSSION Ordinance No. 144, 2015, Amending Chapter 26 of the City Code to revise wastewater rates, fees, and charges consists of Option A, presented and adopted on first reading. Option B is also included in the packet for Council’s information and use. If Council desires to amend Ordinance No. 144, 2015, on Second Reading to include the rates, fees and charges as set forth in Option B, staff recommends that Council postpone 6 Packet Pg. 102 Agenda Item 6 Item # 6 Page 2 Second Reading of that Ordinance to December 1, 2015, with direction to staff to present Option B for consideration on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (PDF) 2. Ordinance No. 140, 2015 (PDF) 3. Ordinance No. 141, 2015 (PDF) 4. Ordinance No. 142, 2015 (PDF) 5. Ordinance No. 143, 2015 (PDF) 6. Ordinance No. 144, 2015 (as adopted on First Reading - Option A) (PDF) 7. Ordinance No. 144, 2015 (Option B) (PDF) 8. Ordinance No. 145, 2015 (PDF) 9. Ordinance No. 146, 2015 (PDF) 6 Packet Pg. 103 Agenda Item 18 Item # 18 Page 1 AGENDA ITEM SUMMARY November 3, 2015 City Council STAFF Randy Reuscher, Utility Rate Analyst Lance Smith, Strategic Financial Planning Manager SUBJECT Items Relating to Utility Rates, Fees and Charges for 2016. EXECUTIVE SUMMARY A. First Reading of Ordinance No. 140, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Electric Rates, Fees and Charges. B. First Reading of Ordinance No. 141, 2015, Amending Chapter 26 of the Code of the City of Fort Collins Regarding Calculation and Collection of Development Fees Imposed for New or Modified Electric Service Connections. C. First Reading of Ordinance No. 142, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Water Rates, Fees and Charges. D. First Reading of Ordinance No. 143, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Water Plant Investment Fees. E. First Reading of Ordinance No. 144, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Wastewater Rates, Fees and Charges. (Option A or Option B) F. First Reading of Ordinance No. 145, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Sewer Plant Investment Fees. G. First Reading of Ordinance No. 146, 2015, Amending Chapter 26 of the Code of the City of Fort Collins to Revise Stormwater Plant Investment Fees. The purpose of this item is for Council to consider adopting rate changes for electric and wastewater rates, and electric capacity fees, water plant investment fees (PIFs), wastewater PIFs and stormwater PIFs, along with other Code clarifications and formatting changes. ATTACHMENT 1 6.1 Packet Pg. 104 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3783 : SR 140-146 Utilities Rates) Agenda Item 18 Item # 18 Page 2 STAFF RECOMMENDATION Staff recommends adoption of the Ordinances on First Reading. Staff recommends adoption of Option A for Ordinance No. 144, 2015, revising wastewater rates. BACKGROUND / DISCUSSION Proposed Monthly Utility Rate Adjustments The recommended 2016 rate changes are consistent with the City Manager’s Recommended 2015-16 Budget. Individual customer charges will be the same for all electric customers and vary by rate class for wastewater rates. All proposed rates would be effective for meter readings on or after January 1, 2016. Proposed Adjustment of Development Fee Components of Rates, Fees, and Charges Water Plant Investment Fees, Wastewater Plant Investment Fees and Stormwater Plant Investment Fees (collectively, PIFs), are charged to new development desiring to connect to the City’s water and wastewater utility facilities, and that will benefit from the City’s stormwater facilities. City Code provisions establishing these PIFs currently refer to “growth-related capital expansion costs” of the operational utility facilities, but do not specifically include “growth-related” capital costs for Utilities’ administrative facilities that are also part of the overall cost of and required in providing these utility services to new development. The proposed changes include Code language that specifically addresses growth-related capital costs of Utilities’ administrative facilities in the various PIFs, which overall had minimal impacts to the proposed fees. The proposed increases include these growth-related capital costs for 2016 for water, wastewater, and stormwater PIFs. PIFs are impact fees calculated in accordance with legal standards using models that are designed to defray the cost of each particular utility service rendered, reflect amounts reasonably related to the overall cost of the services, and establish fees not unreasonably in excess of such cost. The models are used to calculate these PIFs at an appropriate level that is no greater than necessary to defray the quantified and reasonable projected impacts on capital facilities, caused by new development. Other Proposed Modifications to Chapter 26 of the City Code The Ordinances modify the formatting of provisions establishing the rates, fees and charges in an effort to make year-to-year changes to rate ordinances easier and improve the readability of Code. These changes put the specific rates, fees and charges that are adjusted annually in table formats, so future ordinances will only change the values in the tables, unless other code modifications are proposed. Electric Rates and Electric Capacity Fee (ECF) Electric Rates - First Reading of Ordinance No. 140, 2015, Amending Chapter 26 of the City Code to Revise Electric Rates, Fees and Charges. Electric rates are proposed to increase 3.2% at the retail level in 2016, and are a pass-through of the wholesale rate increase from Platte River Power Authority, which will increase the annual wholesale expense by approximately $3.9 million. The increase is slightly larger than the 1.9% anticipated estimate in the 2015-16 biennial budget. Drivers for the wholesale increase noted by Platte River Power Authority include higher fuel costs, lower surplus sales, and higher expenses related to the expansion of existing energy efficiency programs. The wholesale increase will be applied evenly to both the energy and demand components, and the percentage increase will be the same across the summer and non-summer months. 6.1 Packet Pg. 105 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3783 : SR 140-146 Utilities Rates) Agenda Item 18 Item # 18 Page 3 No additional increase is planned for distribution facilities’ costs; however, such an increase may be necessary in the 2017-18 budget cycle. More information will be available as the 10-year capital improvement plan is developed and asset management is fully implemented in this utility. The impact at the retail level would be the same percentage change for all electric rate classes. The cost of service study was last updated in 2014 and therefore no variance in the increase by rate class is needed for 2016. The cost of service will be updated again in 2016. An average residential customer would see an increase in their monthly electric bill of $2.28 per month during the summer months, while a small commercial customer may see an increase of $6.57 per month, as shown in the examples below. Electric Capacity Fee (ECF) - First Reading of Ordinance No. 141, 2015, Amending Chapter 26 of the City Code to Revise Electric Capacity Fees. The electric capacity fees are updated on an annual basis and are a one-time charge for development within the electric service territory. A typical residential lot developed in 2016 would not see a fee increase, while a typical commercial development fee would increase by 3.3%, as shown in the example below. The commercial increase is due mostly to higher costs related to substation transformers and the allocation associated with new development, as well as increased duct bank costs for commercial development. These increases were partially offset by lower costs for fault indicators, conduit and cable. There are fluctuations in some of the individual charges for a residential development as well, but overall no change over the 2015 fee for a typical residential lot. Water Rates and Water Plant Investment Fee Water Rates - First Reading of Ordinance No. 142, 2015, Amending Chapter 26 of the City Code to Revise Water Rates, Fees, and Charges. No rate increase is being proposed for monthly water rates in 2016. This ordinance modifies the formatting of provisions establishing the rates, fees and charges in an effort to make year-to-year changes to rate ordinances easier and improve the readability of code. These changes put the specific rates, fees and charges that are adjusted annually in table formats, so future ordinances will only change the values in the tables, unless other code modifications are proposed. Current Estimated $ % Rate Class Consumption 2015 2016 Increase Increase Residential Summer - 700 kWh / month $71.40 $73.69 $2.28 3.2% Small Commercial Summer - 2000 kWh / month $205.22 $211.79 $6.57 3.2% Electric Bill Impacts Current 2015 Proposed 2016 $ Change % Change $3,554 $3,554 $0 0.0% Current 2015 Proposed 2016 $ Change % Change $32,624 $33,695 $1,070 3.3% Residential Single Family Lot Criteria ‐ 9,200 square feet, 83 feet of street frontage, 150 amp service, 4/0 secondary service Commercial Development Criteria ‐82,000 sq feet, 190 ft of street frontage, 250 ft primary service, 600 amps, 208 Volt, 3‐phase, 1 transformer 6.1 Packet Pg. 106 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3783 : SR 140-146 Utilities Rates) Agenda Item 18 Item # 18 Page 4 Water Plant Investment Fee (PIF) - First Reading of Ordinance No. 143, 2015, Amending Chapter 26 of the City Code to Revise Water Plant Investment Fees. The water PIF model is updated every two years and the 2014 model was recently updated for 2016. The overall gallon per day (gpd) charge increased from $4.43/gpd to $4.66/gpd. The increase is due to additional capital projects completed over the past few years, as well as increased system valuation. The specific impacts to customers for each rate class are reduced due to lower base water usage during the winter months and lower peak water use during the summer months, as compared to previous years. The fee for a residential single family customer would increase by $25 over the 2015 fee, while the duplex and multi- family fee would decrease slightly, as shown in the examples below. The fees for commercial customers would increase between 1.5 and 3.5%, according to the requested tap size, as shown in the examples below. Wastewater Rates and Wastewater Plant Investment Fee Wastewater Rates - First Reading of Ordinance No. 144, 2015, Amending Chapter 26 of the City Code to Revise Wastewater Rates, Fees, and Charges. (Option A or Option B) Staff is recommending a 3% overall increase to the wastewater fund revenue in 2016, which could be collected in one of the two options below. Staff is recommending Option A. Capital project costs at the wastewater treatment plant related to regulatory requirements are the main driver for the overall increase. This increase is the same amount approved in the 2015-16 biennial budget. Option A blends the three residential class increases together for a 2.5% increase to each residential class, while the commercial class would increase by 4.5%. Option B adjusts each rate class according the outputs from the cost of service model. The cost of service model was updated in 2015 and rather than applying the 3% overall increase to all rate classes, different percent changes are proposed, while keeping the overall increase to 3% for the wastewater fund. Staff is recommending Option A, shown in the table below, due to some volatility in the wastewater cost of service model outputs in recent years. In the 2013 model, rates were lowered for both duplex and commercial customers for 2014. This is related to fluctuating consumption by rate class and budget levels from year-to-year, versus the exact outputs from the model, as set forth in Option B, for 2016. Option A includes a smoothing of the residential rate class adjustments at a 2.5% increase for 2016, while commercial customers would see a 4.5% increase, as shown in the examples below. Rate Class Criteria 2015 2016 $ Change % Change Residential Single Family 8600 sq ft $3,499 $3,524 $25 0.7% Duplex & Multi-family 3435 sq ft $1,390 $1,379 ($11) -0.8% Commercial 3/4 Inch by tap size $7,000 $7,180 $180 2.6% 1 Inch by tap size $19,050 $19,710 $660 3.5% 1 1/2 Inch by tap size $41,600 $42,220 $620 1.5% 2 Inch by tap size $64,410 $66,680 $2,270 3.5% Water Plant Investment Fee (WPIF) 6.1 Packet Pg. 107 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3783 : SR 140-146 Utilities Rates) Agenda Item 18 Item # 18 Page 5 The impacts to a single family customer in 2016 would be approximately $0.86 per month under the proposed Option A, while a commercial customer with a 2 inch connection may see a $10.12 increase per month, as shown in the examples below. Wastewater Plant Investment Fee (PIF) - First Reading of Ordinance No. 145, 2015, Amending Chapter 26 of the City Code to Revise Wastewater Plant Investment Fees. The wastewater PIF model is updated every two years and the 2014 model was recently been updated for 2016. The PIF charge on a per gallon per day (gpd) basis increased from $12.35/gpd to $13.98/gpd due to increased system valuation related to the collection system, as well as the completion of capital projects at the treatment plant that raise the value for a customer to buy-in. The fee for a residential single family customer would increase by $410 in 2016, while the duplex and multi- family fee would increase by $50 per connection, as shown below in the following illustrative examples. The fees for commercial customers would increase between $350 and $3,520, depending on the corresponding water meter size requested, as shown in the examples below. The most recent peak day flows decreased for most rate classes, other than residential single family customers, as compared to 2015 (shown below). Therefore, the change to the fee from $12.35 to $13.98 per Rate Class Option A: Smoothed Option B: COS Residential Single Family 2.5% 1.3% Duplex 2.5% 2.2% Multi-family (per unit) 2.5% 3.6% Commercial 4.5% 6.3% Wastewater Rates Current Estimated $ % Rate Class Consumption 2015 2016 Increase Increase Winter Quarter Average (WQA) 4,800 gallons / month 2 inch meter 50,000 gallons / month Wastewater Bill Impacts Residential $34.21 $35.07 $0.86 2.5% Commercial $224.84 $234.96 $10.12 4.5% Rate Class 2015 Fee 2016 Fee $ Change % Change Residential Single Family $3,090 $3,500 $410 13% Duplex & Multi-family $2,470 $2,520 $50 2% Commercial 3/4 Inch $6,550 $7,130 $580 9% 1 Inch $15,440 $17,200 $1,760 11% 1 1/2 Inch $29,890 $33,410 $3,520 12% 2 Inch $58,790 $59,140 $350 1% Wastewater Plant Investment Fee 6.1 Packet Pg. 108 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3783 : SR 140-146 Utilities Rates) Agenda Item 18 Item # 18 Page 6 gpd collected for a wastewater connection is partially offset for those classes with flows that decreased, as compared to what they would have paid in 2016 if flows remained constant. The residential single family class peak day flows remained constant at 250 gpd, while other classes decreased, with duplex and multi-family dropping by 10% and commercial 2 inch flow dropping by 11%. Stormwater Rates and Stormwater Plant Investment Fee Stormwater Rates - No rate increase is being proposed for monthly stormwater rates in 2016. Stormwater Plant Investment Fee (PIF) - First Reading of Ordinance No. 146, 2015, Amending Chapter 26 of the City Code to Revise Stormwater Plant Investment Fees. The stormwater PIF model is updated every two years. Staff recently updated the model for 2016 and is recommending a 5.1% increase to this one-time fee for new development within the service territory. The increased “per acre charge” would change from $7,817 to $8,217 and is related to increased system equity pertaining to investments made in stormwater capital projects in recent years and increased system replacement costs due to inflationary factors that raise the value of the stormwater system. The amount paid by a builder/developer is calculated by taking the gross acres developed (plus common area and right-of-way allocation), times the base rate, times the runoff coefficient for each specific site developed. As shown in the examples below, the impact to the 2016 increase for a typical single family construction project would increase by $68 over the 2015 fee amount. A typical commercial development would increase by $320 for a one acre lot, as compared to the 2015 fee. Rate Class 2015 Peak Volume (gpd) 2016 Peak Volume (gpd) GPD Change % Change Residential Single Family 250 250 0 0% Duplex & Multi-family 200 180 -20 -10% Commercial 3/4 Inch 530 510 -20 -4% 1 Inch 1,250 1,230 -20 -2% 1 1/2 Inch 2,420 2,390 -30 -1% 2 Inch 4,760 4,230 -530 -11% Wastewater Peak Volume Rate Class 2015 2016 $ Change % Change Gross Area Developed (sq ft) 8,600 8,600 Common Area Allocation (sq ft) 6,156 6,156 Base Rate (per acre*) $7,817 $8,217 Runoff Coefficient 0.5 0.5 Total Fee $1,324 $1,392 $68 5.1% Gross Area Developed (sq ft) 43,560 43,560 Base Rate (per acre*) $7,817 $8,217 Runoff Coefficient 0.8 0.8 Total Fee $6,254 $6,574 $320 5.1% * One acre equals 43,560 sq ft Commercial Stormwater Plant Investment Fee Residential 6.1 Packet Pg. 109 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3783 : SR 140-146 Utilities Rates) Agenda Item 18 Item # 18 Page 7 CITY FINANCIAL IMPACTS Summary Utility Bill Comparisons A typical residential customer, based on average use in a summer month, could expect to see an increase of just more than $3.00 per month on their total utility bill for all four services. As there are no changes to water or stormwater rates in 2016, the impact would be mostly from the electric rate increase, with the remaining portion related to wastewater increases. The overall impact during a summer month would be less than 2% for a residential customer, on average. Summary Plant Investment Fee Comparisons The summary table below shows the overall impacts for a typical residential development. The fees in 2016 for all four services would increase by approximately $500, or 4.4%. Electric rate increases will partially fund enhancements to energy efficiency programs at the wholesale level. Wastewater rate increases provide funding for environmental regulatory compliance. BOARD / COMMISSION RECOMMENDATION At its September 3, 2015, meeting, the Energy Board voted unanimously to support the 2016 electric rate increase. (Attachment 1) Current Estimated $ % 2015 2016 Increase Increase Electric 700 kWh/mo Stormwater 8,600 sq.ft. lot, light runoff Wastewater 4,800 gal/mo WQA Water 15,000 gal/mo Total Estimated Average Monthly Utility Bill $178.04 $181.18 $3.14 1.8% $58.16 $58.16 $0.00 0.0% $14.26 $14.26 $0.00 0.0% $34.21 $35.07 $0.86 2.5% Typical Residential Customer – Monthly Utility Bill (Summer Month) $71.40 $73.69 $2.28 3.2% 2015 2016 $ Change % Change Electric Capacity Fee $3,554 $3,554 $0 0.0% Water Plant Investment Fee $3,499 $3,524 $25 0.7% Wastewater Plant Investment Fee $3,090 $3,500 $410 13.3% Stormwater Plant Investment Fee $1,324 $1,392 $68 5.1% Total $11,467 $11,970 $503 4.4% Development Fee Impacts - Single Family Residential Customer 6.1 Packet Pg. 110 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3783 : SR 140-146 Utilities Rates) Agenda Item 18 Item # 18 Page 8 At its September 17, 2015, meeting, the Water Board voted unanimously to support the proposed 2016 wastewater rate increase, as well as the water, wastewater, and stormwater plant investment fee increases. (Attachment 2) PUBLIC OUTREACH Notice of the proposed electric rate changes was published in the Coloradoan, and a mailing was sent to all city electric customers residing outside of the city limits in accordance with state requirements. Staff plans to conduct outreach to all customers following the adoption of the Ordinances through mailings, face-to-face meetings and social media. A public meeting will be held in November for commercial Key Account businesses. ATTACHMENTS 1. Energy Board Minutes - September 3, 2015 (PDF) 2. Water Board Minutes - September 17, 2015 (PDF) 3. Powerpoint presentation (PDF) 6.1 Packet Pg. 111 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3783 : SR 140-146 Utilities Rates) - 1 - ORDINANCE NO. 140, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS TO REVISE ELECTRIC RATES, FEES AND CHARGES WHEREAS, the City Council is empowered and directed by Article XII, Section 6, of the City Charter to fix, establish, maintain and provide for the collection of such rates, fees or charges for utility services furnished by the City as will produce revenues sufficient to pay the costs, expenses and other obligations of the electric utility, as set forth therein; and WHEREAS, the City purchases bulk wholesale electric power from Platte River Power Authority (“PRPA”) pursuant to an Amended Contract for Supply of Electric Power and Energy, dated September 1, 2010; and WHEREAS, PRPA costs are increasing due to reduced wholesale market prices and surplus sales, increased costs for coal, and increased operating costs for aging plants; and WHEREAS, PRPA will increase the City’s wholesale cost of power approximately 4.5% in 2016; and WHEREAS, the increased wholesale power costs will require an average 3.2% increase in the City’s electric rates; and WHEREAS, the proposed rate increase will vary by customer class based on the cost of service to each class; and WHEREAS, Utilities staff have also identified formatting and maintenance updates to Chapter 26 of the City Code to improve the clarity with which rates are explained; and WHEREAS, the Energy Board considered the proposed electric rates, fees and changes, and language clarifications for 2016 at its October 3, 2015, meeting and recommended approval of the rate changes and City Code updates by an unanimous vote; and WHEREAS, the City Manager and staff have recommended to the City Council the following electric rate adjustments and City Code rate language clarifications for all billings issued with meter readings on or after January 1, 2016; and WHEREAS, based on the foregoing, it is the desire of the City Council to amend Chapter 26 of the City Code to revise the electric rates, fees and charges. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That Sections 26-464 (c), (d), (e), (f), (p), (r) and (s) of the Code of the City of Fort Collins are hereby amended to read as follows: 6.2 Packet Pg. 112 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 2 - Sec. 26-464. Residential energy service, schedule R. . . . (c) Monthly rate. The monthly rates for this schedule shall be the sum of the following charges: (1) Fixed Charge Per account $5.07 (2) Distribution facilities charge Per kWh $0.0238 (3) Energy and demand charge a. Summer. During the summer season billing months of June, July and August, with the summer season billing month determined by the month the meter is read, and provided that no customer shall be billed more than three (3) full billing cycles at the summer rate. 1. Tier 1 - for the first five hundred (500) kilowatt hours per month 2. Tier 2 - for the next five hundred (500) kilowatt hours per month 3. Tier 3 - for all additional kilowatt hours per month Per kWh $0.0632 Per kWh $0.0804 Per kWh $0.1146 b. Non-summer. During the non-summer season billing months of January through May and September through December. 1. Tier 1 - for the first five hundred (500) kilowatt hours per month, per kWh 2. Tier 2 - for the next five hundred (500) kilowatt hours per month, per kWh 3. Tier 3 - for all additional kilowatt hours per month, per kWh Per kWh $0.0570 Per kWh $0.0611 Per kWh $0.0703 (4) Payment in lieu of taxes (PILOT) and franchise. A charge based on all monthly service charges billed pursuant to this Section 6 percent (d) Medical assistance program. (1) The rates described in Subsection (c) above shall be discounted for those electric customers to whom this rate schedule applies and who apply for such discount, as long as: a. the applicant's annual household income falls below sixty (60) percent of the Larimer County Area Median Income (as determined by the Federal Housing Authority); and b. the application is accompanied by a certified, signed statement from a licensed physician that electrical durable medical equipment used at the residential premises is medically necessary and that such medical equipment has been assigned a Healthcare Common Procedure Coding System number; and/or c. a certified, signed statement from a licensed physician that air conditioning at the residential premises is medically necessary for a resident thereof who, in the absence of the air conditioning, may suffer 6.2 Packet Pg. 113 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 3 - medical deterioration due to a severe immune-compromising medical condition, including, but not limited to, multiple sclerosis, quadriplegia, paraplegia, scleroderma or hemiplegia; and d. the application is accompanied by a sworn affidavit from the applicant verifying that all information contained in the application, including, if applicable, the representation that air conditioning will be operational at the applicant's address during the summer billing months, is true and correct. (2) Applications for rate discounts under this Section must be submitted annually in accordance with an administratively established schedule. (3) The discounted monthly rates for customers with electrical durable medical equipment only shall be the sum of the following charges: a. Fixed Charge Per account $5.07 b. Distribution facilities charge Per kWh $0.0238 c. Energy and demand charge 1. Summer. During the summer season billing months of June, July and August, with the summer season billing month determined by the month the meter is read, and provided that no customer shall be billed more than three (3) full billing cycles at the summer rate. (a) Tier 1 - for the first five hundred (500) kilowatt hours per month (b) Tier 2 - for the next five hundred (500) kilowatt hours per month (c) Tier 3 - for all additional kilowatt hours per month Per kWh $0.0357 Per kWh $0.0804 Per kWh $0.1146 2. Non-summer. During the non-summer season billing months of January through May and September through December. (a) Tier 1 - for the first five hundred (500) kilowatt hours per month, per kWh (b) Tier 2 - for the next five hundred (500) kilowatt hours per month, per kWh (c) Tier 3 - for all additional kilowatt hours per month, per kWh Per kWh $0.0311 Per kWh $0.0611 Per kWh $0.0703 d. Payment in lieu of taxes (PILOT) and franchise. A charge based on all monthly service charges billed pursuant to this Section 6 percent (4) The discounted monthly rates for customers with medical needs requiring air conditioning only shall be the sum of the following charges: a. Fixed Charge Per account $5.07 b. Distribution facilities charge Per kWh $0.0238 c. Energy and demand charge 1. Summer. During the summer season billing months of June, July and August, with the summer season billing month determined by the month the meter is read, and provided that no customer shall be billed more than three (3) full billing cycles at the summer rate. (a) Tier 1 - for the first five hundred (500) kilowatt hours per month Per kWh $0.0350 6.2 Packet Pg. 114 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 4 - (b) Tier 2 - for the next five hundred (500) kilowatt hours per month (c) Tier 3 - for all additional kilowatt hours per month Per kWh $0.0444 Per kWh $0.1146 2. Non-summer. During the non-summer season billing months of January through May and September through December. (a) Tier 1 - for the first five hundred (500) kilowatt hours per month, per kWh (b) Tier 2 - for the next five hundred (500) kilowatt hours per month, per kWh (c) Tier 3 - for all additional kilowatt hours per month, per kWh Per kWh $0.0570 Per kWh $0.0611 Per kWh $0.0703 d. Payment in lieu of taxes (PILOT) and franchise. A charge of all monthly service charges billed pursuant to this Section 6 percent (5) The discounted monthly rates for customers with electrical durable medical equipment and medical needs requiring air conditioning shall be the sum of the following charges: a. Fixed Charge Per account $5.07 b. Distribution facilities charge Per kWh $0.0238 c. Energy and demand charge 1. Summer. During the summer season billing months of June, July and August, with the summer season billing month determined by the month the meter is read, and provided that no customer shall be billed more than three (3) full billing cycles at the summer rate. (a) Tier 1 - for the first five hundred (500) kilowatt hours per month (b) Tier 2 - for the next five hundred (500) kilowatt hours per month (c) Tier 3 - for all additional kilowatt hours per month Per kWh $0.0229 Per kWh $0.0291 Per kWh $0.1146 2. Non-summer. During the non-summer season billing months of January through May and September through December. (a) Tier 1 - for the first five hundred (500) kilowatt hours per month, per kWh (b) Tier 2 - for the next five hundred (500) kilowatt hours per month, per kWh (c) Tier 3 - for all additional kilowatt hours per month, per kWh Per kWh $0.0311 Per kWh $0.0611 Per kWh $0.0703 a. Payment in lieu of taxes (PILOT) and franchise. A charge based on all monthly service charges billed pursuant to this Section 6 percent (6) Notwithstanding the foregoing, no rate established under this Subsection shall reflect a discount exceeding an amount consistent with the use of one hundred fifty (150) kilowatt hours per month for the operation of electrical durable medical equipment or, if applicable, an additional amount consistent with the use of three hundred fifty (350) kilowatt hours per month for air conditioning. 6.2 Packet Pg. 115 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 5 - (7) A decision that an applicant does not qualify to participate in this program for a medical or financial reason may be appealed to the Utilities Executive Director, who shall, prior to making his or her decision, and as he or she deems appropriate, confer with one (1) or more medical or financial experts in reviewing such appeal. (e) Renewable resource. Renewable energy resources, including, but not limited to, energy generated by the power of wind, may be offered on a voluntary basis to customers at the premium per kilowatt hour set forth in this Subsection (e). The utility may establish and offer voluntary programs designed to increase and enhance the use of energy generated by renewable energy resources in support of Council-adopted policy applicable to the utility. Per kWh $0.024 (f) Excess capacity charge. The monthly capacity charge kilowatt set forth in this Subsection (f) may be added to the above charges for service to intermittent loads in accordance with the provisions of the Electric Service Standards. Per kW $2.00 . . . (p) Net metering. (1) Net metering service is available to a customer-generator producing electric energy exclusively with a qualifying facility using a qualifying renewable technology when the generating capacity of the customer-generator's qualifying facility meets the following two (2) criteria: a. the qualifying facility is sized to supply no more than one hundred twenty (120) percent of the customer-generator's average annual electricity consumption at that site, including all contiguous property owned or leased by the customer-generator, without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of-way or utility rights-of-way; and b. the rated capacity of the qualifying facility does not exceed the customer-generator's service entrance capacity. (2) The energy generated by an on-site qualifying facility and delivered to the utility's electric distribution facility shall be used to offset energy provided by the utility to the customer-generator during the applicable billing period. (3) The customer-generator and electric service arrangements shall be subject to the requirements and conditions described in the City of Fort Collins Utility 6.2 Packet Pg. 116 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 6 - Services Interconnection Standards for Generating Facilities Connected to the Fort Collins Distribution System. (4) A customer-generator who receives approval from the electric utility to obtain net metering service shall be subject to the monthly rates described above in this rate schedule section. (5) The customer-generator's consumption of energy from the utility and production of energy that flows into the utility's distribution system shall be measured on a monthly basis. The energy consumed from the utility by the customer-generator shall be billed at the applicable seasonal tiered rate as outlined in Subsection (c) of this Section. The energy produced by the customer-generator shall be credited to the customer monthly as follows: a. Distribution facilities credit Per kWh $0.0238 b. Energy and demand credit Per kWh $0.0632 (6) TOU rates, for customer-generators participating in a qualifying "time-of- use" (TOU) rate study, consumption of energy from the utility and production of energy that flows into the utility's distribution system shall be measured on a monthly basis. The energy consumed from the utility by the customer-generator shall be billed at the applicable study rates under Subsection (s) of this Section. The energy produced by the customer-generator shall be credited to the customer monthly as follows: a. Energy and demand credit – summer season billing months 1. On-Peak (Mon-Fri, 2 pm to 7 pm, excluding holidays) Per kWh $0.1968 2. Off-Peak Per kWh $0.0412 b. Energy and demand credit – non-summer season billing months 1. On-Peak (Mon-Fri, 5 pm to 9 pm, excluding holidays) Per kWh $0.1632 2. Off-Peak Per kWh $0.0395 . . . (r) Net metering—community solar projects. (1) Net metering service is available to a customer who holds an exclusive interest in a portion of the electric energy generated by a community solar project when the generating capacity of the customer's interest is sized to supply no more than one hundred twenty (120) percent of the customer's average annual electricity consumption at the customer's point of service, including all contiguous property owned or leased by the customer, without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of- way or utility rights-of-way. (2) The community solar project-generator and electric service arrangements shall be subject to the requirements and conditions described in the City of Fort 6.2 Packet Pg. 117 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 7 - Collins Utility Services Interconnection Standards for Generating Facilities Connected to the Fort Collins Distribution System. (3) Both the customer's consumption of energy from Fort Collins Utilities and interest in the production of energy that flows into Fort Collins Utilities' distribution system shall be measured on a monthly basis. The energy consumed from Fort Collins Utilities by the customer shall be billed at the applicable seasonal tiered rate as outlined in Subsections (c) and (d) of this Section. The energy produced by the customer's portion of the qualifying facility shall be credited to the customer monthly as follows: 1. Distribution facilities credit Per kWh $0.0119 2. Energy and demand credit Per kWh $0.0632 (s) Time of Use (TOU) Pilot Study. (1) Objective. The City has identified potential benefits available through time-of-use (TOU) based electric service rates, including encouraging reduced energy consumption and equitably shifting energy costs to customers who use more energy. In order to study these benefits, Fort Collins Utilities shall conduct a temporary pilot project beginning with the billing cycle commencing on or after October 1, 2015, and concluding after twelve (12) full billing cycles. (2) Scope. The project shall include six thousand residential energy service (Schedule R) customers selected at random. Customers selected at random will be notified and given a one-time opportunity to "opt-out" of participation in the project. Customers who do not opt-out will be assigned, as determined by the Executive Director, to one of the two pilot rates described in Subsections (s)(4) (pilot TOU rate) and (s)(5) (pilot TOU with energy efficiency tier rate), or monitored on their existing residential energy service tiered rate, as a control group. (3) Best-bill guarantee. Customers participating in the pilot project for the full twelve (12) billing cycle period will be eligible for the following best-bill guarantee: the total energy costs paid by each customer under either of the pilot rates for the twelve full billing cycles shall be compared with the energy costs such customer would have paid under the base residential energy service tiered rate during the same twelve billing cycles, and each customer shall be reimbursed (by issuance of a billing credit or otherwise, as determined by the Executive Director) for the amount by which the total energy costs paid exceed the amount that would have been due under the base residential energy service tiered rate for such period. Each customer who pays total energy costs under either of the pilot rates during the twelve full billing cycles of the project that are less than the energy costs such customer would have paid under the base residential energy service tiered rate shall retain those savings. (4) Pilot TOU rate. Customers assigned to this rate during the pilot study shall pay monthly rates under this sub-schedule equal to the sum of the following charges: 6.2 Packet Pg. 118 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 8 - a. Fixed Charge Per account $5.07 b. Distribution facilities charge Per kWh $0.0238 c. Energy and demand charge 1. Summer. During the summer season billing months of May, June, July and August, and September (a) On-Peak (Mon-Fri, 2 pm to 7 pm, excluding holidays) (b) Off-Peak Per kWh $0.1968 Per kWh $0.0412 2. Non-summer. During the non-summer season billing months of January through April and October through December. (a) On-Peak (Mon-Fri, 5 pm to 9 pm, excluding holidays) (b) Off-Peak Per kWh $0.1632 Per kWh $0.0395 d. Payment in lieu of taxes (PILOT) and franchise. A charge based on all monthly service charges billed pursuant to this Section 6 percent (5) Pilot TOU with energy efficiency tier rate. Customers assigned to this rate during the pilot study shall pay monthly rates under this sub-schedule equal to the sum of the following charges: a. Fixed Charge Per account $5.07 b. Distribution facilities charge Per kWh $0.0194 c. Energy and demand charge 1. Summer. During the summer season billing months of May, June, July, August, and September (a) On-Peak (Mon-Fri, 2 pm to 7 pm, excluding holidays) (b) Off-Peak Per kWh $0.1968 Per kWh $0.0412 2. Non-summer. During the non-summer season billing months of January through April and October through December. (a) On-Peak (Mon-Fri, 5 pm to 9 pm, excluding holidays) (b) Off-Peak Per kWh $0.1632 Per kWh $0.0395 d. Energy efficiency tier charge, per kilowatt hour for total consumption over 700 kWh in a billing month (regardless of on-peak or off-peak) Per kWh $0.0163 e. Payment in lieu of taxes (PILOT) and franchise. A charge based on all monthly service charges billed pursuant to this Section 6 percent Section 2. That Sections 26-465 (a)-(f), (q), and (r) of the Code of the City of Fort Collins are hereby amended to read as follows: Sec. 26-465. Residential demand service, schedule RD. (a) Availability. The residential demand service rate, schedule RD, shall be available within the corporate limits of the City and the suburban fringe. Service under this rate 6.2 Packet Pg. 119 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 9 - class is available only to customers who establish to the satisfaction of the utility, by providing to the utility such documentation as the utility may deem appropriate, that the residence served is heated entirely by electric energy. Such documentation must be submitted by April 1, 2012. At such time that the utility implements a time-of-use rate, this rate schedule will no longer be available. (b) Applicability. This schedule applies to residential customers for all domestic uses in single-family private dwellings, individually metered apartments and home occupations as defined in Article 5 of the Land Use Code. (c) Monthly rate. The monthly rates shall be the sum of the following charges: (1) Fixed Charge Per account $5.07 (2) Demand charge Per kW $2.36 (3) Distribution facilities charge Per kWh $0.0211 (4) Energy charge a. Summer season billing months of June, July and August b. Non-summer season billing months of January through May and September through December Per kWh $0.0435 Per kWh $0.0418 c. The meter reading date shall generally determine the summer season billing months; however, no customer shall be billed more than three (3) full billing cycles at the summer rate. (5) Payment in lieu of taxes (PILOT) and franchise. A charge based on all monthly service charges billed pursuant to this Section 6 percent (d) Renewable resource. Renewable energy resources, including, but not limited to, energy generated by the power of wind, may be offered on a voluntary basis to customers at the premium per kilowatt hour set forth in this Subsection (d). The utility may establish and offer voluntary programs designed to increase and enhance the use of energy generated by renewable energy resources in support of Council-adopted policy applicable to the utility. Per kWh $0.024 (e) Excess capacity charge. The monthly capacity charge kilowatt set forth in this Subsection (e) may be added to the above charges for service to intermittent loads in accordance with the provisions of the Electric Service Standards. Per kW $2.00 (f) Standby service charges. Standby service, if available, will be provided on an annual contract basis at a level at least sufficient to meet probable service demand (in kilowatts) as determined by the customer and approved by the utility according to the following: 6.2 Packet Pg. 120 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 10 - (1) (2) In the event the contractual kilowatt amount is exceeded, the beginning date of the contract period will be reset. The first month of the new contract period will become the current billing month and such month's metered demand shall become the minimum allowable contract demand for the standby service. Requests for standby service may be subject to a waiting period. An operation and maintenance charge may be added for special facilities required to provide standby service. . . . (q) Net metering. (1) Net metering service is available to a customer-generator producing electric energy exclusively with a qualifying facility using a qualifying renewable technology when the generating capacity of the customer-generator's qualifying facility meets the following two (2) criteria: a. the qualifying facility is sized to supply no more than one hundred twenty (120) percent of the customer-generator's average annual electricity consumption at that site, including all contiguous property owned or leased by the customer-generator, without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of-way or utility rights-of-way; and b. the rated capacity of the qualifying facility does not exceed the customer-generator's service entrance capacity. (2) The energy generated by an on-site qualifying facility and delivered to the utility's electric distribution facility shall be used to offset energy provided by the utility to the customer-generator during the applicable billing period. (3) The customer-generator and electric service arrangements shall be subject to the requirements and conditions described in the City of Fort Collins Utility Services Interconnection Standards for Generating Facilities Connected to the Fort Collins Distribution System. (4) A customer-generator who receives approval from the electric utility to obtain net metering service shall be subject to the monthly rates described above in this rate schedule section. (5) The customer-generator's consumption of energy from the utility and production of energy that flows into the utility's distribution system shall be measured on a monthly basis. The energy consumed from the utility by the customer-generator shall be billed at the applicable seasonal tiered rate as outlined in Subsection (c) of this Section. The energy produced by the customer-generator shall be credited to the customer monthly as follows: Contracted standby service, this charge shall be in lieu of the distribution facilities charge. Per kW $2.33 For all metered kilowatts in excess of the contracted amount Per kW $6.99 6.2 Packet Pg. 121 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 11 - a. Distribution facilities credit Per kWh $0.0238 b. Energy and demand credit Per kWh $0.0632 (r) Net metering—community solar projects. (1) Net metering service is available to a customer who holds an exclusive interest in a portion of the electric energy generated by a community solar project when the generating capacity of the customer's interest is sized to supply no more than one hundred twenty (120) percent of the customer's average annual electricity consumption at the customer's point of service, including all contiguous property owned or leased by the customer, without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of- way or utility rights-of-way. (2) The community solar project-generator and electric service arrangements shall be subject to the requirements and conditions described in the City of Fort Collins Utility Services Interconnection Standards for Generating Facilities Connected to the Fort Collins Distribution System. (3) Both the customer's consumption of energy from Fort Collins Utilities and interest in the production of energy that flows into Fort Collins Utilities' distribution system shall be measured on a monthly basis. The energy consumed from Fort Collins Utilities by the customer shall be billed at the applicable seasonal tiered rate as outlined in Subsection (c) of this Section. The energy produced by the customer's portion of the qualifying facility shall be credited to the customer monthly as follows: 1. Distribution facilities credit Per kWh $0.0119 2. Energy and demand credit Per kWh $0.0632 Section 3. That Sections 26-465 (c)-(f), (q), and (r) of the Code of the City of Fort Collins are hereby amended to read as follows: Sec. 26-466. General service, schedule GS. (c) Monthly rate. The monthly rates for this schedule shall be the sum of the following charges: 1. Fixed Charge a. Single-phase, two-hundred-ampere service Per account $ 3.26 b. Single-phase, above two-hundred-ampere service Per account $ 9.60 c. Three-phase, two-hundred-ampere service Per account $ 4.96 d. Three-phase, above two-hundred-ampere service Per account $11.74 2. Demand charge a. Summer season billing months of June, July, and August Per kWh $0.0289 6.2 Packet Pg. 122 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 12 - b. Non-summer season billing months of January through May and September through December Per kWh $0.0156 c. The meter reading date shall generally determine the summer season billing months; however, no customer shall be billed more than three (3) full billing cycles at the summer rate. 3. Distribution facilities charge Per kWh $0.0227 4. Energy charge a. Summer season billing months of June, July, and August Per kWh $0.0435 b. Non-summer season billing months of January through May and September through December Per kWh $0.0418 c. The meter reading date shall generally determine the summer season billing months; however, no customer shall be billed more than three (3) full billing cycles at the summer rate. 5. Payment in lieu of taxes (PILOT) and franchise. A charge based on all monthly service charges billed pursuant to this Section 6 percent (d) Renewable resource. Renewable energy resources, including, but not limited to, energy generated by the power of wind, may be offered on a voluntary basis to customers at the premium per kilowatt hour set forth in this Subsection (d). The utility may establish and offer voluntary programs designed to increase and enhance the use of energy generated by renewable energy resources in support of Council-adopted policy applicable to the utility. Per kWh $0.024 (e) Excess capacity charge. The monthly capacity charge per kilowatt set forth in this Subsection (e) may be added to the above charges for service to intermittent loads in accordance with the provisions of the Electric Service Standards. Per kW $2.00 . . . (q) Net metering. (1) Net metering service is available to a customer-generator producing electric energy exclusively with a qualifying facility using a qualifying renewable technology when the generating capacity of the customer-generator's qualifying facility meets the following two (2) criteria: a. The qualifying facility is sized to supply no more than one hundred twenty (120) percent of the customer-generator's average annual electricity consumption at that site, including all contiguous property owned or 6.2 Packet Pg. 123 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 13 - leased by the customer-generator, without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of-way or utility rights-of-way; and b. The rated capacity of the qualifying facility does not exceed the customer-generator's service entrance capacity. (2) The energy generated by an on-site qualifying facility and delivered to the utility's electric distribution facility shall be used to offset energy provided by the utility to the customer-generator during the applicable billing period. (3) The customer-generator and electric service arrangements shall be subject to the requirements and conditions described in the City of Fort Collins Utility Services Interconnection Standards for Generating Facilities Connected to the Fort Collins Distribution System. (4) A customer-generator who receives approval from the electric utility to obtain net metering service shall be subject to the monthly rates described above in this rate schedule section. (5) The customer-generator's consumption of energy from the utility and production of energy that flows into the utility's distribution system shall be measured on a monthly basis. The energy consumed from the utility by the customer-generator shall be billed at the applicable rate as outlined in Subsection (c) of this Section. The energy produced by the customer-generator shall be credited to the customer monthly as follows: a. Summer season energy credit Per kWh $0.0435 (r) Net metering—community solar projects. (1) Net metering service is available to a customer who holds an exclusive interest in a portion of the electric energy generated by a community solar project when the generating capacity of the customer's interest is sized to supply no more than one hundred twenty (120) percent of the customer's average annual electricity consumption at the customer's point of service, including all contiguous property owned or leased by the customer, without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of- way or utility rights-of-way. (2) The community solar project-generator and electric service arrangements shall be subject to the requirements and conditions described in the City of Fort Collins Utility Services Interconnection Standards for Generating Facilities Connected to the Fort Collins Distribution System. (3) Both the customer's consumption of energy from Fort Collins Utilities and interest in the production of energy that flows into Fort Collins Utilities' distribution system shall be measured on a monthly basis. The energy consumed from Fort Collins Utilities by the customer shall be billed at the applicable seasonal tiered rate as outlined in Subsection (c) of this Section. The energy 6.2 Packet Pg. 124 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 14 - produced by the customer's portion of the qualifying facility shall be credited to the customer monthly as follows: 1. Distribution facilities credit Per kWh $0.0114 2. Energy and demand credit Per kWh $0.0435 Section 4. That Sections 26-467 (c)-(f) and (r) of the Code of the City of Fort Collins are hereby amended to read as follows: Sec. 26-467. General service 25, schedule GS25. (c) Monthly rate. The monthly rates for this schedule shall be the sum of the following charges: 1. Fixed Charge a. Single-phase, two-hundred-ampere service Per account $ 3.26 b. Single-phase, above two-hundred-ampere service Per account $ 9.60 c. Three-phase, two-hundred-ampere service Per account $ 4.96 d. Three-phase, above two-hundred-ampere service Per account $11.74 2. Demand charge a. Summer season billing months of June, July, and August Per kW $7.86 b. Non-summer season billing months of January through May and September through December Per kW $4.57 c. The meter reading date shall generally determine the summer season billing months; however, no customer shall be billed more than three (3) full billing cycles at the summer rate. 3. Distribution facilities charge Per kwh $0.0176 4. Energy charge a. Summer season billing months of June, July, and August Per kWh $0.0435 b. Non-summer season billing months of January through May and September through December Per kWh $0.0418 c. The meter reading date shall generally determine the summer season billing months; however, no customer shall be billed more than three (3) full billing cycles at the summer rate. 5. Payment in lieu of taxes (PILOT) and franchise. A charge based on all monthly service charges billed pursuant to this Section 6 percent (d) Renewable resource. Renewable energy resources, including, but not limited to, energy generated by the power of wind, may be offered on a voluntary basis to customers at the premium per kilowatt hour set forth in this Subsection (d). The utility may establish and offer voluntary programs designed to increase and enhance the use of energy 6.2 Packet Pg. 125 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 15 - generated by renewable energy resources in support of Council-adopted policy applicable to the utility. Per kWh $0.024 (e) Excess capacity charge. The monthly capacity charge kilowatt set forth in this Subsection (e) may be added to the above charges for service to intermittent loads in accordance with the provisions of the Electric Service Standards. Per kW $2.00 (f) Standby service charges. Standby service, if available, will be provided on an annual contract basis at a level at least sufficient to meet probable service demand (in kilowatts) as determined by the customer and approved by the utility according to the following: (1) Monthly standby distribution charge Contracted standby service, this charge shall be in lieu of the distribution facilities charge. Per kW $3.82 For all metered kilowatts in excess of the contracted amount Per kW $11.45 (2) In the event the contractual kilowatt amount is exceeded, the beginning date of the contract period will be reset. The first month of the new contract period will become the current billing month and such month's metered demand shall become the minimum allowable contract demand for the standby service. Requests for standby service may be subject to a waiting period. An operation and maintenance charge may be added for special facilities required to provide standby service. . . . (r) Net metering. (1) Net metering service is available to a customer-generator producing electric energy exclusively with a qualifying facility when the generating capacity of the customer-generator's qualifying facility meets the following two (2) criteria: a. The qualifying facility is sized to supply no more than one hundred twenty (120) percent of the customer-generator's average annual electricity consumption at that site, including all contiguous property owned or leased by the customer-generator, without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of-way or utility rights-of-way; and b. The rated capacity of the qualifying facility does not exceed the customer-generator's service entrance capacity. 6.2 Packet Pg. 126 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 16 - (2) The energy generated by an on-site qualifying facility and delivered to the utility's electric distribution facility shall be used to offset energy provided by the utility to the customer-generator during the applicable billing period. (3) The customer-generator and electric service arrangements shall be subject to the requirements and conditions described in the City of Fort Collins Utility Services Interconnection Standards for Generating Facilities Connected to the Fort Collins Distribution System. (4) A customer-generator who receives approval from the electric utility to obtain net metering service shall be subject to the monthly rates described above in this rate schedule section. (5) The customer-generator's consumption of energy from the utility and production of energy that flows into the utility's distribution system shall be measured on a monthly basis. The energy consumed from the utility by the customer-generator shall be billed at the applicable rate as outlined in Subsection (c) of this Section. The energy produced by the customer-generator shall be credited to the customer monthly as follows: a. Summer season energy credit Per kWh $0.0435 Section 5. That Sections 26-468 (c)-(g), and (u) of the Code of the City of Fort Collins are hereby amended to read as follows: Sec. 26-468. General service 50, schedule GS50. (c) Monthly rate. The monthly rates for this schedule shall be the sum of the following charges: (1) Fixed Charge Per account $9.45 An additional charge may be assessed if telephone communication service is not provided by the customer. Per account $40.00 (2) Coincident demand charge a. summer season billing months of June, July and August Per kW $11.68 b. non-summer season billing months of January through May and September through December Per kW $8.15 c. The meter reading date shall generally determine the summer season billing months; however, no customer shall be billed more than three (3) full billing cycles at the summer rate. (3) Distribution facilities charge Per kW $5.90 (4) Energy charge a. Summer season billing months of June, July, and August Per kWh $0.0435 b. Non-summer season billing months of January through May and September through December Per kWh $0.0418 6.2 Packet Pg. 127 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 17 - c. The meter reading date shall generally determine the summer season billing months; however, no customer shall be billed more than three (3) full billing cycles at the summer rate. (5) Payment in lieu of taxes (PILOT) and franchise. A charge based on all monthly service charges billed pursuant to this Section 6 percent (d) Renewable resource. Renewable energy resources, including, but not limited to, energy generated by the power of wind, may be offered on a voluntary basis to customers at the premium per kilowatt hour set forth in this Subsection (d). The utility may establish and offer voluntary programs designed to increase and enhance the use of energy generated by renewable energy resources in support of Council-adopted policy applicable to the utility. Per kWh $0.024 (e) Excess capacity charge. The monthly capacity charge per kilowatt set forth in this Subsection (e) may be added to the above charges for service to intermittent loads in accordance with the provisions of the Electric Service Standards. Per kW $2.00 (f) Standby service charges. Standby service, if available, will be provided on an annual contract basis at a level at least sufficient to meet probable service demand (in kilowatts) as determined by the customer and approved by the utility according to the following: (1) Standby distribution charge. a. Monthly standby distribution charge shall be the sum of the following charges: Contracted standby service, this charge shall be in lieu of the distribution facilities charge. Per kW $4.72 For all metered kilowatts in excess of the contracted amount Per kW $14.16 b. In the event the contractual kilowatt amount is exceeded, the beginning date of the contract period will be reset. The first month of the new contract period will become the current billing month and such month's metered demand shall become the minimum allowable contract demand for the standby service. Requests for standby service may be subject to a waiting period. An operation and maintenance charge may be added for special facilities required to provide standby service. (2) Standby generation and transmission charge. All charges incurred by the utility under Platte River Power Authority's applicable tariffs, as may be amended 6.2 Packet Pg. 128 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 18 - from time to time, will be billed to the customer as a standby generation and transmission charge. (g) Excess circuit charge. In the event a utility customer in this rate class desires excess circuit capacity for the purpose of controlling the available electric capacity of a backup circuit connection, this service, if available, will be provided on an annual contract basis at a level at least sufficient to meet probable backup demand (in kilowatts) as determined by the customer and approved by the utility according to the following: (1) Monthly charge shall be the sum of the following charges: Contracted backup capacity per month Per kW $0.86 Metered kilowatts in excess of the contracted amount Per kW $2.58 (2) In the event the contractual kilowatt limit is exceeded, a new annual contract period will automatically begin as of the month the limit is exceeded. The metered demand in the month of exceedance shall become the minimum contracted demand level for the excess circuit charge. . . . (u) Net metering. (1) Net metering service is available to a customer-generator producing electric energy exclusively with a qualifying facility using a qualifying renewable technology when the generating capacity of the customer-generator's qualifying facility meets the following two (2) criteria: a. the qualifying facility is sized to supply no more than one hundred twenty (120) percent of the customer-generator's average annual electricity consumption at that site, including all contiguous property owned or leased by the customer-generator, without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of-way or utility rights-of-way; and b. the rated capacity of the qualifying facility does not exceed the customer-generator's service entrance capacity. (2) The energy generated by an on-site qualifying facility and delivered to the utility's electric distribution facility shall be used to offset energy provided by the utility to the customer-generator during the applicable billing period. (3) The customer-generator and electric service arrangements shall be subject to the requirements and conditions described in the City of Fort Collins Utility Services Interconnection Standards for Generating Facilities Connected to the Fort Collins Distribution System. (4) A customer-generator who receives approval from the electric utility to obtain net metering service shall be subject to the monthly rates described above in this rate schedule section. 6.2 Packet Pg. 129 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 19 - (5) The customer-generator's consumption of energy from the utility and production of energy that flows into the utility's distribution system shall be measured on a monthly basis. The energy consumed from the utility by the customer-generator shall be billed at the applicable rate as outlined in Subsection (c) of this Section. The energy produced by the customer-generator shall be credited to the customer monthly as follows: a. Summer season energy credit Per kWh $0.0435 Section 6. That Sections 26-469 (c)-(g) and (v) of the Code of the City of Fort Collins are hereby amended to read as follows: Sec. 26-469. General service 750, schedule GS750. (c) Monthly rate. The monthly rates for this schedule shall be the sum of the following charges: (1) Fixed Charge Per account $15.24 a. Additional charge for each additional metering point Per account $9.50 b. An additional charge may be assessed if telephone communication service is not provided by the customer. Per account $40.00 (2) Coincident demand charge a. summer season billing months of June, July and August Per kW $11.51 b. non-summer season billing months of January through May and September through December Per kW $8.04 c. The meter reading date shall generally determine the summer season billing months; however, no customer shall be billed more than three (3) full billing cycles at the summer rate. (3) Distribution facilities charge a. First seven hundred fifty (750) kilowatts Per kW $5.85 b. All additional kilowatts Per kW $3.48 (4) Energy charge a. Summer season billing months of June, July, and August Per kWh $0.0428 b. Non-summer season billing months of January through May and September through December Per kWh $0.0412 c. The meter reading date shall generally determine the summer season billing months; however, no customer shall be billed more than three (3) full billing cycles at the summer rate. (5) Payment in lieu of taxes (PILOT) and franchise. A charge based on all monthly service charges billed pursuant to this Section 6 percent 6.2 Packet Pg. 130 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 20 - (d) Renewable resource. Renewable energy resources, including, but not limited to, energy generated by the power of wind, may be offered on a voluntary basis to customers at the premium per kilowatt hour set forth in this Subsection (d). The utility may establish and offer voluntary programs designed to increase and enhance the use of energy generated by renewable energy resources in support of Council-adopted policy applicable to the utility. Per kWh $0.024 (e) Excess capacity charge. The monthly capacity charge per kilowatt set forth in this Subsection (e) may be added to the above charges for service to intermittent loads in accordance with the provisions of the Electric Service Standards. Per kW $2.00 (f) Standby service charges. Standby service, if available, will be provided on an annual contract basis at a level at least sufficient to meet probable service demand (in kilowatts) as determined by the customer and approved by the utility according to the following: (1) Standby distribution charge. a. Monthly standby distribution charges shall be paid in the following amounts Contracted standby service, this charge shall be in lieu of the distribution facilities charge. Per kW $3.52 For all metered kilowatts in excess of the contracted amount Per kW $10.56 b. In the event the contractual kilowatt amount is exceeded, the beginning date of the contract period will be reset. The first month of the new contract period will become the current billing month and such month's metered demand shall become the minimum allowable contract demand for the standby service. Requests for standby service may be subject to a waiting period. An operation and maintenance charge may be added for special facilities required to provide standby service. (2) Standby generation and transmission charge. All charges incurred by the utility under the Platte River Power Authority's applicable tariffs, as may be amended from time to time, will be billed to the customer as a standby generation and transmission charge. (g) Excess circuit charge. In the event a utility customer in this rate class desires excess circuit capacity for the purpose of controlling the available electric capacity of a backup circuit connection, this service, if available, will be provided on an annual contract basis at a level at least sufficient to meet probable backup demand (in kilowatts) as determined by the customer and approved by the utility at the following 6.2 Packet Pg. 131 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 21 - (1) (2) In the event the contractual kilowatt limit is exceeded, a new annual contract period will automatically begin as of the month the limit is exceeded. The metered demand in the month of exceedance shall become the minimum contracted demand level for the excess circuit charge. . . . (v) Net metering. (1) Net metering service is available to a customer-generator producing electric energy exclusively with a qualifying facility using a qualifying renewable technology when the generating capacity of the customer-generator's qualifying facility meets the following two (2) criteria: a. the qualifying facility is sized to supply no more than one hundred twenty (120) percent of the customer-generator's average annual electricity consumption at that site, including all contiguous property owned or leased by the customer-generator, without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of-way or utility rights-of-way; and b. the rated capacity of the qualifying facility does not exceed the customer-generator's service entrance capacity. (2) The energy generated by an on-site qualifying facility and delivered to the utility's electric distribution facility shall be used to offset energy provided by the utility to the customer-generator during the applicable billing period. (3) The customer-generator and electric service arrangements shall be subject to the requirements and conditions described in the City of Fort Collins Utility Services Interconnection Standards for Generating Facilities Connected to the Fort Collins Distribution System. (4) A customer-generator who receives approval from the electric utility to obtain net metering service shall be subject to the monthly rates described above for this rate schedule. (5) The customer-generator's consumption of energy from the utility and production of energy that flows into the utility's distribution system shall be measured on a monthly basis. The energy consumed from the utility by the customer-generator shall be billed at the applicable rate as outlined in Subsection (c) of this Section. The energy produced by the customer-generator shall be credited to the customer monthly as follows: a. Summer season energy credit Per kWh $0.0428 Contracted backup capacity per month Per kW $0.64 Metered kilowatts in excess of the contracted amount Per kW $1.92 6.2 Packet Pg. 132 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 22 - Section 7. That Sections 26-470 (c)-(e), and (s) of the Code of the City of Fort Collins are hereby amended to read as follows: Sec. 26-470. Substation service, schedule SS. (c) Monthly rate. The monthly rates for this schedule shall be the sum of the following charges: (1) Fixed Charge Per account $39.47 (2) Coincident demand charge a. summer season billing months of June, July and August Per kW $11.33 b. non-summer season billing months of January through May and September through December Per kW $7.91 c. The meter reading date shall generally determine the summer season billing months; however, no customer shall be billed more than three (3) full billing cycles at the summer rate. (3) Distribution facilities charge Per kW $2.50 (4) Energy charge a. Summer season billing months of June, July, and August Per kWh $0.0422 b. Non-summer season billing months of January through May and September through December Per kWh $0.0405 c. The meter reading date shall generally determine the summer season billing months; however, no customer shall be billed more than three (3) full billing cycles at the summer rate. (5) Payment in lieu of taxes (PILOT) and franchise. A charge based on all monthly service charges billed pursuant to this Section 6 percent (d) Renewable resource. Renewable energy resources, including, but not limited to, energy generated by the power of wind, may be offered on a voluntary basis to customers at a premium per kilowatt hour. The utility may establish and offer voluntary programs designed to increase and enhance the use of energy generated by renewable energy resources in support of Council-adopted policy applicable to the utility. Per kWh $0.024 (e) Standby service charges. Standby service, if available, will be provided on an annual contract basis at a level at least sufficient to meet probable service demand (in kilowatts) as determined by the customer and approved by the utility at the following rates: (1) Standby distribution charge. a. Monthly standby distribution charge: 6.2 Packet Pg. 133 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 23 - Contracted standby service, this charge shall be in lieu of the distribution facilities charge. Per kW $2.22 For all metered kilowatts in excess of the contracted amount Per kW $6.66 b. In the event the contractual kilowatt amount is exceeded, the beginning date of the contract period will be reset. The first month of the new contract period will become the current billing month and such month's metered demand shall become the minimum allowable contract demand for the standby service. Requests for standby service may be subject to a waiting period. An operation and maintenance charge may be added for special facilities required to provide standby service. (2) Standby generation and transmission charge. All charges incurred by the utility under the Platte River Power Authority's applicable tariffs, as may be amended from time to time, will be billed to the customer as a standby generation and transmission charge. . . . (s) Net metering. (1) Net metering service is available to a customer-generator producing electric energy exclusively with a qualifying facility using a qualifying renewable technology when the generating capacity of the customer-generator's qualifying facility meets the following two (2) criteria: a. the qualifying facility is sized to supply no more than one hundred twenty (120) percent of the customer-generator's average annual electricity consumption at that site, including all contiguous property owned or leased by the customer-generator, without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of-way or utility rights-of-way; and b. the rated capacity of the qualifying facility does not exceed the customer-generator's service entrance capacity. (2) The energy generated by an on-site qualifying facility and delivered to the utility's electric distribution facility shall be used to offset energy provided by the utility to the customer-generator during the applicable billing period. (3) The customer-generator and electric service arrangements shall be subject to the requirements and conditions described in the City of Fort Collins Utility Services Interconnection Standards for Generating Facilities Connected to the Fort Collins Distribution System. (4) A customer-generator who receives approval from the electric utility to obtain net metering service shall be subject to the monthly rates described above for this rate schedule. (5) The customer-generator's consumption of energy from the utility and production of energy that flows into the utility's distribution system shall be 6.2 Packet Pg. 134 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 24 - measured on a monthly basis. The energy consumed from the utility by the customer-generator shall be billed at the applicable rate as outlined in Subsection (c) of this Section. The energy produced by the customer-generator shall be credited to the customer monthly as follows: a. Summer season energy credit Per kWh $0.0422 Section 8. That Sections 26-471 (b) and (f) of the Code of the City of Fort Collins are hereby amended to read as follows: Sec. 26-471. Special area floodlighting, schedule FL. . . . (b) Monthly rate. The monthly rates (including a six percent charge in lieu of taxes and franchise) are as follows: (1) Charge per lamp, mercury vapor: a. One-hundred-seventy-five (175) watt $16.93 b. Two-hundred-fifty (250) watt $19.94 c. Four-hundred (400) watt $26.14 (2) Charge per lamp, high-pressure sodium: a. Seventy (70) watt $7.15 b. One-hundred (100) watt $10.12 c. One-hundred-fifty (150) watt $16.01 a. Two-hundred-fifty (250) watt $20.41 b. Four-hundred (400) watt $26.96 … (f) Contract period and conditions (1) Those desiring floodlighting service shall sign a service contract at the electric utility office. This contract may be terminated at the end of any billing period upon ten (10) days' written notice to the City. (2) The lamps shall be controlled by automatic control equipment and burning time shall be from approximately thirty (30) minutes after sunset to approximately thirty (30) minutes before sunrise. (3) The customer shall notify the utility of any operational failure of the lamp. Lamp replacements or repairs will be performed only during regular working hours. 6.2 Packet Pg. 135 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 25 - Section 9. That Section 26-472 (c) of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-472. Traffic signal service, schedule T. … (c) Monthly rate. The monthly rates (including a six (6) percent charge in lieu of taxes and franchise) shall be the sum of the following charges: (1) Fixed Charge Per account $73.16 (2) Energy Charge Per kWh $0.0680 (3) Service extensions and signal installations made by the utility shall be paid for by the City General Fund, subject to material and installation costs at the time of installation. Section 10. That Section 26-476 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-476. Public electric vehicle charging station service user fees. (a) Availability. Designated electric vehicle charging stations will be made available by the Electric Utility for public use within the corporate limits of the City at the user rates set forth in this Section. (b) Applicability. The fees set forth in this Section shall apply to all public electric vehicle charging stations owned and operated by the Electric Utility. (c) User fee rates. Public electric vehicle charging station service user fees (including six-and-zero-tenths-percent charge in lieu of taxes and franchise) will be provided and billed on a per session basis as follows: (1) Level 2 - 240 volt charging, per one-hour charging session $1.00 (2) Level 3 - 480 volt DC Quick Charging, per charging session (not necessarily based on one-hour increments) $3.00 (d) Payment of fees. Payment for electric vehicle charging station services will be collected directly from the customer at the point of service (the charging station or City facility at which the charging station is located) through credit card or other payment processing service. Section 11. That the amendments herein are effective and shall go into effect as follows: A. Amended GS50 & GS750 schedule rates shall apply to all electricity used on or after January 1, 2016; 6.2 Packet Pg. 136 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 26 - B. Amended TOU Pilot Study schedule rates shall apply to all electricity used on or after January 1, 2016; and C. All other amended schedule rates shall apply to all bills issued on the basis of meter readings on or after January 1, 2016. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, A.D. 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 6.2 Packet Pg. 137 Attachment: Ordinance No. 140, 2015 (3783 : SR 140-146 Utilities Rates) - 1 - ORDINANCE NO. 141, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS REGARDING CALCULATION AND COLLECTION OF DEVELOPMENT FEES IMPOSED FOR NEW OR MODIFIED ELECTRIC SERVICE CONNECTIONS WHEREAS, the City Council is empowered and directed by Article XII, Section 6, of the City Charter to fix, establish, maintain and provide for the collection of such rates, fees or charges for utility services furnished by the City as will produce revenues sufficient to pay the costs, expenses and other obligations of the electric utility, as set forth therein; and WHEREAS, City Council has determined that new development should pay its proportionate share of the capital costs for new or modified electric service connections in the form of the Electric Capacity Fee and Building Site Charge (hereinafter “Electric Development Fees”) described at Sections 26-474 and 26-475 of the City Code; and WHEREAS, the City Manager and Electric Utility staff recommend the City Code be modified to clarify how Electric Development Fees are set and collected, as well as to update the rates to reflect increases in the operational facility capital costs required to provide new or modified electric service connections; and WHEREAS, the City Manager and City staff have recommended to City Council an adjustment of the scope of the Electric Development Fees imposed by City Code Sections 26- 474 and 26-475 to permit inclusion in its calculation of the City’s quantifiable and reasonable growth-related costs for impacts to Utilities Services’ capital administrative facilities that are reasonably related to the overall cost of and required in providing electric services to serve new development, as permitted by Colorado law. WHEREAS, Utilities staff have also identified formatting and maintenance updates to the City Code to improve the clarity with which Electric Development Fees are explained; and WHEREAS, the Energy Board considered the proposed Electric Development Fees and language clarifications for 2016 at its October 3, 2015, meeting and recommended approval of the fee changes and City Code updates; and WHEREAS, the City Manager and staff have recommended to the City Council the following Electric Development Fee adjustments and City Code language clarifications for all new or modified electric service connections requested on or after January 1, 2016; and WHEREAS, based on the foregoing, it is the desire of the City Council to amend Chapter 26 of the City Code to revise the Electric Development Fees. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above. 6.3 Packet Pg. 138 Attachment: Ordinance No. 141, 2015 (3783 : SR 140-146 Utilities Rates) - 2 - Section 2. That Section 26-473 (b) of the Coe of the City of Fort Collins is hereby amended to read as follows: Sec. 26-473. - Electric development fees and charges. . . . (b) The ECF shall be based upon and used to defray growth-related capital expansion costs of substations and distribution infrastructure and related facilities, and actual costs that have been or will be incurred by the utility to plan and provide service loads to new development, as more specifically described in this Division. These costs shall include the cost of labor and materials to install substation transformers, distribution transformers, primary cable, vaults, conduit, connections, switches, fuses, circuit breakers and other infrastructure and may include capital costs of administrative facilities that are reasonably related to the overall cost of and required in providing electric services to serve new development. The ECF shall vary with the electrical capacity requirements, lot size and lineal feet of dedicated roadway, and shall be based on the actual cost of construction of any required off-site improvements. The parameters and rates shall be reviewed annually by the City Manager, and the fees shall be presented to the City Council for approval no less frequently than biennially. . . . Section 3. That Section 26-474 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-474. Residential electric development fees and charges. (a) An Electric Capacity Fee ("ECF"), calculated as set forth in this Section and representing the cost to construct the electric distribution system infrastructure for a new or modified residential service shall be paid prior to the scheduling of any construction work required to provide said service. The ECF shall be determined based upon the main disconnect size (not fuse sizing) and the ECF charges in effect at the time of full payment. In the event of a customer request for revision to the system requirements for a new or modified service, construction of infrastructure improvements will cease until the customer has made payment in full of an updated ECF, including any increased construction costs associated with the revised system requirements; such increased amount, if any, shall be paid at the ECF rates in effect at the time it is paid in full. (b) The ECF shall be the total of the site footage charge, dwelling charge and systems modification charge, to be determined as follows: (1) The site footage charge shall be the combined total of: a. Per square foot of developed site square footage, including all applicable tracts but excluding the area of dedicated public rights-of-way and excluding areas dedicated to the City as parkland, however, specific areas within City owned parks that require electric service will be charged $0.05186 6.3 Packet Pg. 139 Attachment: Ordinance No. 141, 2015 (3783 : SR 140-146 Utilities Rates) - 3 - b. Plus, per lineal foot of the developed site abutting a dedicated street or roadway $10.39 (2) The dwelling unit charge shall be as follows: a. For a single-family panel size with one-hundred-fifty (150) amp service (nonelectric heat), per dwelling unit $1,408 b. For a single-family panel size with two-hundred (200) amp service or with one-hundred-fifty (150) amp service with electric heat, per dwelling unit $2,283 c. For a multi-family panel size with one-hundred-fifty (150) amp service (nonelectric heat), per dwelling unit $939 d. For a multi-family panel size with two-hundred (200) amp service or with one-hundred-fifty (150) amp service with electric heat, per dwelling unit $1,612 (3) A system modifications charge will apply when a new or modified service will require infrastructure in addition to or different from the standard base electrical system model. The differential costs associated with such system modifications will be included in the calculated ECF. (c) The utility will schedule and commence construction of a new or modified electric service upon receipt of payment in full of the associated electric development fees, and per the Utility Installation Sequence as defined in the Electric Service Standards. If the utility is unable to commence construction when requested due to utility workload backlogs, the utility will schedule and commence the construction of new or modified electric service projects in the same order in which full payments are received. (d) A Building Site Charge ("BSC") for any new or modified residential service shall consist of the total of the applicable charges as described in this Subsection (d), and shall be paid as specified herein. (1) When any new or modified multi-family service requires extending primary circuitry to an on-site transformer, this component of the BSC charge shall be invoiced and paid in the same manner and at the same time as the ECF is invoiced and paid pursuant to Section 26-474(a), and shall be the total of the primary circuit charge, transformer installation charge and any additional charges. The amounts shall be the same as the BSC for nonresidential development, as shown in Section 26-475(d). (2) When any new or modified residential service requires installation by the Utility of secondary service the BSC shall include a secondary service charge (SSC), and shall be paid at the time of building permit and based upon the current rates as of the time of issuance of the building permit. 6.3 Packet Pg. 140 Attachment: Ordinance No. 141, 2015 (3783 : SR 140-146 Utilities Rates) - 4 - The SSC shall be the total of the secondary service charges, determined as follows: a. The secondary service charge shall be as follows: Secondary Service Size Charge (up to 65 feet) Plus Per-Foot Charge for Each Foot Over 65 1/0 service $682.00 $4.99/Foot 4/0 service $806.00 $5.63/Foot 350 kCM Service $912.00 $7.23/Foot 1/0 Mobile Home Service $532.00 N/A 4/0 Mobile Home Service $638.00 N/A (3) Actual special costs to the utility of installation of primary or secondary service resulting from site conditions shall be included in the BSC as additional charges. Such conditions may include, but are not limited to, frozen or rocky soil, concrete cutting and asphalt replacement. Section 4. That Section 26-475 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-475. Nonresidential electric development fees and charges. (a) An Electric Capacity Fee ("ECF"), calculated as set forth in this Section and representing the cost to construct the electric distribution system infrastructure for a new or modified nonresidential service shall be paid prior to the scheduling of any construction work required to provide such service. The ECF shall be determined based upon the main disconnect size (not fuse sizing) and the ECF charges in effect at the time of full payment. The customer shall also be responsible for secondary service installation from the point of delivery to the service panel. In the event of a customer request for revision to the system requirements for a new or modified service, construction of infrastructure improvements will cease until the customer has made payment in full of an updated ECF, including any increased construction costs associated with the revised system requirements; such increased amount, if any, shall be paid at the ECF rates in effect at the time it is paid in full. 6.3 Packet Pg. 141 Attachment: Ordinance No. 141, 2015 (3783 : SR 140-146 Utilities Rates) - 5 - (b) The ECF shall be the total of the site footage charge, kVA service charge and systems modification charge, to be determined as follows: (1) The site footage charge shall be the combined total of: a. Per square foot of developed site square footage, including all applicable tracts but excluding the area of dedicated public rights-of-way and excluding areas dedicated to the City as parkland, however, specific areas within City owned parks that require electric service will be charged $0.05186 b. Plus, per lineal foot of the developed site abutting a dedicated street or roadway $38.80 (2) The kVA service charge shall be determined as follows. a. For customer electric loads served by the utility the kVA service charge shall be: 1. Utility-owned transformers: the kVA service charge per kilovolt-amp (kVA) of service load rating as determined by main disconnect size (not fuse sizing). $70.31 2. Customer owned transformers: the kVA service charge per kilovolt-amp (kVA) of service load rating. $61.13 b. For the utility to receive customer generation in excess of the customer's electric service provided by the utility, the following KVA service charge will also apply: 1. Utility-owned transformers: the kVA service charge per kilovolt-amp (kVA) of generation service rating in excess of the service load rating as paid per Subsection (b)(2)a.1. Such ratings shall be determined by the Utilities Executive Director. $61.13 2. Customer owned transformers: the kVA service charge per kilovolt-amp (kVA) of generation service rating in excess of the service load rating paid per Subsection (b)(2)a.2. Such ratings shall be determined by the Utilities Executive Director. $43.63 (3) A system modifications charge will apply when a new or modified service will require infrastructure in addition to or different from the standard base electrical system model. The differential costs associated with such system modifications will be included in the calculated ECF. (c) The utility will schedule and commence construction of a new or modified electric service upon receipt of payment in full of the associated electric development fees, and per the Utility Installation Sequence as defined in the Electric Service Standards. If the 6.3 Packet Pg. 142 Attachment: Ordinance No. 141, 2015 (3783 : SR 140-146 Utilities Rates) - 6 - utility is unable to commence construction when requested due to utility workload backlogs, the utility will schedule and commence the construction of new or modified electric service projects in the same order in which full payments are received. (d) A Building Site Charge ("BSC") for extending primary circuitry to the transformer for any new or modified nonresidential service shall be invoiced and paid in the same manner and at the same time as the ECF is invoiced and paid pursuant to Section 26- 475(a). The BSC shall be the total of the primary circuit charge, transformer installation charge and any additional charges, determined as follows: (1) The primary circuit charge for service from the utility source to the transformer shall be as follows: a. For single-phase service, per foot of primary circuit $9.45 b. For three-phase service, per foot of primary circuit $17.76 (2) The transformer installation charge shall be as follows: a. For single-phase service, per transformer $1,387.00 b. For three-phase service, per transformer $2,432.00 (3) Actual special costs to the utility of installation of service resulting from site conditions shall be included in the BSC as additional charges. Such conditions may include, but are not limited to, frozen or rocky soil, concrete cutting and asphalt replacement. (e) In lieu of the ECF and BSC based on Subsections (a), (b), and (d), the ECF and BSC for any new nonresidential service exceeding five thousand (5,000) kilowatts in size will be determined on a case-by-case basis so as to recover the direct and indirect costs associated with extending primary circuitry to the user's point of delivery. Section 5. That the modifications set forth above shall be effective for all fees paid on or after January 1, 2016. 6.3 Packet Pg. 143 Attachment: Ordinance No. 141, 2015 (3783 : SR 140-146 Utilities Rates) - 7 - Introduced, considered favorably on first reading, and ordered published this 3rd day of November, 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on this 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk 6.3 Packet Pg. 144 Attachment: Ordinance No. 141, 2015 (3783 : SR 140-146 Utilities Rates) - 1 - ORDINANCE NO. 142, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS TO REVISE WATER RATES, FEES, AND CHARGES WHEREAS, the City Council is empowered and directed by Article XII, Section 6 of the Charter of the City of Fort Collins, to by ordinance from time to time fix, establish, maintain and provide for the collection of such rates, fees or charges for utility services furnished by the City as will produce revenues sufficient to pay the costs, expenses, and other obligations as set forth therein; and WHEREAS, Article III, Chapter 26 of the City Code establishes the water utility as a utility service furnished by and an enterprise of the City; and WHEREAS, City Code Sections 26-127 and 26-129 concern various water-related rates, fees, and charges; and WHEREAS, City Code Section 26-118 requires that the City Manager to analyze the operating and financial records of the utility during each calendar year and recommend to the City Council user rates or adjustments to be in effect for the following year; and WHEREAS, the City Manager and City staff have also recommended to the City Council adjustment of the water-related rates, fees, and charges as set forth herein to be effective January 1, 2016; and WHEREAS, the Water Board considered the proposed water-related rates, fees, and charges adjustments for 2016 at its meeting on September 17, 2015 and recommended approval of the proposed adjustments by a unanimous vote; and WHEREAS, based on the foregoing, City Council desires to amend Chapter 26 of the City Code to adjust the scope and rate of the water-related rates, fees, and charges as set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above. Section 2. That Section 26-127 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-127. Schedule B, meter rates. (a) Residential Rates. 6.4 Packet Pg. 145 Attachment: Ordinance No. 142, 2015 (3783 : SR 140-146 Utilities Rates) - 2 - (1) Residential customers with one (1) dwelling unit shall pay the sum of the following changes:. a. Base monthly charge for residential customers with one (1) dwelling unit $15.41 b. Quantity monthly charge for residential customers with one (1) dwelling unit Tier 1 - For the first seven thousand (7,000) gallons used per month, per one thousand (1,000) gallons $2.386 Tier 2 - For the next six thousand (6,000) gallons used per month, per one thousand (1,000) gallons $2.742 Tier 3 - For all additional gallons used per month, per one thousand (1,000) gallons $3.154 (2) Residential customers with two (2) dwelling units shall pay the sum of the following charges:. a. Base monthly charge for residential customers with two (2) dwelling units $16.31 b. Quantity monthly charge for residential customers with two (2) dwelling units Tier 1 - For the first nine thousand (9,000) gallons used per month, per one thousand (1,000) gallons $2.071 Tier 2 - For the next four thousand (4,000) gallons used per month, per one thousand (1,000) gallons $2.380 Tier 3 - For all additional gallons used per month, per one thousand (1,000) gallons $2.739 (3) Residential customers with more than two (2) dwelling units shall pay the sum of the following charges: a. Base monthly charge for residential customers with more than two (2) dwelling units First dwelling unit $11.72 Second and each additional dwelling unit $3.90 b. Quantity monthly charge for residential customers with more than two (2) dwelling units Winter - per one thousand (1,000) gallons used in the winter season months of November through April $1.703 Summer - per one thousand (1,000) gallons used in the summer season months of May through October $2.129 The meter reading date shall generally determine the seasonal monthly quantity charge; however, no customer shall be billed more 6.4 Packet Pg. 146 Attachment: Ordinance No. 142, 2015 (3783 : SR 140-146 Utilities Rates) - 3 - than six (6) full billing cycles at the summer quantity charge. (b) Nonresidential Rates. (1) Base charge. Nonresidential, except for special users as described in Subsection 26-127(c) below, customers shall pay a base monthly charge based on meter size as follows: Meter Size (inches) Monthly Base Charge ¾ $ 13.63 1 38.03 1½ 103.41 2 155.85 3 237.70 4 373.17 6 723.91 8 1,278.85 (2) Quantity charges. Nonresidential customers shall pay monthly charges as follows: Winter - per one thousand (1,000) gallons used in the winter season months of November through April $1.897 Summer - per one thousand (1,000) gallons used in the summer season months of May through October $2.370 The meter reading date shall generally determine the seasonal monthly quantity charge; however, no customer shall be billed more than six (6) full billing cycles at the summer quantity charge. (3) Charges for excess use. Nonresidential customers shall also pay monthly water use charges in excess of the amounts specified in the following table: 6.4 Packet Pg. 147 Attachment: Ordinance No. 142, 2015 (3783 : SR 140-146 Utilities Rates) - 4 - Winter - per one thousand (1,000) gallons used in the winter season months of November through April $2.725 Summer - per one thousand (1,000) gallons used in the summer season months of May through October $3.408 The meter reading date shall generally determine the seasonal monthly quantity charge; however, no customer shall be billed more than six (6) full billing cycles at the summer quantity charge. Meter Size (inches) Specified Amount (gallons per month) ¾ 100,000 1 300,000 1½ 625,000 2 1,200,000 3 1,400,000 4 2,500,000 (c) High Volume Industrial Rates. High volume industrial rates apply to any customer with an average daily demand in excess of two million (2,000,000) gallons per day. The specific rate for any qualifying customer shall be based upon the applicable peaking factor for that customer as follows: Peaking Factor Monthly Charge per Thousand Gallons 1.00—1.09 $1.490 1.10—1.19 1.540 1.20—1.29 1.590 1.30—1.39 1.640 6.4 Packet Pg. 148 Attachment: Ordinance No. 142, 2015 (3783 : SR 140-146 Utilities Rates) - 5 - 1.40—1.49 1.690 1.50—1.59 1.740 1.60—1.69 1.790 1.70—1.79 1.840 1.80—1.89 1.890 1.90—1.99 1.950 > 2.00 2.000 (d) Service outside the City. The monthly charge for water taken through a meter by a user outside the City limits shall be the same as for like service within the City limits as specified in Subsections (a) and (b) of this Section. (e) Rates by special water services agreement. The rate structure and associated charges for water service pursuant to a special water services agreement approved by the City Council pursuant to § 26-130 shall be as set forth in said agreement. Section 3. That Section 26-129 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-129. Schedule D, miscellaneous fees and charges. The following fees and service charges shall be paid by water users, whether inside or outside the City limits: (a) Connection fees and service charges shall be as set forth in Subsection 26-712(b). (b) The fire hydrant fees and charges shall be as follows: (1) For installation of meter Per meter $43.00 (2) For removal of meter Per meter $43.00 (3) For daily rental for meter and fittings Per meter $8.60 (4) For water service Per 1,000 gallons $6.00 A deposit may be required in the amount of the charges for the anticipated water usage and rental. 6.4 Packet Pg. 149 Attachment: Ordinance No. 142, 2015 (3783 : SR 140-146 Utilities Rates) - 6 - (c) The fees and requirements for raw water shall be as follows (1) To satisfy raw water requirements (RWR) with in-lieu cash payments Per acre-foot of RWR $6,500.00 (2) Excess Water Use Surcharge assessed on commercial and irrigation taps when water use is in excess of the applicable annual allotment Per 1,000 gallons $3.06 (3) The annual water allotment, based on the minimum RWR shall be as follows: Meter Size (inches) Annual Allotment (gallons/year) ¾ 293,270 1 977,550 1½ 1,955,110 2 3,128,170 Above 2 325,851 gallons per acre foot RWR Section 4. That the modifications set forth above shall be effective for meter readings on or after January 1, 2016, and in the case of fees not based on meter readings, shall be effective for all fees paid on or after January 1, 2016. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk 6.4 Packet Pg. 150 Attachment: Ordinance No. 142, 2015 (3783 : SR 140-146 Utilities Rates) - 7 - Passed and adopted on final reading on this 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk 6.4 Packet Pg. 151 Attachment: Ordinance No. 142, 2015 (3783 : SR 140-146 Utilities Rates) - 1 - ORDINANCE NO. 143, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS TO REVISE WATER PLANT INVESTMENT FEES WHEREAS, the City Council is empowered and directed by Article XII, Section 6 of the Charter of the City of Fort Collins, to by ordinance from time to time fix, establish, maintain and provide for the collection of such rates, fees or charges for utility services furnished by the City as will produce revenues sufficient to pay the costs, expenses, and other obligations as set forth therein; and WHEREAS, Article III, Chapter 26 of the City Code establishes the water utility as a utility service furnished by and an enterprise of the City; and WHEREAS, City Code Sections 26-120 and 26-128 provide for water plant investment fees (“WPIFs”) to be based on and used for growth-related capital expansion costs of water supply, storage, transmission, treatment and distribution facilities, and related factors; and WHEREAS, City Code Section 26-120 further requires that the City Manager annually review the parameters and rates of the WPIFs and also requires that the City Manager present such fees to the City Council for approval no less frequently than biennially; and WHEREAS, the City Manager and City staff have recommended to City Council adjustment of the scope of the WPIFs imposed by City Code Sections 26-120 and 26-128 to include in its calculation the City’s quantifiable and reasonable growth-related costs for impacts to Utilities Services’ capital administrative facilities that are reasonably related to the overall cost of and required in providing water services to serve new development, as permitted by Colorado law; and WHEREAS, the City Manager and City staff have also recommended to the City Council adjustment of the WPIFs as set forth herein to be effective January 1, 2016; and WHEREAS, the Water Board considered the proposed WPIFs adjustments for 2016 at its meeting on September 17, 2015 and recommended approval of the proposed adjustments by a unanimous vote; and WHEREAS, based on the foregoing, City Council desires to amend Chapter 26 of the City Code to adjust the scope and rate of the WPIFs as set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above. 6.5 Packet Pg. 152 Attachment: Ordinance No. 143, 2015 (3783 : SR 140-146 Utilities Rates) - 2 - Section 2. That Section 26-120(b) of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-120. - Water plant investment fees. . . . (b) The WPIF shall be based on and used for growth-related capital expansion costs of water supply, storage, transmission, treatment, distribution and administrative facilities that are reasonably related to the overall cost of and required in providing water services to serve new development. The fee shall vary with the number of dwelling units and the lot area served for residential users and with the size of the water meter for nonresidential users. The parameters and rates shall be reviewed by the City Manager annually and fees shall be presented to the City Council for approval no less frequently than biennially. . . . Section 3. That Section 26-128 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-128. Schedule C, water plant investment fees. The water plant investment fee prescribed in § 26-120 shall be payable by users both inside and outside of the City, as follows: (1) Single-family residential buildings. For a single-family residential lot greater than one-half (½) acre in size, the lot size shall be deemed to be one-half (½) acre for the purpose of this fee calculation. For each additional tap or meters larger than three-fourths (¾) inch, the nonresidential rate shall apply. a. For the first three-fourths-inch water tap or meter $720.00 b. Plus, for each square foot of lot area $0.33 (2) Residential buildings of two (2) or more dwelling units The fee will provide for one (1) tap per residential building and an adequate number of additional taps to serve common irrigable areas, if any. The number and size of taps shall be determined by the Utilities Executive Director based upon the criteria established in the Uniform Plumbing Code as amended pursuant to Chapter 5 of this Code. a. For each residential building unit $540.00 b. Plus, for each square foot of lot area $0.24 (3) Mobile home parks The size of the tap shall be determined by the Utilities Executive Director based upon the criteria established in the Uniform Plumbing Code as amended pursuant to Chapter 5 of this Code. a. For each residential building unit $540.00 b. Plus, for each square foot of lot area $0.24 6.5 Packet Pg. 153 Attachment: Ordinance No. 143, 2015 (3783 : SR 140-146 Utilities Rates) - 3 - (4) Hotels, rooming houses, sororities, fraternities and similar uses. The nonresidential rate shall apply. (5) Nonresidential service a. Service to all nonresidential taps, including, but not limited to, taps for commercial and industrial service, shall be charged according to the size of the meter pursuant to the following schedule: Meter Size (inches) Nonresidential Plant Investment Fee ¾ $7,180 1 $19,710 1½ $42,220 2 $66,680 b. The fee for all meters larger than two (2) inches shall be calculated by multiplying the estimated peak daily demand by the following charge per gallon, but shall not be less than the charge for a two-inch meter. $4.66 Section 4. That the modifications set forth above shall be effective for all fees paid on or after January 1, 2016. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk 6.5 Packet Pg. 154 Attachment: Ordinance No. 143, 2015 (3783 : SR 140-146 Utilities Rates) - 4 - Passed and adopted on final reading on this 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk 6.5 Packet Pg. 155 Attachment: Ordinance No. 143, 2015 (3783 : SR 140-146 Utilities Rates) ORDINANCE NO. 144, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS TO REVISE WASTEWATER RATES, FEES, AND CHARGES WHEREAS, the City Council is empowered and directed by Article XII, Section 6 of the Charter of the City of Fort Collins, to by ordinance from time to time fix, establish, maintain and provide for the collection of such rates, fees or charges for utility services furnished by the City as will produce revenues sufficient to pay the costs, expenses, and other obligations as set forth therein; and WHEREAS, Article IV, Chapter 26 of the City Code establishes the wastewater utility as a utility service furnished by and an enterprise of the City; and WHEREAS, City Code Sections 26-280, 26-282, and 26-289 concern various wastewater-related rates, fees, and charges; and WHEREAS, City Code Section 26-277 requires that the City Manager to analyze the operating and financial records of the utility during each calendar year and recommend to the City Council user rates or adjustments to be in effect for the following year; and WHEREAS, the City Manager and City staff have also recommended to the City Council adjustment of the wastewater-related rates, fees, and charges as set forth herein to be effective January 1, 2016; and WHEREAS, the Water Board considered the proposed wastewater-related rates, fees, and charges adjustments for 2016 at its meeting on September 17, 2015 and recommended approval of the proposed adjustments by a unanimous vote; and WHEREAS, based on the foregoing, City Council desires to amend Chapter 26 of the City Code to adjust the scope and rate of the water-related rates, fees, and charges as set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above. Section 2. That Section 26-280 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-280. Service charges established by category. The schedule of rates for each category described in § 26-279 shall be as follows: 6.6 Packet Pg. 156 Attachment: Ordinance No. 144, 2015 (as adopted on First Reading - Option A) (3783 : SR 140-146 Utilities Rates) Category Class of Customer Rate A Single-family residential user (flat rate) Per month $38.31 Single-family residential user (metered water use) 1. Per month $17.12 2. Plus, per 1,000 gallons per month $3.326 Note: 1. For single family customers who have not yet established a winter quarter water use at the service address, a system average of 4,800 gallons per month shall be billed. 2. After establishment of a winter quarter water use at the service address, the monthly amount billed shall be based on a minimum of 3,000 gallons per month. B Duplex (two- family) residential users (flat rate) Per month $52.48 Duplex (two- family) residential users (metered water use) Per month $19.44 Or, per 1,000 gallons per month, whichever is greater, to be calculated on a monthly basis $2.918 Note: 1. For duplex customers who have not yet established a winter quarter water use at the service address, a system average 7,200 gallons shall be billed. 2. After establishment of a winter quarter use at the service address, the monthly amount billed shall be based on a minimum of 4,000 gallons per month. C Multi-family residential 1. Base charge per month per dwelling unit served $2.53 6.6 Packet Pg. 157 Attachment: Ordinance No. 144, 2015 (as adopted on First Reading - Option A) (3783 : SR 140-146 Utilities Rates) user (more than two dwelling units including mobile home parks) and winter quarter based nonresidential user 2. Plus, per 1,000 gallons per month $3.222 Note: 1. For multi-family customers who have not yet established a winter quarter water use at the service address, a system average of 3,400 gallons per living unit shall be billed. However, Category D rates will apply to multi-family residential units under construction during the period of service from the installation of the water meter to the date the certificate of occupancy is issued. 2. After establishment of a water quarter use at the service address, the monthly amount billed shall be per 1,000 gallons of winter quarter water use, calculated on a monthly basis. D Minor nonresidential user 1. Per 1,000 gallons of water use, measured sewage flow or winter quarter water use, whichever is applicable, to be calculated on a monthly basis, plus the following applicable base charge: $3.039 2. Size of water meter (inches) Base charge ¾ or smaller $8.77 1 $20.24 1½ $40.74 2 $69.71 3 $111.38 4 $175.90 6 $771.12 8 $890.36 E and F Intermediate nonresidential user and Significant industrial User shall pay an amount calculated to include: 1. Rate per 1,000 gallons of water use, measured wastewater flow or winter quarter water use per month, whichever is applicable; $3.039 6.6 Packet Pg. 158 Attachment: Ordinance No. 144, 2015 (as adopted on First Reading - Option A) (3783 : SR 140-146 Utilities Rates) user 2. PLUS a surcharge per million gallons for each milligram per liter of suspended solids in excess of 235 milligrams per liter; $3.535 3. PLUS a surcharge for the following: a. per million gallons for each milligram per liter of BOD in excess of 265 milligrams per liter; or b. per million gallons for each milligram per liter of COD in excess of 400 milligrams per liter; or c. per million gallons for each milligram per liter of TOC in excess of 130 milligrams per liter, whichever is applicable. $2.945 $1.859 $5.503 The user shall pay the calculated amount based on 1, 2 and 3 above, plus the applicable base charge set forth below: Size of water meter (inches) Base charge ¾ or smaller $8.77 1 $20.24 1½ $40.74 2 $69.71 3 $111.38 4 $175.90 6 $771.12 6.6 Packet Pg. 159 Attachment: Ordinance No. 144, 2015 (as adopted on First Reading - Option A) (3783 : SR 140-146 Utilities Rates) 8 $890.36 G User outside City limits The rate for users outside the City limits shall be the same as for like service inside the City limits as is specified in Categories A—F and H in this Section. H Special with agreement The rate pursuant to a special wastewater services agreement approved by the City Council pursuant to § 26-290 shall be set forth in said agreement. Section 3. That Section 26-282(a) of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-282. Wastewater strength or industrial surcharges and categories established. (a) A monthly wastewater strength surcharge shall be paid by customers located either inside or outside the City limits in accordance with the following schedule: Parameter Excess over (mg/l) Rate per thousand gallons BOD 265 $0.002945 COD 400 $0.001859 TOC 130 $0.005503 TSS 235 $0.003535 . . . Section 4. That Section 26-289 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-289. Miscellaneous fees and charges. The following is a schedule of miscellaneous fees and charges: Description Basis Amount (1) Connection fees and service Fees shall be set forth as in 6.6 Packet Pg. 160 Attachment: Ordinance No. 144, 2015 (as adopted on First Reading - Option A) (3783 : SR 140-146 Utilities Rates) charges Subsection 26-712(b) (2) Industrial discharge permits: a. Administration Annually $76.00 b. Surveillance (on request) Determined for each user annually, based on direct cost plus 15% indirect costs, billed monthly (3) Laboratory support services (on request) Determined on a case-by-case basis based on direct cost plus 15% indirect costs (4) Materials and labor provided by City (on request) Determined on a case-by-case basis based on direct cost plus 15% indirect costs (5) Charges for disposal at the Fort Collins Regional Sanitary Waste Transfer Station: a. Septic tanks, vaults, privies, portable toilets: 1. Generated within Larimer County Per gallon $0.074 2. Generated outside Larimer County Per gallon $0.113 b. Recreational vehicle sanitary waste holding tanks: 1. Residential customers of the City of Fort Collins Wastewater Utility No charge for individual disposal at Transfer Station 2. Others 1. Base fee, plus $2.46 2. Per gallon $0.074 (6) Interest rate for wastewater service-related loans: 2.5% - 10% per annum; to be set for new loans annually based on the City's cost of capital minus 100 to 200 basis points in the administrative rules and regulations of the Financial Officer pursuant to 6.6 Packet Pg. 161 Attachment: Ordinance No. 144, 2015 (as adopted on First Reading - Option A) (3783 : SR 140-146 Utilities Rates) § 26-720 (7) Loan-related fees for wastewater service-related loans To be set based on related program costs in the administrative rules and regulations of the Financial Officer pursuant to § 26-720 (8) Miscellaneous fees Determined on a case-by-case basis based on direct costs plus 15% indirect costs Section 5. That the modifications set forth above shall be effective for meter readings on or after January 1, 2016, and in the case of fees not based on meter readings, shall be effective for all fees paid on or after January 1, 2016. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on this 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk 6.6 Packet Pg. 162 Attachment: Ordinance No. 144, 2015 (as adopted on First Reading - Option A) (3783 : SR 140-146 Utilities Rates) OPTION B ORDINANCE NO. 144, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS TO REVISE WASTEWATER RATES, FEES, AND CHARGES WHEREAS, the City Council is empowered and directed by Article XII, Section 6 of the Charter of the City of Fort Collins, to by ordinance from time to time fix, establish, maintain and provide for the collection of such rates, fees or charges for utility services furnished by the City as will produce revenues sufficient to pay the costs, expenses, and other obligations as set forth therein; and WHEREAS, Article IV, Chapter 26 of the City Code establishes the wastewater utility as a utility service furnished by and an enterprise of the City; and WHEREAS, City Code Sections 26-280, 26-282, and 26-289 concern various wastewater-related rates, fees, and charges; and WHEREAS, City Code Section 26-277 requires that the City Manager to analyze the operating and financial records of the utility during each calendar year and recommend to the City Council user rates or adjustments to be in effect for the following year; and WHEREAS, the City Manager and City staff have also recommended to the City Council adjustment of the wastewater-related rates, fees, and charges as set forth herein to be effective January 1, 2016; and WHEREAS, the Water Board considered the proposed wastewater-related rates, fees, and charges adjustments for 2016 at its meeting on September 17, 2015 and recommended approval of the proposed adjustments by a unanimous vote; and WHEREAS, based on the foregoing, City Council desires to amend Chapter 26 of the City Code to adjust the scope and rate of the water-related rates, fees, and charges as set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above. Section 2. That Section 26-280 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-280. Service charges established by category. 6.7 Packet Pg. 163 Attachment: Ordinance No. 144, 2015 (Option B) (3783 : SR 140-146 Utilities Rates) The schedule of rates for each category described in § 26-279 shall be as follows: Category Class of Customer Rate A Single-family residential user (flat rate) $37.38 per month Single-family residential user (metered water use) $16.70 per month plus $3.245 per 1,000 gallons of either winter quarter water use or 3,000 gallons, whichever is greater. For single family customers who have not established a winter quarter water use at the service address, a system average of 4,800 gallons per month shall be billed. B Duplex (two- family) residential users (flat rate) $51.20 per month Duplex (two- family) residential users (metered water use) $18.97 per month plus $2.847 per 1,000 gallons of either winter quarter water use or 4,000 gallons, whichever is greater. For duplex customers who have not established a winter quarter water use at the service address, a system average 7,200 gallons shall be billed. C Multi-family residential user (more than two dwelling units including mobile home parks) and winter quarter based nonresidential user $3.143 per 1,000 gallons of winter quarter water use, plus a base charge of $2.47 per month per dwelling unit served. For multi-family customers who have not established a winter quarter water use at the service address, a system average of 3,400 gallons per living unit shall be billed. However, Category D rates will apply to multi-family residential units under construction during the period of service from the installation of the water meter to the date the certificate of occupancy is issued. D Minor nonresidential user meter (inches) ¾ or smaller $8.39 1 $19.37 1½ $38.99 2 $66.71 3 $106.58 4 $168.33 6 $737.91 8 $852.02 E and F Intermediate nonresidential user and Significant industrial user $2.908 per 1,000 gallons of water use, measured wastewater flow or winter quarter water use, whichever is applicable; plus a surcharge of $3.214 per million gallons for each milligram per liter of suspended solids in excess of 235 milligrams per liter; plus a surcharge of $2.677 per million gallons for each milligram per liter of BOD in excess of 265 milligrams per liter or a surcharge of $1.690 per million gallons for each milligram per liter of COD in excess of 400 milligrams per liter, or a surcharge of $5.003 per million gallons for each milligram per liter of TOC in excess of 130 milligrams per liter, whichever is applicable. The user shall pay this calculated amount plus the applicable base charge set forth below: Size of water meter (inches) Base charge ¾ or smaller $8.39 1 $19.37 1½ $38.99 6.7 Packet Pg. 165 Attachment: Ordinance No. 144, 2015 (Option B) (3783 : SR 140-146 Utilities Rates) 2 $66.71 3 $106.58 4 $168.33 6 $737.91 8 $852.02 G User outside City limits The rate for users outside the City limits shall be the same as for like service inside the City limits as is specified in Categories A—F and H in this Section. H Special with agreement The rate pursuant to a special wastewater services agreement approved by the City Council pursuant to § 26-290 shall be set forth in said agreement. Category Class of Customer Rate A Single-family residential user (flat rate) Per month $37.87 Single-family residential user (metered water use) 1. Per month $16.92 2. Plus, per 1,000 gallons per month $3.287 Note: 1. For single family customers who have not yet established a winter quarter water use at the service address, a system average of 4,800 gallons per month shall be billed. 2. After establishment of a winter quarter water use at the service address, the monthly amount billed shall be based on a minimum of 3,000 gallons per month. B Duplex (two- family) residential users (flat Per month $52.33 6.7 Packet Pg. 166 Attachment: Ordinance No. 144, 2015 (Option B) (3783 : SR 140-146 Utilities Rates) rate) Duplex (two- family) residential users (metered water use) Per month $19.39 Or, per 1,000 gallons per month $2.910 Note: 1. For duplex customers who have not yet established a winter quarter water use at the service address, a system average 7,200 gallons shall be billed. 2. After establishment of a winter quarter use at the service address, the monthly amount billed shall be based on a minimum of 4,000 gallons per month. C Multi-family residential user (more than two dwelling units including mobile home parks) and winter quarter based nonresidential user 1. Base charge per month per dwelling unit served $2.56 2. Plus, per 1,000 gallons per month $3.256 Note: 1. For multi-family customers who have not yet established a winter quarter water use at the service address, a system average of 3,400 gallons per living unit shall be billed. However, Category D rates will apply to multi-family residential units under construction during the period of service from the installation of the water meter to the date the certificate of occupancy is issued. 2. After establishment of a winter quarter use at the service address, the monthly amount billed shall be per 1,000 gallons of winter quarter water use, calculated on a monthly basis. D Minor nonresidential user 1. Per 1,000 gallons of water use, measured sewage flow or winter quarter water use, whichever is applicable, to be calculated on a monthly basis, plus the following applicable base charge: $3.091 2. Size of water meter (inches) Base charge ¾ or smaller $8.92 1 $20.59 6.7 Packet Pg. 167 Attachment: Ordinance No. 144, 2015 (Option B) (3783 : SR 140-146 Utilities Rates) 1½ $41.45 2 $70.91 3 $113.29 4 $178.93 6 $784.40 8 $905.70 E and F Intermediate nonresidential user and Significant industrial user User shall pay an amount calculated to include: 1. Rate per 1,000 gallons of water use, measured wastewater flow or winter quarter water use per month, whichever is applicable; $3.091 2. PLUS a surcharge per million gallons for each milligram per liter of suspended solids in excess of 235 milligrams per liter; $3.535 3. PLUS a surcharge for the following: a. per million gallons for each milligram per liter of BOD in excess of 265 milligrams per liter; or b. per million gallons for each milligram per liter of COD in excess of 400 milligrams per liter; or c. per million gallons for each milligram per liter of TOC in excess of 130 milligrams per liter, whichever is applicable. $2.945 $1.859 $5.503 The user shall pay the calculated amount based on 1, 2 and 3 above, plus the applicable base charge set forth below: 6.7 Packet Pg. 168 Attachment: Ordinance No. 144, 2015 (Option B) (3783 : SR 140-146 Utilities Rates) Size of water meter (inches) Base charge ¾ or smaller $8.92 1 $20.59 1½ $41.45 2 $70.91 3 $113.29 4 $178.93 6 $784.40 8 $905.70 G User outside City limits The rate for users outside the City limits shall be the same as for like service inside the City limits as is specified in Categories A—F and H in this Section. H Special with agreement The rate pursuant to a special wastewater services agreement approved by the City Council pursuant to § 26-290 shall be set forth in said agreement. Section 3. That Section 26-282(a) of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-282. Wastewater strength or industrial surcharges and categories established. (a) The schedule ofA monthly wastewater strength surcharge forshall be paid by customers located either inside or outside the City limits shall be as followsin accordance with the following schedule: Parameter Excess over (mg/l) Rate per thousand gallons BOD 265 $0.002677 $0.002945 COD 400 $0.001690 $0.001859 6.7 Packet Pg. 169 Attachment: Ordinance No. 144, 2015 (Option B) (3783 : SR 140-146 Utilities Rates) TOC 130 $0.005003 $0.005503 TSS 235 $0.003214 $0.003535 . . . Section 4. That Section 26-289 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-289. Miscellaneous fees and charges. The following is a schedule of miscellaneous fees and charges: Description Amount (1) Connection fees and service charges Fees shall be set forth as in Subsection 26-712(b) (2) Industrial discharge permits: a. Administration $76.00 annually b. Surveillance Determined for each user annually, based on direct cost plus 15% indirect costs, billed monthly (3) Laboratory support services Determined on a case-by-case basis based on direct cost plus 15% indirect costs (4) Materials and labor provided by City Determined on a case-by-case basis based on direct cost plus 15% indirect costs (5) Charges for disposal at the Fort Collins Regional Sanitary Waste Transfer Station: a. Septic tanks, vaults, privies, portable toilets: Generated within Larimer County $0.071 per gallon Generated outside Larimer County $0.108 per gallon b. Recreational vehicle sanitary waste holding tanks: Residential customers of the City of No charge for individual disposal at Transfer Station 6.7 Packet Pg. 170 Attachment: Ordinance No. 144, 2015 (Option B) (3783 : SR 140-146 Utilities Rates) Fort Collins Wastewater Utility Others $2.35 base fee plus $0.071 per gallon (6) Interest rate for wastewater service- related loans: 2.5% - 10% per annum; to be set for new loans annually based on the City's cost of capital minus 100 to 200 basis points in the administrative rules and regulations of the Financial Officer pursuant to § 26- 720 (7) Loan-related fees for wastewater service-related loans To be set based on related program costs in the administrative rules and regulations of the Financial Officer pursuant to § 26-720 (8) Miscellaneous fees Determined on a case-by-case basis based on direct costs plus 15% indirect costs Description Basis Amount (1) Connection fees and service charges Fees shall be set forth as in Subsection 26-712(b) (2) Industrial discharge permits: a. Administration Annually $76.00 b. Surveillance (on request) Determined for each user annually, based on direct cost plus 15% indirect costs, billed monthly (3) Laboratory support services (on request) Determined on a case-by-case basis based on direct cost plus 15% indirect costs (4) Materials and labor provided by City (on request) Determined on a case-by-case basis based on direct cost plus 15% indirect costs (5) Charges for disposal at the Fort Collins Regional Sanitary Waste Transfer Station: 6.7 Packet Pg. 171 Attachment: Ordinance No. 144, 2015 (Option B) (3783 : SR 140-146 Utilities Rates) a. Septic tanks, vaults, privies, portable toilets: 1. Generated within Larimer County Per gallon $0.074 2. Generated outside Larimer County Per gallon $0.113 b. Recreational vehicle sanitary waste holding tanks: 1. Residential customers of the City of Fort Collins Wastewater Utility No charge for individual disposal at Transfer Station 2. Others 1. Base fee $2.46 2. Plus, per gallon $0.074 (6) Interest rate for wastewater service-related loans: 2.5% - 10% per annum; to be set for new loans annually based on the City's cost of capital minus 100 to 200 basis points in the administrative rules and regulations of the Financial Officer pursuant to § 26-720 (7) Loan-related fees for wastewater service-related loans To be set based on related program costs in the administrative rules and regulations of the Financial Officer pursuant to § 26-720 (8) Miscellaneous fees Determined on a case-by-case basis based on direct costs plus 15% indirect costs Section 5. That the modifications set forth above shall be effective for meter readings on or after January 1, 2016, and in the case of fees not based on meter readings, shall be effective for all fees paid on or after January 1, 2016. 6.7 Packet Pg. 172 Attachment: Ordinance No. 144, 2015 (Option B) (3783 : SR 140-146 Utilities Rates) Introduced, considered favorably on first reading, and ordered published this 3rd day of November, 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on this 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk 6.7 Packet Pg. 173 Attachment: Ordinance No. 144, 2015 (Option B) (3783 : SR 140-146 Utilities Rates) - 1 - ORDINANCE NO. 145, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS TO REVISE SEWER PLANT INVESTMENT FEES WHEREAS, the City Council is empowered and directed by Article XII, Section 6 of the Charter of the City of Fort Collins, to by ordinance from time to time fix, establish, maintain and provide for the collection of such rates, fees or charges for utility services furnished by the City as will produce revenues sufficient to pay the costs, expenses, and other obligations as set forth therein; and WHEREAS, Article IV, Chapter 26 of the City Code establishes the wastewater utility as a utility service furnished by and an enterprise of the City; and WHEREAS, City Code Sections 26-283 and 26-284 provide for sewer plant investment fees (“SPIFs”) to be based on and used for growth-related capital expansion costs of wastewater collection, transmission and treatment facilities; and WHEREAS, City Code Section 26-283 further requires that the City Manager annually review the parameters and rates of the SPIFs and also requires that the City Manager present such fees to the City Council for approval no less frequently than biennially; and WHEREAS, the City Manager and City staff have recommended to City Council adjustment of the scope of the SPIFs imposed by City Code Section 26-283 to include in its calculation the City’s quantifiable and reasonable growth-related costs for impacts to Utilities Services’ capital administrative facilities that are reasonably related to the overall cost of and required in providing wastewater services to serve new development, as permitted by Colorado law; and WHEREAS, the City Manager and City staff have also recommended to the City Council adjustment of the SPIFs as set forth herein to be effective January 1, 2016; and WHEREAS, the Water Board considered the proposed SPIFs adjustments for 2016 at its meeting on September 17, 2015 and recommended approval of the proposed adjustments by a unanimous vote; and WHEREAS, based on the foregoing, City Council desires to amend Chapter 26 of the City Code to adjust the scope and rate of the PIFs as set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above. 6.8 Packet Pg. 174 Attachment: Ordinance No. 145, 2015 (3783 : SR 140-146 Utilities Rates) - 2 - Section 2. That Section 26-283(b) of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-283. - Sewer plant investment fees (SPIF); basis. . . . (b) The SPIF shall be based on and used for growth-related capital expansion costs of wastewater collection, transmission, treatment and administrative facilities that are reasonably related to the overall cost of and required in providing wastewater services to serve new development. The fee shall vary with the number of dwelling units for residential users. For nonresidential users, the fee shall be based on: (1) quantity of discharge that may be determined by size of water meter or other means of accurately measuring or calculating flow quantity as approved by the Utilities Executive Director; and (2) the level of wastewater concentration of organic and solid materials. The parameters and rates shall be reviewed by the City Manager annually and fees shall be presented to the City Council for approval no less frequently than biennially. . . . Section 3. That Section 26-284 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-284. - Sewer plant investment fees and surcharges established. (a) The schedule of sewer plant investment fees, subject to the exceptions and additional requirements provided in this Section, is as follows: Category SPIF A Single-family Per dwelling $3,500 B and C Duplex and Multi-family Per each dwelling unit or mobile home space $2,520 D, E, F Non-residential and Industrial Water meter size (inches) Fee Fee ¾ $7,130 6.8 Packet Pg. 175 Attachment: Ordinance No. 145, 2015 (3783 : SR 140-146 Utilities Rates) - 3 - 1 $17,200 1½ $33,410 2 $59,140 3 and above Calculated on an individual basis based on peak wastewater flow (determined in the manner set forth hereinafter) but not less than the charge for a two- inch meter G User outside Same as equivalent category, plus any special sanitation district fees H Special Determined pursuant to Subsection (d) of this Section . . . (d) The amount of the plant investment fee and surcharge for each nonresidential surcharged user, users in Category H and any user that is expected to generate greater than its proportionate share of peak day flow at the treatment plant for the applicable category (including both contributed wastewater volume and volume related to infiltration and inflow), shall be calculated utilizing the following formula: SPIF = Site Flow × [Flow$ + (BOD × BOD $) + (TSS × TSS$ )] + I&I Flow × [Flow$ + (200 mg/l × BOD$) + (250 mg/l × TSS $)] Where: SPIF = Plant investment fee for Category H users and users discharging wastewater with average concentrations of BOD and/or TSS which exceed those average concentrations which are set forth in § 26-282(b) under Category E-34 Site Flow = The user's proportionate share of peak day flow at the treatment plant based on site flow discharge from user's site 6.8 Packet Pg. 176 Attachment: Ordinance No. 145, 2015 (3783 : SR 140-146 Utilities Rates) - 4 - I&I Flow = That proportionate share of peak day flow due to infiltration and inflow as allocated to user's site flow discharge. I&I Flow is calculated based on Site Flow multiplied by 46.5% Flow$ = Unit cost of facilities attributable to treating wastewater flow Per Gallon $8.76 BOD = Average BOD concentration for user category or measured BOD concentration for the user as determined in accordance with Subsection (c) of this Section, but not less than 200 mg/l BOD$ = Unit cost of facilities attributable to treating BOD Per mg/l $0.0130 TSS = Average TSS concentration for user category or measured TSS concentration for the user as determined in accordance with Subsection (c) of this Section, but not less than 250 mg/l TSS$ = Unit cost of facilities attributable to treating TSS Per mg/l $0.0104 . . . (f) For purposes of this Section, the proportionate share of peak day flow at the treatment plant for users in Categories D, E and F shall be deemed to be: Water Meter Size (inches) Peak Flow (gallons per day) ¾ 510 1 1,230 1½ 2,390 2 4,230 6.8 Packet Pg. 177 Attachment: Ordinance No. 145, 2015 (3783 : SR 140-146 Utilities Rates) - 5 - 3 and greater Calculated on an individual basis based on user's proportionate share of peak day flow at the treatment plant (including both contributed wastewater volume and volume related to infiltration and inflow) but not less than the peak day flow for a two-inch meter Section 4. That the modifications set forth above shall be effective for all fees paid on or after January 1, 2016. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on this 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk 6.8 Packet Pg. 178 Attachment: Ordinance No. 145, 2015 (3783 : SR 140-146 Utilities Rates) - 1 - ORDINANCE NO. 146, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS TO REVISE THE STORMWATER PLANT INVESTMENT FEES WHEREAS, the City Council is empowered and directed by Article XII, Section 6 of the Charter of the City of Fort Collins, to by ordinance from time to time fix, establish, maintain and provide for the collection of such rates, fees or charges for utility services furnished by the City as will produce revenues sufficient to pay the costs, expenses, and other obligations as set forth therein; and WHEREAS, Article III, Chapter 26 of the City Code establishes the stormwater utility as a utility service furnished by and an enterprise of the City; and WHEREAS, City Council has adopted stormwater basin and City-wide master plans recommending stormwater facilities necessary to provide for proper drainage and control of flood and surface waters within the City; and WHEREAS, in 1998, City Council adopted ordinance No. 168, 1998, determining that all lands within the City benefit by the installation of such stormwater facilities; and WHEREAS, existing stormwater rate payers have paid for the design, right of way, and construction of stormwater facilities identified in the drainage basin mater plans that will benefit and be utilized by new development; and WHEREAS, City Council has determined that new development should pay its proportionate share of the costs of capital stormwater facilities in existence at the time of development in the form of a stormwater plant investment fee as established by City Code Section 26-512 (“Stormwater PIF”); and WHEREAS, City Code Section 26-511(a) requires that the City Manager review the rates and parameters for the Stormwater PIF annually and present them to City Council for approval no less frequently than biennially; and WHEREAS, on November 5, 2013, City Council adopted Ordinance No. 142, 2013, which established the Stormwater PIF now in effect; and WHEREAS, the City Manager and City staff have recommended to City Council adjustment of the scope of the Stormwater PIF imposed by City Code Section 26-512 to include in its calculation the City’s quantifiable and reasonable growth-related costs for impacts to Utilities Services’ capital administrative facilities that are reasonably related to the overall cost of and required in providing stormwater services to serve new development, as permitted by Colorado law; and 6.9 Packet Pg. 179 Attachment: Ordinance No. 146, 2015 (3783 : SR 140-146 Utilities Rates) - 2 - WHEREAS, the City Manager and City staff have also recommended to the City Council adjustment of the Stormwater PIF as set forth herein to be effective January 1, 2016; and WHEREAS, the Water Board considered the proposed Stormwater PIF adjustments for 2016 at its meeting on September 17, 2015 and recommended approval of the proposed adjustments by a unanimous vote; and WHEREAS, based on the foregoing, City Council desires to amend Chapter 26 of the City Code to adjust the scope and rate of the Stormwater PIF as set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above. Section 2. That Section 26-512 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 26-512. - Stormwater plant investment fees established. There is hereby imposed on each and every lot or parcel of land within the City with respect to which any improvement creates an impervious surface covering more than three hundred fifty (350) square feet of the lot or parcel, and the owners thereof, a stormwater plant investment fee. The fee is deemed reasonable and necessary to pay for a new development's share of the existing equity in the capital stormwater facilities, that have been installed for the protection of the health, safety and welfare of the inhabitants of the City and the Utilities’ capital administrative facilities that are reasonably related to the overall cost of and required in providing stormwater services to serve new development. The stormwater plant investment fee established herein shall be determined using the base rate, the area of each parcel of land, and the runoff coefficient of the parcel. The Utilities Executive Director shall determine the stormwater plant investment fee that applies to each parcel of land as follows: (1) Runoff coefficient. The runoff coefficient of each parcel of land shall be that used in the engineering formula known as the rational method. The Utilities Executive Director shall determine the runoff coefficient for each parcel of land based on the following formula: Runoff coefficient = [(percent effective impervious area) × 0.95] + [(percent pervious area) × 0.20] + [(percent semipervious area) × 0.50)] The following definitions shall apply for the purpose of such formula: Percent effective impervious area shall mean the percentage of the total parcel area determined to constitute the equivalent impervious area on a parcel as calculated for the one-hundred-year, two-hour Fort Collins Design Storm as defined in Volume 1, Chapter 4, of the Fort Collins Stormwater Criteria Manual. The determination shall be made 6.9 Packet Pg. 180 Attachment: Ordinance No. 146, 2015 (3783 : SR 140-146 Utilities Rates) - 3 - using the procedures and methodology described in Volume 3, Sections 4 and 5, of the Stormwater Criteria Manual. Percent pervious area shall mean the percentage of the total parcel area that is pervious, such as lawn, open space or planted areas. Percent semipervious area shall mean the percentage of the total parcel area that is semipervious, such as gravel areas. (2) Plant investment fee base rate. The stormwater plant investment fee base rate is hereby established as follows: Per gross acre of area $8,217 (3) Area. The stormwater plant investment fee calculation for each parcel of land shall be predicated upon the gross area in acres of the parcel. (4) Calculation. a. Initial improvements. The stormwater plant investment fee for each parcel of land shall be calculated in accordance with the following formula: Plant investment fee = (runoff coefficient) × (Plant investment fee base rate) × (area). b. Additions, expansions, increased impervious area. The stormwater plant investment fee calculation for each developed parcel of land upon which an addition or expansion is proposed, whether attached to an existing structure or not, shall be calculated in accordance with the following formula: Plant investment fee shall equal the difference between the fee as calculated in accordance with the formula set forth in Subparagraph a. of this Subsection for the parcel with all existing and proposed improvements and the same parcel with only the existing improvements. Section 3. That the modifications set forth above shall be effective for all fees paid on or after January 1, 2016. 6.9 Packet Pg. 181 Attachment: Ordinance No. 146, 2015 (3783 : SR 140-146 Utilities Rates) - 4 - Introduced, considered favorably on first reading, and ordered published this 3rd day of November, A.D. 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 17th day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 6.9 Packet Pg. 182 Attachment: Ordinance No. 146, 2015 (3783 : SR 140-146 Utilities Rates) Agenda Item 7 Item # 7 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Seonah Kendall, Economic Policy & Project Manager SUBJECT First Reading of Ordinance No. 147, 2015, Appropriating Prior Year Reserves in the General Fund to Reimburse Avago Wireless Technologies (U.S.A.) Manufacturing, Inc. For Use and Business Personal Property Taxes as Provided in Business Investment Agreements. EXECUTIVE SUMMARY The purpose of this item is to appropriate $467,663 of prior year reserves from the General Fund for a rebate to Avago Wireless Technologies (USA) Mfg. for use tax and business personal property tax rebates under two business investment agreements. The agreements provide business investment assistance to Avago for the expansion and retrofit of Avago’s Building 4 for a wafer fabrication facility in 2012 and for a FBAR clean room facility in 2013. These two projects created an additional 227 primary jobs in the city. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION Agreement Summary On July 19, 2011, City Council adopted Resolution 2011-066, approving a Business Investment Agreement, which the City and Avago entered into on July 25, 2012 (the 2012 Agreement). The 2012 Agreement provides business investment assistance to Avago for the expansion and retrofit of its Building 4 for a new wafer fabrication facility. On October 16, 2012, City Council adopted Resolution 2012-096, approving a second Business Investment Agreement with Avago, which the City and Avago entered into on June 5, 2013 (the 2013 Agreement). The 2013 Agreement provides business investment assistance to Avago for the expansion and retrofit of its Building 4 - for a new FBAR clean room facility. The 2012 and 2013 Agreements provide that Avago is eligible for the following rebates: 2012 Agreement (wafer fabrication facility): Use tax on new “Eligible Manufacturing Equipment” (up to 100%) for the period beginning August 1, 2011 and ending December 31, 2013, subject to a limit on the total use tax rebate amount of $1,725,000. A total of $1,089,734 in use tax rebates was paid to Avago in 2013 and 2014 under the 2012 Agreement. Avago is not eligible for any additional use tax rebates under the 2012 Agreement, so no use tax rebate is now being requested under the 2012 Agreement. Business Personal Property Tax Rebates (up to 50%) for a ten-year period for the Eligible Manufacturing Equipment purchased for the period beginning August 1, 2011 and ending December 31, 2013. Each annual payment is limited to $81,700, or 50% of City business personal property taxes actually paid for the Eligible Manufacturing Equipment so purchased for the wafer fabrication facility project, whichever is lower. For 2015, Avago is eligible for a business personal property tax rebate of $37,127 under the 2012 Agreement. 7 Packet Pg. 183 Agenda Item 7 Item # 7 Page 2 2013 Agreement (FBAR clean room facility): Use tax on new Eligible Manufacturing Equipment (up to 100%) for the period beginning October 26, 2012 and ending December 31, 2014, subject to a limit on the total use tax rebate amount of $3,882,200. For 2015, Avago is eligible for a use tax rebate of $329,629 under the 2013 Agreement. Business Personal Property Tax Rebate (up to 50%) for a ten-year period for the Eligible Manufacturing Equipment purchased for the period beginning October 26, 2012 and ending December 31, 2014. A limit on each annual payment is $100,907, or 50% of City business personal property taxes actually paid for the Eligible Manufacturing Equipment so purchased for the FBAR clean room facility, whichever is lower. For 2015, Avago is eligible for a business personal property rebate of $100,907 under the 2013 Agreement. Employment Level Requirements The two rebate categories were offered with the stipulation that Avago’s employment levels must be maintained at the same number of employees within its Fort Collins facility as Avago employed as of June 5, 2013 (437 employees). As of December 31, 2014, Avago had 996 full time equivalent employees. Rebate schedule as agreed upon with Avago Staff has developed a rebate schedule with Avago which is consistent with the 2012 and 2013 Agreements whereby two rebate applications will be processed each year. CITY FINANCIAL IMPACTS The total rebate amount is $467,663 of prior year reserves from the General Fund. 7 Packet Pg. 184 ORDINANCE NO. 147, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING PRIOR YEAR RESERVES IN THE GENERAL FUND TO REIMBURSE AVAGO WIRELESS TECHNOLOGIES (U.S.A.) MANUFACTURING, INC. FOR USE AND BUSINESS PERSONAL PROPERTY TAXES AS PROVIDED IN BUSINESS INVESTMENT AGREEMENTS WHEREAS, the City of Fort Collins (“City”) and Avago Wireless Technologies (U.S.A.) Manufacturing, Inc. (“Avago”) have previously entered into that certain “Business Investment Agreement For Economic Development Related to Avago Technologies Building 4 Retrofit” dated July 25, 2012 (the “2012 Agreement”) and that certain “Business Investment Agreement for Economic Development Related to Avago Technologies Building 4 Retrofit for New FBAR Clean Room Facility” dated June 5, 2013 (the “2013 Agreement”); and WHEREAS, the 2012 Agreement and 2013 Agreement shall be hereinafter be referred to jointly as the “Agreements”; and WHEREAS, the 2012 Agreement was approved by City Council on July 19, 2011, in Resolution No. 066, 2011, and the 2013 Agreement was approved by City Council on October 16, 2012, in Resolution No. 096, 2012; and WHEREAS, the 2012 Agreement provides certain business investment assistance to Avago for the retrofit of its Building 4 for a new wafer fabrication facility and the 2013 Agreement provides similar assistance to Avago for the retrofit of its Building 4 for a new FBAR clean room facility; and WHEREAS, the Agreements provide that Avago is eligible for reimbursement from the City for the following paid by it to the City, subject to certain limitations: (1) Use Tax on new Eligible Equipment, (2) Business Personal Property Tax on Eligible Manufacturing Equipment; and WHEREAS, under the Agreements, Avago can apply for reimbursement biannually for both rebates; and WHEREAS, all funds reimbursed must be appropriated by Council as part of the rebate process; and WHEREAS, staff is requesting an appropriation for the full amount of $467,663 from prior year reserves in the General Fund to reimburse Avago in accordance with the Agreements; and WHEREAS, Article V, Section 9, of the City Charter also permits the City Council to appropriate by ordinance at any time during the fiscal year such funds for expenditure as may be available from reserves accumulated in prior years, notwithstanding that such reserves were not previously appropriated. Packet Pg. 185 NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that there is hereby appropriated for expenditure from prior year reserves in the General Fund the sum of FOUR HUNDRED SIXTY-SEVEN THOUSAND SIX HUNDRED SIXTY-THREE DOLLARS ($467,663) to reimburse Avago for Use Tax and Business Personal Property Tax as required by the Agreements. Introduced, considered favorably on first reading, and ordered published this 17th day of November, A.D. 2015, and to be presented for final passage on the 1st day of December, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of December, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Packet Pg. 186 Agenda Item 8 Item # 8 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Tiana Smith, Revenue and Project Manager Mike Beckstead, Chief Financial Officer SUBJECT First Reading of Ordinance No. 148, 2015, Amending the Code of the City of Fort Collins to Increase the Amounts of the Capital Improvement Expansion Fees Contained in Chapter 7.5 of the City Code so as to Reflect Inflation in Associated Costs of Services. EXECUTIVE SUMMARY The purpose of this item is to update the City Code, which requires an annual adjustment to certain building permit related fees. Capital Improvement Expansion fees and Neighborhood Parkland fees are to reflect the changes in the Denver-Boulder-Greeley Consumer Price Index (CPI). Street Oversizing fees are adjusted by the changes posted in the Engineering News Record (ENR). The CPI has increased 1.0% since its last adjustment and the ENR has not changed significantly enough to warrant an adjustment. These increases will go into effect on January 1, 2016. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION In May 1996, Council adopted Ordinance No. 051, 1996, which established capital improvement expansion fees for Community Parkland, Police, Fire, and General Government services. The purpose for the fees is to have new development pay a proportionate share of the capital improvements and equipment costs that will be necessary to provide services to new development. The Code provisions approved by Ordinance No. 051, 1996, provide for the annual adjustment of the fees to keep up with inflation, using the Denver-Boulder (now Denver-Boulder-Greeley) Consumer Price Index. The City has imposed a Neighborhood Parkland fee for neighborhood parks since 1968. In August 1996, Council adopted Ordinance No. 105, 1996, which aligned the Neighborhood Parkland fee to the housing size differentials in the Capital Improvement Expansion fee ordinance, and updated the fee schedule to reflect pre- 1996 inflation. The Neighborhood Parkland fees have been adjusted for inflation in 1997-2007, along with the Capital Improvement Expansion fees. In 2013, Council adopted Ordinance No. 120, 2013, which updated the residential and commercial fees to the current level of service. The residential fees were implemented at 100% effective October 3, 2013 and the commercial fees were implemented in a phased approach at 60% in October, 2013, 80% in 2015 and 100% in 2016. Based on the Denver-Boulder-Greeley Consumer Price Index for all urban consumers, the inflation level since the last annual adjustment is an increase of 1.0% for 2016. This Ordinance adjusts the fee schedules described in Chapter 7.5 of the City Code to account for inflation and adjusts the commercial fees to 100% of the 2013 study plus inflation. In the Ordinance, all amounts for the capital improvement expansion fees have 8 Packet Pg. 187 Agenda Item 8 Item # 8 Page 2 been rounded to the nearest dollar. These changes will go into effect on January 1, 2016. CITY FINANCIAL IMPACTS 2016 Capital Expansion Fees Table N'hood Comm. Gen. Land Use Type Unit Park Park Fire Police Gov't Total Updated Fees Resid., up to 700 sf Dwelling $1,262 $1,069 $272 $137 $321 $3,061 Resid., 701-1,200 sf Dwelling $1,619 $1,373 $346 $173 $410 $3,921 Resid., 1,201-1,700 sf Dwelling $1,788 $1,516 $384 $192 $452 $4,332 Resid., 1,701-2,200 sf Dwelling $1,863 $1,580 $399 $200 $473 $4,515 Resid., over 2,200 sf Dwelling $1,996 $1,692 $427 $214 $507 $4,837 Commercial 100% 1,000 sf $0 $0 $329 $165 $780 $1,274 Industrial 100% 1,000 sf $0 $0 $78 $40 $183 $300 2016 Updated CIE Fees 2016 Update to Capital Expansion Fees When Finance undertook this effort in 2013, it committed to re-evaluate the capital expansion fees on a 3-5 year cycle. In 2016 Finance will hire a consultant to conduct a study to update the capital expansion fees for the next 3-year cycle. PUBLIC OUTREACH This is an update to an ordinance passed in 2013 by City Council taking the commercial capital expansion fees up to the agreed upon 100% phased-in amount after three years. Extensive public outreach was completed in 2013. There was no public outreach for this update completed in 2015. 8 Packet Pg. 188 ORDINANCE NO. 148, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING THE CODE OF THE CITY OF FORT COLLINS TO INCREASE THE AMOUNTS OF THE CAPITAL IMPROVEMENT EXPANSION FEES CONTAINED IN CHAPTER 7.5 OF THE CITY CODE SO AS TO REFLECT INFLATION IN ASSOCIATED COSTS OF SERVICES WHEREAS, the City is a home rule municipality having the full right of self-government in local and municipal matters under the provisions of Article XX, Section 6 of the Colorado Constitution; and WHEREAS, among the City’s home rule powers and authority is the power to regulate, as a matter of purely local concern, the development of real property within the City and the authority to fund and construct, as matters of purely location concern, public improvements; and WHEREAS, the City’s comprehensive plan shows that the rate of future growth and development in Fort Collins will require a substantial expansion in community park, police, fire, and general government facilities, and related capital equipment, if its level of service standards for such facilities are to be maintained; and WHEREAS, the City Council has determined that new development should contribute its proportionate share of providing such capital improvements; and WHEREAS, the City Council has broad legislative discretion in determining the appropriate funding mechanisms for financing the construction of public facilities in the City; and WHEREAS, based on the foregoing, the City Council has adopted Ordinance No. 051, 1996, establishing certain capital improvement expansion fees; and WHEREAS, City Code Section 7.5-18 provides for annual adjustment in all capital improvement expansion fees for inflation, corresponding to the increases reflected in the Denver- Boulder Consumer Price Index for Urban Consumers, now known as the Denver-Boulder- Greeley Consumer Price Index for Urban Consumers (the “CPI”); and WHEREAS, in September 1968, the City Council adopted Ordinance No. 038, 1968, which established the original Neighborhood Parkland Fee to fund the acquisition and development of parkland, which ordinance has since been amended on several occasions to adjust the fee and to refine related procedures and requirements; and WHEREAS, with the adoption in August 1993 of Ordinance No. 082, 1993, the City Council directed the City Manager to annually review the Neighborhood Parkland Fee and submit to the Council proposed inflation-related increases based on the CPI; and Packet Pg. 189 WHEREAS, based on the Bureau of Labor Statistics’ most recent CPI, staff anticipates the Index will reflect an inflation increase of 1.0 percent since the last annual adjustment, effective January 1, 2016; and WHEREAS, the City has historically used the Engineering News Record as a reference to determine whether the Street Oversizing Capital Improvement Expansion Fee should be increased to account for rising construction costs; and WHEREAS, based on the Engineering News record, the cost of constructing street improvements has not changed significantly since the last adjustment of the Street Oversizing Capital Improvement Expansion Fee; and WHEREAS, for the foregoing reasons, the City Council has determined that it is necessary in the interests of the protection of the public health, safety and welfare, that the Capital Improvement Expansion Fees, including the Neighborhood Parkland Fee, be increased to reflect inflation as determined by the CPI. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS AS FOLLOWS: Section 1. That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above. Section 2. That effective January 1, 2016, the fee schedule in Section 7.5-28(a) of the Code of the City of Fort Collins, establishing the Community Parkland Capital Improvement Expansion Fee, is hereby amended to read as follows: 700 sq. ft. and under $1,059.001,069.00 701 to 1,200 sq. ft. 1,359.001,373.00 1,201 to 1,700 sq. ft. 1,501.001,516.00 1,701 to 2,200 sq. ft. 1,565.001,580.00 2,201 sq. ft. and over 1,676.001,692.00 Section 3. That effective January 1, 2016, the fee schedule in Section 7.5-29(a) of the Code of the City of Fort Collins, establishing the Police Capital Improvement Expansion Fee, is hereby amended to read as follows: 700 sq. ft. and under $ 135.00137.00 701 to 1,200 sq. ft. 171.00173.00 1,201 to 1,700 sq. ft. 190.00192.00 1,701 to 2,200 sq. ft. 198.00200.00 2,201 sq. ft. and over 212.00214.00 Commercial buildings (per 1,000 sq ft.) 163.00165.00 Industrial buildings 39.0040.00 Packet Pg. 190 (per 1,000 sq. ft.) Section 4. That effective January 1, 2016, the fee schedule in Section 7.5-30(a) of the Code of the City of Fort Collins, establishing the Fire Protection Capital Improvement Expansion Fee, is hereby amended to read as follows: 700 sq. ft. and under $270.00272.00 701 to 1,200 sq. ft. 343.00346.00 1,201 to 1,700 sq. ft. 380.00384.00 1,701 to 2,200 sq. ft. 395.00399.00 2,201 sq. ft. and over 423.00427.00 Commercial buildings (per 1,000 sq ft.) 326.00329.00 Industrial buildings (per 1,000 sq. ft.) 77.0078.00 Section 5. That effective January 1, 2016, the fee schedule in Section 7.5-31(a) of the Code of the City of Fort Collins, establishing the General Government Capital Improvement Expansion Fee, is hereby amended to read as follows: 700 sq. ft. and under $317.00321.00 701 to 1,200 sq. ft. 406.00410.00 1,201 to 1,700 sq. ft. 447.00452.00 1,701 to 2,200 sq. ft. 469.00473.00 2,201 sq. ft. and over 502.00507.00 Commercial buildings (per 1,000 sq ft.) 772.00780.00 Industrial buildings (per 1,000 sq. ft.) 181.00183.00 Section 6. That effective January 1, 2016, the fee schedule in Section 7.5-71(b) of the Code of the City of Fort Collins, establishing the Neighborhood Parkland Fee, is hereby amended to read as follows: 700 sq. ft. and under $1,249.001,262.00 701 to 1,200 sq. ft. 1,603.001,619.00 1,201 to 1,700 sq. ft. 1,771.001,788.00 1,701 to 2,200 sq. ft. 1,845.001,863.00 2,201 sq. ft. and over 1,976.001,996.00 Section 7. That except as expressly amended in this Ordinance, all other provisions in City Code Sections 7.5-28(a), 7.5-29(a), 7.5-30(a), 7.5-31(a), and 7.5-31(b) shall remain unchanged and in full force and effect. Packet Pg. 191 Introduced, considered favorably on first reading, and ordered published this 17th day of November, A.D. 2015, and to be presented for final passage on the 1st day of December, A.D. 2015. Mayor ATTEST: City Clerk Passed and adopted on final reading on the 1st day of December, A.D. 2015. Mayor ATTEST: City Clerk Packet Pg. 192 Agenda Item 9 Item # 9 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF John Stokes, Natural Resources Director Rick Bachand, Environmental Program Manager SUBJECT Postponement of First Reading of Ordinance No. 107, 2015, Amending Section 23-130 of the Code of the City of Fort Collins Regarding the Disposition of Lost, Abandoned or Other Unclaimed Property Indefinitely. EXECUTIVE SUMMARY Staff requests an indefinite postponement of First Reading of Ordinance No. 107, 2015. Adoption of a motion to postpone indefinitely will kill this agenda item. Based on direction from the City Manager’s office, staff will explore and develop a different approach to modifying City Code pertaining to abandoned personal property. Staff will bring the item back to Council for its consideration in the first quarter of 2016. STAFF RECOMMENDATION Staff recommends postponing First Reading of the Ordinance indefinitely. ATTACHMENTS 1. Ordinance No. 107, 2015 (to be postponed indefinitely) (PDF) 9 Packet Pg. 193 - 1 - ORDINANCE NO. 107, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTION 23-130 OF THE CODE OF THE CITY OF FORT COLLINS REGARDING THE DISPOSITION OF LOST, ABANDONED OR OTHER UNCLAIMED PROPERTY WHEREAS, Section 23-130 of the City Code currently sets forth a process by which lost, abandoned, or other unclaimed property coming into the City’s possession may be sold, kept, or destroyed by the City; and WHEREAS, said City Code provision currently requires the City to store the lost, abandoned, or other unclaimed property for not less than thirty (30) days and to thereafter publish notice in an effort to afford the owner the opportunity to reclaim the property; and WHEREAS, while this current City Code provision is effective in ensuring that property of obvious value or utility is returned to its owner, City staff has reported that other items of lost, abandoned, or unclaimed property of less obvious value and utility found upon and within City natural areas, parks, trails, and other City properties is creating handling and storage challenges for City employees and volunteers who are responsible for maintaining those City properties for the intended public use; and WHEREAS, some types of lost, abandoned, or unclaimed property, such as sleeping bags, blankets, clothing, tents, backpacks, personal hygiene items, and other camping related items are often found in wet, soiled, contaminated, or deteriorated condition which has caused them to be of little or no apparent value or utility; and WHEREAS, the presence of such personal property detracts from the lawful uses of the City property, whether for the lawful physical use of the City property or for its aesthetic value; presents health and safety concerns to those using or maintaining the City property in that such personal property can be a source of disease and infestation; and presents handling and storage concerns once it is removed from the City property, both from a space and infestation standpoint in the storage area; and WHEREAS, while in original condition, these items of personal property would be considered to be of some value or utility, the exposure to the outside elements and the other circumstances of care and use render such items of little or no value or utility; and WHEREAS, the City is responsible for maintaining its public property in a clean, safe, and obstruction-free manner; and WHEREAS, the workload resulting from the seizure of such property currently exceeds City staff’s capacity to effectively handle such items because the current City Code provisions require that they be inventoried and logged into Police Services’ property and evidence system for a thirty (30) day holding period and ten (10) day publication period; and 9.1 Packet Pg. 194 Attachment: Ordinance No. 107, 2015 (to be postponed indefinitely) (3755 : Abandoned Property Postponement) - 2 - WHEREAS, in light of the foregoing, City staff has proposed that the City Code be amended to allow for the destruction of such lost, abandoned, or other unclaimed property of little or no apparent value or utility twenty-four (24) hours after posting notice at the location where the property is found; and WHEREAS, this Ordinance will result in: (i) a reasonable and effective method of notifying persons of the need to remove personal property from City property when they are not with the property at the time it is discovered, (ii) adequate time for the property owner to move the property to a lawful location, (iii) notice that unremoved items of little apparent value or utility will be destroyed, (iv) an opportunity for a post deprivation hearing after the items of little apparent value or utility have been destroyed to contest the destruction; (v) notice that unremoved items of apparent value or utility will be removed and stored, and (vi) notice of how the owner may reclaim items of value or utility that are removed by the City; and WHEREAS, the Ordinance will continue to recognize the need to reasonably protect the personal property rights of all citizens while balancing those rights with the rights of all citizens to make lawful use of and experience the enjoyment of City property and the legitimate needs of the City related to handling and storage of such property. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby adopts the foregoing recitals and findings. Section 2. That Section 23-117 of the Code of the City of Fort Collins is hereby amended by the addition of a new definition “Trash” which reads in its entirety as follows: Trash shall mean material that is worthless, useless, or constitutes litter, and includes, but is not limited to, used food containers, soiled food, plastic or paper bags, destroyed objects, broken pieces of objects, debris, pieces of paper dropped on the ground, and similar detritus. Section 3. That Section 23-130 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 23-130. Disposition of lost, abandoned or other unclaimed property. Except as otherwise specifically provided for by law, or ordinance, or Subsections (4) through (8) below, any property seized or otherwise obtained by the City and not sold or destroyed as perishable, hazardous or illegal property and which property has not been claimed by or surrendered to the rightful owner may be disposed of in the following manner: (1) All such property must first be retained for a period of no less than thirty (30) days from the date that possession was acquired by the City; 9.1 Packet Pg. 195 Attachment: Ordinance No. 107, 2015 (to be postponed indefinitely) (3755 : Abandoned Property Postponement) - 3 - (2) After the expiration of such period of time and as soon thereafter as is practicable, the Purchasing Agent must cause to be published once in a newspaper of general circulation in the City, or advertise via electronic media, a general description of the articles of property to be disposed of, which notice must contain the following information: a. That a detailed list of each and all articles of such property is available and may be obtained from Purchasing, including the address and the hours during which such list may be obtained; b. That if such property is not claimed by the rightful owner within ten (10) calendar days from the date of the publication, such property will become the property of the City to be disposed of by public auction or otherwise, and if by public auction provide the date, place and location of any such public auction. (3) If within ten (10) days from the publication of the notice, no claim for such property described in the notice shall have been made by the rightful owner, such property shall become the property of the City and shall be disposed of in the following manner: a. Any property which was delivered to the City, the possession or use of which is not illegal or dangerous, may be returned to the person who delivered the same to the City. The City shall thereupon relinquish any claim of ownership to such property and shall thereafter be relieved of any liability to the original owner of such property or any other person. b. Any other such property may, in the discretion of the Purchasing Agent, be retained and used by the City in the administration of City affairs or for use in City or community events or programs, so long as the use and distribution of such property is in accordance with the Purchasing Agent's established policies and guidelines approved by the City Manager. c. All other property shall be sold at public auction, including an auction via electronic media in the manner and upon the terms described in the above notice, with the proceeds of any such sale or sales to be paid to the Financial Officer to be placed in the general fund of the City after deducting the cost of storage, advertising and selling. d. Any unclaimed property which is of little or no marketable value may be destroyed. (4) Notwithstanding any of the foregoing provisions to the contrary, the disposition of firearms or other weapons shall be governed by the following additional provisions: 9.1 Packet Pg. 196 Attachment: Ordinance No. 107, 2015 (to be postponed indefinitely) (3755 : Abandoned Property Postponement) - 4 - a. Firearms and other weapons shall be disposed of at the sole discretion of the Chief of Police, who may: 1. Authorize sale or destruction; or 2. Authorize retention for the purpose of training members of Police Services in the safe handling and operation of those weapons. Any firearm so retained shall be rendered inoperable. b. Sales of firearms shall be restricted to licensed dealers or licensed collectors (licensed under the Federal Gun Control Act of 1988). (5) Notwithstanding any of the forgoing provisions to the contrary, lost, abandoned, or unclaimed personal property of little or no apparent value or utility, as reasonably determined by a peace officer or specially commissioned officer of the City, that is found upon and within a City natural area, park, trail, or on other City property, may be destroyed or otherwise disposed of immediately if the conditions of subsections (a) and (b) are both met: a. It has been determined that: 1. No person claiming ownership of the property is within the immediate vicinity of such property; or 2. A person claiming ownership of the property is within the immediate vicinity of such property, and refuses to immediately remove all of his or her property; or 3. Identifying contact information is readily apparent at the site of the property and the officer has attempted to, but has not been successful in, contacting the property owner to obtain removal of the property. b. Notice in English and Spanish, has been posted at the site of the property not less than twenty-four (24) hours before removal, stating the following: 1. That the property must be removed not later than the date and time posted (twenty-four hours from posting); and 2. That unremoved items of little apparent value or utility will be destroyed or otherwise disposed of; and 3. That unremoved items of apparent significant value or utility will be removed and stored; and 9.1 Packet Pg. 197 Attachment: Ordinance No. 107, 2015 (to be postponed indefinitely) (3755 : Abandoned Property Postponement) - 5 - 4. That the owner may contact the City at given phone numbers and/or locations to ask questions or reclaim items of value or utility that are removed by the City; and 5. The citation to this City Code provision permitting the destruction or disposal of the property; or (6) If the material is reasonably determined by a peace officer or specially commissioned officer of the City to constitute trash, it will be destroyed or disposed of without notice or hearing. (7) In making the determination regarding value or utility of the personal property as described in Subsection (5) above, the officer shall consider the following factors if applicable: a. The apparent condition of the property, including, but not limited to, whether it is damp, soiled, moldy, infested, or in a state of substantial disrepair, and its apparent ability to serve its intended purpose in its current condition; and b. The material of which the property is made or constructed; and c. Whether the property would have significant marketable value in its current condition; and d. The degree to which the property is protected from or exposed to the elements of nature and therefore susceptible to damage or deterioration; and e. Whether the property could reasonably appear to have personal value to the owner for sentimental or business purposes, such as photos, documents of identification, letters, or other written materials; and f. Any other factors apparent to the officer which would have an impact on its value or utility. (8) Administrative review of the destruction or disposal of any property under Subsection (5) and review of any request for reasonable compensation in connection with the same shall be as provided in this Subsection. a. To request a hearing to review the decision regarding the destruction or disposal of property under Subsection (5) and to request reasonable compensation, the owner of the property must notify, either orally or in writing, the Safety, Security and Risk Management Department within thirty (30) days of destruction or disposal. 9.1 Packet Pg. 198 Attachment: Ordinance No. 107, 2015 (to be postponed indefinitely) (3755 : Abandoned Property Postponement) - 6 - b. Except as agreed by the requesting party, any requested hearing must take place within thirty (30) days of receipt by the City of the request for hearing. The hearing officer may be an independent contractor to the City or any employee or officer of the City appointed as the hearing officer by the Director of the Safety, Security and Risk Management Department, so long as such appointee was not involved in the removal, destruction, or disposal of the property at issue. c. The hearing decision may be appealed to the City Manager pursuant to the appeals procedure set forth in Article VI of Chapter 2 of this Code. The City Manager’s decision will be final. d. A request for a hearing by said property owner as provided in this Section shall not constitute a written notice of injury as defined in §24-10- 109, Colorado Revised Statutes. Introduced, considered favorably on first reading, and ordered published this 1st day of September, A.D. 2015, and to be presented for final passage on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 15th day of September, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk 9.1 Packet Pg. 199 Attachment: Ordinance No. 107, 2015 (to be postponed indefinitely) (3755 : Abandoned Property Postponement) Agenda Item 10 Item # 10 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Tawnya Ernst, Real Estate Specialist III John Stokes, Natural Resources Director SUBJECT First Reading of Ordinance No. 149, 2015, Authorizing the Conveyance of an Easement on Maxwell Natural Area to the Board of Governors of the Colorado State University System. EXECUTIVE SUMMARY The purpose of this item is to authorize conveyance of a permanent easement to Colorado State University on Maxwell Natural Area that will replace a 99-year lease for access to maintain the Aggie “A” on the Natural Area. The Natural Areas Department proposes that the City enter into a permanent easement agreement with the Board of Governors of the Colorado State University System (CSU) on Maxwell Natural Area. The easement will replace a 99-year lease that provided CSU with access to maintain the Aggie “A” on the Natural Area. The easement will also enable CSU and its students to carry out two other group activities that currently require annual permits from Natural Areas. CSU’s current access typically has minimal impact to the Natural Area and no additional impacts are anticipated. No other access rights are to be conveyed. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION In the late 1970s, the City Parks and Recreation Department acquired more than 160 acres from the Maxwell family (the property is part of Maxwell Natural Area and is owned/managed by the Natural Areas Department - see Attachments 1 and 2). At the time the land was purchased, the property was already subject to an existing 99-year lease (set to expire on December 19, 2022) between R.G. Maxwell and the State Board of Agriculture. The lease gives the State Board of Agriculture and its successors the right of ingress and egress to the Maxwell property for the purpose of constructing and repairing the Aggie “A”. The “A” was constructed in 1923 and has been registered since 1995 on the Colorado State Register of Historic Properties as an example of hillside monograms which are distinctive landmarks in western states. (Note: The “A” is not a set structure (e.g., concrete) but instead consists of rocks and vegetation painted white in the shape of the letter. It is approximately 450 feet long and 210 feet across.) Over the years, CSU’s use of Maxwell Natural Area has expanded from maintenance of the “A” to include two additional student activities: the annual freshman hike to the “A” and the lighting of the “A” at homecoming. These activities, including the painting of the “A”, have necessitated multiple permits on a yearly basis since Natural Areas has made special allowances for off-trail use for large groups (the painting of the “A” involves upwards of 70 people). At the request of the City Manager’s office, Natural Areas staff began exploring alternatives to the lease and permit arrangement to simplify the process for CSU and for Natural Areas. Natural Areas staff met with CSU representatives earlier this year and discussed several options, including an updated lease, a potential land trade, and a permanent easement. The parties agreed that a permanent easement would provide the best solution - the easement enables NAD to retain management responsibilities 10 Packet Pg. 200 Agenda Item 10 Item # 10 Page 2 and to conduct its own activities within the “A” area while eliminating the need for the annual permits and updating the requirements for CSU’s activities. (A lease implies exclusive use of the property and could potentially restrict Natural Area's ability to manage and maintain the land.) The original lease contained very few details or parameters for CSU’s access to the “A”, simply stating the State Board of Agriculture had “the right of ingress and egress to the said land for the purpose of constructing and repairing the College letter “A”’”. The easement establishes the boundaries of CSU’s access and provides ingress and egress to the “A” from County Road 23 via existing trails. (CSU is providing a survey of the easement area. See Attachment 3 - Aerial Map of Proposed CSU Easement Area for a general depiction) In addition, the easement outlines notification requirements and provides direction on the type of equipment and paint used to light and paint the “A. The easement also spells out obligations for cleanup and repairs should CSU’s activities generate debris or cause damage. All costs associated with construction, restoration or maintenance of the “A” are to be borne by CSU. Natural Areas is requiring low VOC latex paint and natural pigments to minimize the biological impacts of continued use of the area by CSU. (The Environmental Protection Agency (EPA) defines low VOC latex paint as that containing <251 g/L VOC.) The easement also includes a vegetation management plan by which CSU may conduct minor vegetation maintenance in the area immediately adjacent to the “A” (e.g., pruning shrubs such as Mountain Mahogany to a height of no less than 3 feet tall). While staff appreciates the recommendation of the Land Conservation and Stewardship Board (LCSB) to enter into a lease instead of a permanent easement, staff continues to recommend a permanent easement. Staff believes that periodically renegotiating a lease defeats a key motivation for pursuing the easement, which is relieving both the City and CSU from having to repeatedly revisit what both parties agree should be a long- standing arrangement and agreement. Moreover, if the “A” should ever be abandoned by CSU, the City has the right to terminate the easement with prior notice to CSU. CITY FINANCIAL IMPACTS NAD is requesting a nominal consideration for the easement in the amount of $100. There will be no additional financial impact to NAD due to the fact that this is replacing an existing lease and that no new improvements will be located on the property. Staff believes that this below market conveyance serves a bona fide public purpose as required by Section 23-114 of the City Code because: 1. The use to which the Easement will be put promotes health, safety or general welfare and benefits a significant segment of the citizens of Fort Collins, as the “A” has long been a major focal point for student activities at CSU that help build the culture of the student body. Students comprise a significant portion of our community and participation in “A”- related activities promotes community engagement and welfare. 2. The Easement and continued use and preservation of the “A” support the preservation of an historic landmark and City Plan Principle LIV16: “The quality of life in Fort Collins will be enhanced by the preservation of historic resources and inclusion of heritage in the daily life and development of the community.” 3. The financial support provided by the City through the below-market disposition of the Easement will be leveraged with other funding or assistance, including maintenance work by the CSU Alumni Association. 4. Conveyance of the Easement will not result in any direct financial benefit to any private person or entity, except to the extent such benefit is only an incidental consequence and is not substantial relative to the public purpose being served. 5. Conveyance of the Easement for less than fair market rent will not interfere with current City projects or work programs, hinder workload schedules or divert resources needed for primary City functions or responsibilities. 10 Packet Pg. 201 Agenda Item 10 Item # 10 Page 3 BOARD / COMMISSION RECOMMENDATION The item was presented to the Land Conservation Stewardship Board (LCSB) on October 14, 2015. Five of nine board members were present and voted unanimously to recommend that City Council consider a lease arrangement instead of a permanent easement. The LCSB’s formal recommendation as outlined in a memo to City Council dated November 3, 2015, is as follows: 1. The LCSB recommends to City Staff and to City Council that a permanent easement not be granted to CSU or the State Board of Agriculture for access through the Maxwell Natural Area to the CSU "A." 2. That a new lease replace the remaining term of the 99-year lease that was established between the State Board of Agriculture and the Maxwell family, which has an expiration date of 19 Dec 2022. 3. The new lease should be structured as an umbrella permit for uses that have required multiple special-use permit applications from CSU and approval by City entities, thus removing the need for annual application and approval, and should be specific about: (1) permitted routes and times (events) of access; (2) allowable activities; (3) other conditions and restrictions that the Natural Areas Department (NAD) deems necessary. (Attachments 4 and 5) ATTACHMENTS 1. Location map (PDF) 2. Aerial map-Maxwell Natural Area (PDF) 3. Aerial map-proposed CSU easement area (PDF) 4. Land Conservation & Stewardship Board minutes, October 14, 2015 (PDF) 5. Land Conservation & Stewardship Board memo re: CSU access to Aggie "A" recommendation (PDF) 10 Packet Pg. 202 Location Map AƩachment 1 Maxwell Natural Area Lee Lake A v e r y P o n d Larimer C ounty Canal# 2 S p r i n g C r e e k L ar i mer Co u n ty C a nal # 2 Coy Ditch F t C o l i n s G o l f C o u r s e P o n d Lit t le C a c h e la P o u dr e Ditch D i x o n Re s e r v o i r N orth Shields Pond T r o u t m a n P a r k P o n d L Maxwell Natural Area AƩachment 2 Aerial depicting trails and “A” ± S. County Road 23 Maxwell Natural Area boundary Existing Natural Surface Minor Trail (Overlook Trail) Existing Natural Surface Major Trail (Foothills Trail) Horsetooth Reservoir CSU Hughes Stadium 10.2 Packet Pg. 204 Attachment: Aerial map-Maxwell Natural Area (3765 : Maxwell Easement) Larimer County Open Lands Parking lot Maxwell Natural Area boundary Proposed Aggie “A” Easement Area (not to scale) Existing Natural Surface Minor Trail (Overlook Trail) Existing Natural Surface Major Trail (Foothills Trail) ± S. County Road 23 AƩachment 3 Proposed Aggie “A” Easement Area Aerial depiction 10.3 Packet Pg. 205 Attachment: Aerial map-proposed CSU easement area (3765 : Maxwell Easement) LandConservationandStewardshipBoard 1 Attachment 4 MINUTES CITY OF FORT COLLINS LAND & CONSERVATION STEWARDSHIP BOARD Regular Meeting DATE: Wednesday, October 14, 2015 LOCATION: 1745 Hoffman Mill Road/Nix Farm Natural Areas Department TIME: 6:00 PM For Reference: Kent Leier, Chair 631-2361 Marcia Mallory-Patton, Vice Chair 222-0513 Trudy Haines, Communications 225-2760 Mark Sears, Staff Liaison 416-2096 Gerry Horak, Council Liaison 420-7398 Board Members Present: Raymond Watts, Marcia Mallory-Patton, Greg Owens, David Tweedale and Kelly Ohlson Excused Members: Edward Reifsnyder, Gail Dethloff, Kent Leier and Trudy Haines Guest: Gary Buffington, Director, Larimer County Natural Resources Department (LCNRD) Kerri Rollins, Open Lands Program Manager, (LCNRD) Meegan Flenniken, Resource Management Program Manager, (LCNRD) NAD Staff: Mark Sears, John Stokes, Jennifer Shanahan & Tawnya Ernst Agenda: Marcia reported on her attendance at COSA and encouraged other board members to attend should they have the opportunity in the future. Ray asked if we could add to the agenda a discussion of a separate meeting to discuss board responsibilities and roles, as recommended by Kelly Ohlson during the September meeting. * Public of Comments: None Call meeting to order: 6:05 PM 10.4 Packet Pg. 206 Attachment: Land Conservation & Stewardship Board minutes, October 14, 2015 [Revision 1] (3765 : Maxwell Easement) LandConservationandStewardshipBoard 2 Excerpt - Land Conservation and Stewardship Board October 14, 2015 Re: Maxwell Natural Areas – Easement to CSU – for Painting the “A” - Tawnya Ernst, NAD Real Estate Specialist, reported that by instruction from the City Manager’s Office, the Natural Areas Department intends to enter into a permanent easement agreement with the Board of Governors of the Colorado State University System (CSU) on Maxwell Natural Area. The easement will replace a 99-year lease that provided CSU with access to maintain the Aggie “A on the Natural Area. In the late 1970s, the then Parks Department’s Natural Areas Program (now Natural Areas Department (NAD) acquired Maxwell Natural Area from the Maxwell family. At the time, the property was already subject to an existing 99-year lease (set to expire on December 19, 2022) between R.G. Maxwell and the State Board of Agriculture. The lease gives the State Board of Agriculture and its successors the right of ingress and egress to the Maxwell property for the purpose of constructing and repairing the Aggie “A”. The “A” was constructed in 1923 and has been registered since 1995 on the Colorado State Register as an example of hillside monograms which are distinctive landmarks in western states. The easements will also enable CSU and its students to carry out two other group activities that currently require annual permits from natural Areas. CSU’s current access typically has minimal impact to the Natural Area and no additional impacts are anticipated. No other access rights are to be conveyed. Over the years the painting of the “A” has expanded to include a CSU Freshman hike to the “A” and lighting of the “A” during CSU Homecoming. In the past, NAD has issued separate Special Use Permits for each of the activities. Tawnya expressed that the easiest option would be to enter into a permanent easement with NAD and CSU that staff is comfortable with. The easement would define a more specific route for activities that are currently taking place under the Special Use Permit, as well as lay out expectations for both parties. Discussion: Some board members felt the activities were considered desecration of the land and reported on times they had been to the “A” and seen paint cans and remnants of CSU’s activities. They were curious as to why painting the “A” was something that had to continue, and how that represented CSU. John said that although the board members might not approve of the activities, NAD still has to allow them access until the 99 year lease runs out in 2020. Tawnya explained how the easement would eliminate the Special Use Permit application process every year, lessening the work for both CSU and NAD. It would also better define and attempt to control the each of the three activities as well. The board agreed that a 5-10 year lease agreement would be more feasible than an easement and the remaining term of the 99-year lease. Raymond volunteered to draft a memorandum to City Council outlining the specifics of the recommendation for the short term lease. Raymond made the motion that the LCSB recommend to City Staff and City Council that a short term lease with conservation conditions be established to replace the current 99 year lease with stipulations that streamline permitting for maintenance of the “A”. David Tweedale seconded the motion. Motion was unanimously approved. 10.4 Packet Pg. 207 Attachment: Land Conservation & Stewardship Board minutes, October 14, 2015 [Revision 1] (3765 : Maxwell Easement) Natural Areas Department 1745 Hoffman Mill Road PO Box 580 Fort Collins, CO 80522 970.416.2815 970.416.2211 - fax fcgov.com/naturalareas MEMORANDUM TO: Fort Collins City Council FROM: Land Conservation and Stewardship Board DATE: November 3, 2015 RE: Colorado State University Access to the Aggie “A” on Maxwell Natural Area LCSB RECOMMENDATION 1. The Land Conservation and Stewardship Board (LCSB) recommends to City Staff and to City Council that a permanent easement not be granted to CSU or the State Board of Agriculture for access through the Maxwell Natural Area to the CSU "A." 2. Instead, the LCSB recommends that a new lease replace the remaining term of the 99-year lease that was established between the State Board of Agriculture and the Maxwell family, which has an expiration date of 19 Dec 2022. 3. The new lease should be structured as an umbrella permit for uses that have required multiple special-use permit applications from CSU and approval by City entities, thus removing the need for annual application and approval, and should be specific about: (1) permitted routes and times (events) of access; (2) allowable activities; (3) other conditions and restrictions that the Natural Areas Department (NAD) deems necessary. BACKGROUND The prominent “A” on the first hogback near Hughes stadium has been in place for more than 90 years. It is a painted feature, with paint applied to rock, soil and vegetation; the paint is reapplied annually as a CSU tradition. The “A” is also visited annually during an organized freshman hike, and illuminated at night for homecoming. These multiple organized CSU events require special permits under City and NAD regulations, and the annual cycle of permit application, review, and approval is burdensome to CSU staff and to City staff. Both parties would prefer a longer term agreement that does not require annual renewal. CSU has broad rights of access to the “A” that were granted by the Maxwell family in 1923 to the State Board of Agriculture—in effect, to CSU—under a 99-year lease that remained in force when the property conveyed to the City and became the Maxwell Natural Area. The NAD recommends, and the LCSB concurs, that the broad terms of the existing lease be replaced by carefully considered and more restrictive access conditions. For example, the original lease does not limit the mode or route of access to the “A” for its annual repainting. The NAD has considered access routes and areas appropriate to repainting operations, and has prepared a map of these zones; the LCSB approves of these access zone designations. At issue is the term of the lease. The LCSB believes that the “A,” although it is a historic landmark and a traditional CSU emblem, is an anachronism. If CSU were to apply for a permit to create the “A” today, the ATTACHMENT 5 10.5 Packet Pg. 208 Attachment: Land Conservation & Stewardship Board memo re: CSU access to Aggie "A" recommendation (3765 : Maxwell Easement) 2 LCSB would strongly oppose the application. While the LCSB does not at this time recommend denial of access for maintenance or outright removal of the “A,” it believes that the Natural Area Department should periodically receive opportunities to review all aspects of the “A.” Finite term leases will provide these opportunities. An initial lease of seven years would complete the period of the original Maxwell lease. The LCSB recommends that if subsequent leases are granted, they have durations of five years or less. 10.5 Packet Pg. 209 Attachment: Land Conservation & Stewardship Board memo re: CSU access to Aggie "A" recommendation (3765 : Maxwell Easement) ORDINANCE NO. 149, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CONVEYANCE OF AN EASEMENT ON MAXWELL NATURAL AREA TO THE BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY SYSTEM WHEREAS, the City owns a parcel of real property located in Larimer County, Colorado that is part of Maxwell Natural Area and is more particularly described as the SW 1/4 of the NW 1/4 of Section 20, Township 7 North, Range 69 West of the 6 th P.M. less Book 849 Page 242, and less Book 1182, Page 409 of the Larimer County Records (the “Property”); and WHEREAS, when the City purchased the Property in 1979 it was subject to an existing 99 year lease between the owner, R.G. Maxwell, and the State Board of Agriculture (the “1923 Lease”); and WHEREAS, the 1923 Lease was intended to allow Colorado State University (“CSU”) to access, construct and repair the Aggie “A” painted on the hillside near Hughes Stadium, and is set to expire in 2022; and WHEREAS, the “A” is listed on the Colorado State Register of Historic Properties, and is therefore considered a landmark subject to Chapter 14 of the City Code; and WHEREAS, Section 14-53 of the City Code requires the owner of a site or object designated as a landmark to maintain the site or object to prevent it falling into a state of disrepair that would have a detrimental effect on its historic character; and WHEREAS, over the years CSU’s activities surrounding the “A” have increased, resulting in the Natural Areas Department (“NAD”) issuing multiple administrative permits every year for such activities; and WHEREAS, to simplify this process, CSU and NAD agree that a permanent easement, which would replace the 1923 Lease, is the most appropriate solution; and WHEREAS, CSU has asked the City to grant it a non-exclusive, permanent easement over the area described on Exhibit “A”, attached and incorporated herein by reference (the “Easement”); and WHEREAS, the Easement would spell out in more detail than the 1923 Lease what activities CSU can conduct on the Property, what materials CSU can use on the Property, and cleanup, restoration and maintenance obligations; and WHEREAS, Section 23-111(a) of the City Code authorizes the City Council to sell, convey or otherwise dispose of any interest in real property owned by the City, provided that the City Council first finds, by ordinance, that such sale or other disposition is in the best interests of the City; and Packet Pg. 210 WHEREAS, City staff has concluded that granting the easement to CSU is the best way for the City to manage CSU’s access to the “A” on the Property; and WHEREAS, NAD is proposing to charge only nominal consideration for the Easement in the amount of $100; and WHEREAS, under Section 23-114 of the City Code, any sale of City property interests must be for an amount equal to or greater than the fair market value of such interest unless the City Council determines that such sale serves a bona fide public purpose, based on the five factors listed in Section 23-114; and WHEREAS, staff believes that the conveyance of the Easement to CSU for less than fair market value serves a bona fide public purpose because: (1) The use to which the Easement will be put promotes health, safety or general welfare and benefits a significant segment of the citizens of Fort Collins, as the “A” has long been a major focal point for student activities at CSU that help build the culture of the student body. Students comprise a significant portion of our community and participation in “A”- related activities promotes community engagement and welfare; (2) The Easement and continued use and preservation of the “A” supports the preservation of an historic landmark and City Plan Principle LIV16: “The quality of life in Fort Collins will be enhanced by the preservation of historic resources and inclusion of heritage in the daily life and development of the community;” (3) The financial support provided by the City through the below-market disposition of the Easement will be leveraged with other funding or assistance, including maintenance work by the CSU Alumni Association; (4) Conveyance of the Easement will not result in any direct financial benefit to any private person or entity, except to the extent such benefit is only an incidental consequence and is not substantial relative to the public purpose being served; and (5) Conveyance of the Easement for less than fair market rent will not interfere with current City projects or work programs, hinder workload schedules or divert resources needed for primary City functions or responsibilities; NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby finds that the City’s conveyance of the Easement to the Board of Governors of the Colorado State University System as provided herein is in the best interests of the City. Packet Pg. 211 Section 2. That the City Council further finds that such conveyance for less than fair market value serves a bona fide public purpose for the reasons stated in the recitals above. Section 3. That the Mayor is hereby authorized to execute such documents as are necessary to terminate the 1923 Lease and convey the Easement to the Board of Governors of the Colorado State University System on terms and conditions consistent with this Ordinance, together with such additional terms and conditions as the City Manager, in consultation with the City Attorney, determines are necessary or appropriate to protect the interests of the City, including, but not limited to, any necessary changes to the legal descriptions of the Easement, as long as such changes do not materially increase the size or change the character of the interest to be conveyed. Introduced, considered favorably on first reading, and ordered published this 17th day of November, A.D. 2015, and to be presented for final passage on the 1st day of December, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on this 1st day of December, A.D. 2015. __________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 212 DESCRIPTION: Access Easement An access easement located in Section 20, Township 7 North, Range 69 West of the 6th Principal Meridian: Considering the West line of the Northwest Quarter of said Section 20, as bearing South 00º14'03" West and with all bearings contained herein relative thereto: Commencing at the Northwest corner of said Section 20; thence along the West line of the Northwest Quarter of said Section 20, South 00º14’03” West, 508.00 feet to the POINT OF BEGINNING, said point also being the centerline of a 6.00 foot wide access easement; thence along said centerline, South 52º37’36” East, 64.65 feet; thence, South 58º21’50” East, 48.46 feet; thence, South 41º18’05” East, 31.93 feet; thence, South 12º36’23” East, 28.32 feet; thence, South 24º35’26” East, 59.86 feet; thence, South 35º08’02” East, 48.93 feet; thence, South 44º53’35” East, 47.69 feet; thence, South 30º31’58” East, 39.55 feet; thence, South 47º11’43” East, 61.86 feet; thence, South 65º00’01” East, 45.30 feet; thence, South 48º10’58” East, 22.40 feet; thence, South 67º54’13” East, 52.09 feet; thence, South 75º40’04” East, 23.89 feet; thence, South 25º07’22” East, 26.45 feet; thence, South 08º54’03” West, 23.61 feet; thence, South 48º17’22” West, 41.27 feet; thence, South 29º36’44” West, 16.93 feet; thence, South 68º06’37” West, 35.28 feet; thence, South 39º10’09” West, 57.49 feet; thence, South 52º35’43” West, 25.22 feet; thence, South 21º37’45” West, 27.43 feet; thence, South 39º39’14” West, 24.83 feet; thence, South 29º31’36” West, 207.88 feet; thence, South 18º13’58” West, 24.12 feet; thence, South 44º58’07” West, 31.08 feet; thence, South 21º18’25” West, 22.25 feet; thence, South 39º16’27” West, 23.68 feet; thence, South 18º 01’03” West, 38.43 feet; thence, South 46º14’55” East, 36.19 feet; thence South 57º24’00” East, 39.62 feet; thence, South 28º54’52” East, 26.59 feet; thence, South 59º24’46” East, 70.96 feet; thence, South 20º31’52” East, 29.65 feet; thence, South 59º25’14” East, 21.89 feet; thence, South 86º29’06” East, 14.97 feet; thence, South 64º09’48” East, 29.79 feet; thence, South 45º41’24” East, 62.58 feet; thence, South 36º19’02” East, 47.28 feet; thence, South 24º33’20” East, 62.82 feet; thence, South 03º42’53” East, 32.57 feet; thence, South 15º55’37” East, 31.26 feet; thence, South 00º19’18” East, 14.07 feet: thence, South 43º33’18” East, 11.89 feet; thence, South 23º15’19” East, 37.38 feet; thence, South 00º56’05” East, 16.49 feet; thence, South 36º11’07” East, 13.68 feet; thence South 13º46’53” East, 47.22 feet to the POINT OF TERMINUS of said centerline of 6.00 foot wide easement, said point also being POINT “A”. ALSO BEGINNING at aforementioned POINT “A”; thence, North 61º12’07” East, 410.55 feet; thence, South 22º29’32” East, 131.95 feet; thence, South 13º20’03” East, 240.97 feet; thence, North 89º14’07” West, 480.55 feet; thence, North 12º32’37” West, 131.56 feet; thence, 61º12’07” East 49.36 feet to the POINT OF BEGNINNING “A”. The above described parcel contains 127,944 square feet or 2.937 acres, more or less and is subject to all easements and rights-of-way now on record or existing. MAK October 21, 2015 S:\Survey Jobs\232-036\Dwg\Exhibits\232-036 Easement Description.docx EXHIBIT A 1 Packet Pg. 213 Attachment: Exhibit A (3796 : Maxwell Easement ORD) 1 Packet Pg. 214 Attachment: Exhibit A (3796 : Maxwell Easement ORD) Agenda Item 11 Item # 11 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council THIS ITEM HAS BEEN WITHDRAWN FROM CONSIDERATION STAFF Sheri Langenberger, Development Review Manager SUBJECT First Reading of Ordinance No. 150, 2015, Vacating Portions of Redwood Street Right-of-Way Consisting of a Portion of Right-of-Way Dedicated on the Replat (No. 1) Evergreen Park plat; the Right-of-Way Dedicated at Book 1607, Page 766 of the Larimer County Records; and a Portion of Right-of-Way Dedicated at Reception No. 20060034597 of the Larimer County Records. EXECUTIVE SUMMARY The purpose of this item is to vacate portions of Redwood Street right-of-way, located at the northeast corner of Linden/Redwood and Vine Streets, that are no longer needed and that do not contain the existing roadway. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION In 1974, right-of-way for Redwood Street was dedicated by the subdivision plat Replat (No. 1) of Evergreen Park and a separate deed. Utilities were installed within this right-of-way but a street was not constructed in the portion of the right-of-way adjacent to Vine Drive. Because the existing right-of-way did not align with the intersection of Linden Street and Vine Drive and would create an undesirable offset, the City purchased property in 2000 which would allow for Redwood Street, upon construction, to align with Linden Street. Right-of-way to facilitate this realignment was also dedicated by subdivision plat of Old Town North, and a right-of-way dedication deed that was filed in 2006. Redwood Street has been constructed and the right-of-way proposed to be vacated consists of (1) a portion of the right-of-way dedicated by Replat (No. 1) of Evergreen Park; (2) the right-of-way dedicated by the deed filed in 1974; and (3) a portion of the right-of-way dedicated by the deed filed in 2006. All the right-of-way proposed to be vacated is located east of and adjacent to the existing roadway and is no longer needed as road right-of- way from the prior alignment of Redwood Street. The entire area will be retained as a utility easement due to the sanitary sewer main and other utilities that are located within the land proposed for vacation. The City Operation Services Department has requested that the City vacate the right-of-way at issue. CITY FINANCIAL IMPACTS There are no financial impacts to the vacation of this portion of right of way. Agenda Item 11 Item # 11 Page 2 PUBLIC OUTREACH A memorandum requesting input was sent to the utility providers, potentially impacted City departments and Larimer County (the adjacent property owner). In addition, several meetings with Larimer County staff have occurred regarding the proposed right-of-way vacation. No objection to the proposed vacation was received. ATTACHMENTS 1. Location map (PDF) Osia nder S t P asc a l St Heschel St Baum St Caj e ta n St Redwood St Linden St E Vine Dr E Suni g a Rd City of Fort Collins Redwood Street Right of Way Vacation Legend Proposed Right of Way Vacation / 0 100 200 400 600 800 Feet ATTACHMENT 1 11.1 Packet Pg. 217 Attachment: Location map (3766 : Redwood Street ROW Vacation) ORDINANCE NO. 150, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS VACATING PORTIONS OF REDWOOD STREET RIGHT-OF-WAY CONSISTING OF A PORTION OF RIGHT-OF-WAY DEDICATED ON THE REPLAT (NO. 1) EVERGREEN PARK PLAT; THE RIGHT-OF-WAY DEDICATED AT BOOK 1607, PAGE 766 OF THE LARIMER COUNTY RECORDS; AND A PORTION OF RIGHT-OF-WAY DEDICATED AT RECEPTION NO. 20060034597 OF THE LARIMER COUNTY RECORDS WHEREAS, in 1974, the plat of Replat (No. 1) Evergreen Park dedicated right-of-way for Redwood Street to the City dedicated at Book 1597, page 128 of the Larimer County Records; and WHEREAS, in 1974, additional street right-of-way was dedicated to the City for Redwood Street as described in the deed recorded at Book 1607, Page 766 of the Larimer County, Colorado records; and WHEREAS, in 2006, further street right-of-way was dedicated to the City as Redwood Street as described in the deed recorded at Reception No. 20060034597 of the Larimer County, Colorado records; and WHEREAS, the City Operation Services Department has requested that the City vacate portions of these rights-of-way, as referenced below and defined in the attached exhibits (the “Rights-of-Way”); and WHEREAS, said Rights-of-Way are no longer necessary or desirable to retain for street purposes; and WHEREAS, pertinent City agencies and private utility companies have been contacted and reported no objection to the proposed vacation of the Rights-of-Way provided that a utility easement be reserved unto the City; and WHEREAS, the Rights-of-Way to be vacated are no longer needed for right-of-way purposes, the right of the residents of the City of Fort Collins will not be prejudiced or injured by the vacation of said street Rights-of-Way and it is in the public interest to do so; and WHEREAS, the City Council is authorized to vacate City right-of-way pursuant to Section 23-115 of the Fort Collins Municipal Code. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS: Section 1. That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above. Section 2. That the street right-of-way dedicated by Replat (No. 1) Evergreen Park, more particularly described in Exhibit “A,” attached hereto and incorporated herein by reference, Packet Pg. 218 is hereby vacated with the exception of a utility easement reserved to the City for public use and encompassing the area described in Exhibit “A.” Section 3. The street right-of-way dedicated at Book 1607, Page 766 of the Larimer County, Colorado records, more particularly described on Exhibit “B” attached hereto and incorporated herein by reference, is hereby vacated with the exception of a utility easement reserved to the City for public use and encompassing the area described in Exhibit “B.” Section 4. The street right-of-way dedicated at Reception No. 20060034597 of the Larimer County, Colorado records, more particularly described on Exhibit “C,” attached hereto and incorporated herein by reference, is hereby vacated with the exception of a utility easement reserved to the City for public use and encompassing the area described in Exhibit “C.” Introduced, considered favorably on first reading, and ordered published this 17th day of November, A.D. 2015, and to be presented for final passage on the 1st day of December, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 1st day of December, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Packet Pg. 219 EXHIBIT A 1 Packet Pg. 220 Attachment: Exhibit A (3767 : Redwood Street ROW Vacation ORD) 1 Packet Pg. 221 Attachment: Exhibit A (3767 : Redwood Street ROW Vacation ORD) 1 Packet Pg. 222 Attachment: Exhibit A (3767 : Redwood Street ROW Vacation ORD) EXHIBIT B 2 Packet Pg. 223 Attachment: Exhibit B (3767 : Redwood Street ROW Vacation ORD) 2 Packet Pg. 224 Attachment: Exhibit B (3767 : Redwood Street ROW Vacation ORD) EXHIBIT C 3 Packet Pg. 225 Attachment: Exhibit C (3767 : Redwood Street ROW Vacation ORD) 3 Packet Pg. 226 Attachment: Exhibit C (3767 : Redwood Street ROW Vacation ORD) 3 Packet Pg. 227 Attachment: Exhibit C (3767 : Redwood Street ROW Vacation ORD) Agenda Item 12 Item # 12 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Gerry Paul, Director of Purchasing & Risk Management Ken Mannon, Operations Services Director SUBJECT Resolution 2015-099 Authorizing the Purchasing Agent to Lease Additional Vehicles and Equipment Under the City's Standard Master Lease Agreement with Pinnacle Public Financing, Inc. For Schedule of Equipment No. 10. EXECUTIVE SUMMARY The purpose of this item is to request approval of the lease-purchase of vehicles and equipment for the cost of $1,388,000 under the City’s Master Lease Agreement with Pinnacle Public Finance and the “First Amendment” to that Agreement (jointly, the “Agreement”). Quarterly payments of $73,383.24 at the 2.15% interest rate will not exceed $293,532.96 in 2016. Money for 2016 lease-purchase payments is included and will be appropriated as part of the 2016 budget. A competitive process was used to select Pinnacle Public Finance for this Agreement. A 2015 Finance Department analysis of current and historical equipment lease financing arrangements showed that lease-purchase is in the best interest of the City given the interest rate offered for the lease. Staff believes acceptance of this lease rate is in the City's best interest. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION This Resolution authorizes the Purchasing Agent to enter into a lease-purchase transaction with Pinnacle Public Finance (“Pinnacle”) at 2.15% interest rate under a new “Schedule of Equipment”. The Agreement is for an original term from the execution date of the Agreement to the end of fiscal year 2016. The Agreement provides for renewable one-year terms thereafter, to a total term of five years, subject to annual appropriation of funds needed for lease payments. The total lease terms, including the original and all renewal terms, will not exceed the useful life of the equipment. Each of the items acquired through this transaction has a useful life longer than five years. This lease-purchase financing is consistent with the financial policies of the City of Fort Collins. All equipment shall be leased-purchased following the City's purchasing ordinances and procedures to ensure that the cost to the City is fair and reasonable as determined by a competitive purchasing process. The vehicles and equipment financed under the Agreement will comply with applicable City policies, and will be in accordance with the goal of optimizing City resources without impacting service to the community. An "Equipment Request" justifying the replacement of each vehicle or piece of fleet equipment is on file with Fleet Services. The fleet manager has researched each request, and approved them based on current and projected maintenance costs, fuel economy, downtime, and relevant safety factors. Other equipment purchases have been approved in accordance with departmental procedures. 12 Packet Pg. 228 Agenda Item 12 Item # 12 Page 2 CITY FINANCIAL IMPACTS Lease-Purchase: The City's lease-purchase policy provides that: The City of Fort Collins uses lease-purchases for the provision of new and replacement equipment, vehicles and rolling stock in order to ensure the timely replacement of equipment and vehicles. This method may also be used to acquire real property. Members of the management staff have developed an equipment needs schedule for rolling stock which encompasses the demands of operating departments. This schedule is used to project equipment needs for each budget year. The type of lease that the City uses is termed a lease-purchase agreement. With each rental payment the City builds equity and assumes risk in the asset over the term of the lease. The annual installments are subject to appropriation by the Council each year. Advantages of a lease-purchase over a cash purchase are: Decreasing the impact of inflation on the purchase of new and replacement equipment. Resolving the problem of capital replacement needs backlog. Conserving operating reserves. Reducing the initial impact of the cost to user departments by enabling costs to be spread over the useful life of the equipment. Safeguarding the opportunity to use cash assets to earn higher interest than the interest cost of lease- purchasing. A 2015 Finance Department analysis of current and historical equipment lease financing arrangements showed that lease-purchase is in the best interest of the City given the interest rate offered for the lease and projected investment rate. According to C.R.S. Section 29-1-103, local governments are required to identify as part of their budgets: (1) the total expenditures during the ensuing fiscal year for all lease purchase agreements involving real and personal property; and (2) the total maximum payment liability under all lease purchase agreements over the entire terms of the agreements, including all optional renewal terms. Although state law does not consider lease-purchase transactions that are subject to annual appropriation to be multi-year debt requiring voter approval under TABOR, rating agencies nevertheless include the total amount owed under such lease-purchases in calculating the City's debt burden. The proposed Resolution authorizes the lease-purchase financing of the following under the Agreement: Description Quantity Cost ($) Streets CNG- Cab/Chassis for snowplow dump truck 4 580,000 Dump body and snow accessories 4 552,000 Liquid de-ice spray system 4 92,000 Cab/Chassis for Traffic Control truck 1 42,000 Body for Traffic Control truck 1 22,000 ½ ton pick-up truck 1 27,000 Code Compliance Small SUV 3 73,000 Lease Total 1,388,000 The Streets Department has appropriately justified the purchase of all replacement vehicles and equipment. 12 Packet Pg. 229 RESOLUTION 2015-099 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE PURCHASING AGENT TO LEASE ADDITIONAL VEHICLES AND EQUIPMENT UNDER THE CITY’S STANDARD MASTER LEASE AGREEMENT WITH PINNACLE PUBLIC FINANCING, INC. FOR SCHEDULE OF EQUIPMENT NO. 10 WHEREAS, the City and Pinnacle Public Finance, Inc. (“Pinnacle”) have previously entered into that certain “Standard Master Lease Agreement” dated February 15, 2011, (the “Agreement”); and WHEREAS, the Agreement provides that Pinnacle will lease to the City certain “Equipment” as generally described in Section 1.1 of the Agreement and as specifically described in each “Schedule of Equipment” that is agreed to in the future and added to the Agreement as Exhibit A by the City and Pinnacle (collectively, the “Equipment”); and WHEREAS, the Agreement contemplates an initial term of one year, with up to four additional one-year terms, not to exceed a total of five years; and WHEREAS, Article V of the Agreement grants the City the option to purchase any or all of the Equipment in accordance with the provisions of Article V of the Agreement; and WHEREAS, the Agreement also expressly provides that all of the City’s obligations under the Agreement are subject to the City Council’s annual appropriation of each year’s lease payments and, if such appropriation does not occur, Pinnacle’s sole remedy is to repossess the Equipment; and WHEREAS, the Purchasing Agent and Pinnacle have previously entered into that certain “First Amendment to Master Lease Agreement” approved by City Council on December 2, 2014, in Resolution 2014-108 (the “First Amendment”); and WHEREAS, the purpose of the First Amendment was to amend certain language in Section 1.2 of the Agreement to clarify the City’s and Pinnacle’s original (and current) intent with respect to the language in Section 1.2 that provides that the City is to be listed as the owner on the titles of motor vehicles included in the Equipment leased under Schedule of Equipment No. 8 and that had been leased under the previous seven schedules of equipment; and WHEREAS, that such original (and current) intent of this motor-vehicle-title language was and is not to change the lease-purchase nature of the Agreement, but solely for the purposes of establishing ownership of the leased motor vehicles for federal tax purposes, reducing Pinnacle’s liability for any civil claims arising from the City’s use of the motor vehicles, and for the City’s administrative convenience in establishing clear title to vehicles when the City exercises its option to purchase any of them; and WHEREAS, the Purchasing Agent has negotiated with Pinnacle the lease of additional Equipment under the Agreement as described in the “Schedule of Equipment No. 10” dated Packet Pg. 230 November 24, 2015, attached as Exhibit “A” and incorporated by reference (“Schedule of Equipment No. 10”); and WHEREAS, each piece of equipment listed in Schedule of Equipment No. 10 has a useful life of five years or longer; and WHEREAS, the Purchasing Agent has also negotiated with Pinnacle quarterly lease payments of Seventy Three Thousand Three Hundred Eight Three Dollars and Twenty Four Cents ($73,383.24) for five years for the Equipment being leased in Schedule of Equipment No. 10 as set forth in the parties’ “Payment Schedule, Equipment Schedule #10” dated November 24, 2015, attached as Exhibit “B” and incorporated by reference (the “Payment Schedule”); and WHEREAS, the funds needed for the City’s quarterly lease payments that will be owed to Pinnacle in 2016 for the Equipment being leased in Schedule of Equipment No. 10, have been budgeted and appropriated in the City’s 2016 annual budget that is expected to be adopted by Council on November 17, 2015; and WHEREAS, the City is authorized in Section 8(c) of Article V of the City Charter, Article IV in Chapter 8 of the City Code, and in C.R.S. Section 31-15-801 to enter into multiple- year lease-purchase agreements provided each year’s lease payments are subject to annual appropriation; and WHEREAS, the lease of the Equipment in Schedule of Equipment No. 10 under the Lease will not constitute a “multiple fiscal year direct or indirect debt or other obligation” of the City within the meaning of Section 20(4)(b) of Article X of the Colorado Constitution and, therefore, this lease of Equipment under Schedule of Equipment No. 10 can be entered into without voter approval; and WHEREAS, the City Council has determined that it is in the City’s best interests to lease from Pinnacle all of the Equipment described in the Schedule of Equipment No. 10 in accordance with the terms and conditions of the Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That all of the recitals set forth above in this Resolution are hereby adopted as the City Council’s findings in support of this Resolution. Section 2. That the lease of the Equipment in Schedule of Equipment No. 10 under the Agreement (as amended by the First Amendment) and the Payment Schedule, attached hereto as Exhibit “A” and Exhibit “B”, respectively, are hereby approved, and the Purchasing Agent is hereby authorized to enter into the Schedule of Equipment No. 10 and the Payment Schedule on the City’s behalf. The Purchasing Agent may agree, in consultation with the City Attorney, to modifications and amendments to Schedule of Equipment No. 10 and the Payment Schedule as may be needed to protect the City’s interests and that are consistent with the stated purposes of this Resolution. Packet Pg. 231 Section 3. That City Council’s approval in this Resolution of the Schedule of Equipment No. 10 and the Payment Schedule are subject to the Council budgeting and appropriating in the City’s 2016 annual budget the funds necessary for the 2016 payments under the Payment Schedule. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 17th day of November, A.D. 2015. _________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 232 EXHIBIT A 1 Packet Pg. 233 Attachment: Exhibit A (3794 : Lease Purchase Fall 2015B RESO) EXHBIT B 2 Packet Pg. 234 Attachment: Exhibit B (3794 : Lease Purchase Fall 2015B RESO) Agenda Item 13 Item # 13 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Mark Jackson, PDT Deputy Director SUBJECT Resolution 2015-100 Supporting the Larimer County Proposal to Use County Mill Levy Funds for Interstate 25 (I-25) Improvements. EXECUTIVE SUMMARY The purpose of this item is to provide a Council Resolution supporting Larimer County’s proposal to reassign a portion of its Road and Bridge Levy funds specifically for improvements to I-25 for a period of five years. This proposal does not modify the total mill levy or decrease the amount of Road and Bridge funds shared with Fort Collins. This item supports Council Priority for I-25 funding; Strategic Plan Objective Transportation 6.1, 6.4. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION Larimer County proposes to temporarily reapportion part of its General Fund mill levy funds to the County’s Road and Bridge Fund for a period of five years. These reapportioned funds are estimated to total $5.3 million over the course of the five year period. The County proposes using these revenues for improvements and local match opportunities on the I-25 Corridor within Larimer County. Fort Collins currently receives approximately $550,000 per year from the County Road and Bridge Fund. This proposal will not affect the amount of funds Fort Collins currently receives. Because of increased property valuations, only the resulting incremental increase in revenue will be directed to I-25 uses. These funds can go to specific smaller I-25 improvement projects, or be used in combination with other funds (e.g., Colorado Department of Transportation (CDOT), partnership opportunities) as local match for potential Resiliency Grant funds or other funding program opportunities that may arise. Council provided a letter and Resolution of support (2015-089) for CDOT’s Presidential Challenge Resiliency Grant application on October 20, 2015. In addition to the funds identified for I-25, the County also proposes allocating a portion of the County’s incremental mill levy funds (approximately $4.7 million) to go to a county project that would have benefits to residents in all of Larimer County. The proposed project is the expansion of CR 19 (Taft Hill Road in Fort Collins) to four lanes between Horsetooth & Harmony. Taft Hill Road carries a current daily volume of 22,000 (2013) and serves a large portion of the residents. This portion of Taft Hill Road lies within the City’s Growth Management Area (GMA) boundary, serves numerous County destinations including the Larimer County Landfill and Horsetooth Reservoir, and is constrained and congested. Next steps involve Larimer County working collaboratively with local governments to develop an Intergovernmental Agreement (IGA) outlining the use of these funds and addressing statutory requirements for sharing back these funds to the County. 13 Packet Pg. 235 Agenda Item 13 Item # 13 Page 2 CITY FINANCIAL IMPACTS Larimer County’s proposal does not modify the total mill levy, and does not decrease the amount of Road and Bridge funds currently received by the City of Fort Collins. Creation of a source of local match funding is advantageous in order to take advantage of funding partnerships and grant opportunities that may arise to help improve the I-25 corridor. PUBLIC OUTREACH The proposal was presented and discussed at the October 22, 2015 Regional Coordination meeting of local agency managers and elected officials. 13 Packet Pg. 236 RESOLUTION 2015-100 OF THE COUNCIL OF THE CITY OF FORT COLLINS SUPPORTING THE LARIMER COUNTY PROPOSAL TO USE COUNTY MILL LEVY FUNDS FOR INTERSTATE 25 (I-25) IMPROVEMENTS WHEREAS, Interstate 25 (“I-25”) serves as the primary north-south highway connection for Northern Colorado including Fort Collins; and WHEREAS, I-25 is the primary roadway route for regional connectivity to commerce, health care, education and employment; and WHEREAS, I-25 is designated as a federal freight route; and WHEREAS, I-25 in Northern Colorado suffered damage and prolonged closure as a result of the September 2013 floods; and WHEREAS, it is critical that I-25 roads and bridges be made more resilient to impacts from weather emergencies and natural disasters; and WHEREAS, the Colorado Department of Transportation (“CDOT”) is making an application for a Risk and Resiliency grant, through a Presidential Challenge, to replace the Cache la Poudre Bridge, the Big Thompson Bridge, and the Little Thompson Bridge and to repair the Saint Vrain Bridge (collectively, the “Bridges”); and WHEREAS, CDOT has identified these Bridges as ‘pinch points’ that currently restrict expansion of the number of lanes on I-25 in northern Colorado; and WHEREAS, the Risk and Resiliency grant for the Bridges is a portion of a larger grant application for the entire State of Colorado that is scheduled to be evaluated and awarded by the end of 2015; and WHEREAS, the City Council recognizes that the grant request will need matching local funds to be viable and that Larimer County should provide a portion of that match; and WHEREAS, the City Council understands that the increased property valuations for Larimer County property owners in 2015 provides an opportunity to temporarily increase the Road & Bridge Mill levy for a period of five years without detriment to other County programs, without decreasing the amount currently shared back to local agencies, and without modifying the total mill levy; and WHEREAS, assessed valuations on properties in municipalities are shared between the municipality and Larimer County and assessed valuations on properties in the unincorporated areas go to Larimer County; and WHEREAS, on October 22, 2015, the Larimer County Board of Commissioners presented at the Larimer County Joint Regional Meeting to the eight communities within Packet Pg. 237 Larimer County (Fort Collins, Loveland, Berthoud, Estes Park, Wellington, Timnath, Windsor, and Johnstown) the concept of temporarily moving General Fund mill levy to Road & Bridge mill levy with each local government contributing their increased portion to I-25 improvements and the concept has been well received and verbally supported; and WHEREAS, the reallocation is estimated to generate approximately $5.3 million over the five years for use on I-25 and the remaining Larimer County funds, estimated at approximately $4.7 million, will be used on a regional project(s) that will benefit residents of the County including those residing within the eight communities listed previously; and WHEREAS, the Larimer County Board of Commissioners has asked that each community pass a resolution supporting the temporary reallocation of this portion of the County’s General Fund mill levy for I-25 for Larimer County budget approval purposes and will work with said communities to develop an intergovernmental agreement. NOW THEREFORE BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that it hereby supports Larimer County’s shift of funds from the County’s General Fund to the County’s Road and Bridge Fund for a period of five years, increasing the Road and Bridge revenues by approximately $2,000,000 per year for the purposes of making improvements to Interstate 25. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 17th day of November, A.D. 2015. _________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 238 Agenda Item 14 Item # 14 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Lawrence Pollack, Budget & Performance Measurement Manager Darin Atteberry, City Manager Mike Beckstead, Chief Financial Officer SUBJECT Second Reading of Ordinance No. 139, 2015, Being the Annual Appropriation Ordinance Relating to the Annual Appropriations for the Fiscal Year 2016; Amending the Budget for the Fiscal Year Beginning January 1, 2016, and Ending December 31, 2016; and Fixing the Mill Levy for Fiscal Year 2016. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on November 3, 2015, amends the adopted 2016 Budget and set the amount of $563,538,909 to be appropriated for fiscal year 2016. Including the 2016 adopted budgets for the General Improvement District No. 1 (“GID No. 1”) of $193,877, the Skyview General Improvement District No. 15 (“GID No. 15”) of $1,000, and the revised Urban Renewal Authority (URA) budget of $2,889,600, the total City appropriations amount to $566,623,386. The Net City Budget, which excludes the GID No.1, GID No. 15, URA, and internal transfers between City funds, is $448,536,933 for 2016. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (PDF) 14 Packet Pg. 239 Agenda Item 17 Item # 17 Page 1 AGENDA ITEM SUMMARY November 3, 2015 City Council STAFF Lawrence Pollack, Budget & Performance Measurement Manager Darin Atteberry, City Manager Mike Beckstead, Chief Financial Officer SUBJECT First Reading of Ordinance No. 139, 2015, Being the Annual Appropriation Ordinance Relating to the Annual Appropriations for the Fiscal Year 2016; Amending the Budget for the Fiscal Year Beginning January 1, 2016, and Ending December 31, 2016; and Fixing the Mill Levy for Fiscal Year 2016. EXECUTIVE SUMMARY The purpose of this item is to amend the adopted 2016 Budget and set the amount of $563,376,909 to be appropriated for fiscal year 2016. Including the 2016 adopted budgets for the General Improvement District No. 1 (“GID No. 1”) of $193,877, the Skyview General Improvement District No. 15 (“GID No. 15”) of $1,000, and the revised Urban Renewal Authority (URA) budget of $2,889,600, the total City appropriations amount to $566,461,386. The Net City Budget, which excludes the GID No.1, GID No. 15, URA, and internal transfers between City funds, is $448,374,933 for 2016. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION City Council previously adopted the 2015-2016 Biennial Budget and appropriated monies for expenditure in fiscal year 2015. State statutes and the City Charter both require an annual appropriation to cover expenses for the ensuing year (2016) based upon the adopted budget. The Second Reading must occur before the last day of November and is currently scheduled for November 17, 2015. The Net City Budget, as amended, is allocated to: Original Amended 2016 2016 Change Operations $479.3 $496.8 $17.6 Debt Service 21.6 21.6 0.0 Capital* 35.5 48.0 12.5 Total City Appropriations** $536.4 $566.5 $30.1 General Improvement District (GID) #1, 15 ($0.2) ($0.2) $0.0 Urban Renewal Authority (URA) (4.9) (2.9) 2.0 Internal Service Funds (66.7) (70.4) (3.7) Less Transfers to Other Funds (41.3) (44.6) (3.3) ATTACHMENT 1 14.1 Packet Pg. 240 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3780 : SR 139 Budget) Agenda Item 17 Item # 17 Page 2 Net City Budget $423.3 $448.4 $25.1 * Capital dollars reflect non-lapsing capital project budgets ** This includes GID and URA which are appropriated in separate ordinances. The change in Total City Appropriations of $30.1M is the net of the increase in the 2016 City appropriation of $32.1M and a reduction in the 2016 URA appropriation of $2.0M This Ordinance also sets the 2016 City mill levy at 9.797 mills, unchanged since 1991. 2016 Revenue Update Sales and use tax, as well as property tax revenues are expected to be higher than originally anticipated for 2015 and 2016. 2015 sales tax collections are now forecasted to be $3.9M higher while use tax collections are anticipated to be $7.1M higher. Those amounts are then split into the General Fund (approximately 60%), and the dedicated voter approved taxes (e.g. Keep Fort Collins Great, OpenSpace Yes!, etc.). The City has been notified by Larimer County that property taxes are anticipated to be nearly $1.0M higher in 2015 than previously forecasted. Looking ahead to 2016, sales tax is forecasted to grow 3.0% over the new 2015 base and use tax is being held flat to the $17.0M originally forecasted due to the significant volatility of that revenue stream. 2016 property tax is forecasted to be 10% over the 2015 base, although two-thirds of that increase will go to PFA in 2017, per our IGA. For the Budget Revision process, only major revenue sources are updated. Any additional revenues that are not used to fund budget offers will increase the various fund balances. Summary of Available Funding: Recommended 2016 Budget Additions After reviewing the recommended 2016 Budget Revision requests at the September 15, 2015 work session and obtaining guidance from Council, the City Manager is recommending the adjustments listed below to the 2016 Budget. Of these, staff recommends using $15.5 million from reserves and available one-time revenue. The requests include use of reserves of $12.3M from the Capital Expansion – Community Parks, Capital Projects, Light and Power, Wastewater, and General Funds for large capital projects. $0.9M is coming from Keep Fort Collins Great reserves with the remainder of the reserves primarily coming from the General Fund for various one-time uses. The table below lists all the 2016 Revision Offers included in the 2016 Annual Appropriation. Note that transfers between funds are also included: $ in Millions General Fund Ongoing General Fund One- Time KFCG Transport ation Other Utililities Total Sales & Use Tax $ 2.4 $ 6.6 $ 3.0 $ 11.9 Property Tax 0.7 1.0 1.7 Street Maintenance 1/4 Cent 7.7 7.7 Utilities - Use of Reserves 9.2 9.2 Unassigned 2014 1.3 6.8 7.5 8.2 23.8 BCC Excess 1.6 1.6 Benefits Fund Revenue Depts 2.7 2.7 TOTAL $ 3.1 $ 8.9 $ 9.8 $ 15.2 $ 12.5 $ 9.2 $ 58.6 14.1 Packet Pg. 241 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3780 : SR 139 Budget) Agenda Item 17 Item # 17 Page 3 General Fund Ongoing $ One-Time $ Total Aircraft Rescue and Firefighting (ARFF) for Fort Collins-Loveland Airport 23,800 0 23,800 Annual Operations for the Community Recycling Center (CRC) 325,000 0 325,000 Benefits Adjustments (from General Fund departments) 1,042,492 0 1,042,492 Chief Human Resources Officer Position - General Fund portion (~151K annually) 92,957 21,000 113,957 City Clerk Licensing Coordinator 68,917 5,700 74,617 Climate Action Plan: Business Planning for Strategic Initiatives and Public-Private Partnership 0 75,000 75,000 Climate Action Plan: Energy Code Performance Program 52,000 15,000 67,000 Emergency Services Dispatcher 70,475 0 70,475 Increase to Claims Settlement Account within the Self Insurance Fund 0 600,000 600,000 Nature in the City Implementation 78,089 0 78,089 Neighborhood Services Strategic Plan and Implementation of Neighborhood Districts 0 67,000 67,000 Parks Division Competitive Hourly Wages 110,000 0 110,000 Prospect Road and College Avenue Intersection Improvements 0 1,100,000 1,100,000 Total Rewards Strategy: Career Architecture and Pay Structure 0 275,000 275,000 Transfers from the General Fund 75,000 75,000 Total General Fund $1,863,730 $2,233,700 $4,097,430 Other Funds Ongoing $ One-Time $ Total Additional Bus Stop Improvements for ADA Accessibility (including contractual FTE) 275,000 0 275,000 Benefits Adjustments (from departments) 1,678,297 0 1,678,297 Benefits Fund Unanticipated Expenditures 2,700,000 0 2,700,000 Chief Human Resources Officer Position - Benefits Fund portion 28,319 0 28,319 Climate Action Plan - Communication and Engagement Platform Design & Implementation 0 125,000 125,000 Climate Action Plan: Business Planning for Strategic Initiatives and Public-Private Partnership 0 75,000 75,000 Climate Action Plan: Energy Code Performance Program 52,000 15,000 67,000 Climate Action Plan: Water Reclamation Biogas to Co-Gen 0 3,500,000 3,500,000 Collindale Golf Course Irrigation Control Software Upgrade 0 30,000 30,000 Harmony Park and Ride - Parking Enforcement Officer 60,000 0 60,000 Homelessness Initiative - Street Outreach Pilot Program 0 80,000 80,000 IT Open Data Portal - First Phase Implementation 60,000 40,000 100,000 KFCG - Fire Reserves for PFA 0 483,219 483,219 Major Duct Banks and Circuits Funding Increase 0 5,000,000 5,000,000 Police Property and Evidence Technician 73,726 0 73,726 Prospect Road and College Avenue Intersection Improvements 0 1,600,000 1,600,000 Renewal of 1/4 Cent Street Maintenance Tax 7,688,825 0 7,688,825 Southeast Community Park - Water Rights & Construction Costs 0 1,100,000 1,100,000 Spring Canyon Playground Surfacing Replacement 0 208,000 208,000 Transfers from other funds 3,155,523 3,155,523 Total Other Funds $12,616,167 $15,411,742 $28,027,909 Total All Funds $14,479,897 $17,645,442 $32,125,339 14.1 Packet Pg. 242 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3780 : SR 139 Budget) Agenda Item 17 Item # 17 Page 4 Changes since Council review at the September 15, 2015 Work Session In addition to the recommended 2016 Revision Offers, a few other modifications have been either included in the 2016 Annual Appropriation Ordinance or could be made if directed by City Council. Included in 1st Reading of the 2016 Annual Appropriation Ordinance • Operation and Maintenance Costs for the Community Recycling Center: $325,000 - Based on City Council direction from the October 13, 2015 Work Session, operation and maintenance (O&M) costs for the Community Recycling Center (CRC) have been included in 1st Reading of the 2016 Annual Appropriation Ordinance. The annual cost for the O&M of the “Full CRC” including Green waste and Wood waste is estimated at $380K. However, since the CRC is not anticipated to open until sometime in mid-2016 the amount for the 2016 O&M is less than the $380K. That savings for 2016 is offset by other one-time startup costs and the seasonality of wood and green waste. The net amount being appropriated for 2016 is $325K. • Contribution to the Aircraft Rescue and Fire Fighting (ARFF) staff and equipment required for the Fort Collins- Loveland Airport: $23.8K - The Federal Aviation Administration (FAA) requires ARFF staff and equipment be provided for all commercial service take-off and landings. Half of this annual cost is born by the airport with the remaining half split 50/50 between the City of Loveland and the City of Fort Collins. The Fort Collins cost of these FAA requirements for 2016 is $23.6K and has been included in 1st Reading of the 2016 Annual Appropriation Ordinance. This contribution is made to the Loveland Fire and Rescue Authority (LFRA) which provides the required service. Not included in 1st Reading of the 2016 Annual Appropriation Ordinance • 2016 Revision Request from the City Attorney’s Office: $162K - The City Attorney’s Office submitted a 2016 Revision request for a paralegal, professional development/training for legal staff, and funding for a law clerk/legal intern. The detail behind the request is included in Attachment #1. The total cost of $162K has not been included in 1st Reading of the 2106 Annual Appropriation Ordinance. If Council desires for it to be included in the Ordinance, it will be necessary to amend the Ordinance. CITY FINANCIAL IMPACTS This Ordinance amends the City Budget for fiscal year 2016 and represents the annual appropriation for fiscal year 2016 in the amount of $563,376,909. The Ordinance also sets the City mill levy at 9.797 mills, unchanged since 1991. The net impact of the funded 2016 Revision compared with available funding is summarized as follows: BOARD / COMMISSION RECOMMENDATION Boards and commissions were engaged during the development of the original 2015-16 Budget. The only changes to the 2016 appropriation are the 2016 Revision Offers which do not go through the Budgeting for Outcomes (BFO) process. Rather, those items that met the specific criteria for the 2016 Revision process $ in Millions General Fund Ongoing General Fund One- Time KFCG Transport ation Other Utililities Total Revenue Update $ 3.1 $ 8.9 $ 9.8 $ 15.2 $ 12.5 $ 9.2 $ 58.6 Recommended Budget Revisions 1.9 2.2 1.4 7.9 9.5 9.2 32.1 Net Impact $ 1.2 $ 6.6 $ 8.4 $ 7.3 $ 3.0 $ (0.0) $ 26.6 14.1 Packet Pg. 243 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3780 : SR 139 Budget) Agenda Item 17 Item # 17 Page 5 were thoroughly vetted by City staff, the executive management team, and by Council at a Council Finance Committee meeting and a City Council Work Session. PUBLIC OUTREACH Significant public outreach was conducted as part of the development of the original 2015-16 Budget. ATTACHMENTS 1. Revision Request for City Attorney's Office (PDF) 2. Powerpoint presentation (PDF) 14.1 Packet Pg. 244 Attachment: First Reading Agenda Item Summary, November 3, 2015 (w/o attachments) (3780 : SR 139 Budget) ORDINANCE NO. 139, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS BEING THE ANNUAL APPROPRIATION ORDINANCE RELATING TO THE ANNUAL APPROPRIATIONS FOR THE FISCAL YEAR 2016; AMENDING THE BUDGET FOR THE FISCAL YEAR BEGINNING JANUARY 1, 2016, AND ENDING DECEMBER 31, 2016; AND FIXING THE MILL LEVY FOR FISCAL YEAR 2016 WHEREAS, on November 18, 2014, the City Council adopted on second reading Ordinance No. 153, 2014, approving an amended biennial budget for the years beginning on January 1, 2015, and January 1, 2016; and WHEREAS, the City Manager has submitted to the City Council proposed amendments to the 2016 budget adopted by the City Council in Ordinance No. 153, 2014; and WHEREAS, the City Council has reviewed the City Manager’s recommended changes to the “2016 Proposed Appropriations” section of the Fort Collins 2015 and 2016 Biennial Budget (the “Biennial Budget”), as shown on pages 45 through 47 thereof, a copy of which is on file with the office of the City Clerk, as amended on First Reading of this Ordinance, referred to herein as the “2016 Budget Revisions;” and WHEREAS, Article V, Section 4, of the City Charter requires that, before the last day of November of each fiscal year, the City Council shall appropriate, on a fund basis and by individual project for capital projects and federal or state grant projects, such sums of money as it deems necessary to defray all expenditures of the City during the ensuing fiscal year, based upon the budget as approved by the City Council; and WHEREAS, Article V, Section 5, of the City Charter provides that the annual appropriation ordinance shall also fix the tax levy upon each dollar of the assessed valuation of all taxable real property within the City, such levy representing the amount of taxes for City purposes necessary to provide for payment during the ensuing fiscal year for all properly authorized expenditures to be incurred by the City, including interest and principal of general obligation bonds; and WHEREAS, Article XII, Section 6, of the City Charter permits the City Council to fix, establish, maintain, and provide for the collection of such rates, fees, or charges for water and electricity, and for other utility services furnished by the City as will produce revenues sufficient to pay into the General Fund in lieu of taxes on account of the City-owned utilities such amount as may be established by the City Council; and WHEREAS, Article V, Section 10, of the City Charter authorizes the City Council to transfer by ordinance any unexpended and unencumbered appropriated amount or portion thereof from one fund or capital project to another fund or capital project, provided that the purpose for which the transferred funds are to be expended remains unchanged; the purpose for which the funds were initially appropriated no longer exists; or the proposed transfer is from a fund or Packet Pg. 245 capital project in which the amount appropriated exceeds the amount needed to accomplish the purpose specified in the appropriation ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council, having reviewed the City Manager's recommended changes to the A2016 Proposed Appropriations@ section of the Fort Collins 2015 and 2016 Biennial Budget (the “Biennial Budget@), as shown on pages 45 through 47 thereof, a copy of which is on file with the office of the City Clerk, hereby amends the Biennial Budget to reflect the following changes and adopts said Biennial Budget as amended by the 2016 Budget Revisions: 2016 Proposed Appropriations Existing Amount of Adjustment As Amended GENERAL FUND $129,111,563 $4,259,430 $133,370,993 ENTERPRISE FUNDS Golf $3,372,848 $147,294 $3,520,142 Light & Power Operating Total $136,366,109 $460,568 $136,826,677 Capital Projects: Art in Public Places 70,476 $0 70,476 Major Duct Banks and Circuits Funding Increase 4,950,000 4,950,000 Capital Projects Total 70,476 4,950,000 5,020,476 Total Light & Power $136,436,585 $5,410,568 $141,847,153 Storm Drainage Operating Total $11,308,810 $64,596 $11,373,406 Capital Projects: 0 Art in Public Places 35,700 35,700 Cooper Slough and Boxelder Basins 350,000 350,000 Stormwater Basin Improvements 2,500,000 2,500,000 Stormwater Developer Repays 100,000 100,000 Stormwater Drainage System Improvements 370,000 370,000 Stormwater Master Plan 275,000 275,000 Stream Restoration 700,000 700,000 Capital Projects Total 4,330,700 4,330,700 Total Storm Drainage $15,639,510 $64,596 $15,704,106 Wastewater Operating Total $18,307,774 $104,920 $18,412,694 Capital Projects: Art in Public Places 78,035 78,035 Collection System Replacement 1,602,000 1,602,000 Ultra-Violet Disinfection System 5,900,000 5,900,000 Water Reclamation Replacement Program 301,500 3,465,000 3,766,500 Capital Projects Total 7,881,535 3,465,000 11,346,535 Packet Pg. 246 Total Wastewater $26,189,309 $3,569,920 $29,759,229 Water Operating Total $25,797,076 $113,481 $25,910,557 Capital Projects: Art in Public Places 148,400 148,400 Chlorine Contact Basin 9,720,000 9,720,000 Water Distribution System Replacement 2,300,000 2,300,000 Water Meter Replacement & Rehabilitation 800,000 800,000 Water Production - Energy Optimization 300,000 300,000 Water Production Replacement Program 1,581,182 1,581,182 Water Source of Supply Replacements 750,000 750,000 Capital Projects Total 15,599,582 0 15,599,582 Total Water $41,396,658 $113,481 $41,510,139 TOTAL ENTERPRISE FUNDS $223,034,910 $9,305,859 $232,340,769 INTERNAL SERVICE FUNDS Benefits $25,335,636 $2,737,614 $28,073,250 Data & Communications 10,520,742 207,884 10,728,626 Equipment 12,235,244 32,988 12,268,232 Self Insurance 3,547,205 614,340 4,161,545 Utility Customer Service & Administration 17,306,739 135,692 17,442,431 TOTAL INTERNAL SERVICE FUNDS $68,945,566 $3,728,518 $72,674,084 SPECIAL REVENUE & DEBT SERVICE FUNDS Capital Improvement Expansion $2,329,828 $1,100,000 $3,429,828 Capital Leasing Corporation 4,619,279 4,619,279 Cemeteries 644,195 23,577 667,772 Conservation Trust Operating Total - Administration & Parks Maint $281,570 $281,570 Capital Projects: Trail Acquisition/Development 1,188,664 1,188,664 Capital Projects Total 1,188,664 0 1,188,664 Total Conservation Trust $1,470,234 $0 $1,470,234 Cultural Services & Facilities Operating Total $3,889,319 $32,302 $3,921,621 Capital Projects - Art in Public Places 50,815 50,815 Total Cultural Services & Facilities $3,940,134 $32,302 $3,972,436 General Employees' Retirement $4,127,950 4,127,950 Keeping Fort Collins Great Operating Total $23,839,384 $1,141,210 $24,980,594 Capital Projects: City Bridge Program 2,092,592 2,092,592 Lemay/Vine Intersections 500,000 500,000 Lincoln Plan Neighborhood 176,000 176,000 Pedestrian Sidewalks/ADA 150,000 150,000 Additional Bus Stop Imp for ADA Accessibility 0 275,000 275,000 Capital Projects Total 2,918,592 275,000 3,193,592 Total Keeping Fort Collins Great $26,757,976 $1,416,210 $28,174,186 Packet Pg. 247 Museum $1,055,229 $12,566 $1,067,795 Natural Areas 11,366,467 180,317 11,546,784 Neighborhood Parkland Fund Operating Total - Administration $488,270 $488,270 Capital Projects: New Park Site Development 400,000 400,000 New Park Site Acquisition 300,000 300,000 Rossborough Park 110,000 110,000 Trailhead Park 300,000 300,000 Capital Projects Total 1,110,000 1,110,000 Total Neighborhood Parkland $1,598,270 $1,598,270 Parking $2,480,368 $70,278 $2,550,646 Perpetual Care 20,311 $20,311 Recreation 6,856,477 82,472 6,938,949 Sales & Use Tax 7,569,302 288,523 7,857,825 Street Oversizing 2,640,738 2,640,738 Timberline/Prospect SID 54,000 54,000 Transit Services 13,604,480 89,084 13,693,564 Transportation Services 16,436,787 7,898,203 24,334,990 SPECIAL REVENUE & DEBT $107,572,025 $11,193,532 $118,765,557 SERVICE FUNDS CAPITAL PROJECTS FUND Operating Total 230,098 230,098 General City Capital Projects: City Bridge Program 207,408 207,408 Northeast Community Park 450,000 450,000 Railroad Crossing Replacement 100,000 100,000 Southeast Community Park 1,200,000 1,200,000 Traffic Calming 400,000 400,000 Prospect Road and College Avenue Intersection Imp 0 2,700,000 2,700,000 Southeast Comm Park - Water Rights & Construction 0 1,100,000 1,100,000 Total General City Capital Projects $2,357,408 $3,800,000 $6,157,408 TOTAL CAPITAL PROJECTS FUND $2,587,506 $3,800,000 $6,387,506 TOTAL CITY FUNDS $531,251,570 $32,287,339 $563,538,909 Section 2. That there is hereby appropriated out of the revenues of the City, for the fiscal year beginning January 1, 2016, and ending December 31, 2016, the sum of FIVE HUNDRED SIXTY-THREE MILLION FIVE HUNDRED THIRTY-EIGHT THOUSAND NINE HUNDRED NINE DOLLARS ($563,538,909) to be raised by taxation and otherwise, which sum is deemed by the City Council to be necessary to defray all expenditures of the City during said budget year, to be divided and appropriated for the purposes shown in Section 1 above. Section 3. Mill Levy. a. That the 2016 mill levy rate for the taxation upon each dollar of the assessed Packet Pg. 248 valuation of all the taxable real property within the city of Fort Collins as of December 31, 2015, shall be 9.797 mills, which levy represents the amount of taxes for City purposes necessary to provide for payment during the aforementioned budget year of all properly authorized expenditures to be incurred by the City, including interest and principal of general obligation bonds. b. That the City Clerk shall certify this levy of 9.797 mills to the County Assessor and the Board of Commissioners of Larimer County, Colorado, in accordance with the applicable provisions of law, as required by Article V, Section 5, of the City Charter. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, A.D. 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. _________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on the 17th day of November, A.D. 2015. _________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 249 Agenda Item 15 Item # 15 Page 1 AGENDA ITEM SUMMARY November 17, 2015 City Council STAFF Josh Birks, Economic Health Director Mike Beckstead, Chief Financial Officer SUBJECT Resolution 2015-101 Approving a Construction and Purchase Agreement for the City's Purchase of Parking Spaces in the Proposed Jefferson Street Parking Garage. EXECUTIVE SUMMARY The purpose of this item is for City Council to consider a resolution authorizing the City Manager to execute a purchase and sale agreement to acquire over 200 public parking spaces. In addition, the Resolution instructs staff to prepare a financing strategy and plan for presentation to City Council late 2016 or early 2017. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION Project Overview Project Description The public-private partnership proposes to construct a 3-level mixed-use parking garage with approximately 322 parking spaces and 3,200 square feet of retail space at the corner of Chestnut and Jefferson Streets - 363 Jefferson Street (the “Project”). The Project will be a public-private partnership between the City of Fort Collin and the developers of the Fort Collins Hotel (Bohemian Companies, McWhinney, and Sage Hospitality - collectively the “Developer”). The garage entry will be on Chestnut Street and the retail spaces will face onto Old Firehouse Alley (Attachment 1). The Project will contain all required vehicle and bicycle parking for the hotel. Parking The Project is designed as a three bay garage with a central ramp for moving between floors (Attachment 3). The central ramp allows for the exterior of the structure on all four faces to have horizontal floors. This construction allows for an efficient use of the available footprint and a structure that addresses the streets and alley with a consistent façade free of the impacts from the required ramps. The structure will be constructed above ground with the exception of a short downward ramp on the first floor. The floor to ceiling height on the ground floor will be higher to accommodate retail space facing the alley. The result is approximately 322 parking spaces over three levels, see Table 1. 15 Packet Pg. 250 Agenda Item 15 Item # 15 Page 2 Table 1 Parking Count By Floor and Type Tier Standard Van Accessible Accessible Total Ground 77 3 3 83 Second 117 0 3 120 Third 117 0 2 119 Total 312 3 8 322 Of the parking, 106 of spaces will be dedicated to the Fort Collins Hotel (approved by the Planning and Zoning Board on August 10, 2015) and the remaining 216 spaces will be public parking managed by the City. The hotel’s parking will include all of the ground floor with the balance of spaces located on the second floor. The remaining spaces on the second and third level will be available for public parking. The ground floor will have limited access for hotel patrons and staff only and will be used for hotel valet and general parking. The remaining hotel spaces will be designated as “Reserved for Hotel Use” using signs on the second floor, see Table 2. The ultimate count may vary some as the van accessible and accessible spaces are divided by user. Table 2 Parking Count By Floor and Use Tier Hotel Public Total Ground 83 0 86 Second 23 97 120 Third 0 119 119 Total 106 216 322 **NOTE: The number of parking spaces is subject to change as design moves into engineering and accessible spaces are sited within the facility. Retail The Project includes 3,200 square feet of retail facing Old Fire House Alley that will contain artisan and hotel supporting retailers (labeled as Retail/Office Flex Space on Attachment 3). This retail is located immediately across the alley from the Fort Collins Hotel bar and lobby space and will create an active and vibrant alley. In addition, the project includes the façade improvements for a similar amount of retail along the Jefferson Street structure face (labeled as Potential Retail/Office Flex Space on Attachment 3). This retail will not be constructed during the initial Project. This Jefferson Street facing retail will be reserved for future construction when nearby development has created a more active pedestrian atmosphere along Jefferson Street. The City will be able to drive the timing of this construction through an option specified in the purchase and sale agreement (see the Partnership Section for additional details). Design Considerations The proposed design is a result of a thoughtful context-sensitive approach by the Developer. (Attachment 4) Although the project is outside of the Old Town Historic District, the design team utilized the Old Town Historic District Design Standards to inform the building and site design. In addition, the design team referred to the River District Design Guidelines for Structured Parking 6.25 thru 6.27 for guidance on design. The result is a structure that bridges the industrial character of the River District to the historic character of the Old Town Historic District. The project was reviewed and recommended for approval by the Landmark Preservation Commission (“LPC”) on September 28, 2015 and approved by the Planning and Zoning Board on October 8, 2015. (Attachments 5 and 6) 15 Packet Pg. 251 Agenda Item 15 Item # 15 Page 3 Public Benefit Fort Collins provides a high quality of place contributed to by the lively historic downtown and the City’s impressive parks, trails and open space networks. These community assets make Fort Collins an attractive place for both a well-educated workforce and diverse industries. The development of a downtown hotel and the proposed parking structure represent an opportunity to strengthen the existing high quality of place. The Project meets numerous City Plan policy objectives and occurs in the City’s core. Thus, the Project represents an opportunity to achieve not only economic outcomes, but also an opportunity to strengthen the overall community. City Plan Objectives The Project as proposed meets a variety of City Plan objectives, including but not limited to: Economic Health EH 1.3 - Prioritize Essential Infrastructure/Capital Facilities: Additional parking has been identified through several public outreach efforts including the recent update to the Downtown Plan as a key need. As such, partnering to deliver 216 public parking spaces meets this objective. EH 4.1 -Prioritize Targeted Redevelopment Areas: The Old Town Historic District and the River District are both Targeted Redevelopment Areas. Addressing the parking need in these areas will help to facilitate additional redevelopment and meet a current community need for parking. EH 4.2 - Reduce Barriers to Infill Development and Redevelopment: One barrier to redevelopment especially in and near the historic core is the lack of parking to meet user demand. This Project provides 216 additional spaces in an area identified as part of the Parking Plan as needing additional parking. Community and Neighborhood Livability Policy LIV 3.1 - Commit to Providing Capital Facilities: This objective calls for prioritizing existing deficiencies. As parking remains a deficiency, according to the Parking Plan and public outreach, this project addresses a deficiency in the Old Town area. Policy LIV 5.1 - Encourage Targeted Redevelopment and Infill: The Old Town Historic District and the River District are both Targeted Redevelopment Areas, addressing the parking need in these areas will help to facilitate additional redevelopment and meet a current community need for parking. Policy LIV 30.4 - Reduce Visual Impacts of Parking: The Project addresses this objective by providing a context sensitive design to the structure skin that reinforces the historic character of nearby buildings and transitions from the Old Town Historic District to the River District. Policy LIV 30.5 - Parking Structures: The Project design addresses this objective by providing for retail development along two faces of the structure. In addition, the design utilizes screening to reinforce the historic form of nearby buildings. Finally, the design integrates green walls to provide visual relief and introduce nature in the Project in a creative way. Policy LIV 32.5- Maintain Visual Character: The context sensitive design was very deliberate and intentional in its efforts to reinforce the historic building pattern through screening and material choice. Policy LIV 32.6 - Encourage Human-Scale Architectural Elements: The design uses retail and green screening to break-up otherwise lengthy facades to create more pedestrian scale. High Performing Government Policy HI 4.6 - Work with Private Partners: Working with private partners to develop parking was identified as a key strategy in the Parking Plan as well as fulfills this objective of City Plan. City Strategic Plan The Project as proposed meets a variety of City Strategic Plan objectives, including but not limited to: 15 Packet Pg. 252 Agenda Item 15 Item # 15 Page 4 1.10 - Address neighborhood parking issues: The Project address the identified parking need in the Old Town Historic District and River District. 3.7 - Support sustainable infill and redevelopment to meet climate action strategies: The Project supports infill and redevelopment, which by virtue of revitalizing under-utilized land is itself a sustainable effort. 3.10 - Address Downtown parking issues identified in the adopted Parking Plan: The Project directly responds to the adopted Parking Plan by providing 216 public parking spaces in a location identified as a target within that plan. Downtown Strategic Plan (2004) The Project as proposed meets a variety of Downtown Strategic Plan (2004) objectives, including but not limited to: Principle 1: Protect and manage the Downtown retail/entertainment Core 1.1.1 - Encourage long-term parkers, customers, and employees to better utilize existing Downtown parking structures: This Project increases the available supply of downtown parking making access for long-term parking in structures easier. 1.3.1 - Create a Comprehensive parking management plan for the Downtown core: This Project is a direct reaction to the adopted Parking Plan and the action items contained within that plan. Principle 2: Utilize the Energy from the Core to Leverage and Attract New Development 2.3.1 - Develop, manage and operate parking as essential civic infrastructure, and over time create a “Park Once” environment to sustain low overall parking ratios: This Project helps to achieve this objective by increasing the supply of long-term parking within the Old Town Historic District and Riverside District, which will help to facilitate a “Park Once” environment. Parking Plan: Downtown and Surrounding Neighborhoods The Project as proposed meets a variety of Parking Plan: Downtown and Surrounding Neighborhoods (the “Parking Plan”) objectives, including but not limited to: Principle 6: New Parking Infrastructure Policy 6.3 - Public-Private Partnerships for the Development of New Parking: This objective encourages the use of Public-Private Partnerships (“PPPs”) to increase the supply of public parking throughout the Downtown. This Project leverages a PPP to add 216 parking spaces to the supply of off-street long-term parking in the Downtown area directly responding to this policy. Policy 6.6 - Downtown River District Parking Needs: This Project’s proximity to the River District allows for the facility to provide some relief to the parking supply issue in that district. Principle 7: Multimodal Access and Urban Design Policy 7.3 - Structured Parking: This objective encourages the conversion of surface parking into structure parking. The original Project plan called for a surface parking lot to meet the Fort Collins Hotel’s parking need. The use of a PPP encouraged the conversion of that plan from a surface parking lot into a structured parking facility. Downtown Public Parking Demand The Parking Plan includes a Parking Demand Model that provides insights into future parking needs based on existing and future land uses. This model combined with additional staff analysis generated an estimated of the overall demand for additional public parking in the Downtown area. Table 3 (excerpted from the Parking Plan) summarizes the estimate of future public parking demand over a 10-year period. 15 Packet Pg. 253 Agenda Item 15 Item # 15 Page 5 Table 3 Future Public Parking Demand: 10 Year Horizon The analysis indicates a demand for approximately 910 spaces over the 10-year horizon with an additional 600 spaces needed to support a proposed 1,500 seat performance hall. Therefore, the Project as proposed meets 24 percent of the projected need for all future public parking demand and 43 percent of the demand from background growth in demand as projected by the Parking Demand Model. The Project as proposed also locates the 216 additional public parking spaces in one of the seven identified target areas within the Parking Plan, as shown in Attachment 7 (excerpted from the Parking Plan). Therefore, the Project aligns with the needs and locations identified within the Parking Plan for additional public parking. Partnership Structure As recommended in the Parking Plan, this Project uses a PPP to deliver additional public parking in the Downtown area. In the proposed partnership, the Developer of the Fort Collins Hotel will construct the Project and when completed the Developer will sell the City 216 parking stalls as condominium space. The process is very similar to the approach used to construct the new Foothills Activity Center and the Counciltree Public Library. In addition, this approach allows for the City to utilize tax-exempt financing. 15 Packet Pg. 254 Agenda Item 15 Item # 15 Page 6 Construction and Purchase Agreement City Council is being asked to consider a resolution to authorize the City Manager to execute a Construction and Purchase Agreement (“Agreement”) for the condo(s) associated with over 200 public parking spaces. The main points of the Agreement are summarized below: The City must give its approval of the final plans and specifications for construction of the parking structure and the Developer’s itemized cost estimate before construction can commence; The Developer agrees to deed at least 200 parking spaces (currently estimated at 216 spaces) within the parking structure to the City including the right to use the land underlying the Parking Structure and the air rights over the building. The actual number of spaces will determine the City’s final contribution to the project costs. The City will only fund the public parking portion of the structure; The Developer and the City, at closing, will execute an option agreement that will allow the City, at its discretion, to acquire from the Developer an area of parking on the first floor of the Parking Structure as a separate unit for the construction of retail and in exchange the City would transfer to the Developer a similar number of parking spaces in the public parking area; Purchase price will be the land cost of ($2,018,835) plus a proportional share of the agreed upon costs for construction but not to exceed a total amount currently estimated at $7,700,000 –the final number will be inserted into the Agreement once Final Plans are complete for the structure. The City’s obligations under the Agreement to close on the purchase of the condominium units is contingent on the Council’s appropriation of the funds needed for the purchase. NOTE: Not all the attachments to the Construction and Sale Agreement are available at this time. However, many of the attachments to this AIS provide similar information to the missing attachments. For example, the parking structure plans are a draft version of the Final Plans that will ultimately be attached to the Agreement when it is signed. Ongoing Operations and Maintenance A condominium association (the “Association”) will oversee the ongoing operations and maintenance of the structure. The “Condominium Declaration” governing the Association is attached as Exhibit “D” of the Agreement. The current plan calls for City’s Parking Services Department to provide ongoing operations and maintenance of the entire structure with each individual owner (the City and Developer) responsible for the actual parking operations within their individual portion of the project. The Association Board will be responsible for maintaining the structure to a pre-defined and agreed upon standard. Day-to-day decisions will be governed by a simple majority with major capital expenditures, changes to the Association Bylaws and Covenants, and approval of use within the Retail/Office Flex space being subject to super majority decisions. The City will have proportional representation on the board, which will result in the City having approximately two-thirds control of the Association. Timeline The Project is anticipated to be constructed in the following timeline: November 17, 2015 - City Council considers the Agreement 1st Quarter 2016 - Hotel construction begins using the parking structure site for staging of equipment 2nd Quarter 2016 - Parking Structure construction begins 2016 - Evaluate, identify, and close financing for acquisition 2016 - Finalize an Intergovernmental Agreement with the Downtown Development Authority 1st Quarter 2017 - City purchases the 216 public parking spaces Financial Investment Overview City staff has been evaluating the use of a lease-purchase financing structure that will involve the sale of certificates of participation to fund the acquisition cost of the 216 public parking spaces. 15 Packet Pg. 255 Agenda Item 15 Item # 15 Page 7 Project Costs The current estimated Project cost is approximately $11.6 million or $36,000 per stall. This Project cost includes the cost to prepare the site, construct 323 parking spaces, and construction 3,200 square feet of retail core and shell, as shown in Table 4. The parking costs account for 85 percent of the total with retail and site each accounting for between 7 and 8 percent individually. Table 4 Estimated Project Costs by Use Cost Item Stalls Parking Retail Site Total Land $ 1,966,110 $ 52,725 $ - $ 2,018,835 Permit Fees/Development Fees $ 561,153 $ 21,024 $ 42,823 $ 625,000 Soft Costs $ 1,209,845 $ 45,328 $ 92,327 $ 1,347,500 Furniture, Fixtures, & Equipment $ 44,892 $ 1,682 $ 3,426 $ 50,000 Construction Costs $ 6,968,231 $ 261,070 $ 531,769 $ 7,761,070 % of Hard Costs 90% 3% 7% 100% TOTAL $ 10,750,231 $ 381,829 $ 670,346 $ 11,802,405 $ / Stall 322 $ 33,386 n/a $ 2,082 $ 36,653 The total Project cost is split amongst the various owners in the following manner (a) the retail costs are 100 percent apportioned to the Developer, and (b) the remaining parking and site costs are split amongst the Developer and the City based on a pro-rata share. The result is an estimated City cost of approximately $7.1 million or approximately $33,000 per stall, as shown in Table 5. This equates to 62 percent of the costs or just under two-thirds. Table 5 Estimated Project Costs by Owner Cost Item Developer Retail City Total Land $ 647,229 $ 52,725 $ 1,318,881 $ 2,018,835 Permit Fees/Development Fees $ 198,824 $ 21,024 $ 405,152 $ 625,000 Soft Costs $ 428,665 $ 45,328 $ 873,507 $ 1,347,500 Furniture, Fixtures, & Equipment $ 15,906 $ 1,682 $ 32,412 $ 50,000 Construction Costs $ 2,468,944 $ 261,070 $ 5,031,056 $ 7,761,070 TOTAL $ 3,759,569 $ 381,829 $ 7,661,008 $ 11,802,405 $ / Stall $ 35,468 n/a $ 35,468 $ 36,653 Stalls 106 n/a 216 322 15 Packet Pg. 256 Agenda Item 15 Item # 15 Page 8 Comparable Project Costs For reference, staff consulted with Colorado State University regarding construction costs of a recent parking structure built on campus. The South College Parking Garage on CSU’s campus was priced at $21,000 per space in construction costs. The Project as proposed is estimated to cost approximately $24,000 per space including the retail and $23,000 per space excluding the retail. Therefore, the estimated costs are within 10 percent of the CSU costs on a per space basis. It should be noted that the exterior skin treatment of the Project as proposed provides a significantly greater amount of architectural interest and design features. CITY FINANCIAL IMPACTS Financing Structure and Assumptions The City is currently paying off the Civic Center Parking structure at a cost of $1,115,000 annually. These payments will conclude June 2018. The Downtown Development Authority (“DDA”) has also pledged Tax Increment funds to support repayment of any debt incurred to finance the Project (Attachment 8). This pledge includes up to $300,000 starting in 2019 and continues through 2031. Using the above cost estimates and assuming a tax exempt financing, the annual debt service for the Project could range from $559,000 to $868,000 annually depending on the term of the financing, as shown in Table 6. Starting in 2019 the DDA funds will be available to pay debt service reducing the General Fund contribution to $259,000 to $568,000 annually. The current approach assumes that General Fund reserves fund the debt service in 2017 and 2018 until the Civic Center Parking structure funds and DDA funds become available. Therefore, the total cost to finance the project could range from $5.8 to $6.3 million depending on financing terms. The total DDA contribution could range from $2.4 to $5.4 million depending on the term of the financing. Table 6 Estimated Financing Costs Option 1 Option 2 Term 10 Years $868,000 Interest Rate 2.5% 4.0% Annual Debt Service $868,000 $559,000 Less: DDA Contribution $300,000 $300,000 Annual General Fund Contribution $568,000 $259,000 Total Financing Cost $8,680,000 $11,180,000 General Fund Reserves (2017-2018) $1,736,000 $1,118,000 Total Financing Cost to the General Fund $6,280,000 $5,780,000 There may be other financing needs within the City between now and the proposed acquisition in the first quarter of 2017. Therefore, this financing could be packaged with other needs to create even greater efficiency in financing terms and interest. The above estimate is provided to illustrate the potential costs of financing the Project and should not be considered the final cost. Operating Revenue and Expenses Ground floor retail is proposed along Old Firehouse Alley and is not included as a potential revenue source in Table 7. It is also assumed that there will be no revenue potential from the first deck of parking that represents approximately 108 parking stalls. These estimates are only accounting for annual revenues generated from City managed parking stalls and annual operating and maintenance expenses for a three story parking structure. These estimates do not account for any initial capital investment of tools and equipment required to operate the facility. Finally, it is assumed that the hotel will contribute towards the cost of operations and maintenance on a pro rata share, estimated at $100,000. Therefore, the initial estimate of revenue and expenses shows a slight net gain annually, as shown in Table 8. 15 Packet Pg. 257 Agenda Item 15 Item # 15 Page 9 The following revenues and expenses are projected for initial year of operation. It is expected that operating and maintenance expenses would increase over time as the facility ages. Table 7 Projected Revenues for Proposed Parking Structure Revenue Estimated annual hourly revenue new garage $198,000 * Estimated annual permit revenue new garage $42,960 * Estimated Hotel contribution to O&M $100,000 Total Annual Revenue $340,960 Table 8 Projected Expenses for Proposed Parking Structure Estimated Expenses Enforcement $85,000 Standard maintenance/maintenance agreements $100,000 Utilities/phones $20,000 Security $75,000 Professional/technical $7,000 Supplies/Miscellaneous/Banking $15,000 Total Annual Expense $302,000 *Based on approximately 75% capacity hourly/80% permit with 2015 oversell percentages and current pricing. Background on Financing Structures Municipalities generally have (at a high level) three types of securities that can be used to raise funds. 1. General Obligation Bonds (GO): A GO bond is a common type of municipal bond that is secured by a state or local government's pledge to use legally available resources, including tax revenues, to repay bond holders. GO bonds are backed by the full pledge and guarantee of the municipality issuing the bonds. GO bonds are guaranteed largely by the taxing authority of the issuing agency. Because the pledge entails possibly raising taxes to meet future debt service and because GO bonds include a multi-year fiscal obligation, under the current Colorado Constitution, voter approval is required before GO bonds can be issued. 2. Revenue Bonds: A revenue bond is a special type of municipal bond distinguished by its guarantee of repayment solely from revenues generated by a specified revenue-generating entity associated with the purpose of the bonds, rather than from a tax. Unlike general obligation bonds, only the revenues specified in the legal contract between the bond holder and bond issuer are required to be used for repayment of the principal and interest of the bonds; other revenues (notably tax revenues) and the general credit of the issuing agency are not so encumbered. Because the pledge of security is not as great as that of general obligation bonds, revenue bonds may carry a slightly higher interest rate than G.O. bonds; however, they are usually considered the second-most secure type of municipal bonds. 3. Certificates of Participation (COPs): A COP is a lease-financing mechanism where the issuing agency enters into a lease-purchase agreement associated with a specific asset and agrees to make regular lease payments subject to annual appropriation for the use of that asset over a specific period of time, after which the title for the asset transfers to the government. Where a GO is secured by the taxing authority of the issuing agency, COPs are secured by the asset pledged in the lease-financing contract. COPs are used extensively across the State of Colorado. The Colorado Supreme Court has ruled on two occasions in the last few decades that COPs are not considered a form of long-term debt and do not constitute a multi-year fiscal obligation and thus do not require prior voter approval before issuance. The City did a COP transaction in 2012 associated with refinancing the police building. While the City received 15 Packet Pg. 258 Agenda Item 15 Item # 15 Page 10 a Aaa issuer rating from Moody’s (this would apply to a GO bond issuance), the COPs were rated and issued at Aa1. In this case, the actual rate on the COP was 1.82% compared to 2.51% as reported on the Bloomberg index for a Aaa bond on the day of closing. This discrepancy arises from the variable nature of the COP and GO bond markets and the difficulty in predicting a rate that can be obtained for a COP. The COP market is not indexed like the traditional bond markets. COPs typically carry a higher interest rate than GO bonds. The higher interest is influenced by multiple factors including the risk of annual appropriation and overall volume and interest from the investor pool. In talking with the City’s Financial Advisor, a typical spread of 20-40 basis points is common between a Aaa GO issue and a Aa1 COP issue but as the City experienced in 2012, the spread can vary significantly. The premium on the interest rate is offset by several factors associated with holding an election to support a GO debt issuance. Elections can only be held at certain times. The next election opportunity for the City would be the November 2016 election and alternatively, April 2017. Municipalities generally prefer using COPs for financing projects like this because a) the timing of the project would be delayed significantly and b) interest rates in 2017 are uncertain but potentially higher. For these reasons, staff recommends moving forward with a COP financing mechanism to support the Parking Structure and the Police Regional Training Facility. BOARD / COMMISSION RECOMMENDATION The Project was reviewed by two boards prior to its presentation to City Council for consideration; both of these boards supported the project: Parking Advisory Board - Support (Attachments 10 and 11); and Downtown Development Authority - Support (Attachment 8). The Project was reviewed by the appropriate boards and commissions as it progressed through the land use entitlement process, including: Landmark Preservation Commission - Recommendation to Planning and Zoning Board - Approved - September 28, 2015; and Planning and Zoning Board - Review of the Project Development Plan - Approved - October 8, 2015. The Project was also reviewed by the Council Finance Committee on October 26, 2015. PUBLIC OUTREACH Significant public outreach was conducted in the preparation of each of the key strategic documents the Project delivers on, including: City Plan update; City Strategic Plan; Downtown Strategic Plan (2004); and Parking Plan: Downtown and Surrounding Neighborhoods. In addition, staff is currently engaged in a dialogue with the community and downtown stakeholders regarding parking demand and needs as part of the update to the Downtown Plan (anticipated preliminary policy direction in May 2016). All of this background engagement and discussion has been used to inform the project. 15 Packet Pg. 259 Agenda Item 15 Item # 15 Page 11 ATTACHMENTS 1. Overall Site Plan (PDF) 2. Context map (PDF) 3. Parking Garage plans (PDF) 4. Parking Structure Renderings (PDF) 5. Landmark Preservation Commission minutes, September 28, 2015 (PDF) 6. Planning and Zoning Board minutes, October 8, 2015 (PDF) 7. Public Parking Opportunity Areas (PDF) 8. DDA Resolution 2015-05 (PDF) 9. Landmark Preservation Commission Findings (PDF) 10. Parking Advisory Board Letter of Support (PDF) 11. Parking Advisory Board minutes, September 14 and October 12, 2015 (PDF) 12. Powerpoint presentation (PDF) 15 Packet Pg. 260 bike racks bike racks Downtown Fort Collins Parking Structure LPC Submittal page 8 Overall Site Plan ATTACHMENT #1 15.1 Attachment: Overall Site Plan (3772 : Downtown Hotel Parking Structure Partnership) Downtown Fort Collins Parking Structure LPC Submittal page 7 Jefferson Street Chestnut Street Walnut Street Mountain Ave. OLD TOWN RIVER DISTRICT Parking Structure Site How can we relate to both? How can we add to both? Bridging Distinct Zones & Characters ATTACHMENT 2 15.2 Attachment: Context map (3772 : Downtown Hotel Parking Structure Partnership) Downtown Fort Collins Parking Structure X X X X X X WW WW WW WW F F F FF F F E EE T T T T E E E E CHESTNUT STREET DOWNTOWN HOTELLLLLLLL JEFFERSON STREET 20' WIDE ALLEY 242'-0" O.T.O. 175'-0" O.O TO. OPEN AREA FOR POTENTIAL BIKE SHARE 18'-11" 18'-11" 16 SPACES 16 SPACES 6 SPACES 5 SPACES S S 16'-5" '-11" MEP/STORAGE ROOMS 8.3% UP RAMP EXPRESS 13.6% UP RAMP EXPRESS PA 16'-5" 3'-0" 3'-0" 13 SPACES 5'-6" HOTEL PUBLIC PP HOTEL 19 9 SPACES CE 5 S SPACESS VAN VAN VAN 1'-0" 40'-0" 30'-0" 30'-0" 40'-0" 30'-0" 30'-0" 40'-0" 1'-0" 5 C P 9'-0" '--0" 3200 RETAIL SPACE ISOMETRIC EXPRESS EX XPRES ESS ESSS SS SRA RA RAMP MP Downtown Fort Collins Parking Structure 1 SECOND LEVEL 6.7%DN RAMP 6.7% UP RAMP 18'-11" 18 SPACES 18'-11" 18'-0" 24'-6" 18'-0" 18'-11" 16'-5" 9'-0" 19 SPACES 16 SPACES 9 SPACES 9 SPACES 16 SPACES 14 SPACES 3 SPACES 3 SPACES 242'-0" O.T.O. 175'-0" O.TO. 13.6% DN RAMP EXPRESS 13 SPACES 2 THIRD LEVEL A 8'-9" ES 1 1 C 18'-8'-11" 1 3 3 16'-5" P 6.7%DN RAMP 18'-11" 18'-11" 16'-5" 19 SPACES 16 SPACES 16 SPACES 14 SPACES 9 SPACES 175'-0" O.TO. 13 SPACES A 8'-9" ES 1 1 C 18'-8'-11" 1 S S 16'-5" 1 9 SPACES 18'-0" 24'-6" 18'-0" 5 SPACES S S Chestnut Street Elevation Building signage and Identification to match neigh- boring City parking structures to provide a clear wayfinding system within Downtown context. Downtown Fort Collins Parking Structure LPC Submittal page 17 BRICK (GARDEN BLEND- SMOOTH) PRE-CAST (LIGHT RED - SMOOTH & TEX- TURED) PREFINISHED ALUMINUM -COLOR 3 PREFINISHED ALUMINUM -COLOR 4 INTERLOCKING METAL PANEL - (PREWEATHERED ZINC) PRECAST CONCRETE PARAPET CAP GROUND FACE CMU PREFINISHED OMEGA ECO FENCING GALVANIZED STEEL WELDED BAR GRATING /(9(/ /(9(/ /(9(/ $/80,1,806725()5217 $/80,1,80 6725()5217 %5,&. 9(1((5 *$5$*((175$1&( *$/9$1,=(' 67((/&&+$11(/ *$/9$1,=('67((//$77,&(72 6833257*5((16&5((1 6<67(09,1(675(//,6 1$785$/9,1(62132:'(5 &2$7('0(6+6&5((1 ,17(*5$/&2/25 35(&$67 &21&5(7( 63$1'5(/ 0(7$/&/$'',1* 0(7$/*5$7(:,7+ *$/9$1,=('67((/ Old Firehouse Alley Elevation Bay patterns along alley are inspired by traditional firehouse truck bays. Roll-up glass garage doors, captured between a masonry frame will activate the ground floor. Alley art will activate the spandrels above the bays and provide visual interest for hotel guests and pedestrians. Downtown Fort Collins Parking Structure LPC Submittal page 18 /(9(/ /(9(/ /(9(/ $ % & ' ( ) * + *$/9$1,=('67((//$77,&(72 6833257*5((16&5((1 6<67(09,1(675(//,6 1$785$/9,1(621 32:'(5&2$7('0(6+ 6&5((1 ,17(5/2&.,1* 0(7$/3$1(/ =,1& 720$7&++27(/ $/80,1,80 6725()5217 %5,&.9(1((5 0(7$/3$1(/ *$/9$1,=('67((/&&+$11(/ ,17(*5$/&2/25 35(&$67&21&5(7( 63$1'5(/ 6725()5217 '2257<3 23(5$%/(29(5+($' '2257<3 6725()5217 :,1'2: &21&5(7( %$6( (;7(5,253/$67(5),1,6+3$1(/72 5(&(,9($//(<$577<3%$<6 0(7$/&&+$11(/ 35(),1,6+('*$/9$1,=('0(7$/ &23,1* 6287+6&$/( ) ,5(+286($//(< BRICK (GARDEN BLEND- SMOOTH) PRE-CAST (LIGHT RED - SMOOTH & TEX- TURED) Facing Linden Street Elevation Secorndary facades within the Downtown and Civic Center Cores are rendered in simple, modest materials and finishes (painted precast and stucco finish- es). The proposed material selections are consistent with historic patterns of Downtown Fort Collins - (active public edges and passive secondary edges). Importantly, the rich material palete found on the primary facades shall “turn the corner” into the secondary facades to wrap the edges Downtown Fort Collins Parking Structure LPC Submittal page 19 /(9(/ /(9(/ /(9(/ $/80,1,806725()5217 *$/9$1,=('67((//$77,&(72 6833257*5((16&5((1 6<67(09,1(675(//,6 ,17(*5$/&2/25 35(&$67&21&5(7( 63$1'5(/ %5,&.9(1((521 &0867(0:$// :35(&$67&$3 *$/9$1,=('67((/&&+$11(/ 1$785$/9,1(62132:'(5 &2$7('0(6+6&5((1 23(5$%/(6725()5217'2257238%/,& :$< 5$0383%(+,1' :6&$(/(67 BRICK (GARDEN BLEND- SMOOTH) PRE-CAST (LIGHT RED - SMOOTH & TEX- TURED) PREFINISHED ALUMINUM -COLOR 3 PREFINISHED ALUMINUM -COLOR 4 INTERLOCKING METAL PANEL - (PREWEATHERED ZINC) PRECAST CONCRETE PARAPET CAP GROUND FACE CMU PREFINISHED OMEGA ECO FENCING The New Parking Structure shares a few of the following attributes and consistent fa- cade character found along historic facades along Jefferson Street (one block away): Base / Middle / Top Variety in Single Facade: Bay Articulation / Punched Windows Consistent Material Palette Conveys the traditional size of historic buildings as perceived from street level Downtown Fort Collins Parking Structure LPC Submittal page 20 /(9(/ /(9(/ /(9(/ + * ) ( ' & % $ %5,&. 9(1((5 3(5)25$7('0(7$/*5$7(:*$/9$1,=(' 67((/)5$0( 72%(5(3/$&(':,7+6725()5217 :,1'2:6$1''2256:+(1)8785( 5(7$,/2)),&(,6%8,/7287 3(5)25$7('0(7$/ *5$7(:,7+ *$/9$1,=('67((/ )5$0( ,17(*5$/&2/25 35(&$67 &21&5(7( 63$1'5(/ $/80,1,80 6725()5217 *$/9$1,=('67((/ &&+$11(/ 0(7$/&&+$11(/ 35(),1,6+('*$/9$1,=('0(7$/&23,1* &21&5(7(3/$17(5:)/2:(56 0(7$/3$1(/ $/9$1,=('67((/ $77,&(726833257 *5((16&5((1 <67(09,1(6 $785$/9,1(621 2:'(5&2$7(' (6+6&5((1 127&+$73$1(/-2,17 :,7+*$/9$1,=('0(7$/ 5$,/,1* 1257+6&$/( - ())(5621675((7 Jefferson Street Elevation BRICK (GARDEN BLEND- SMOOTH) PRE-CAST (LIGHT RED - SMOOTH & TEX- TURED) One Building broken into smaller masses Downtown Fort Collins Parking Structure LPC Submittal page 21 Looking Down Chestnut Street 5.7 The overall height of a new building s h o u l d b e c o m p a t i b l e w i t h t h e historic district. A building height 15.4 Attachment: Parking Structure Renderings (3772 : Downtown Hotel Parking Structure Partnership) Preweathered zinc panels to match adjacent hotel *final alley art (TBD) 5.10 Establish a sense of human scale in a building design. ›› Use vertical and horizontal articulation techniques to reduce the apparent mass of a larger building and to create visual interest. Downtown Fort Collins Parking Structure LPC Submittal page 22 Looking Down Old Firehouse Alley 15.4 Attachment: Parking Structure Renderings (3772 : Downtown Hotel Parking Structure Partnership) Downtown Fort Collins Parking Structure LPC Submittal page 23 New Building Variety in single facade: 5.6 Convey the traditional size of historic buildings in new construction as it is perceived at the street level. Looking Down Jefferson Street 15.4 Attachment: Parking Structure Renderings (3772 : Downtown Hotel Parking Structure Partnership) What If? We collaborate with CSU to develop a “vertical vine testing ground”, similar to Denver Botanical Gardens & Denver Zoo? Downtown Fort Collins Parking Structure LPC Submittal page 24 Looking Down Chestnut Street 15.4 Attachment: Parking Structure Renderings (3772 : Downtown Hotel Parking Structure Partnership) City of Fort Collins Page 1 September 28, 2015 Ron Sladek, Chair Doug Ernest, Vice Chair City Council Chambers Meg Dunn City Hall West Kristin Gensmer 300 Laporte Avenue Per Hogestad Fort Collins, Colorado Dave Lingle Alexandra Wallace Cablecast on City Cable Channel 14 Belinda Zink on the Comcast cable system Tom Leeson Karen McWilliams Maren Bzdek Gino Campana Staff Liaison, PDT Director Preservation Planner Preservation Planner Council Liaison The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221-6515 (TDD 224- 6001) for assistance. Regular Meeting September 28, 2015 Minutes x CALL TO ORDER Chair Sladek called the meeting to order at 5:35 p.m. x ROLL CALL PRESENT: Dunn, Hogestad, Ernest, Sladek, Wallace ABSENT: Zink, Gensmer and Lingle (all excused) STAFF: McWilliams, Bzdek, Dorn, Yatabe, Schiager x PUBLIC COMMENT ON ITEMS NOT ON THE AGENDA None. x DISCUSSION AGENDA 1. FORT COLLINS HOTEL PARKING GARAGE - RECOMMENDATION TO DECISION MAKER PROJECT DESCRIPTION: Located at 363 Jefferson Street, this project proposes a 323 stall parking garage consisting of 83,847 square foot (3,200 mixed use and 80,647 square foot parking area). The project will require a Type II (Planning & Zoning Board) Landmark Preservation Commission Approved by Commission at their October 14, 2015 meeting. ATTACHMENT 5 15.5 Packet Pg. 273 Attachment: Landmark Preservation Commission minutes, September 28, 2015 (3772 : Downtown Hotel Parking Structure Partnership) City of Fort Collins Page 2 September 28, 2015 hearing. The associated Downtown Hotel project was reviewed by the Landmark Preservation Commission at a work session held on June 10, 2015, during which time the Commission discussed the conceptual proposal of a garage structure. At tonight’s meeting, the applicants are requesting a final review of the project, and a recommendation to the Planning & Zoning Board. APPLICANT: Stu MacMillan, Bohemian Companies Staff Report Ms. McWilliams presented the staff report. Applicant Presentation Lou Bieker with 4240 Architecture in Denver gave the Applicant presentation, noting that it had been modified since the publication of the agenda packet, and a copy of the current presentation was submitted into the record. He explained that Bohemian Companies is one of the Applicants, but the City of Fort Collins and the DDA are really his clients for the parking structure. Photos of the current street views were displayed. Applicable sections of the River District Design Guidelines were noted. The Applicant spoke about the parking garage providing a bridge between Old Town and the River District, and the importance of relating to both in its design. City guidelines for street trees have been followed. Retail space is planned along the alley, and may be also incorporated into the Jefferson Street side in the future. The ramping system is located in the interior of the structure, so as not to be visible from the street. He discussed the similarities of the materials to those used in the hotel, specifically the brick and metal screening elements. Public Input None Commission Questions and Discussion Hard copies of the Commission’s findings with regard to the Fort Collins Downtown Hotel from the September 9, 2015 meeting were distributed to the Members by Staff for reference. Chair Sladek directed that the Commission first discuss adjacencies to the project. A Member inquired about the “Quonset hut” buildings on Jefferson. Staff said they were surveyed about 10 years ago, and that some were determined to be potentially eligible at that time, and others were not. However, there has not been a more recent review conducted. Members asked about the buildings across Jefferson, and since there were no photos of that area included in the packet, Staff displayed imagery from Google Maps Street View for the Commission. A Member expressed interested in having information about the dates those structures were built, but that information was unavailable. The Member said the process did not need to be delayed for that reason, but that it would be nice to have that kind of information in the future. Chair Sladek complimented the design, saying he appreciated the Applicant’s thoughtful analysis, which went beyond the standards and requirements, resulting in a well-conceived project. He also stated that it would be helpful to have additional drawings showing the garages in relation to some of these buildings, but that was not necessary to their decision. The Commission discussed how to craft the wording for the motion, findings of fact and adjacencies, drawing heavily from the handout of the findings from the Fort Collins Downtown Hotel. Members discussed the bridge formed by the project between the River District and the Walnut Street area. After some clarification from Mr. Yatabe, Assistant City Attorney, the Commission added the River District to the description of the project’s adjacencies. Commission Deliberation Mr. Ernest moved that the Landmark Preservation Commission recommend to the decision maker, the Planning and Zoning Board, approval of the Fort Collins Hotel Parking Garage project located at 363 Jefferson Street, with the following findings of fact: 1. The adjacencies defined for the Fort Collins Downtown Hotel project at the September 9, 2015 regular meeting of the Landmark Preservation Commission also apply to this project, with the addition of the River District. 15.5 Packet Pg. 274 Attachment: Landmark Preservation Commission minutes, September 28, 2015 (3772 : Downtown Hotel Parking Structure Partnership) City of Fort Collins Page 3 September 28, 2015 2. The project is compatible and respectful to the character of the surrounding historic context for the following reasons: a. The building uses historically sensitive materials and colors of materials that are compatible with adjacent historic properties. b. The project uses compatible solid to void pattern, typical of the adjacent historic context. c. The pedestrian scale of the proposed project is compatible with the historic context. Ms. Wallace seconded. Ms. Dunn stated that she didn’t see the project as compatible to the neighboring district, based on Land Use Code 3.4.7, specifically with regard to the cornice line and metal materials. Motion passed 4-1, with Dunn dissenting. [Timestamp: 6:51 p.m.] x OTHER BUSINESS None x ADJOURNMENT Chair Sladek adjourned the meeting at 6:51 p.m. Minutes respectfully submitted by Gretchen Schiager. Attachment: Landmark Preservation Commission (LPC) Findings of Fact and Conclusions Pertaining to the Fort Collins Downtown Hotel Project 15.5 Packet Pg. 275 Attachment: Landmark Preservation Commission minutes, September 28, 2015 (3772 : Downtown Hotel Parking Structure Partnership) Community Development & Neighborhood Services 281 North College Avenue P.O. Box 580 Fort Collins, CO 80522.0580 970.416.2740 970.224.6134- fax fcgov.com Planning, Development & Transportation MEMORANDUM DATE: September 10, 2015 TO: Planning and Zoning Board TH: Tom Leeson, Interim Director of Community Development & Neighborhood Services Seth Lorson, City Planner FR: Karen McWilliams, Historic Preservation Manager RE: Landmark Preservation Commission (LPC) Findings of Fact and Conclusions Pertaining to the Fort Collins Downtown Hotel Project. As provided for in Land Use Code Section 3.4.7(F)(6), in its consideration of the approval of plans for properties containing or adjacent to designated, eligible or potentially eligible sites, structure, objects or districts, the Decision Maker shall receive, and consider in making its decision, a written recommendation from the Landmark Preservation Commission. This memorandum contains the Commission’s Findings of Facts and its motion for this project. 1) The development project known as the Downtown Hotel is located adjacent to the Old Town Fort Collins Historic District, which is a designated Fort Collins Landmark District as well as a National Register of Historic Places District; and to the Armory Building, which is individually designated on the National, State, and Fort Collins historic registers; additionally, it is adjacent to properties that have been officially determined to be individually eligible for local landmark designation. 2) At its September 9, 2015 Regular Meeting, the Landmark Preservation Commission reviewed the development project known as the Downtown Hotel, and as authorized under LUC Section 3.4.7(F)(6), made the following findings of facts: That the project is compatible and respectful to the character of the surrounding historic context for the following reasons: a. The project design uses traditional proportion and historic modules typical of like adjacent historic buildings. b. The project uses massing location and appropriate step-backs to mitigate height, relative to the historic context, as well as to the Mitchell Block. c. The building uses historically scaled materials, and colors of materials, that are compatible with adjacent historic properties. d. The project uses compatible solid to void window pattern, typical of the adjacent historic context. e. The pedestrian scale of the main floor of the proposed project is compatible with the historic context. 3) The Commission specifically discussed in its deliberations the applicants’ request for modifications to two Standards, relative to the building’s height and setback, specifically: Section 4.16(D)(2)(a), which permits a maximum height of four stories or 56 feet; and Section 4.16(D)(4)(a), which requires a setback at a 35 degree angle measured at the intersection of the floor plane of the fourth floor and the property line. 15.5 Packet Pg. 276 Attachment: Landmark Preservation Commission minutes, September 28, 2015 (3772 : Downtown Hotel Parking Structure Partnership) - 2 - 4) At its September 9, 2015 Regular Meeting, the Commission adopted the following motion on a vote of 8-0: That the Landmark Preservation Commission recommend to the decision maker, the Planning and Zoning Board, the approval of the development proposal for the Fort Collins Hotel located at the corner of Chestnut and Walnut Streets, finding that it complies with Land Use Code Section 3.4.7. 15.5 Packet Pg. 277 Attachment: Landmark Preservation Commission minutes, September 28, 2015 (3772 : Downtown Hotel Parking Structure Partnership) Planning & Zoning Board October 8, 2015 Page 6 Member Hart made a motion that the Planning and Zoning Board approve the modification of standard to section 3.8.30(F)(1) of the Land Use Code to allow a portion on the required 25’ buffer yard abutting single-family homes to be reduced to 20’ based on the findings of fact on page 10 of the staff report. Member Hobbs seconded the motion. Vote: 6:0. Member Hart made a motion that the Planning and Zoning Board approve the Affinity at Fort Collins PDP #150010 based on the findings of fact found on page 10 of the staff report. Member Heinz seconded the motion. Vote: 6:0. The Board took a break at 7:55pm and resumed at 8:05pm. Project: Fort Collins Hotel Parking Garage Project Description: This project proposes to construct a 3-level mixed-use parking garage with 325 parking spaces and 3,200 square feet of retail space at the corner of Chestnut and Jefferson Streets (363 Jefferson Street). The parking garage is proposed as a public-private partnership between the City of Fort Collins, the Downtown Development Authority, and the developers of the Fort Collins Hotel (Bohemian Companies, McWhinney, and Sage Hospitality). 113 parking spaces will be dedicated to the Fort Collins Hotel (approved by the Planning and Zoning Board on August 10, 2015) and 212 parking spaces will be public parking managed by the City. Recommendation: Approval Secretary Cosmas reported that two items had been received since the work session: the LPC findings of fact and conclusion from their September 28th hearing recommending approval, and an updated modification request from 4240 Architecture, Inc., regarding the size of the parking stalls. Staff and Applicant Presentations Planner Lorson gave a brief overview of the project, showing slides of the site map, renderings and the overall project dimensions. He stated that the right-of-way improvements are consistent with those pertaining to the Fort Collins Hotel. He also reviewed the modification request details, answering some questions that were previously brought up at the work session regarding the number of parking spaces used seasonally by existing Fort Collins garages and showing capacity images of each. Lou Bieker, 4240 Architecture, also reviewed some of the major points of the project, incorporating the role of the hotel and the River District into the overall design. He also illustrated some of the colors and textures planned for the hotel, as well as the external landscaping plans for the project. Public Input None noted. ATTACHMENT 6 15.6 Packet Pg. 278 Attachment: Planning and Zoning Board minutes, October 8, 2015 (3772 : Downtown Hotel Parking Structure Partnership) Planning & Zoning Board October 8, 2015 Page 7 Board Questions and Staff Response Board members asked about the future occupation of the associated retail spaces, the modification impacts, and long- and short-term parking needs of patrons. Larry Hofmockel, with Walker Parking Consultants, stated that compliance with the City code would require elimination of an entire row of the parking spaces planned; therefore, the modification is important. He added that the hotel-level parking is considered long-term parking. There was in-depth discussion about the size of parking spaces with respect to the various hotel levels and the parking needs. Josh Birks, Economic Health Director for COFC, informed the group that his team has worked with Parking Services regarding the modifications to standards and he believes they are consistent with the other facilities in town. Board members also asked about the parking stall degrees relative to the distance when accessing the stall and the justification for needing 20 feet for pulling out of an angled stall (pertains to the request for modification for angled drive aisle standards). Planner Lorson suggested that perhaps the code should be updated to better reflect the standards and requirements. Board members also asked who owns this structure for future maintenance and security. Mr. Birks responded that there are several owners of the parking areas (FC Hotel, Bohemian, and the COFC). Each owner will operate will operate different floors, and a Condo Association will be established to specify the maintenance of garage. Board members inquired about the progress in wayfinding, and Planner Lorson responded that there would not be wayfinding established with this application. He acknowledged that this is currently part of the Downtown Plan discussion. He added that the code standards have been reviewed extensively and tests were done to ensure larger vehicles would be accommodated. Chair Carpenter asked about the safety factors for drive aisle widths from an auto and a pedestrian standpoint. Board members asked about the projected bike parking and whether alternative compliance was being proposed and whether the P&Z Board would be the final decision maker for this project. The P&Z Board is the final decision maker; however, it will be heard by the City Council eventually from a legislative standpoint. Mr. Bieker also confirmed that this will be a public parking facility. Board Deliberation Each Board member presented their opinion: Chair Carpenter supports; Member Hart supports but has some concerns with the modifications; Member Hobbs supports, especially the public/private partnership, but still has some concern with the proximity to the transient population; Member Schneider does not support the modification related to large and small vehicles, coupled with the low demand for this parking garage; Vice Chair Kirkpatrick supports and would like to see a future review of the land use code standards for parking; Member Hansen supports this project; and Member Heinz supports but still has concerns over whether another parking garage is needed. Member Hart made a motion that the Planning and Zoning Board approve the modification of standard to subsection 3.22(L) of the Land Use Code related to the size of parking spaces based on the findings of fact on page 10 of the staff report. Member Hansen seconded the motion. Vote: 6:1 with Member Schneider dissenting. Member Hobbs made a motion that the Planning and Zoning Board approve the Fort Collins Hotel Parking Garage PDP#150018 based on the findings of fact on page 10 of the staff report. Member Hansen seconded the motion. Vote: 7:0. 15.6 Packet Pg. 279 Attachment: Planning and Zoning Board minutes, October 8, 2015 (3772 : Downtown Hotel Parking Structure Partnership) PARKING PLAN FORT COLLINS PARKING CONDITIONS ASSESSMENT 77 FIGURE 12: PUBLIC PARKING OPPORTUNITY AREAS ATTACHMENT 7 15.7 Packet Pg. 280 Attachment: Public Parking Opportunity Areas (3772 : Downtown Hotel Parking Structure Partnership) ATTACHMENT 8 15.8 Packet Pg. 281 Attachment: DDA Resolution 2015-05 (3772 : Downtown Hotel Parking Structure Partnership) 15.8 Packet Pg. 282 Attachment: DDA Resolution 2015-05 (3772 : Downtown Hotel Parking Structure Partnership) 15.8 Packet Pg. 283 Attachment: DDA Resolution 2015-05 (3772 : Downtown Hotel Parking Structure Partnership) ATTACHMENT 9 15.9 Packet Pg. 284 Attachment: Landmark Preservation Commission Findings (3772 : Downtown Hotel Parking Structure Partnership) October 12, 2015 Mayor Wade Troxell Members of the Fort Collins City Council Etc Etc Dear Mayor Troxell and Councilmembers: This letter is written in support of the City of Fort Collins’ participation in the public/private partnership proposed to construct a 323 space parking structure in conjunction with the development of a downtown hotel, located at 363 Jefferson Street. At the regularly scheduled Parking Advisory Board meeting on September 9, 2015, Mike Beckstead, the City’s Chief Financial Officer, provided an overview of the proposed project and answered questions about the public/private partnership. The Parking Advisory Board noted that the 2013 Parking Plan developed by the City indicated a need for approximately 1500 additional parking spaces needed to meet demand downtown. Though the 200 spaces that will be dedicated for public parking in the proposed hotel parking structure would not address the entire demand, it would help address a portion of the need. At our Parking Advisory Board meeting on October 12, we discussed this recommendation and voted 6 to 1 to support this letter. We realize that there are many dimensions to the final decision about the City’s approval of the hotel project in its entirety but from the standpoint of helping to address the parking challenges downtown, this proposed public/private partnership to build a parking structure would be helpful. Please let us know if you have questions about our recommendation. Sincerely, Susan Kirkpatrick Chairman, Parking Advisory Board ATTACHMENT 10 15.10 Packet Pg. 285 Attachment: Parking Advisory Board Letter of Support (3772 : Downtown Hotel Parking Structure Partnership) ATTACHMENT 11 15.11 Packet Pg. 286 Attachment: Parking Advisory Board minutes, September 14 and October 12, 2015 (3772 : Downtown Hotel Parking Structure Partnership) 15.11 Packet Pg. 287 Attachment: Parking Advisory Board minutes, September 14 and October 12, 2015 (3772 : Downtown Hotel Parking Structure Partnership) 15.11 Packet Pg. 288 Attachment: Parking Advisory Board minutes, September 14 and October 12, 2015 (3772 : Downtown Hotel Parking Structure Partnership) 15.11 Packet Pg. 289 Attachment: Parking Advisory Board minutes, September 14 and October 12, 2015 (3772 : Downtown Hotel Parking Structure Partnership) 15.11 Packet Pg. 290 Attachment: Parking Advisory Board minutes, September 14 and October 12, 2015 (3772 : Downtown Hotel Parking Structure Partnership) 15.11 Packet Pg. 291 Attachment: Parking Advisory Board minutes, September 14 and October 12, 2015 (3772 : Downtown Hotel Parking Structure Partnership) 1 Downtown Hotel Parking Structure Partnership Mike Beckstead, CFO; & Josh Birks, Economic Health Director 11-17-2015 ATTACHMENT 12 15.12 Packet Pg. 292 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Connection to Strategic Plans 2 Proposed Public/Private Partnership Consistent with Strategic Goals 15.12 Packet Pg. 293 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Parking Plan Summary 3 Parking Plan Identified This Location as a Need • Parking Plan completed in 2013 • Identified 1,500 additional spaces required over next 10 years • Further analysis identified six structured parking facilities in a ring around Old Town • A parking structure on Chestnut was one of the six identified locations for structured parking • Hotel and associated parking needs created opportunity for a public/private partnership 15.12 Packet Pg. 294 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) 4 Parking Garage Overview Tier Standard Van Accessible Accessible Total Ground 78 3 3 84 Second 117 0 3 120 Third 117 0 2 119 Total 312 3 8 323 Tier Hotel Public Total Ground 84 0 86 Second 23 97 120 Third 0119119 Total 107 216 323 15.12 Packet Pg. 295 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) 5 View from Chestnut looking at Alley 15.12 Packet Pg. 296 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Downtown Parking Structure Overview 6 PPP… City to Own Approximately 216 Spaces for Public Use • Condo Ownership – Bohemian 1/3 (first floor) and City 2/3 • Bohemian/Hotel Company Builds the Parking Structure • City Purchases Specific Spaces at Completion • Property Owners Agreement Governs Operations & Maintenance • City Parking Services operates and maintains • Anticipated Cost - $11.8M = $36.7k per space including land 15.12 Packet Pg. 297 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Timeline 7 Project Approval QIV 2015…. Property Purchase Early 2017 QIV QI-2016 QII QIII QIV QI-2017 P&Z Oct 9th CFC Oct 26th Council Nov 17th • Purchase Agreement • O&M Agreement Hotel Construction Begins Parking Structure Construction Begins City Property Purchase Hotel Opens • Close Debt Financing • Finalize DDA IGA 15.12 Packet Pg. 298 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Downtown Parking Structure Financing 8 Debt Service Available Within Existing Annual Debt Service in 2019…. Utilize One-Time Revenue or Reserves in 2017 & 2018 • Current Planning Number - $11.8M total cost, City cost $7.6M • Annual Debt Service • 10 Years @ 2.5% = $ 868k • 20 Years @ 4.0% = $ 559k • Annual On-Going Funding Sources • Current Civic Center Parking Debt Service – beginning in 2019 • Last payment June 2018 • City portion $1,115k (includes 215 N. Mason) • DDA Support $ 275k - $300k - beginning in 2019 • DDA Resolution 2015-05 documents commitment • Utilize GF reserves 2017 - 2018 15.12 Packet Pg. 299 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Purchase Agreement Summary 9 City to have construction cost oversight and maximum price • City approval of the final plans and itemized cost estimate before construction can commence • Developer to deed approximately 216 parking spaces • Developer and City will execute an option agreement for future retail • Purchase price equals pro rata share of land cost (total = $2,018,835) plus share of costs for construction not to exceed an estimated $7,700,000 15.12 Packet Pg. 300 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Staff Recommendation 10 • Staff Recommends Approval of the Resolution 15.12 Packet Pg. 301 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) 11 Back-Up Information 15.12 Packet Pg. 302 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Overall Site Plan 12 • Retail Along Old Fire House Alley • Future Retail along Jefferson Street • Streetscape Improvements to Chestnut and Jefferson Street • Improvements to Old Fire House Alley • Pedestrian Connection between Old Fire House Alley and Jefferson Street 15.12 Packet Pg. 303 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) 13 View looking down Old Firehouse Alley 15.12 Packet Pg. 304 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) 14 View from Jefferson looking South 15.12 Packet Pg. 305 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) DDA Support 15 DDA - Strong Support for Parking Structure • Responds to demand for new parking space needs as identified in 2013 Parking Plan Make it Happen: designed build a circulation system, minimize auto/pedestrian conflicts, maximize convenience, solve a market use/mismatch. Make it Happen Sooner: public infrastructure upgrade • Supports the most flexible and exciting option for a hybrid-street design on the 200 Block of Linden Street Makes it Better: place-making • Corresponds with DDA’s desire to see development of a downtown hotel Make it Happen: solve a market use/mismatch. Make it Happen Sooner: reduce the risk of pioneering investment 15.12 Packet Pg. 306 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Finance – Next 6 Months or Wait a Year 16 gy Rate Movement Difficult to Predict…. Recommend Locking in on Today’s Lower Rates • Finance Q1 2016 & Lock in Low Rates OR • Finance Late in 2016 and Avoid 9-12 Months Interest • Staff Analysis – Rate Sensitivity • Assumptions: • Current 10 year rates - 2.25% • Current Interest Earnings – 1.25% • Borrowing 12 months apart • NPV of Cash flow Indicates If Rates Move More Than 60 Basis Points Better to Finance Now 15.12 Packet Pg. 307 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Cost Detail Table 1 – Cost by Use 17 Cost Item Stalls Parking Retail Site Total Land $ 1,966,110 $ 52,725 $ ‐ $ 2,018,835 Permit Fees/Development Fees $ 561,153 $ 21,024 $ 42,823 $ 625,000 Soft Costs $ 1,209,845 $ 45,328 $ 92,327 $ 1,347,500 Furniture, Fixtures, & Equipment $ 44,892 $ 1,682 $ 3,426 $ 50,000 Construction Costs $ 6,968,231 $ 261,070 $ 531,769 $ 7,761,070 % of Hard Costs 90% 3% 7% 100% TOTAL $ 10,750,231 $ 381,829 $ 670,346 $ 11,802,405 $ / Stall 323 $ 33,282 n/a $ 2,075 $ 36,540 15.12 Packet Pg. 308 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Cost Detail Table 2 – Cost by Owner 18 Cost Item Developer Retail City Total Land $ 651,312 $ 52,725 $ 1,314,798 $ 2,018,835 Permit Fees/Development Fees $ 200,079 $ 21,024 $ 403,897 $ 625,000 Soft Costs $ 431,370 $ 45,328 $ 870,802 $ 1,347,500 Furniture, Fixtures, & Equipment $ 16,006 $ 1,682 $ 32,312 $ 50,000 Construction Costs $ 2,484,520 $ 261,070 $ 5,015,480 $ 7,761,070 TOTAL $ 3,783,287 $ 381,829 $ 7,637,290 $ 11,802,405 $ / Stall $ 35,358 n/a $ 35,358 $ 36,540 Stalls 107 n/a 216 323 15.12 Packet Pg. 309 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Garage Plans – Floors 2 & 3 19 2nd Floor 3rd Floor 15.12 Packet Pg. 310 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) Additional Requested Information 20 Old Town Parking Garage Capacity: 326 Spaces Occupancy (June 2015): • 10 a.m. average: 38% • 3 p.m. average: 53% • 8 p.m. average: 46% Civic Center Parking Garage Capacity: 903 Spaces Occupancy (June 2015): • 10 a.m. average: 45% • 3 p.m. average: 56% • 8 p.m. average: 31% Chestnut Street 66 Spaces (50 permits) 15.12 Packet Pg. 311 Attachment: Powerpoint presentation (3772 : Downtown Hotel Parking Structure Partnership) RESOLUTION 2015-101 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING A CONSTRUCTION AND PURCHASE AGREEMENT FOR THE CITY’S PURCHASE OF PARKING SPACES IN THE PROPOSED JEFFERSON STREET PARKING GARAGE WHEREAS, a three-level parking garage is being proposed to be built in the City of Fort Collins at 363 Jefferson Street at the corner of Jefferson Street and Chestnut Street (the “Parking Garage”); and WHEREAS, the Parking Garage is being developed by the Bohemian Companies, McWhinney Enterprises and Sage Hospitality (the “Developers”) to serve a hotel the Developers are planning to build at the corner of Chestnut Street and Walnut Street adjacent to the Parking Garage (the “Hotel”); and WHEREAS, the Developers have proposed that the Parking Garage be constructed as a public-private project with the City of Fort Collins (the “City”); and WHEREAS, the Parking Garage is proposed to be built as a condominium project to initially include 3,200 square feet of retail space that would face and serve the Hotel and approximately 322 parking spaces; and WHEREAS, it is proposed that the parking spaces be subdivided into condominium units, with the City purchasing the units having approximately two-thirds of the parking spaces to use for public parking (approximately 216 spaces) that will be located on the top two levels of the Parking Garage and with the Developers owning the condominium units for the retail space and the remaining parking spaces, mostly on the bottom level and some on the second level, to serve the parking needs of the Hotel and the retail space; and WHEREAS, it is also being proposed that the City will have a 50-year option to acquire from the Developers a number of designated parking spaces on the bottom level to convert into a retail space condominium unit that would face Jefferson Street and in exchange the City would convey to the Developers a similar number of the City’s parking spaces on the second level; and WHEREAS, City staff and the Developers have negotiated a “Construction and Purchase Agreement” setting forth this proposed public-private project, a copy of which is attached as Exhibit “A” and incorporated herein by reference (the “Agreement”); and WHEREAS, under the Agreement the City has the right to review and approve the final construction plans and cost estimates for the Parking Garage and would purchase its parking space condominium units from the Developers only after the construction of the Parking Garage is completed; and WHEREAS, the City’s obligation under the Agreement to purchase condominium units in the Parking Garage is subject to and contingent upon the City Council’s future appropriation of the funds needed for the purchase; and Packet Pg. 312 WHEREAS, since the City will be purchasing approximately two-thirds of the space in the Parking Garage, the Agreement provides that the purchase price will be the City’s two-thirds proportionate share of the land costs, $2,018,835, plus two-thirds of the parties agreed-upon costs for the construction of the Parking Garage, for a total amount of land and construction costs currently estimated not to exceed $7.7 million; and WHEREAS, since the Parking Garage is being proposed as a condominium project, the parties have also negotiated the “Condominium Declaration” that will establish the parties’ condominium association, govern how the board of the association operates and maintains the Parking Garage, and sets out the financial obligations of the condominium owners for the association’s costs to operate and maintain the Parking Garage, a copy of which Declaration is attached as Exhibit “F” to the Agreement; and WHEREAS, since the City will own approximately two-thirds of the Parking Garage, it will have in most circumstances the controlling voting interest in the condominium association and on the association’s board; and WHEREAS, the Parking Garage and the parking spaces that the City will own in it provide additional public parking in the downtown area and are consistent with and will satisfy several of the objectives and policies in the City’s “Downtown Strategic Plan,” the City’s “Parking Plan; Downtown and Surrounding Neighborhoods,” and “City Plan” (“Downtown Objectives”); and WHEREAS, City staff proposes to return to Council in late 2016 or early 2017 and present to Council for its consideration a plan for funding the City’s purchase of the parking- space condominium units under the Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS, as follows: Section 1. That the City Council hereby makes any and all determinations and findings contained in the recitals set forth above. Section 2. That the City Council hereby finds: (a) that the Agreement will serve the public purpose of providing public parking in the City’s downtown area; (b) that the Agreement is necessary for the public’s health, safety and welfare; (c) that the Parking Garage and the public parking that the City will provide in it meet and satisfy many of the City’s Downtown Objectives; and (d) that entering into the Agreement will be in the best interest of the City and its citizens. Section 3. That the City Council hereby approves the Agreement and authorizes the City Manager, in consultation with the City Attorney and consistent with this Resolution, to finalize the Agreement and its exhibits and to execute it on the City’s behalf. In addition, the City Manager is authorized, in consultation with the City Attorney, to agree to amendments to the Agreement as the City Manager determines to be reasonably necessary and appropriate to protect the City’s interests or to effectuate the purposes of this Resolution. Packet Pg. 313 Section 4. That prior to the City closing on the purchase of the parking spaces under the Agreement, the City Manager is directed to present to Council for its consideration in late 2016 or early 2017 a plan for funding this purchase and, thereafter, to present to Council the ordinance needed to appropriate the funds for the purchase. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 17th day of November, A.D. 2015. _________________________________ Mayor ATTEST: _____________________________ City Clerk Packet Pg. 314 CONSTRUCTION AND PURCHASE AGREEMENT Jefferson Street Parking Structure THIS CONSTRUCTION AND PURCHASE AGREEMENT (“Agreement”) is made and entered into this ___ day of ____________, 2015 (“Effective Date”), by and between the CITY OF FORT COLLINS, COLORADO, a municipal corporation (the “City” or “Purchaser”) and WALNUT STREET 354 LLC, a Colorado limited liability company (“Developer” or “Seller”). RECITALS: A. The Developer is the owner of certain real property situated in the County of Larimer, State of Colorado, (the “Property”) legally described as follows: Lots 1,3,5,7 and 9, Block 12, Fort Collins, Colorado. B. In Conjunction with the development of a downtown hotel, Developer and the City have agreed to cooperate in developing a public/private parking structure (“Parking Structure”) on the Property as more particularly described herein. C. The parties wish to set forth their agreements with respect to the development and ownership of the Parking Structure. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 1. Construction of the Parking Structure. A. Developer will not begin construction of the Parking Structure until the City has given its approval of (a) the final plans and specifications for the construction of the Parking Structure, which plans and specifications are more particularly described on attached Exhibit A (the “Final Plans”) and (b) Developer’s final itemized cost estimate for construction of the Parking Structure (“Itemized Costs”). The City shall not be obligated to pay any costs incurred by the Developer in excess of the Itemized Costs without prior agreement in writing by the parties. B. If the City has timely performed its obligations under this Agreement, Developer agrees to construct the Parking Structure in accordance with the terms of this Agreement, the Final Plans, and the Construction Schedule attached as Exhibit B. C. Developer acknowledges that the City is a tax exempt entity under Colorado law. Developer will pursue an exemption from future state and local sales and use taxes and reimbursement for previously paid state and local sales and use taxes on the City’s portion of all materials to be incorporated into the Parking Structure. If, despite making reasonable efforts to fulfill this obligation, Developer is unsuccessful in obtaining such savings or reimbursement, the City will have the right to continue to seek such savings or reimbursement and Developer agrees to cooperate fully with the City in this effort. EXHIBIT A 1 Packet Pg. 315 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 2 2. Conveyance of City Parking Area to the City. A. Developer agrees to sell and the City agrees to purchase at least 210 parking spaces within the Parking Structure as herein provided, including an undivided interest in the land underlying the Parking Structure and air rights over the building (the “City Parking Area”). The City Parking Area is described on attached Exhibit C. B. The City Parking Area will be part of a condominium community subject to a common ownership regime pursuant to the Colorado Common Ownership Interest Act (CCIOA) as established by Developer prior to conveying the City Parking Area. The location of the City Parking Area within the Parking Structure is depicted on attached Exhibit D. When surveys have been prepared for the Parking Structure in connection with recording the Declaration (as defined below in subsection D), the survey legal description and drawing shall be substituted for Exhibits C and D. C. Within thirty (30) days following issuance of a certificate of occupancy for the Parking Structure, Developer shall convey the City Parking Area to the City pursuant to a special warranty deed (the “Deed”) in substantially the form attached as Exhibit E. The City Parking Area will include all improvements and fixtures of a permanent nature located within the City Parking Area and the right to use common elements located on the Property. At Closing (as hereafter defined), Developer shall also assign (to the extent assignable) all warranties for work performed with respect to construction of any improvements to be conveyed by Developer to the City at Closing. D. Closing on the conveyance of the City Parking Area (“Closing”) shall be held at a mutually agreed date and time in the office of Land Title Guarantee Company (“Title Company”). At Closing, the City shall take title to and possession of the City Parking Area subject to a recorded Condominium Community Declaration (“Declaration”) in substantially the form attached as Exhibit F, and such other documents as are reasonably necessary for the creation of a Condominium Community for the Parking Structure, including Articles of Incorporation of an association, Rules and Regulations and By-laws (collectively, the “Condominium Community Documents”). The City and Developer shall also execute and deliver at Closing such other instruments and documents as they deem reasonably necessary and/or desirable in order to consummate the Closing and establish the Condominium Community common ownership regime. The parties acknowledge that the Declaration and Condominium Community Documents are substantially complete but not reviewed and agreed to by the parties in final form. The parties agree to negotiate the Declaration and the Condominium Community Documents in good faith to final execution form for delivery at or before the Closing. E. At Closing Developer and the City shall also execute an option agreement that will allow the City, at its discretion, to acquire from the Developer an area of parking on the first floor of the Parking Structure designated as a separate unit or units in the Condominium Community, for the construction of retail space (the “Option Agreement”). In exchange, the City will transfer to the Developer under the Option Agreement a similar number of parking spaces in the City Parking Area, which spaces shall also be designated as a separate unit or units 1 Packet Pg. 316 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 3 in the Condominium Community. The Option Agreement will be in substantially the form attached as Exhibit G, and shall be recorded following Closing and run with the designated units. 3. Purchase Price. The total purchase price of the City Parking Area will be Two Million Dollars ($2,018,835) plus two-thirds of the agreed-upon costs of construction of the Parking Structure, but not to exceed a total amount of _______ Dollars ($_______) (“Purchase Price”). The Purchase Price will be payable by chaser to Seller as follows: A. No earnest money deposit is required in connection with this transaction, the mutuality of the promises of the parties hereto being deemed adequate consideration. B. The entire amount of the Purchase Price, subject to closing costs and customary prorations, will be payable by Purchaser to Seller in immediately available funds at the time of Closing, as hereinafter set forth. C. As additional consideration, the City has already paid $50,000 towards the initial design costs for the Parking Structure, which shall be credited to the City at Closing against the Purchase Price. 4. Title Insurance/Evidence of Title. A. Within thirty (30) days following the Effective Date, Developer will provide to City a Title Insurance Commitment, together with copies of all documents of record related to exceptions identified in the Title Commitment (together referred to as the “Title Commitment”) from the Title Company. The Title Commitment must show title to the Property and the City Parking Area in Developer, subject only to those exceptions shown on Schedule B-2 to the Title Commitment that are acceptable to the City. The parties will each pay half the cost of the Title Commitment and Title Insurance. B. If the Title Commitment discloses title defects unsatisfactory to the City and subject to which the City need not take title to the City Parking Area, City may give Developer written notice of such defects by the date ten (10) calendar days after the Effective Date or the date ten (10) calendar days after City’s receipt of the Title Commitment, whichever is later, and no later than ten (10) calendar days after notice of any title change or discovery of any title defect not disclosed by the Title Commitment. For a period of thirty (30) days after receipt by Developer of notice of title defects (“Title Cure Period”) Developer shall act reasonably and in good faith to cure such defects, at its expense, without in any other manner affecting the terms of this Agreement; provided that Developer shall not be obligated to spend more than $5,000.00 in total to cure such title defects. C. If any instrument or deposit is necessary in order to correct a defect in or objection to title, the following apply: 1 Packet Pg. 317 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 4 (1) Any instrument will be in a form and contain terms and conditions Title Company may reasonably require so as to be sufficiently satisfied and omit such defects or objection. (2) Any deposit will be made with Title Company. (3) Developer agrees to execute, acknowledge and deliver any required instrument and to make any required deposit. D. If Title Company refuses to omit any title defect or objection prior to the end of the Title Cure Period, then the City, at its election, has the right to: (1) accept such title as Developer is able to convey, without any reduction of the Purchase Price; or (2) rescind this Agreement and, upon such rescission this Agreement will be null and void and of no further effect, and all parties to this Agreement will be released from all obligations hereunder. E. If Developer is unable to convey title as provided in this paragraph 4 to City due to an act or omission of Developer, Developer is in default and continues to be liable under this Agreement. F. Notwithstanding the foregoing, (1) any title condition consisting of monetary liens, deeds of trust or other financial encumbrances against the Property or the City Parking Area must be removed by Developer at or prior to Closing, and Developer’s failure to cause the removal of the same will constitute a default by Developer under this Agreement; and (2) in the event Developer fails to cause the removal of a financial encumbrance against the Property or the City Parking Area prior to Closing, City has the right to pay amounts required to do so at Closing, and to receive a credit for such payment against the Purchase Price. 5. Survey/Legal Description. The parties each acknowledge that legal descriptions of the Property and of the City Parking Area are included in this Agreement. The parties intend that the referenced legal descriptions describe the Property and the City Parking Area except as otherwise expressly provided, and agree to work in good faith and cooperatively to correct or update such descriptions as necessary. 6. Platting/Subdivision. If the City Parking Area must be platted or subdivided, (either separately or in conjunction with other land) Developer, with the fullest cooperation of the City, shall cause such platting or subdivision requirement to be satisfied in accordance with all applicable laws, regulations and policies of the City of Fort Collins. Developer, with City’s assistance, shall use reasonable efforts to complete the procedure as quickly as reasonably 1 Packet Pg. 318 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 5 possible in order to meet the requirements of the Construction Schedule; provided, however, the City acknowledges that any such platting or subdivision is within the City’s control and Developer shall not be in default of this Agreement in the event the subdivision or platting is not accomplished timely in order to meet the requirements of the Construction Schedule. If platting or subdivision is required, Closing of the conveyance of the City Parking Area shall not occur until the subdivision or platting is complete. 7. Taxes. On or before Closing, the City will fully cooperate with Developer to obtain from the Larimer County Tax Assessor and the City Tax Assessor a waiver of taxes assessed against the City Parking Area for the period of ownership by the City. 8. Developer’s Representations and Warranties. Developer represents and warrants to the City that the following statements are as of the Effective Date, and will be on the date of Closing, true and accurate: A. There is no litigation or proceeding, including but not limited to any eminent domain proceeding, pending (or to Developer’s knowledge threatened) against or relating to any part of the Property, nor does Developer know of or have reasonable grounds to know of any basis for any such action [*except for_____________*]. B. Developer has not received notice of, and to the best of Developer’s knowledge, there are no violations of any laws, orders, regulations or requirements of any governmental authority affecting the Property or any part thereof. C. Developer has the unconditional right and power to execute and deliver this Agreement and to consummate the transaction(s) contemplated by this Agreement. D. Developer has not received notice of default or breach by Developer of any of the covenants, conditions, restrictions, rights-of-way or easements affecting the Property or any portion thereof; no default or breach now exists or will exist on the date of Closing; and no event or condition has occurred and is continuing that, with or without notice and/or the passage of time, will constitute such a default or breach. E. To the best of Developer’s actual knowledge without further investigation or inquiry there has been no installation in or production, release, disposal, or storage on the Property of any hazardous material, hazardous waste, or other toxic or regulated substances, or any other activity that is known to or reasonably could have resulted in an environmental condition requiring investigation or remediation or the Property, and Developer represents that it has provided to the City all environmental reports and any other documentation in Developer’s possession related to the Property. 9. Inspections. A. Preliminary Inspection. The City or any designee of the City has the right to make inspections of the physical condition of the Property at Purchaser's expense. These inspections 1 Packet Pg. 319 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 6 may include, but are not limited to, environmental assessments, environmental protection, pollution or land use or zoning laws, and rules or regulations, including, but not limited to any laws relating to the disposal or existence of any hazardous substance or other regulated substance in or on the Property. If City does not provide Developer written notice of any unsatisfactory condition, as determined at City’s sole discretion and signed by an authorized representative of the City, within sixty (60) days after the Effective Date, City waives any objection to the physical condition of the Property as it existed on or before sixty (60) days after the Effective Date. If the City provides written notice of any unsatisfactory condition to Seller within sixty (60) days after the Effective Date, and Developer does not cure such conditions within sixty (60) days after receipt by Developer of a notice of unsatisfactory condition, this Agreement may be terminated at the option of the City. City is responsible and will pay for any damage that occurs to the Property and the improvements located thereon as a result of these inspections. B. Construction Inspection. In addition to inspections required by the City Code, the City shall have the right during construction of the Parking Structure to make periodic and reasonable inspections of the Parking Structure to ensure its consistency with the Final Plans. Should the City discover any variances from the agreed-upon plans, the City and Developer agree to work cooperatively to resolve such issues. C. Final Inspection. The City shall have the right, after completion of the Parking Structure and prior to Closing, to make inspections of the physical condition of the Property and the Parking Structure and related improvements constructed thereon, at Purchaser's expense. These inspections may include, but are not limited to, compliance with the Final Plans (as may have been amended by agreement of the parties), environmental assessments, environmental protection, pollution or land use or zoning laws, and rules or regulations, including, but not limited to any laws relating to the disposal or existence of any hazardous substance or other regulated substance in or on the Property. Except as may be provided in paragraph 29 below, Developer shall have no responsibility or liability for conditions that existed prior to the initial inspection period described in subparagraph A above if the City failed to exercise commercially reasonable due diligence during the initial inspection period, or if the City was aware of an unsatisfactory condition and failed to object to it as provided in subparagraph A. If City does not provide Developer written notice of any unsatisfactory condition, as determined at City’s sole discretion and signed by an authorized representative of the City, prior to Closing, City waives any objection to the physical condition of the Property, the City Parking Area, and the improvements located thereon, except as otherwise provided in paragraph 29 below. If the City provides written notice of any unsatisfactory condition to Seller prior to Closing, and Developer does not cure such conditions within sixty (60) days after receipt by Developer of a notice of unsatisfactory condition, this Agreement may be terminated at the option of the City, or the City may proceed to Closing and accept the City Parking Area subject only to the warranties and protections of paragraph 29 below. The parties agree to extend the Closing date as reasonably necessary to allow Developer to cure any unsatisfactory condition. 10. Real Estate Broker Commissions. Each of the parties represents to the other that it has not incurred and will not incur any liability for brokerage fees or agent commissions in connection with this Agreement, and Developer and, to the extent permitted by law, City each 1 Packet Pg. 320 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 7 agree to indemnify and hold the other harmless from and against any and all claims or demands with respect to any brokerage fees or agents’ commissions or other compensation asserted by any person, firm, or corporation in connection with this Agreement or the transactions contemplated hereby, insofar as any such claim is based upon any conversation or contract with Developer or City, respectively. 11. Remedies on Default. If either party fails to perform according to the terms of this Agreement, such party may be declared in default. The non-defaulting party may give written notice specifying such default to the defaulting party, and shall allow the defaulting party a period of thirty (30) days within which to cure the default unless a shorter time is necessary for public health and safety or as specified by the City Code. If the event the default is not corrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail itself of any other remedy at law or equity. 12. Notices. Any notice or other communication given by either party to the other relating to this Agreement must be hand delivered; sent by a commercial carrier; or sent by mail, addressed to the party at its respective address as set forth below. The notice or other communication will be effective on the date it is delivered or on the third business day after being sent, whichever comes first. If to Developer: [___________] ___________ [_________], CO [zip] With a copy to: __________ _________ [__________], CO [zip] If to City: Real Estate Services Manager City of Fort Collins Mailing Address: P.O. Box 580 Fort Collins, CO 80522-0580 Hand Delivery: 300 LaPorte Avenue. Fort Collins, CO 80521 With a copy to: City Attorney’s Office City of Fort Collins Mailing Address: P.O. Box 580 Fort Collins, CO 80522-0580 1 Packet Pg. 321 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 8 Hand Delivery: 300 LaPorte Avenue Fort Collins, CO 80521 13. Assignment. This Agreement, and the parties’ rights and obligations herein, shall not be assigned by either of the parties hereto without the prior written consent of the other party. Any such assignment without the other party’s prior written consent shall be deemed null and void and of no effect. 14. Risk of Loss. Developer shall bear all risk of loss with respect to the Property up to the date title is transferred in accordance with this Agreement. In the event of damage to any portion of the Property by fire or other casualty prior to the closing which damage either affects 25% or more of the usable facilities in the City Parking Area or reduces the value of the City Parking Area by 25% or more, then this Agreement may be terminated at the option of Purchaser. This option shall be exercised, if at all, by City’s written notice thereof to Developer within thirty (30) calendar days after receipt of written notice of such fire or other casualty. Upon the exercise of such option to terminate, this Agreement shall become null and void, and neither party shall have any further liability or obligations hereunder, except as otherwise provided in this Agreement. Closing may be delayed for up to thirty (30) calendar days for City to decide whether to exercise this option. If City does not elect to terminate, Developer shall assign and transfer to City at the closing the City’s pro-rata share of Developer’s right, title and interest in and to all insurance proceeds or other compensation paid or payable to Developer on account of such fire or casualty together with the amount of the deductible relating thereto. 15. Obligations Subject to Appropriation. All financial obligations of the City arising under this Agreement that are payable after the current fiscal year are contingent upon funds for that purpose being annually appropriated, budgeted and otherwise made available by the Fort Collins City Council, in its discretion. 16. Entire Agreement. Except for the Agreement Between the City of Fort Collins, Colorado and Bohemian Companies LLC for Sharing of the Cost of the Preliminary Architectural Design Relating to the Possible Construction of a Multi-level Parking Garage dated June 23, 2015, as amended by Amendment #01 dated August 19, 2015, all previous negotiations and understandings between Developer and the City or their respective agents and employees with respect to the transaction set forth herein, are merged into this Agreement (including, without limitation, the exhibits attached hereto) and this Agreement alone fully and completely expresses the parties’ rights, duties and obligations with respect to its subject matter. This Agreement may be amended only by subsequent written agreement between Developer and the City. 17. No Merger. The covenants, warranties, representations and/or indemnities expressly made in this Agreement shall survive the Closing and shall not be merged therein. 18. Governing Law. This Agreement shall be deemed to be a contract made under the laws of the State of Colorado and for all purposes shall be governed and construed in accordance with the laws of said State. Nothing herein shall be construed as a waiver of any of the requirements 1 Packet Pg. 322 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 9 of the Fort Collins City Code or Land Use Code, and the Developer agrees to comply with all such requirements to the extent they apply. 19. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remainder of this Agreement will not be affected, and in lieu of each provision that is found to be illegal, invalid, or unenforceable, a provision will be added as a part of this Agreement that is as similar to the illegal, invalid, or unenforceable provision as may be possible and be legal, valid and enforceable. 20. Construction. The rule of strict construction shall not apply to this Agreement. This Agreement has been prepared by the City and its professional advisors and reviewed and modified by Developer and its professional advisors. Developer, the City, and their separate advisors believe that this Agreement is the product of all of their efforts, that it expresses their agreements, and that it should not be interpreted in favor of or against either Developer or the City merely because of their efforts in preparing it. 21. Captions, Gender, Number, and Language of Inclusion. The captions are inserted in this Agreement only for convenience of reference and do not define, limit, or describe the scope or intent of any provisions of this Agreement. Unless the context clearly requires otherwise, the singular includes the plural, and vice versa, and the masculine, feminine, and neuter adjectives include one another. As used in this Agreement, the word “including” shall mean “including, but not limited to.” 22. Exhibits. The following exhibits are incorporated into this Agreement in their entirety: Exhibit A Final Plans Exhibit B Construction Schedule Exhibit C Description of City Parking Area Exhibit D Site Plan of Parking Structure with location of City Parking Area indicated Exhibit E Form of Deed Exhibit F Declaration Exhibit G Form of Option Agreement 23. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors, assigns, heirs and personal representatives. 24. Time. Time is of the essence of this Agreement and each and every provision hereof. 25. Expenses. In the event any party defaults in any of its covenants or obligations under this Agreement and a party not in default commences and prevails in any legal or equitable action against the defaulting party, the defaulting party expressly agrees to pay all reasonable expenses of the litigation, including a reasonable sum for attorneys' fees or similar costs of legal representation. 26. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one instrument. 1 Packet Pg. 323 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 10 27. Calculation of Time Periods; Business Day. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a Business Day, in which event the period shall run until the end of the next day which is a Business Day. The last day of any period of time described in this Agreement shall be deemed to end at 5:00 p.m. Colorado time. As used herein, the term “Business Day” means any day that is not a Saturday, Sunday or legal holiday for the City. 28. No Waiver. The failure of either party to this Agreement to insist upon strict performance of any of the terms, covenants or conditions hereof, shall not be deemed a waiver of any rights or remedies that such party may have hereunder, at law or in equity, and shall not be deemed a waiver of any subsequent breach or default in any such terms, covenants or conditions. 29. Written Warranty, Waiver, and Release. (a) LIMITED WARRANTY. THE DEVELOPER SHALL, AT ITS EXPENSE, MAKE ALL REASONABLY NECESSARY REPAIRS, REPLACEMENTS, AND CORRECTIONS OF ANY DEFECTIVE WORK OR MATERIALS IF WRITTEN NOTICE OF SUCH DEFECTIVE WORK OR MATERIALS IS GIVEN BY THE CITY TO THE DEVELOPER WITHIN ONE (1) YEAR AFTER THE COMPLETION OF THE PARKING STRUCTURE. THE FOREGOING WARRANTY SHALL NOT APPLY TO EQUIPMENT, SUCH AS HEATING, VENTILATING AND AIR CONDITIONING EQUIPMENT, OR OTHER SIMILAR ITEMS. THE DEVELOPER SHALL ASSIGN TO THE CITY ALL MANUFACTURERS’ WARRANTIES WITH RESPECT TO SUCH EQUIPMENT. (b) ORAL REPRESENTATIONS AND WARRANTIES. THE CITY HEREBY ACKNOWLEDGES THAT NO WARRANTIES OR REPRESENTATIONS AS TO THE CONDITION, DESIGN, OR CONSTRUCTION OF THE PARKING STRUCTURE HAVE BEEN MADE OR MAY BE MADE BY THE DEVELOPER, EXCEPT BY EXPRESS WRITTEN AGREEMENT SIGNED BY THE DEVELOPER. THE CITY HEREBY WAIVES AND RELEASES THE DEVELOPER FROM ALL ORAL WARRANTIES AND REPRESENTATIONS AND CLAIMS ARISING THEREFROM, BOTH KNOWN AND UNKNOWN. (c) ACCEPTANCE OF PARKING STRUCTURE AS IS. EXCEPT AS OTHERWISE PROVIDED IN THE LIMITED WARRANTY SET FORTH IN SUBPARAGRAPH 29(a) ABOVE, ANY MANUFACTURERS’ WARRANTIES PROVIDED TO THE CITY, AND THOSE ITEMS NOTED IN THE PUNCH LIST, UPON THE CLOSING OF THIS TRANSACTION, THE CITY SHALL BE DEEMED TO HAVE 1 Packet Pg. 324 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11 ACCEPTED THE PARKING STRUCTURE AS IS, IN ITS CONDITION AS OF THE DATE OF CLOSING. (d) IMPLIED WARRANTIES. THE DEVELOPER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF WORKMANLIKE CONSTRUCTION, HABITABILITY, DESIGN, CONDITION, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ABSENCE OF RADON, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH IN THIS CONTRACT. THE DEVELOPER DISCLAIMS ALL SUCH WARRANTIES, AND THE CITY WAIVES ALL SUCH WARRANTIES AND RELEASES THE DEVELOPER, ITS MEMBERS, MANAGERS, AGENTS, AND EMPLOYEES, FROM ALL CLAIMS AND POSSIBLE CLAIMS, KNOWN OR UNKNOWN, FOR OR ARISING UNDER ANY SUCH WARRANTIES. (e) WAIVER AND RELEASE. EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY PROVIDED IN THIS CONTRACT, THE CITY HEREBY WAIVES AND RELEASES THE DEVELOPER, ITS SUBSIDIARIES, AFFILIATES, MEMBERS, MANAGERS, AGENTS, AND EMPLOYEES, FROM ALL OBLIGATIONS, CLAIMS, AND LIABILITIES ARISING OUT OF THE CONDITION, DESIGN, OR CONSTRUCTION OF THE PARKING STRUCTURE OR ARISING THEREFROM OR CAUSED THEREBY, WHETHER KNOWN OR UNKNOWN, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS FOR CONSEQUENTIAL DAMAGES; EXEMPLARY OR PUNITIVE DAMAGES; LOSS OF USE; LOSS OF VALUE; LOSS OF OPPORTUNITY; INCONVENIENCE; LOSS OF INFLATIONARY INCREASES IN VALUE OR THE TIME VALUE OF MONEY; AND LOSS OR DAMAGE TO PERSONAL PROPERTY. (signatures appear on the following page) 1 Packet Pg. 325 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 SIGNATURE PAGE FOR CONSTRUCTION AND PURCHASE AGREEMENT IN WITNESS WHEREOF, Walnut Street 354 LLC has caused this instrument to be executed by its member who is thereunto duly authorized on this ____ day of ___________, 2015. WALNUT STREET 354 LLC, a Colorado limited liability company By: Name: Its: 1 Packet Pg. 326 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 13 SIGNATURE PAGE FOR CONSTRUCTION AND PURCHASE AGREEMENT IN WITNESS WHEREOF, The City of Fort Collins, Colorado has caused this instrument to be executed by its officer who is thereunto duly authorized on this ____ day of ___________, 2015. THE CITY OF FORT COLLINS, COLORADO, a Municipal corporation By: Name: Darin A. Atteberry Its: City Manager ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney 1 Packet Pg. 327 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 14 EXHIBIT A TO CONSTRUCTION AND PURCHASE AGREEMENT Final Plans [To be attached upon completion and approval by the parties] 1 Packet Pg. 328 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 15 EXHIBIT B TO CONSTRUCTION AND PURCHASE AGREEMENT Construction Schedule [To be attached upon completion and approval by the parties] 1 Packet Pg. 329 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 16 EXHIBIT C TO CONSTRUCTION AND PURCHASE AGREEMENT Description of City Parking Area [To be attached upon completion and approval by the parties] 1 Packet Pg. 330 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 17 EXHIBIT D TO CONSTRUCTION AND PURCHASE AGREEMENT Site Plan of Parking Structure with location of City Parking Area indicated [To be attached upon completion and approval by the parties] 1 Packet Pg. 331 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 18 EXHIBIT E TO CONSTRUCTION AND PURCHASE AGREEMENT Form of Deed 1 Packet Pg. 332 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 19 EXHIBIT F TO CONSTRUCTION AND PURCHASE AGREEMENT Declaration [Attached] 1 Packet Pg. 333 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 20 CONDOMINIUM DECLARATION FOR JEFFERSON STREET PARKING GARAGE CONDOMINIUMS THIS DECLARATION is made and entered into this _______ day of ___________, 2016, by WALNUT STREET 354, LLC, a Colorado limited liability company (“the Declarant”). RECITALS A. The Declarant is the owner of the real property commonly known as 363 Jefferson Street, Fort Collins, Colorado and legally described as follows (“the Real Estate”): LOTS 1, 3, 5, 7, and 9, BLOCK 12, CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO. B. The Declarant desires to create condominium ownership of the Real Estate pursuant to the Colorado Common Interest Ownership Act (C.R.S. § 38-33.3-101, et seq.) in which portions of the Real Estate will be designated for separate ownership and the remainder of which will be for common ownership solely by the Owners of the separate ownership interests. C. The Declarant has caused to be incorporated under the laws of the State of Colorado JEFFERSON STREET PARKING GARAGE CONDOMINIUM ASSOCIATION, a nonprofit corporation, for the purpose of exercising the functions herein set forth (“the Association”). ARTICLE I. SUBMISSION OF REAL ESTATE The Declarant hereby publishes and declares that the Real Estate shall be and is hereby submitted to condominium ownership and shall be held, sold, conveyed, transferred, leased, sub- leased, and occupied subject to the following easements, covenants, conditions, and restrictions which shall run with the Real Estate and shall be binding upon and inure to the benefit of all parties having any right, title, or interest in the Real Estate or any portion thereof, their heirs, personal representatives, successors, and assigns. ARTICLE II. DEFINITIONS In addition to the terms defined above and elsewhere in this Declaration, the following terms when used in this Declaration and capitalized shall have the meaning given: Section 1: “Allocated Interests” shall mean and refer to the Common Expense Liability and votes in the Association. 1 Packet Pg. 334 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 21 Section 2: “Articles of Incorporation” shall mean and refer to the Articles of Incorporation of the Association filed with the Colorado Secretary of State and all properly adopted and filed amendments thereto. Section 3: “Assessments” shall mean and refer to all assessments made by the Association against the Owners and their respective Units for payment of each Owner’s pro rata share of the General Common Expenses, Garage Expenses, Retail Expenses, Special Assessments and Individual Assessments, as applicable. Section 4: “Board” shall mean and refer to the duly elected Board of Directors of the Association. Section 5: “Building” shall mean and refer to the building presently existing on the Real Estate. Section 6: “Bylaws” shall mean and refer to any instruments, however denominated, which are adopted by the Board for the regulation and management of the Association, including amendments to those instruments. Section 7: “CCIOA” shall mean and refer to the Colorado Common Interest Ownership Act (C.R.S. Section 38-33.3-101, et seq.) as presently adopted and as may be subsequently amended. Section 8: “Common Elements” shall mean and refer to all portions of the Condominium Project other than the Units. Section 9: “Common Expense Liability” shall mean and refer to the liability for Common Expenses allocated to each Unit pursuant to this Declaration. Section 10: “Common Expenses” shall mean and refer to expenditures made or liabilities incurred by or on behalf of the Association, together with any allocations to reserves. Section 11: “Condominium Map” shall mean and refer to the Condominium Map of the Real Estate recorded in the office of the Clerk and Recorder of Larimer County, Colorado, and all recorded amendments thereto. Section 12: “Condominium Project” shall mean and refer to the Real Estate and all Improvements constructed thereon. Section 13: “Declaration” shall mean and refer to this Declaration, including any amendments hereto and also including, but not limited to, the Condominium Map. Section 14: “Documents” shall mean and refer to this Declaration, the Condominium Map, and the Articles of Incorporation, Bylaws, and Rules and Regulations of the Association, as supplemented or amended from time to time. Section 15: “Exchange Area” shall mean and refer to that portion of Garage Unit #2 designated as such on the Condominium Map. The Exchange Area shall be substantially the same 1 Packet Pg. 335 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 22 size as the Flex Area. Pursuant to a separate Option Agreement the owner of the Exchange Area shall have the right to exchange the Exchange Area for the Flex Area. Section 16: “Exchange Unit” shall mean a refer to the Exchange Area if and to the extent it is converted to a Unit by amendment of this Declaration and the Condominium Map. Section 17: “Flex Area” shall mean and refer to that portion of Garage Unit #1 designated on the Condominium Map as “Potential Retail/Office Flex Space.” Section 18: “Flex Unit” shall mean and refer to the Flex Area if and to the extent it is converted to a Unit by amendment of this Declaration and the Condominium Map. Section 19: “Garage Expenses” shall mean and refer to all costs and expenses incurred by the Association in the maintenance, repair, replacement or improvement of all General and Limited Common Elements constituting the walls, floors and ceiling of the Garage Units and utilities serving only the Garage Units. Garage Expenses shall include snow removal, cleaning and striping. Section 20: “Garage Unit” shall mean and refer to each of the Units designated on the Condominium Map as a “Garage Unit.” The boundaries of the Garage Units shall be the interior unfinished side of the perimeter walls, floors and ceiling of each Garage Unit. If any duct, wire, conduit, bearing wall, bearing column, or any fixtures lie partially within and partially outside of the designated boundaries of a Garage Unit, any portion thereof serving only that particular Garage Unit shall be a Limited Common Element appurtenant to such Garage Unit and any portion thereof serving more than one Garage Unit or serving any portion of the Common Elements shall be a part of the Common Elements. Section 21: “General Common Expenses” shall mean and refer to all costs and expenses incurred by the Association in the maintenance, repair, replacement and improvement of the common walls between the Garage Units and the Retail Units, the utilities serving the Garage Units and the Retail Unit, and that portion of the Real Estate lying outside the exterior walls of the Building. Section 22: “Governmental Authority” shall mean and refer to any governmental entity, agency, authority, or district having jurisdiction over the Condominium Project. Section 23: “Identifying Number” shall mean and refer to a symbol or address that identifies only one (1) Unit in the Condominium Project. Section 24: “Individual Assessment” shall mean and refer to Assessments made by the Association pursuant to Article V, Section 5 of this Declaration. Section 25: “Improvements” shall mean and refer to all improvements presently located or subsequently constructed on the Real Estate including, but not limited to, the Building. 1 Packet Pg. 336 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 23 Section 26: “Laws” shall mean and refer to all statutes, laws, ordinances, resolutions, rules, or regulations of any Governmental Authority applicable to the Condominium Project, including, but not limited to, CCIOA and the Colorado Revised Nonprofit Corporation Act. Section 27: “Limited Common Elements” shall mean and refer to a portion of the Common Elements shown on the Condominium Map for the exclusive use of one or more Units but fewer than all of the Units. The drive lanes and ramps in the Garage Units and the access drives to the Garage Units from public streets shall be Limited Common Elements appurtenant to the Garage Units. Section 28: “Majority Vote” shall mean and refer to the affirmative vote of Owners holding more than 50% of all votes allocated to the Owners as set forth on Exhibit A attached hereto and incorporated herein by reference. Section 29: “Mortgagee” shall mean and refer to any Person who has a security interest in a Unit which has provided actual written notice of such interest to the Association. Recording of a mortgage, deed of trust, or other security interest in the office of the Clerk and Recorder of Larimer County, Colorado shall not be considered actual written notice to the Association of a security interest. “First Mortgagee” shall mean and refer to a Mortgagee that is the holder of a security interest which represents a first lien against a Unit, subject to any governmental lien having priority as a matter of law. Section 30: “Notice” shall mean and refer to any notice required or desired to be given pursuant to the Documents. Unless otherwise provided in the Documents, all notices shall be in writing and may be personally delivered; mailed, certified mail, return receipt requested, sent by telephone facsimile with a hard copy sent by regular mail; sent by a nationally recognized, receipted overnight delivery service; or sent by electronic mail. Any such notice shall be deemed given when personally delivered; if mailed, three (3) delivery days after deposit in the United States mail, postage prepaid; if sent by telephone facsimile or electronic mail, on the day sent if sent on a business day during normal business hours of the recipient or on the next business day if sent at any other time; or if sent by overnight delivery service, one (1) business day after deposit in the custody of the delivery service. The addresses and telephone numbers for the mailing, transmitting, or delivering of notices shall be as set forth in the books and records of the Association. Notices of a change of address shall be given in the same manner as all other notices as hereinabove provided. If a notice is to be given to more than one Owner, the notice shall be given to all Owners at the same time and in the same manner. Section 31: “Owner” shall mean and refer to the Person who owns in fee title a Unit but does not include a Person having an interest in a Unit solely as a Security Interest. Section 32: “Ownership” shall mean and refer to the collection of rights to possession, use and enjoyment of a Unit, including the right to sell, transfer, encumber, lease, convey and gift the Unit to others in whole or in part, which rights are conferred on an Owner by a lawful claim of fee simple title to the Unit, subject to the covenants, conditions and restrictions contained in this Declaration. 1 Packet Pg. 337 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 24 Section 33: “Option Agreement” shall mean and refer to a written agreement recorded in the office of the Clerk and Recorder of Larimer County made and entered into by and between the Declarant and the Owner of Garage Unit #2 pursuant to which the Owner of Garage Unit #2 shall have the right to convert the Exchange Area to the Exchange Unit and exchange the Exchange Unit for the Flex Unit. Section 34: “Person” shall mean and refer to a natural person, a corporation, a partnership, a limited liability company, an association, a trust, a governmental entity, or any other entity or combination thereof. Section 35: “Purchaser” shall mean and refer to a Person, other than a Declarant, who, by means of a transfer, acquires a legal or equitable interest in a Unit, other than: (a) A leasehold interest in a Unit of less than forty (40) years, including renewal options, with the period of the leasehold interest, including renewal options, being measured from the date the initial term commences; or (b) A Security Interest. Section 36: “Retail Expenses” shall mean and refer to all costs and expenses incurred by the Association in the maintenance, repair, replacement and improvement of all General and Limited Common Elements constituting the walls, floor and ceiling of the Retail Unit and the utilities serving only the Retail Unit. If the Flex Area is converted to a Unit (the Flex Unit), the term “Retail Expenses” as it applies to the Flex Unit shall mean and refer to all costs and expenses incurred by the Association in the maintenance, repair, replacement or improvement of all General and Limited Common Elements constituting the walls, floor and ceiling of the Flex Unit and the utilities serving only the Flex Unit. Section 37: “Retail Unit” shall mean and refer to the Unit designated on the Condominium Map as “Retail/Office Space.” If the Flex Area is converted to a Unit (the Flex Unit), the term Retail Unit shall mean and refer to the Retail Unit and the Flex Unit. Section 38: “Rules and Regulations” shall mean and refer to all instruments, however denominated, which are adopted by the Board for the regulation and management of the Condominium Project, including any amendment to such instruments. Section 39: “Security Interest” shall mean and refer to an interest in a Unit created by contract or conveyance which secures payment or performance of an obligation. The term includes a lien created by a mortgage, deed of trust, trust deed, security deed, contract for deed, land sales contract, lease intended as security, and any other consensual lien or title retention contract intended as security for an obligation. “First Security Interest” shall mean and refer to a Security Interest in a Unit prior to all other Security Interests except the Security Interest for real property taxes and assessments made by Larimer County, Colorado, or other Governmental Authority having jurisdic- tion over the Condominium Project. 1 Packet Pg. 338 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 25 Section 40: “Special Assessment” shall mean and refer to Assessments made by the Association pursuant to Article V, Section 4 of this Declaration. Section 41: “Super Majority Vote” shall mean and refer to the affirmative vote of Owners holding Sixty-Seven percent (67%) or more of all votes allocated to the Owners as set forth on Exhibit A attached hereto and incorporated herein by reference Section 42: “Unit” or “Condominium Unit” shall mean and refer to a physical portion of the Common Interest Community which is designated for separate ownership or occupancy and the boundaries of which are contained within the windows, doors, unfinished perimeter walls, floors, and ceilings of each Unit as described and designated herein and determined from the Map. “Unfinished perimeter walls” shall mean the studs, supports, and other wooden, metal, concrete or similar materials that constitute the structural portion of the perimeter walls of a Unit. “Unfinished ceiling” shall mean the beams, joists, and other structural components of the ceiling of a Unit. “Unfinished floor” shall mean the beams, floor joists, plywood deck and other similar floor decking material that constitute the structural portion of the floor of a Unit. The unfinished perimeter walls, floors and ceiling of a Unit shall be referred to herein at the “Unit Boundaries” or “Boundaries of the Unit.” All lathe, furring, wallboard, plasterboard, plaster, drywall, paneling, floor tiles, ceiling tiles, wall tiles, wallpaper, paint, finished hard wood flooring, carpeting, doors and door casing, window and window casing, and any other materials constituting any part of the finished surfaces of the perimeter walls, floors, and ceiling of the Unit shall be considered part of the Unit. “Unit” shall also include heating, air conditioning and ventilation fixtures and equipment serving only that Unit whether such equipment is wholly within, partially within or completely outside of the Unit Boundaries and other Limited Common Elements appurtenant to the Unit. “Unit” shall include plumbing fixtures, hardware and pipes within the Boundaries of the Unit; and electrical, telephone and cable lines and outlets within the Boundaries of the Unit. All plumbing, electrical, heating, ventilating, and air conditioning lines, systems, fixtures and equipment serving more than one Unit or serving a Unit and the General Common Elements shall not be part of the Unit but shall be General Common Elements. “Unit” shall also refer to a “Garage Unit,” “Retail Unit,” and a “Flex Unit.” ARTICLE III. CONDOMINIUM PROJECT Section 1: Name. The name of the Condominium Project is JEFFERSON STREET PARKING GARAGE CONDOMINIUMS. Section 2: County. The name of every county in which any part of the Condominium Project is situated is Larimer County, Colorado. Section 3: Legal Description. A legal description of the Real Estate included in the Condominium Project is set forth in Recital A of this Declaration. Section 4: Maximum Number of Units. The maximum number of Units that the Declarant reserves the right to create within the Condominium Project is _____. 1 Packet Pg. 339 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 26 Section 5: Boundaries of Units. The boundaries of each Unit are located as shown on the Condominium Map and as defined in Article II of this Declaration. Section 6: Identification of Units. The identification number of each Unit is shown on the Condominium Map. Section 7: Subdivision of Units. A Unit may be subdivided and re-subdivided into multiple Units in accordance with the provisions of CCIOA. Initially, the Units shall be Garage Unit #1, Garage Unit #2, Garage Unit #3, and the Retail Unit. The Retail Unit may subsequently be divided into two or more Retail Units. If the Owner of the Exchange Area elects to divide Garage Unit #2 into two Units by converting the Exchange Area to the Exchange Unit, Garage Unit #1 shall also be divided into two Units by converting the Flex Area to a Retail Unit (the Flex Unit) which Flex Unit may thereafter be divided into two or more Retail Units. The Exchange Unit shall be a “Garage Unit” and shall continue to be used solely for public or private parking of motor vehicles and bicycles. Section 8: Allocation of Interests. Interests shall be allocated based on the number of square feet within each Unit, subject to the following: (a) Allocation of Common Expense Liability. The Common Expense Liability shall be allocated among the Owners as follows: (i) Allocation of General Common Expenses. General Common Expenses shall be allocated among all of the Units based on the ownership interest in the Common Elements allocated to each Unit as set forth on Exhibit A attached hereto, which shall be updated and amended to reflect the subdivision of any Unit. (ii) Allocation of Garage Expenses. Garage Expenses shall be allocated among the Garage Units based on the ratio that the ownership interest in the Common Elements of each Garage Unit bears to the total ownership interest in the Common Elements of all Garage Units as set forth on Exhibit A attached hereto, which shall be updated and amended to reflect the subdivision of any Unit. (iii) Allocation of Retail Expenses. Retail Expenses shall be determined and allocated separately to each Retail Unit. If the Flex Area is converted to a Unit (the Flex Unit), Retail Expenses shall be determined and allocated separately to the Flex Unit. (b) Allocation of Votes. Each Owner shall be entitled to cast the number of votes allocated to such Owner’s Unit as set forth on Exhibit A attached hereto, which shall be updated and amended to reflect the subdivision of any Unit. Section 9: Recording Data. All easements and licenses to which the Condominium Project is presently subject are described on the Condominium Map. In addition, the Condominium Project may be subject to other easements or licenses granted by the Declarant pursuant to the terms of this Declaration. 1 Packet Pg. 340 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 27 Section 10: Limited Common Elements. The Limited Common Elements are described and designated as such on the Condominium Map. Section 11: General Common Elements. The General Common Elements are described and designated as such on the Condominium Map. No General Common Elements may be conveyed to any Person, except as appurtenant to a Unit. No General Common Elements may be subsequently allocated as Limited Common Elements. Section 12: Division of Real Estate into Units. The Real Estate, including the Improvements thereon, is hereby divided into four fee simple estates (Units). Each such estate shall consist of a separately designated Unit as herein defined and as indicated on the Condominium Map and the undivided interest in and to the Common Elements appurtenant to such Unit as set forth on Exhibit A attached hereto and incorporated herein by reference, which shall be updated and amended to reflect the subdivision of any Unit. Each Unit, the appurtenant undivided interest in the Common Elements, as well as all other appurtenances, rights, and burdens shall together comprise one Unit. Section 13: Description of Unit. A Unit may be legally described as follows: Garage Unit No. _______ [or Retail Unit No. ___], JEFFERSON STREET PARKING GARAGE CONDOMINIUMS, according to the Declaration recorded ____________, 2016, at Reception No. _____________, and the Condominium Map recorded ______________, 2016, at Reception No. _______________ of the Larimer County, Colorado, records. Such description shall be sufficient for all purposes to sell, convey, transfer, encumber, or otherwise affect not only the Unit but also the Limited Common Elements and the undivided interest in the General Common Elements appurtenant to said Unit and all other appurtenant property rights and shall incorporate all of the rights and burdens incident to ownership of a Unit and all of the limitations thereon as described in this Declaration. Each such description shall be construed to include a nonexclusive easement for ingress and egress to and from a Unit and the use of all General Common Elements appurtenant to such Unit. Reference to the Condominium Map and Declaration in any instrument shall be deemed to include any supplements or amendments thereto. ARTICLE IV. ASSOCIATION Section 1: Membership. Every Owner shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of a Unit. Ownership of a Unit shall be the sole qualification for membership in the Association. The Association does not contemplate pecuniary gain or profit to its Members. The specific purposes for which the Association is formed are as follows: (a) to operate the Condominium Project; (b) to maintain, repair, replace, and improve the Common Elements; and (c) to do any and all permitted acts, and to have and exercise any and all powers, rights, and privileges which are granted to a Condominium Project under the Laws and the Documents. 1 Packet Pg. 341 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 28 Section 2: Authority. The business and affairs of the Condominium Project shall be managed by the Association. The Association shall be governed by the Documents as amended from time to time. The Board shall act in all instances on behalf of the Association. Section 3: Powers of the Board. The Board shall have, subject to the limitations contained in this Declaration, the powers and duties necessary for the administration of the affairs of the Association and of the Condominium Project, which shall include, but not be limited to, the following: (a) Adopt and amend Bylaws. (b) Adopt and amend Rules and Regulations. (c) Adopt and amend budgets for revenues, expenditures, and reserves, subject to approval of the Owners. (d) Collect Common Expense assessments from the Owners. (e) Hire and discharge independent contractors, employees, and agents. (f) Institute, defend, or intervene in litigation or administrative proceedings or seek injunctive relief for violation of the Documents in the Association's name and on behalf of the Association on any matters affecting the Condominium Project. (g) Make contracts and incur liabilities. (h) Acquire, hold, encumber and convey in the Association's name, any right, title, or interest in or to real estate or personal property. (i) Impose a reasonable charge for late payment of assessments and levy a reasonable fine for violation of the Documents. (j) Provide for the indemnification of the Association's officers and the Board and maintain directors' and officers' liability insurance. (k) Exercise any other powers conferred by the Documents. All actions taken, powers exercised and approvals given by the Board under this Declaration shall require only a Majority Vote except where a Super Majority Vote is expressly required by this Declaration or the Laws. Section 4: Budget. Within thirty (30) days after adoption by the Board of any proposed budget for the Association, the Board shall mail, by ordinary first class mail, or otherwise deliver, a summary of the budget to all Owners and shall set a date for a meeting of the Owners to consider approval of the budget not less than fourteen (14) nor more than sixty (60) days after mailing or other delivery of the summary. Unless at that meeting Owners holding a Super Majority Vote 1 Packet Pg. 342 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 29 approve the budget, the budget is rejected. In the event the proposed budget is rejected, the periodic budget last approved by the Owners shall be continued until such time as the Owners approve a subsequent budget proposed by the Board. Section 5: Professional Management. The Association may utilize professional management in performing its duties hereunder. Any agreement for professional management of the Association’s business shall have a maximum term of three (3) years and shall provide for termination by either party thereto, with or without cause and without payment of a termination fee, upon sixty (60) days’ prior written notice. Section 6: Indemnification. To the fullest extent permitted by law, each officer and member of the Board of the Association and all committees established by the Board shall be indemnified by the Association against all expenses and liabilities, including attorney’s fees, reasonably incurred by or imposed upon them in any proceeding to which they may be a party or in which they may become involved by reason of their being or having been an officer or member of the Board of the Association or a member of a committee established by the Board, or any settlement thereof, whether or not they are an officer or a member of the Board of the Association or a member of a committee established by the Board at the time such expenses are incurred, except in cases where an officer or member of the Board or member of a committee established by the Board is adjudged guilty of willful malfeasance in the performance of his or her duties. In the event of a settlement, the indemnification shall apply only when the Board approves the settlement and reimbursement as being in the best interests of the Association. Section 7: Rights of Action. Subject to the dispute resolution provisions hereinafter set forth, the Association, through the Board, on behalf of itself and any aggrieved Owner shall be granted a right of action against any and all Owners for failure to comply with the provisions of the Documents, or with decisions of the Board made pursuant to authority granted to the Association in the Documents and the Laws. Failure by the Board to enforce compliance with any provision of the Documents shall not be deemed a waiver of the right to enforce any provision thereafter, nor shall a decision by the Board not to engage in enforcement action give rise to a cause of action against the Board. If the Board elects not to take action to enforce the restrictions, conditions, covenants, reservations, liens and charges contained in the Documents, an Owner adversely affected by such failure to comply may bring an action provided that the costs and expenses of the enforcement action shall be borne by the Owner bringing the action, and shall not be assessed as a Common Expense. Any Owner that prevails in a civil action to enforce the Documents shall be entitled to reasonable attorney’s fees and costs as provided for in this Declaration. Section 8: Dispute Resolution. Any dispute arising out of or relating to the creation of the Condominium Project by this Declaration, or between the Declarant and the Association, or the Declarant and an Owner, or the Association and an Owner, or among Owners shall be resolved as set forth in this Section and as set forth in any policy adopted by the Board and approved by a Super Majority Vote of the Owners to compliment the processes described below (the “Dispute Resolution Policy”), subject to the right of the Association to take appropriate immediate action or pursue judicial remedies if any dispute involves an imminent threat to the peace, health or safety of the Condominium Project or the collection of Assessments. The Dispute Resolution Policy shall be retained with the records of the Association. 1 Packet Pg. 343 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 30 (a) Claims and Disputes. Except for the Association’s right to take appropriate immediate action or pursue judicial remedies if any dispute involves an imminent threat to the peace, health or safety of the Condominium Project or to collect Assessments, any claim or dispute arising out of or relating to the following matters is subject to required alternative dispute resolution procedures, if the dispute is not resolved by mutual agreement of the parties: (i) the creation and establishment of the Condominium Project; and/or (ii) the interpretation, application or enforcement of this Declaration; including the rights, obligations and duties of any Person subject to the provisions of this Declaration; and/or (iii) the design or construction of the Improvements within the Condominium Project (including the Building) and/or any alleged defect therein, including (but not limited to) any claim against the Declarant, its contractors, officers, employees, agents and board appointees; and/or (iv) injury to an Owner's person, any other bodily injury, property damage or loss of use relating to an Owner's use or ownership of such Unit; and/or (v) any violation of any provision of any of the Documents by any Person other than non-payment of Assessments. Each of the items described in subsections (i), (ii), (iii), (iv) and (v) above shall be referred to as a “Dispute” or a “Claim.” If a Claim or Dispute is not resolved by negotiation, it shall be submitted to a mutually acceptable mediation process. If the Claim or Dispute is not resolved through mediation, the Claim or Dispute shall be settled by either a binding arbitration process agreed to by all the parties to the Claim or Dispute or by filing a legal action in Larimer County, Colorado District Court. If the Claim or any other Dispute related to this Declaration or the construction of the Condominium Project is not resolved through binding arbitration, but instead through a legal action brought in Larimer County District Court, the parties to the Claim or Dispute hereby irrevocably waive any right they may have to a trial by jury in that legal action. (b) Communication. The party seeking resolution of a Dispute (the “Initiating Party”) shall first give written notice to the other involved parties, setting forth with reasonable particularity the nature of the Claim or Dispute and suggested alternatives for resolution (a "Dispute Notice"). Any settlement resolution proposed in a Dispute Notice shall be considered in good faith and shall not be admissible in any litigation or arbitration proceeding to prove liability for or invalidity of any Claim or its amount, nor shall statements made in compromise negotiations be admissible. (c) Mediation. If the Claim cannot be resolved through direct communication and negotiation, the parties shall attempt in good faith to resolve the Claim by mediation through a mediator mutually acceptable to the parties. The mediation may be conducted in accordance with such procedures or methodology mutually agreed to by the parties to the Dispute. The parties may engage any qualified mediator mutually agreed to by the parties including: (i) using the 1 Packet Pg. 344 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 31 services of a dispute resolution service provider such as the Judicial Arbiter Group of Denver, Colorado (“JAG”), (ii) using the resources offered through the Colorado Judicial Branch, Office of Dispute Resolution, or (iii) any similar dispute resolution service provider willing to mediate disputes in the Fort Collins, Colorado area. The cost of the mediation shall be divided equally among the parties to the Dispute. (d) Construction Defect Claims. Any Claim that arises out of or is related to the construction of the Building or any other improvements within the Condominium Project, including without limitation any claim for damages or loss to, or the loss of use of, real or personal property or personal injury caused by a defect in the design or construction of the Building or any other improvements within the Condominium Project, shall be subject to the applicable provisions of the Colorado Construction Defect Action Reform Act of 2003, C.R.S §§ 13-20-801 to -808, and C.R.S. § 38-33.3-303.5 as such Laws may be amended from time to time. (e) Approval of Arbitration or Legal Action. Neither the Association nor the Board may commence any arbitration proceeding or legal action seeking equitable relief or seeking either an unspecified amount of damages or damages in excess of $20,000.00 unless the following conditions are satisfied: (i) The decision to commence such arbitration proceeding or legal action shall be considered at an annual or special meeting of the Owners called for such purpose; (ii) A budget for such action or proceeding, including all fees and costs assuming trial and applicable appeals, shall have been prepared by the attorneys who will be engaged by the Association for such purpose, and shall have been mailed or delivered to all affected Owners at least thirty (30) days prior to such meeting. (iii) At such meeting the decision to commence, and the proposed budget for, such action or proceeding, and the imposition of a Special Assessment to fund the costs of such action or proceeding in accordance with the approved budget shall be approved by a Majority Vote. (iv) The Association shall be authorized to expend funds for such action or proceeding in excess of the amount contemplated by the approved budget only after an amended budget has been approved in accordance with the procedures specified in subsections (ii) and (iii) above. (v) All of the costs and expenses of any action or proceeding requiring the approval of the Owners in accordance with Subsections (ii) and (iii) above shall be funded by means of a Special Assessment. In no event may the Association use reserve funds or incur any indebtedness in order to pay any costs and expenses incurred for such purpose. (vi) If the Association commences any action or proceeding against a particular Owner or particular Owners requiring the approval of the Owners in accordance with this 1 Packet Pg. 345 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 32 Subsection (e), the Owner or Owners who are being sued shall be exempted from the obligation to pay the Special Assessment levied for the purpose of paying the costs and expenses of such action or proceeding, but shall remain liable for costs and attorney’s fees under the prevailing party provision contained in CCIOA and this Declaration. The Owner or Owners being sued by the Association shall not be counted in either the numerator or denominator when determining whether the proposed action, budget and Special Assessment are approved by the Owners as required by Subsection (ii) and (iii) above. (vii) The requirements set forth in this subsection (e) shall not apply to any action or proceeding to collect or otherwise enforce Assessments and any related fines, late charges, penalties, interest or costs and expenses, including reasonable attorneys' fees. If any Owner fails to timely pay Assessments or any money or sums due to the Association, the Association may require reimbursement for collection costs and reasonable attorney’s fees and costs incurred as a result of such failure without the necessity of commencing a legal proceeding. (viii) The requirements of this Subsection (e) shall not apply to any action or proceeding commenced against the Association by any third party or any Owner that the Association is required to defend. The Board shall represent the Association in any such proceedings and shall keep the Owners informed of the proceedings as deemed appropriate by the Board in consultation with legal counsel. (f) Amendment. Notwithstanding any provision to the contrary, this Section 8 shall not be amended or otherwise altered without the express written consent of the Declarant. Section 9: Assumption of Development Agreement. Upon the recording of this Declaration, the Association shall assume all then existing and future obligations of the “Developer” under any Development Agreement between the Declarant and the City of Fort Collins with respect to the construction of the Condominium Project and shall defend, indemnify and hold harmless the Declarant from and against any and all loss, cost, expense, and liability, including attorney’s fees arising out of, as a result of, or in connection with the failure of the Association to perform and pay the cost of the obligations herein assumed. ARTICLE V. ASSESSMENT FOR COMMON EXPENSES Section 1: Personal Obligation of Owners for Common Expenses. The Declarant, for each Unit owned, hereby covenants, and each Owner of any Unit by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association all Assessments imposed by the Association. Such Assessments, including fees, charges, late charges, attorney's fees, fines, and interest, charged by the Association shall be the personal obligation of the Owner at the time the Assessment or other charges became due. The personal obligation to pay any past-due sums due the Association shall not pass to a successor in title unless expressly assumed by such successor. Section 2: Amount of Assessment. The amount of the Assessment for the estimated Common Expenses which shall be paid by the Owner of each Unit shall be determined as provided in Article III, Section 8 of this Declaration. 1 Packet Pg. 346 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 33 Section 3: Date of Commencement of Annual Assessments; Due Dates. The annual Assessments provided for herein shall commence as to all Units on the first day of the month following the conveyance of a Unit by the Declarant to a Purchaser. The first annual Assessment shall be adjusted according to the number of months remaining in the calendar year. Written notice of the annual Assessment shall be sent to every Owner subject thereto. Annual assessments shall be payable in equal monthly installments. Section 4: Special Assessments. In addition to the Assessments for Common Expenses, the Association may levy, in any assessment year, a special Assessment for the purpose of defraying, in whole or in part, payment of any operating deficit and/or unbudgeted cost; the cost of any construction, reconstruction, repair, or replacement of a capital Improvement upon the Common Elements, including fixtures and personal property related thereto. The Association may levy, in any assessment year, a Special Assessment against the Garage Units for the purpose of defraying, in whole or in part, payment of the cost of any construction, reconstruction, repair, or replacement of a capital Improvement to the Garage Units, including fixtures and personal property related thereto. The Association may levy, in any assessment year, a Special Assessment against the Retail Unit for the purpose of defraying, in whole or in part, payment of the cost of any construction, reconstruction, repair, or replacement of the Retail Unit, including fixtures and personal property related thereto. All Special Assessments shall be added to and become a part of the Assessments to which such Owner and such Owner’s Unit are subject and shall be a lien against such Owner’s Unit as provided in this Declaration and CCIOA. Section 5: Individual Assessments. Notwithstanding anything to the contrary contained in this Declaration, in the event that the need for maintenance or repair of the Common Elements, any Improvements located thereon, a Garage Unit, or the Retail Unit is caused by the willful or negligent act, omission, or misconduct of any Owner or by the willful or negligent act, omission, or misconduct of any occupant of such Owner’s Unit or any tenant, guest, invitee, employee, agent, contractor, or subcontractor of such Owner, the costs of such repair and maintenance shall be the personal obligation of such Owner, and any costs, expenses, and fees incurred by the Association for such maintenance, repair, or reconstruction shall be added to and become a part of the Assessments to which such Owner and such Owner’s Unit are subject and shall be a lien against such Owner’s Unit as provided in this Declaration and CCIOA. A determination of the willful or negligent act, omission, or misconduct of any Owner or any occupant of such Owner’s Unit, or tenant, guest, invitee, employee, agent, contractor, or subcontractor of any Owner and the amount of the Owner’s liability therefor shall be determined by the Board after notice to the Owner and the right to be heard before the Board in connection therewith. Section 6: Record of Receipts and Expenditures. The Association shall keep detailed and accurate records in chronological order of all of its receipts and expenditures, specifying and itemizing the maintenance and repair of the Common Elements, and any other expenses incurred. Such records shall be available on request for examination by the Owners and others with an interest, such as prospective lenders. Section 7: Notice to Security Interest. Upon the request of a Person holding a Security Interest against a Unit and upon payment of reasonable compensation therefor, the Association shall report to such Person any unpaid assessments or other defaults under the terms of any of the 1 Packet Pg. 347 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 34 other Documents which are not cured by the Owner within sixty (60) days after written notice of default given by the Association to the Owner. Section 8: Certificate of Status of Assessments. Each Owner hereby expressly authorizes the Association, upon written request to the Association and upon payment of a reasonable fee, to furnish to an Owner or such Owner’s designee, to a holder of a Security Interest or its designee, or to a closing agent handling the closing of the sale or financing of the Owner’s Unit a statement, in recordable form, setting out the amount of the unpaid Assessments against the Unit. The statement shall be furnished within fourteen (14) business days after receipt of the request and is binding on the Association, the Board, and each Owner as of the date of its issuance. Section 9: Common Expenses Attributable to Fewer than All Units. The following Common Expenses may be chargeable to fewer than all of the Units: (a) If a Common Expense is caused by the misconduct of an Owner, the occupants of such Owner’s Unit, or such Owner’s tenants, guests, invitees, employees, agents, contractors, or subcontractors, the Association may assess that expense against that Owner and such Owner’s Unit. (b) Fees, charges, taxes, impositions, late charges, fines, collection costs, and interest charged against an Owner for nonpayment of Assessments or violation of the Documents are enforceable as Assessments only against such Owner and such Owner’s Unit. (c) Garage Expenses shall be assessed only against Garage Units. (d) Retail Expenses shall be assessed only against the Retail Unit. Section 10: Transfer Fees. The Association shall have the right to collect a reasonable fee on each transfer of an interest in a Unit to compensate the Association for the reasonable costs and expenses necessarily incurred by the Association in documenting the transfer in the books and records of the Association. Section 11: Initial Reserve Fund. Upon the transfer of each Unit by the Declarant to the first purchaser of the Unit, the Association shall have the right to collect from the Purchaser of the Unit an amount reasonably determined by the Board to be necessary to establish a reasonable reserve fund. ARTICLE VI. LIEN FOR NONPAYMENT OF COMMON EXPENSES All Assessments, charges, and fees of the Association due and owing under this Declaration shall be a continuing lien upon the Unit against which such Assessments, charges and fees are made. A lien under this Section is prior to all other liens and encumbrances on a Unit, except: (1) liens and encumbrances recorded before the recordation of this Declaration; (2) to the extent provided by CCIOA, a First Security Interest in the Unit recorded before the date on which the Common Expense Assessment sought to be enforced became delinquent; and (3) liens for real estate taxes and other governmental assessments or charges against the Unit. This Section does not prohibit an action to recover sums for which this Section creates a lien or prohibit the Association 1 Packet Pg. 348 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 35 from taking a deed in lieu of foreclosure. Sale or transfer of any Unit shall not affect the Association's lien. Any Assessment, charge, or fee provided for in this Declaration or any monthly or other installment thereof which is not fully paid within ten (10) days after the date due shall bear interest at a rate determined by the Board. In addition, the Board may assess a late charge thereon. Any Owner who fails to pay any Assessment, charge, or fee of the Association shall also be obligated to pay to the Association, on demand, all costs and expenses incurred by the Association, including reasonable attorney's fees, in attempting to collect the delinquent amount. The total amount due to the Association, including unpaid Assessments, fees, charges, fines, interest, late payment penalties, costs, and attorney's fees, shall constitute a lien on the defaulting Owner's Unit. The Association may bring an action, at law or in equity, or both, against any Owner personally obligated to pay any amount due to the Association or any monthly or other installment thereof and may also proceed to foreclose its lien against such Owner's Unit. An action at law or in equity by the Association against a delinquent Owner to recover a money judgment for unpaid amounts due to the Association or monthly or other installments thereof may be commenced and pursued by the Association without foreclosing or in any way waiving the Association's lien. ARTICLE VII. RESTRICTION ON USE Section 1: Improvements on Exterior of Units. No exterior additions to, exterior alterations of, or exterior decoration of the Building, a Unit or the Common Elements shall be made unless approved in writing by the Board. Section 2: Violation of Laws. Nothing shall be done or kept in any Unit or in or on the Common Elements, or any part thereof, which would be in violation of any Laws. Section 3: Nuisance. No obnoxious or offensive activity shall be conducted within any Unit or on the Common Elements which unreasonably interferes with the then existing use of any other Unit. No activity shall be conducted within any Unit or upon the Common Elements which is or might be unsafe, unhealthy, or hazardous to any person. Section 4: Use. All Garage Units shall be used for public or private parking of motor vehicles and bicycles. Retail Units shall be used for retail businesses or offices, except the following uses are expressly prohibited: ___________________________________________. Section 5: Signs. No signs shall be installed or permitted to remain on the exterior of any Unit or on the interior of a Unit if such sign is visible from the exterior of the Unit unless such sign is approved in writing in advance by the Board. No sign shall be installed on the Common Elements without the prior, written approval of the Board. One (1) for sale or for rent sign may be placed in the window of a Unit to be visible from the exterior of the Unit. The sign shall not exceed four (4) square feet. Section 6: Window Coverings. All exterior window coverings visible from the exterior of any Unit must have the prior, written approval of the Board. Nothing shall be placed on or in the windows or doors of the Units which create an unsightly appearance from the exterior of such Units. ARTICLE VIII. EASEMENTS 1 Packet Pg. 349 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 36 Section 1: Encroachments. A valid easement shall exist for the following encroachments and for the maintenance of the same: (a) in the event that any portion of the Common Elements encroaches upon any Unit or Units; or (b) in the event that any portion of a Unit encroaches upon any other Unit or Units or upon any portion of the Common Elements; or (c) in the event any encroachment shall occur in the future as a result of settling of the Building, alteration or repair to the Common Elements, or repair or restoration of the Building or a Unit after damage by fire or other casualty or condemnation or eminent domain proceedings. In the event that any one or more of the Units or the Building or other Improvements comprising part of the Common Elements are partially or totally destroyed and are then rebuilt or reconstructed in substantially the same location, and as a result of such rebuilding, any portion thereof shall encroach as provided in the preceding sentence, a valid easement for such encroachment shall exist. Such encroachments and easements shall not be considered or determined to be encumbrances, either on the Common Elements or on the Units, for purposes of marketability of title or other purposes. In interpreting any and all provisions of this Declaration, subsequent Unit deeds to, and/or mortgages of Units, the actual location of a Unit shall be deemed conclusively to be the property intended to be conveyed, reserved, or encumbered, notwithstanding any minor deviations, either horizontally, vertically, or laterally from the locations of such Units indicated on the Condominium Map. Section 2: Blanket Easement. There is hereby created a blanket easement upon, across, over, and under the Common Elements for ingress and egress to and from each Unit from public streets adjacent to the Condominium Project and for installing, replacing, repairing, and maintaining all Common Elements, including the Building, and all utilities such as water, sewer, gas, telephone, electricity, and communication. By virtue of this easement, it shall be expressly permissible for the providing of electrical, communication wires, circuits, and conduits on, above, across, and under the floor, roof and exterior walls of the Units. No sewer lines, electrical lines, water lines, or other utilities may be installed or relocated on the Real Estate, except as initially programmed and approved by the Declarant or as subsequently approved by the Board. The Association, its officers, agents, employees, and assigns, shall have the right to make such use of the Common Elements as may be reasonably necessary or appropriate to perform the duties and functions which it is obligated or permitted to perform pursuant to this Declaration. Section 3: Emergency Easement. An easement for ingress and egress is hereby granted to all police, sheriff, fire protection, ambulance, and other similar emergency agencies or Persons to enter upon the Real Estate in the performance of their duties. ARTICLE IX. TERMINATION OF MECHANIC'S LIEN RIGHTS AND INDEMNIFICATION No labor performed or materials furnished and incorporated in a Unit with the consent of or at the request of the Owner, his or her agents, contractors, or subcontractors, shall be the basis for filing a lien against the Unit of any other Owner not expressly consenting to or requesting the same or against the Common Elements. To the extent permitted by law, each Owner shall indemnify and hold harmless each of the other Owners and the Association from and against all liability arising from the claim of any lien against the Unit of any other Owner or against the Common Elements for construction performed or for labor, materials, services, or other products incorporated in the 1 Packet Pg. 350 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 37 Owner's Unit at such Owner's request. Notwithstanding the foregoing, any Mortgagee of a Unit who shall become the Owner of such Unit pursuant to a lawful foreclosure sale or the taking of a deed in lieu of foreclosure shall not be under any obligation to indemnify and hold harmless any other Owner or the Association against liability for claims arising prior to the date such Mortgagee becomes an Owner. ARTICLE X. RESERVATION FOR ACCESS, MAINTENANCE, REPAIR, AND EMERGENCIES Section 1: Access to Units. The Association shall have the irrevocable right to be exercised by the Association's Board, officers, custodian, managing agent, employees, and contractors, to have access to each Unit from time to time during reasonable hours as may be necessary for the maintenance, repair, or replacement of any of the Common Elements therein or accessible therefrom or at any hour for making emergency repairs, maintenance, or inspection therein necessary to prevent damage to the Common Elements or to another Unit. Section 2: Damage to Unit. Damage to the interior or any part of a Unit resulting from the maintenance, repair, emergency repair, or replacement of any of the Common Elements or as a result of emergency repairs within another Unit at the insistence of the Association shall be a Common Expense; provided, however, that if the damage is caused by negligent or tortuous acts of an Owner, or the Owner’s agents, employees, invitees, or tenants, then such Owner shall be responsible and liable for all repairs and the cost thereof shall become said Owner's obligation, which shall be timely paid. Said obligation shall be an Assessment against said Owner’s Unit and shall be subject to the provisions for collection elsewhere provided in this Declaration. All damaged Improvements shall be restored substantially to the extent reasonably practical to the same condition in which they existed prior to the damage. All maintenance, repairs, replacement and improvement of the Common Elements, whether located inside or outside of the Units, shall be the Common Expense of all of the Owners (unless necessitated by the negligence, misuse, or tortuous act of an Owner, or the Owner’s agents, employees, invitees, or tenants, in which case such expense shall be charged to such Owner). However, the Association shall not be obligated to seek redress for such damages, and this covenant shall not abrogate the insurance provisions of this Declaration. ARTICLE XI. MAINTENANCE AND SERVICE RESPONSIBILITY Section 1: Owner. For maintenance purposes, an Owner shall be deemed to own, maintain and keep in good repair and condition at all times: (1) such Owner’s Unit as defined in Article I and all Limited Common Elements appurtenant to such Unit, which shall include by example and not limitation, all improvements within the Unit Boundaries as defined in Article I, the windows, screens, exterior doors including window and door casings; (2) the interior non-supporting walls, floors, and ceilings of the Unit; (3) the materials such as, but not limited to, plaster, gypsum drywall, insulation, paneling, wallpaper, paint, ceiling, wall and floor tile and hard wood flooring, carpet, and other materials which make up the finished surfaces of the interior of the perimeter walls, ceiling, and floors of the Unit; (4) interior doors; all improvements and betterments installed by the Owner; (5) personal property of the Owner; exterior shutters, awnings, storm doors, storm windows, appurtenant to each Unit; (6) exterior heating, ventilating, or air conditioning fixtures and equipment serving the Unit; (7) exterior doors and windows of a Unit; and (8) all other fixtures and 1 Packet Pg. 351 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 38 equipment designated to serve a single Unit but located outside of the Boundaries of such Unit. Without limiting the generality of the foregoing, in the event of a casualty loss or damage, an Owner shall be responsible for the repair or replacement of any improvements that are not covered by the insurance required to be maintained by the Association pursuant to Article XV, Section 1(a). An Owner shall also maintain and keep in good repair at all times all plumbing lines and fixtures; heating, air-conditioning and ventilating systems and equipment; furnace and hot water heater; and electrical wires, conduits, systems, and fixtures serving only his or her Unit (“Individual Utilities”) commencing at the point that the Individual Utilities leave the Common Utilities. An Owner shall not be deemed to own and shall have no obligation to maintain or repair utility pipes, wires, lines, conduits, or systems running through his or her Unit which serve one or more other Units (“Common Utilities”), which Common Utilities are General Common Elements to be maintained by the Association. Common Utilities shall not be disturbed or relocated by an Owner without the prior written consent and approval of the Board. An Owner shall do no act or work that will impair the structural soundness or integrity of the Building or impair the proper functioning of the Common Utilities, or impair any easement. Section 2: Association. Except as hereinabove provided, the Association shall have the duty and responsibility for maintaining and repairing all of the Common Elements, including but not limited to maintaining and repairing the Limited Common Elements such as the drive lanes and ramps within the Garage Units and the access drives to the Garage Units from public streets. Maintenance of such Limited Common Elements shall include by example and not limitation the maintenance and repair of entry gates and ticket booths, the cleaning, restriping and sealing of the concrete surfaces, the repair of cracking or spalling of such surfaces, and snow removal. The cost of said maintenance and repair shall be a Common Expense allocated as provided in Article III, Section 8 of this Declaration. ARTICLE XII. COMPLIANCE WITH PROVISIONS OF DOCUMENTS Section 1: Compliance. Each Owner shall comply strictly with the provisions of the Documents and the decisions and resolutions adopted pursuant thereto as the same may be lawfully made and amended and/or modified from time to time. Failure to comply with any of the same shall be grounds for an action to recover sums due; for damages or injunctive relief, or both; and for reimbursement of all attorney's fees incurred in connection therewith, which action shall be maintainable by the Board or managing agent in the name of the Association on behalf of the Owners or, in a proper case, by an aggrieved Owner. Section 2: Notice of Violation. In the event an alleged violation of the Documents is brought to the attention of the Board, the Board shall give written notice of violation to the Owner describing with reasonable particularity the alleged violation of the documents and granting the Owner a reasonable period of time, but not less than ten (10) days, within which to correct the violation. Notice of violation shall be given as provided in Article II, Section 30 of this Declaration. Section 3: Penalties. The Board may levy reasonable fines for violation of the Documents, may impose charges for late payment of Assessments, and in the event of any litigation the Court 1 Packet Pg. 352 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 39 shall award to the prevailing party all costs and reasonable attorney’s fees incurred in enforcing the Documents. ARTICLE XIII. REVOCATION OR AMENDMENT OF DECLARATION Except as otherwise provided in Article XVI hereinafter, this Declaration shall not be revoked unless all the Owners consent and agree to such revocation by instrument duly recorded. This Declaration shall not be amended except by a Super Majority Vote of the Owners; provided, however, the undivided interest in the Common Elements appurtenant to each Unit, as expressed in this Declaration, shall have a permanent character and shall not be altered without the consent of all of the Owners as expressed in an amended Declaration duly recorded. ARTICLE XIV. ADDITIONS, ALTERATIONS, AND IMPROVEMENTS TO GENERAL COMMON ELEMENTS Except for regularly scheduled maintenance, repair or replacement of the Common Elements, there shall be no capital additions, alterations, or improvements of or to the General Common Elements by the Association requiring an expenditure in any calendar year in excess of an amount equal to twenty-five percent (25%) of the Association's then-current annual budget without prior approval of the Owners by Super Majority Vote. The limitations set forth above shall not apply to any expenditures made by the Association for maintenance and repair of the Common Elements or for repair in the event of damage, destruction, or condemnation as provided in Articles XVI and XVII hereinafter. ARTICLE XV. INSURANCE Section 1: To be Obtained by the Association. The Association shall obtain and maintain at all times, to the extent obtainable at reasonable cost, policies involving standard premium rates established by the Colorado Insurance Commissioner and written with companies licensed to do business in Colorado and having a Best's Insurance Report rating of A & XV or better covering the risks set forth below. The Association shall not obtain any policy where: (i) under the terms of the insurance company's charter, bylaws, or policy, contributions or assessments may be made against a Mortgagee or Mortgagee's designee; or (ii) by the terms of the carrier's charter, bylaws, or policy, loss payments are contingent upon action by the company's board, policyholders, or members; or (iii) the policy includes any limiting clauses (other than insurance conditions) which could prevent Mortgagees or Owners from collecting insurance proceeds. The types of coverage to be obtained and risks to be covered are as follows: (a) All Risk Coverage. The Association shall obtain insurance providing all risk coverage or the nearest equivalent available for the full replacement cost, without deduction for depreciation, for all insurable improvements located on the general Common Elements, including all of the Units, and the other property of the Association in such amounts as it deems adequate to protect the property. The Association shall provide insurance on the Units that shall exclude all windows, screens, exterior doors, insulation, drywall and the finished surfaces of floors and ceilings within the Units (i.e., paint, wallpaper, paneling, other wall covering, title, carpet and any floor covering). The insurance obtained by the Association on the Units does not include improvements 1 Packet Pg. 353 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 40 and betterments installed by an Owner, personal property of the Owner, or liability for incidents occurring within the Units or through the Owner’s personal actions. All policies shall contain a standard non-contributory mortgage clause in favor of each First Mortgagee, and their successors and assigns, which shall provide that the loss, if any thereunder, shall be payable to the Association for the use and benefit of such First Mortgagee, and their successors and assigns, as their interests may appear of record in the records of the office of the Clerk and Recorder of Larimer County, Colorado. The Association may also obtain any additional endorsements which it deems advisable and in the best interests of the Association by the Board. (b) Casualty Insurance. The Association shall maintain broad form casualty loss insurance written on a special form or its equivalent on a replacement cost basis. If requested by a First Mortgagee or an insurer or guarantor of a first mortgage, such policy shall also include construction code endorsements such as demolition cost endorsement, a contingent liability from operation of building laws endorsement, and an increased cost of construction endorsement. Said casualty insurance shall insure any property, the nature of which is a Common Element, including all of the Units, any fixtures, equipment, or other property within the Units which are to be financed by a First Mortgagee, regardless of whether or not such property is a part of the Common Elements, together with all service equipment contained therein, in an amount equal to the full replacement value without deduction for depreciation. All policies shall contain a standard noncontributory mortgage clause in favor of each Mortgagee of a Unit which shall provide that the loss, if any, thereunder shall be payable to the Association for the use and benefit of the Owners and Mortgagees as their interests may appear. The Association shall hold any proceeds of insurance in trust for the use and benefit of the Owners and Mortgagees as their interests may appear. All Owners and all Mortgagees, if any, shall be beneficiaries of the policy in the same proportion as each Owner's appurtenant undivided interest in the Common Elements as set forth on Exhibit A attached hereto. (c) Liability Insurance. The Association shall maintain public liability and property damage insurance in such limits as the Board may from time to time determine but not in an amount less than Two Million Dollars ($2,000,000) per injury, per person, per occurrence, and umbrella liability limits of Two Million Dollars ($2,000,000) per occurrence covering claims for bodily injury or property damage. Coverage shall include, without limitation, liability for personal injuries, operation of automobiles on behalf of the Association, and activities in connection with the ownership, operation, maintenance, and other use of the Common Elements. Said policy shall also contain a “severability of interest” endorsement. Coverage under such policy shall include, without limitation, legal liability of the insureds for property damage, bodily injuries, and death of persons in connection with the operation, maintenance, or use of the Common Elements and legal liability arising out of lawsuits. Such insurance shall also include protection against such other risks as are customarily covered with respect to condominiums similar in construction, location, and use. (d) Workers’ Compensation Insurance. The Association shall maintain workers’ compensation and employers’ liability insurance and all other similar insurance with respect to employees of the Association in the amounts and in the forms now or hereafter required by law. (e) Officers' and Directors' Insurance. To the extent such insurance can be obtained at reasonable cost, the Association shall maintain officers and directors liability insurance and shall also maintain blanket fidelity bonds for all officers, directors, and employees of the Association and 1 Packet Pg. 354 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 41 all other persons handling or responsible for funds of or administered by the Association. If the managing agent has the responsibility for handling or administering funds of the Association, the managing agent shall be required to maintain fidelity bond coverage for its officers, employees, and agents handling or responsible for funds of or administered on behalf of the Association. Such fidelity bonds shall name the Association as an obligee and shall not be less than $50,000. Such bonds shall contain waivers by the issuers thereof of all defenses based upon the exclusion of persons serving without compensation from the definition of employees or similar terms or expressions. The premiums on all bonds required hereunder, except those maintained by the managing agent, shall be paid by the Association as a Common Expense. (f) Other Insurance. The Association may obtain “all-in” insurance coverage and may obtain insurance against such other risks of a similar or dissimilar nature as shall be deemed appropriate, including Condominium Map or other glass insurance and insurance covering any personal property of the Association located on the Common Elements. Section 2: Requirements of Insurance. All policies of insurance, to the extent obtainable, shall contain waivers of subrogation and waivers of any defense based on invalidity arising from any acts of an Owner and shall provide that such policies may not be cancelled or modified without at least thirty (30) days' prior written notice to all of the insureds, including the Association and all Mortgagees. If requested, duplicate originals of all policies and renewals thereof, together with proof of payment of premiums, shall be delivered to all Mortgagees at least thirty (30) days prior to expiration of the then current policies. The insurance shall be carried in blanket form naming the Association as the insured, as attorney-in-fact for all of the Owners, which policy or policies shall identify the interest of each Owner (Owner's name and Unit number designation) and First Mortgagee. The Association shall require the insurance company or companies providing the insurance coverage described herein to provide to each Owner a certificate of insurance in regard to such Owner's individual Unit. Section 3: Attorney-in-Fact. Notwithstanding any of the foregoing provisions and requirements relating to property or liability insurance, there may be named as an insured, on behalf of the Association, an authorized representative who shall have the exclusive authority to negotiate losses under any policy providing such property or liability insurance and to perform such other functions as are necessary to accomplish such purpose. All of the Owners hereby irrevocably constitute the Association as their true and lawful attorney-in-fact in their name, place, and stead for the purpose of purchasing and maintaining such insurance, including the collection and appropriate disposition of the proceeds thereof, the negotiation of losses, the execution of all documents, and the performance of all other acts necessary to accomplish such purpose. Section 4: To be Obtained by Owners. Insurance coverage on furnishings or other property belonging to an Owner and public liability coverage shall be the sole and direct responsibility of the Owner thereof, and the Board, Association, and/or the managing agent of the Association shall have no responsibility therefor. Section 5: Prohibition of Certain Activities. Nothing shall be done or kept in any Unit or upon the Common Elements or any part thereof, which would result in the cancellation of the insurance maintained by the Association, or increase the rate of the insurance maintained by the 1 Packet Pg. 355 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 42 Association without the prior, written consent of the Board. Hazardous materials of any kind shall not be allowed within any Unit or upon the Common Elements. ARTICLE XVI. DESTRUCTION, DAMAGE, OR OBSOLESCENCE Section 1: Association as Attorney-in-Fact. This Declaration does hereby make mandatory the irrevocable appointment of an attorney-in-fact to deal with the Condominium Project in the event of its destruction, damage, obsolescence, or condemnation, including the repair, replacement, and improvement of any Unit or Common Elements which has been so destroyed, damage, condemned, or become obsolete. Title to any Unit is declared and expressly made subject to the terms and conditions hereof, and acceptance by any grantee of a deed or other instrument of conveyance from the Declarant or from any Owner or grantor shall constitute appointment of the attorney-in-fact herein provided. All of the Owners irrevocably constitute and appoint the Association as their true and lawful attorney-in-fact in their name, place, and stead, for the purpose of dealing with the Condominium Project upon its damage, destruction, obsolescence, or condemnation as is hereinafter provided. As attorney-in-fact, the Association, by its president and secretary or other duly authorized officers and agents, shall have full and complete authorization, right, and power to make, execute, and deliver any contract, deed, or other instrument with respect to the interest of an Owner which is necessary and appropriate to exercise the powers herein granted. In the event that the Association is dissolved or becomes defunct, a meeting of the Owners shall be held within thirty (30) days of either such event. At such meeting, a new attorney-in-fact shall be appointed to deal with the Condominium Project upon its destruction, damage, obsolescence, or condemnation. Said appointment must be approved by Majority Vote of the Owners. Repair and reconstruction of the Improvements as used in the succeeding paragraphs means restoring the Improvements to substantially the same condition in which they existed prior to the damage, with each Unit and the General and Limited Common Elements having substantially the same vertical and horizontal boundaries as before, and all Improvements being reconstructed or repaired in conformance with the Condominium Project's original architectural plan and scheme. The proceeds of any insurance collected shall be available to the Association for the purposes of repair, restoration, reconstruction, or replacement unless the Owners and First Mortgagees agree not to rebuild in accordance with the provisions hereinafter set forth. Section 2: Insurance Proceeds Sufficient for Restoration. In the event of damage or destruction due to fire or other disaster, the insurance proceeds, if sufficient to reconstruct the Improvements, shall be applied by the Association as attorney-in-fact to such reconstruction and the Improvements shall be promptly repaired and reconstructed. The Association shall have full authority, right, and power as attorney-in-fact to cause the repair and restoration of the Improvements. Assessments for Common Expenses shall not be abated during the period of insurance adjustments and repair and reconstruction. Section 3: Insurance Proceeds Insufficient for Restoration (Less Than 70 Percent). If the insurance proceeds are insufficient to repair and reconstruct the Improvements and if such damage is not more than seventy percent (70%) of the total replacement cost of all of the Units not including land, such damage or destruction shall be promptly repaired and reconstructed by the Association as attorney-in-fact using the proceeds of insurance and the proceeds of a Special Assessment to be made against all of the Owners and their Units. Such Special Assessment shall be a Common 1 Packet Pg. 356 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 43 Expense and made prorata according to each Owner's percentage share of Common Expenses and shall be due and payable within thirty (30) days after written notice thereof or as otherwise approved by the Board. The Association shall have full authority, right, and power as attorney-in-fact to cause the repair, replacement, or restoration of the Improvements using all of the insurance proceeds for such purpose, notwithstanding the failure of an Owner to pay the Special Assessment. The Special Assessment provided for herein shall be a debt of each Owner and a lien on his or her Unit. In addition thereto, the Association as attorney-in-fact shall have the absolute authority, right and power to sell the Unit of any Owner refusing or failing to pay such Special Assessment within the time provided, and if not so paid, the Association shall cause to be recorded a notice that the Unit of the delinquent Owner shall be sold by the Association as attorney-in-fact pursuant to the provisions of this section. Assessments for Common Expenses shall not be abated during the period of insurance adjustment and repair and reconstruction. The delinquent Owner shall be required to pay to the Association the costs and expenses incurred in filing the notice, interest at a rate established by the Board on the amount of the assessment, and all reasonable attorneys’ fees. The proceeds derived from the sale of such Unit shall be used and disbursed by the Association as attorney-in-fact in the following order: (a) for payment of the balance of the lien of any First Mortgagee; (b) for payment of taxes and special assessment liens in favor of any assessing entity and the customary expenses of sale; (c) for payment of unpaid Common Expenses and all costs, expenses, and fees incurred by the Association; (d) for payment of junior liens and encumbrances in the order of and to the extent of their priority; and (e) the balance remaining, if any, shall be paid to the Owner. Section 4: Insurance Proceeds Insufficient for Restoration (More Than 70 Percent). If the insurance proceeds are insufficient to repair and reconstruct the Improvements and if such damage is more than seventy percent (70%) of the total replacement cost of all of the Units not including land, such damage or destruction shall be promptly repaired and reconstructed by the Association as attorney-in-fact using the proceeds of insurance and the proceeds of a Special Assessment to be made against all of the Owners and their Units; provided, however, that Owners by Super Majority Vote may agree not to repair or reconstruct the Improvements. In such event, the Association shall record a notice setting forth such fact or facts, and upon the recording of such notice by the Association, the entire Condominium Project shall be sold by the Association as attorney-in-fact pursuant to the terms of this section, free and clear of the provisions contained in this Declaration, the Condominium Map, Articles of Incorporation, and Bylaws. Assessments for Common Expenses shall not be abated during the period prior to sale. The insurance settlement proceeds shall be divided by the Association according to each Owner's interest in the Common Elements, and such divided proceeds shall be paid into separate accounts, each account representing one of the Units. Each account shall be in the name of the Association and shall be further identified by the Unit designation and name of the Owner. From each separate account, the Association as attorney- in-fact shall use and disburse the total account toward the partial or full payment of the lien of any First Mortgagee encumbering the Unit represented by such separate account. Thereafter, each account shall be supplemented by the apportioned amount of the proceeds obtained from the sale of the entire Condominium Project. Such apportionment shall be based upon each Owner's interest in the Common Elements. The total funds of each account shall be used and disbursed, without contribution, from one account to another by the Association as attorney-in-fact for the same purposes and in the same order as provided in Section 3 of this Article XVI. In the event that the damage is to be repaired or reconstruction is to be made, then the provisions of Section 3 of this Article XVI shall apply. 1 Packet Pg. 357 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 44 Section 5: Obsolescence (Renew/Reconstruct). The Owners by Super Majority Vote may agree that the Common Elements are obsolete and adopt a plan for the renewal and reconstruction. If a plan for the renewal or reconstruction is adopted, notice of such plan shall be recorded and the expense of renewal and reconstruction shall be payable by all of the Owners as a Common Expense, whether or not they have previously consented to the plan of renewal and reconstruction. The Association as attorney-in-fact shall have the absolute right and power to sell the Unit of any Owner refusing or failing to pay such Assessment within the time provided, and if not so paid, the Association shall cause to be recorded a notice that the Unit of the delinquent Owner shall be sold by the Association. The delinquent Owner shall be required to pay to the Association the costs and expenses for filing the notices, interest at a rate established by the Board and all reasonable attorneys’ fees. The proceeds derived from the sale of such Unit shall be used and disbursed by the Association as attorney-in-fact for the same purposes and in the same order as is provided in Section 3 of this Article XVI. Nothing contained in the foregoing shall be construed to prevent or prohibit the Association acting through the Board from renovating the Common Elements as part of scheduled or ongoing maintenance and repair. Section 6: Obsolescence (Sell). The Owners by a Super Majority Vote may agree that the Units are obsolete and should be sold. In such instance, the Association shall record a notice setting forth such fact or facts, and upon the recording of such notice of the Association, the entire Condominium Project shall be sold by the Association as attorney-in-fact, free and clear of the provisions contained in this Declaration, the Condominium Map, the Articles of Incorporation, and the Bylaws. The sale proceeds shall be apportioned among the Owners on the basis of each Owner's interest in the Common Elements, and such apportioned proceeds shall be paid into separate accounts, each account representing one of the Units. Each account shall be in the name of the Association and shall be further identified by the Unit designation and name of the Owner. From each separate account, the Association as attorney-in-fact shall use and disburse the total account, without contribution from one account to another, for the same purposes and in the same order as provided in Section 3 of this Article XVI. ARTICLE XVII. CONDEMNATION If at any time during the continuance of the condominium ownership pursuant to this Declaration, all or any part of the Condominium Project shall be taken or condemned by any public authority or sold or otherwise disposed of in lieu of or in avoidance thereof, the following provisions shall apply: Section 1: Proceeds. All compensation, damages, or other proceeds therefrom (“the Condemnation Award”) shall be payable to the Association. The Association shall represent the Owners in the condemnation proceedings or in the negotiation, settlements, and agreements with the condemning authority for acquisition of the Common Elements or any part thereof by the condemning authority. All of the Owners hereby irrevocably constitute and appoint the Association as their true and lawful attorney-in-fact, in their name, place, and stead, for the purpose of dealing with the Condominium Project upon such condemnation as herein set forth. In the event of a taking or acquisition of part or all of the Common Elements by a condemning authority, the Condemnation 1 Packet Pg. 358 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 45 Award shall be payable to the Association to be held in trust for the Owners and First Mortgagees as their interests may appear. Section 2: Complete Taking. (a) In the event the entire Condominium Project is taken or condemned or is sold or otherwise disposed of in lieu of or avoidance thereof, the condominium ownership pursuant to this Declaration shall terminate. The Condemnation Award shall be apportioned among the Owners on the same basis as each Owner's interest in the Common Elements; provided, however, that if a standard different from the value of the Condominium Project as a whole is employed as the measure of the Condemnation Award in the negotiation, judicial decree, or otherwise, then in determining such shares, the same standard shall be employed to the extent it is relevant and applicable. (b) On the basis of the principle set forth in the last preceding paragraph, the Association shall, as soon as practicable, determine the share of the Condemnation Award to which each Owner is entitled. Such shares shall be paid into separate accounts and disbursed as soon as practicable in the same manner provided in Article XVI, Section 3 hereinabove. Section 3: Partial Taking. In the event less than the entire Condominium Project is taken or condemned or is sold or otherwise disposed of in lieu of or in avoidance thereof, the condominium ownership hereunder shall not terminate. Each Owner shall be entitled to a share of the Condemnation Award as determined in this section. As soon as practicable, the Association shall reasonably and in good faith allocate the Condemnation Award between compensation, damages, or other proceeds and shall apportion the amounts so allocated among the Owners as follows: (a) the total amount allocated to taking of or injury to the Common Elements shall be apportioned among the Owners on the basis of each Owner's interest respectively in the Common Elements; (b) the total amount allocated to severance damages shall be apportioned to those Units which were not taken or condemned; (c) the respective amounts allocated to the taking of or injury to a particular Unit and to the Improvements an Owner has made within his or her own Unit shall be apportioned to the particular Unit involved; and (d) the total amount allocated to consequential damages and any other takings or injuries shall be apportioned as the Association determines to be equitable in the circumstances. If the allocation of the Condemnation Award is already established in negotiations, judicial decree, or otherwise, then in allocating the Condemnation Award, the Association shall employ such allocation to the extent it is relevant and applicable. Distribution of apportioned proceeds shall be disbursed as soon as practicable in the same manner provided in Article XVI, Section 3 hereinabove. Section 4: Reorganization. In the event a partial taking results in the taking of a complete Unit, the Owner thereof shall automatically cease to be a member of the Association; shall cease to hold any right, title, or interest in the remaining Common Elements; and shall execute any and all documents necessary to accomplish the same. Thereafter, the Association shall reallocate the ownership, voting rights, and assessment ratio in accordance with this Declaration at its inception and shall submit such reallocation to the Owners of remaining Units for amendment to this Declaration as provided in Article XIII hereinabove. 1 Packet Pg. 359 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 46 Section 5: Reconstruction and Repair. Any reconstruction and repair necessitated by condemnation shall be governed by the procedures specified in Article XVI hereinabove. ARTICLE XVIII. GENERAL PROVISIONS Section 1: Enforcement. Subject to the Dispute Resolution provisions of Article IV, Section 8 of this Declaration, enforcement of this Declaration shall be by appropriate proceedings at law or in equity against those Persons violating or attempting to violate any covenant, condition, or restriction herein contained. Such judicial proceeding shall be for the purpose of removing a violation, restraining a future violation, for recovery of damages for any violation, or for such other and further relief as may be available. Such judicial proceedings may be prosecuted by an Owner or by the Association. In the event it becomes necessary to commence an action to enforce this Declaration, the court shall award to the prevailing party in such litigation, in addition to such damages as the court may deem just and proper, an amount equal to the costs and reasonable attorney's fees incurred by the prevailing party in connection with such litigation. The failure to enforce or to cause the abatement of any violation of this Declaration shall not preclude or prevent the enforcement thereof or of a further or continued violation, whether such violation shall be of the same or of a different provision of this Declaration. Section 2: Duration. This Declaration shall run with the Real Estate and all the Units, shall be binding upon all persons owning Units and any persons hereafter acquiring said Units, and shall be in effect in perpetuity unless amended or terminated as provided in this Declaration and CCIOA. Section 3: Conflict. In the event of any conflict between the terms and provisions of this Declaration and the terms and provisions of the Articles of Incorporation, Bylaws, or Rules and Regulations of the Association, the terms and provisions of this Declaration shall control. Section 4: Time. In computing any period of time prescribed or allowed by this Declaration, the date of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. For purposes of this Declaration, a day shall end at 5 p.m. Section 5: Obligations Subject to Appropriation. If any Owner is a political subdivision of the State of Colorado, such Owner’s obligations hereunder shall be subject to annual appropriation of funds sufficient and intended for such purposes by such Owner’s governing body, in its sole discretion, as required by Article X, Section 20 of the Colorado Constitution. 1 Packet Pg. 360 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 11-10-15 v.2 47 IN WITNESS WHEREOF, the Declarant has caused this Declaration to be executed as of the day and year first above written. WALNUT STREET 354, LLC, a Colorado limited liability company By: BOCO Holdings, LLC, a Colorado limited liability company, its Manager By: Joseph C. Zimlich, Manager STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this _______ day of ____________, 2016, by Joseph C. Zimlich, Manager of BOCO Holdings, LLC, a Colorado limited liability company, Manager of WALNUT STREET 354, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: ____________________. Notary Public 1 Packet Pg. 361 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) EXHIBIT A Table of Interests Ownership Interest and Unit No. share of Common Expenses Votes 1 Packet Pg. 362 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) EXHIBIT G TO CONSTRUCTION AND PURCHASE AGREEMENT Form of Option Agreement [Attached] 1 Packet Pg. 363 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) Upon recordation return to: Real Estate Services City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 OPTION AGREEMENT FOR EXCHANGE OF REAL PROPERTY THIS AGREEMENT is made and entered into this ____ day of __________, 20__, by and between THE CITY OF FORT COLLINS, a Colorado municipal corporation, whose address is 300 LaPorte Avenue, Fort Collins, Colorado, 80521 (“City”), and _____________, a Colorado ________________, whose address is _________________ (“Owner”). WITNESSETH: For and in consideration of the promises of the parties in the Construction and Purchase Agreement dated _________, and other good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties agree to exchange certain real property at the option of the City subject to the terms and conditions set forth below. 1. Description of Real Property. The City is the owner of the real property described as _______________ (the “City Unit”). The Owner is the owner of the real property described as ________________ (the “Owner Unit”). The City Unit and Owner Unit are referred to together as the “Units”. The Units include any improvements located therein, including all fixtures of a permanent nature and all other rights in and appurtenances to such Units. 2. Option Terms. A. Subject to the terms and conditions of this Agreement, Owner grants to the City an option (the “Option”) to exchange the City Unit for the Owner Unit. The term of the Option is 50 years. B. The City may exercise the Option by delivery to Owner or Owner’s representative, at the address set forth hereafter, a statement in writing signed by or on behalf of the City exercising the Option (the “Notice of Exercise”). Upon delivery of the Notice of Exercise, this Agreement shall become an agreement of purchase and sale of the Units between Owner and City. 3. Method of Conveyance. The Owner agrees to convey to the City, and the City agrees to acquire from the Owner, the Owner Unit subject to the terms and conditions as set forth herein, upon the City’s exercise of its Option therefor. As consideration for such conveyance, the City agrees to convey to the Owner, and the Owner agrees to acquire from the City, the City Unit, subject to the terms and conditions set forth herein. Each Unit shall be conveyed at the time of 1 Packet Pg. 364 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) closing (the “Closing”) by special warranty deed, free and clear of all liens and encumbrances, except and subject to the following: A. All easements, covenants, reservations, restrictions, rights-of-way and other matters of record as of the date of the Closing (such exceptions, with recording information, to be appended to the Special Warranty Deed conveying such Unit); B. Any restrictions, reservations or exceptions contained in any United States or State of Colorado patents of record; C. All zoning and other governmental rules and regulations; D. Statutory lien rights resulting from the inclusion of the Property in any special taxing district or improvement districts; E. All oil, gas or other mineral reservations or exceptions of record; F. General property taxes, assessments and charges, if applicable for the tax year of the subject closing (which shall be prorated as of the date of Closing) and said taxes, assessments and charges for all subsequent years; and 4. Title Insurance. Prior to Closing each party shall have the right to acquire a title insurance commitment for the Unit it is acquiring, and to inspect and object in its sole discretion to any defects in title disclosed by such title commitment. The title commitment obtained by either party must show that the other party has marketable title to its respective Unit, subject only to those items set forth in paragraph 3 above. In the event a party’s title insurance commitment discloses title defects subject to which such party need not take title, or to which such party objects, written notice by such party shall be given to the other within fifteen (15) calendar days after receipt of the title insurance commitment (or any subsequent update or modification to such commitment). The other party shall cure such defect or objection within a reasonable amount of time, at its expense, without in any other manner affecting the terms of this Agreement. If any instrument or deposit is necessary in order to obviate a defect in or objection to title, the following shall apply: (a) any such instrument shall be in such form and shall contain such terms and conditions as may be reasonably required by the title insurance company so as to satisfy said company sufficiently for it to omit such defect or objection; (b) any such deposit shall be made with the title insurance company; and (c) the such party agrees to execute, acknowledge and deliver any such instrument and to make any such deposit. In the event said title insurance company refuses to omit any title defect or objection prior to the Closing, or in the event a party is unable through reasonable good faith efforts to cure any title objection, then the objecting party shall, at its election, have the right to accept such title as the other party is able to convey, without any additional consideration; or shall have the right to rescind this Agreement, and the parties shall be released from all obligations hereunder. Notwithstanding the foregoing, if one party is unable to convey marketable title to its Unit due to its own act or omission, such party shall be in default and shall continue to be liable hereunder. . 1 Packet Pg. 365 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) 5. Inspection. Each party shall have the right to inspect the physical condition of the other party’s Unit and the improvements located thereon, and any other matters which such party determines in its discretion may affect the other Unit or such party’s intended use thereof, at such party’s expense. Inspections may include, but shall not be limited to, inspections regarding compliance with any environmental protection, pollution or land use laws, rules or regulations. If a written notice of any unsatisfactory condition, as determined at the acquiring party’s sole discretion, signed by such party, is not received by the other party on or before twenty (20) calendar days prior to Closing, the physical condition of such Unit and the improvements located thereon shall be deemed to be satisfactory to the acquiring party. If the acquiring party gives written notice of any unsatisfactory condition, signed by the acquiring party, to the other party on or before twenty (20) calendar days prior to Closing, the other party shall either cure such conditions or this Agreement may be terminated at the option of the party giving notice. Each party is responsible and shall pay for any material damage which occurs to the other party’s Unit and the improvements located thereon as a result of such inspections. 6. “AS-IS” Nature of Sale. Except as otherwise stated herein, the parties agree that neither party has made, they do not make, and specifically negate and disclaim any representations, warranties, promises, covenants, agreements or guarantees of any kind or character whatsoever, whether express or implied, oral or written, past, present or future, concerning their own Units and: (a) the value, nature, quality or condition of such Units; (b) the income to be derived from such Units; (c) the suitability of the Units for any and all activities and uses which the other party may conduct thereon; (d) compliance by either Unit, or of its operation and use, with all applicable statutes, laws, ordinances, rules or regulations of any governmental authority or body having jurisdiction; (e) the habitability, merchantability, marketability, profitability or fitness for a particular purpose of either Unit; (f) the manner or quality of the construction or materials, if any, incorporated into the Units; (g) the manner, quality, state of repair or lack of repair of the Units; or (h) any other matter with respect to their respective Units. Each party further acknowledges and agrees that having been given the opportunity to inspect the other Unit before taking title to it, each party is relying solely on its own investigations and not on any information provided or to be provided by the other party. The parties further acknowledge and agree that to the maximum extent permitted by law, the exchange of the Units as provided for herein is made on an “AS IS” condition and basis with all faults. Notwithstanding the foregoing, each party represents to the other that it has no actual knowledge of any adverse material defects or facts which would be reasonably material to other party in determining whether to complete the transaction described in this Agreement. 7. Closing. Closing shall be held within sixty (60) days following delivery of the Notice of Exercise, at 2:00 p.m. at Land Title Company, 772 Whalers Way, Fort Collins, Colorado 80525, or at such other reasonable time, date or location as the parties may mutually agree upon. 8. Possession. Possession of each Unit shall be delivered to its acquiring party upon Closing. 9. Proration. Because the City is a public entity and not subject to taxation, any real property taxes, assessments and similar expenses imposed or accruing subsequent to the date of 1 Packet Pg. 366 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) closing on the City Unit shall be Owner’s sole obligation. Closing fees shall be apportioned in accordance with local practice. 10. Remedies on Default. If either party fails to perform according to the terms of this Agreement, such party may be declared in default. The non-defaulting party may give written notice specifying such default to the defaulting party, and shall allow the defaulting party a period of thirty (30) days within which to cure the default. If the event the default is not corrected, the party declaring default may elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail itself of any other remedy at law or in equity. 11. Legal Fees and Costs. If either of the parties defaults in any of its covenants or obligations under this Agreement and the party not in default commences and prevails in any legal or equitable action against the substantially defaulting party, the defaulting party expressly agrees to pay all reasonable expenses of said litigation, including a reasonable sum for legal fees including attorneys' fees. 12. Governing Law. This Agreement is made in and shall be construed and interpreted in accordance with the laws of the State of Colorado. 13. Notices. Any notice or other communication given by either party hereto to the other relating to this Agreement shall be hand delivered or sent by registered or certified mail, return receipt requested, or by overnight commercial courier, addressed to such other party at their respective address as set forth below, and such notice or other communication shall be deemed given when so hand delivered, on the next day if sent by overnight courier, or on the third business day after when mailed. If to City: Real Estate Services Manager City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 With a copy to: City Attorney City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 If to Owner: 1 Packet Pg. 367 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) With a copy to: Either party may from time to time by written notice to the other designate another address for receipt of future notices. 14. Maintenance of the Property. Between the date of the Notice of Exercise and Closing, neither party shall cause or allow the creation of new encumbrances to title for its respective Unit, and shall maintain such Unit in its condition as of the date of the Notice of Exercise until Closing, subject to normal wear-and-tear and seasonal changes, and agrees not to commit or permit waste thereon. 15. Casualty. In the event that either Unit is substantially damaged by fire, flood, drought or casualty between the date of the Notice of Exercise and the date of Closing, this Agreement may, at the option of either party, be declared null and void and of no further force or effect; and the parties to this Agreement shall be released from all obligations hereunder. 16. Headings. Paragraph headings used herein are for convenience of reference and shall in no way define, limit or prescribe the scope or intent of any provision under this Agreement. 17. Terms Survive Closing. To the extent necessary to carry out all of the terms and provisions hereof, the said terms, obligations and rights set forth herein shall be deemed not terminated at the time of closing; nor shall they be necessarily merged with the various documents executed and delivered at such time. 18. Construction. Words of the masculine gender shall include the feminine and neuter gender and when the sentence so indicates, words of the neuter gender shall refer to any gender. Words in the singular shall include the plural and vice versa. This Agreement shall be construed according to its fair meaning, and as if prepared by both parties hereto, and shall be deemed to be and contain the entire understanding and agreement between the parties hereto. There shall be deemed to be no other terms, conditions, promises, understandings, statements or representation, expressed or implied, concerning this Agreement unless set forth in writing and signed by both parties hereto. 19. Time is of the Essence. It is agreed that time shall be of the essence of this Agreement and each and every provision hereof. 20. Recording; Binding Effect. The City will record this Agreement in the office of the Larimer County, Colorado, Clerk and Recorder. This Agreement and its terms and conditions will run with the Units and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 21. Assignment. This Agreement and the parties’ rights and obligations hereunder shall not be assigned by either of the parties hereto without the prior written consent of the other party, 1 Packet Pg. 368 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) which consent shall not be unreasonably withheld. Any such assignment without the other party’s prior written consent shall be deemed null and void and without any effect. 22. Authority. The persons who have executed this Agreement represent and warrant that they are duly authorized to execute this Agreement in their individual or representative capacity as indicated. 23. Facsimile Signatures. The parties agree that facsimile signatures shall be an acceptable means of executing this Agreement; however, Agreements executed with original signatures shall be provided to each party at closing. 24. Counterpart Signatures. This Agreement may be executed in as many counterparts as may be deemed necessary and convenient, and by the different parties hereto on separate counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same instrument. In addition, this Agreement may be executed initially by facsimile counterpart copies, and upon receipt of the same, shall be deemed legally enforceable. Thereafter, original signatures shall be obtained and substituted for facsimiles. 25. Cooperation. The parties acknowledge that, due to the complexity of the transaction, certain necessary conveyances, easements, documents and other accommodations required to fulfill the intent hereof may have been omitted, overlooked, or may otherwise become necessary, and the parties agree to cooperate in good faith in executing such additional documentation or modifications of existing documentation to fulfill the parties’ mutual intent hereunder. 1 Packet Pg. 369 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. CITY: THE CITY OF FORT COLLINS By _________________________ Darin A. Atteberry, City Manager ATTEST: __________________________ City Clerk APPROVED AS TO FORM: __________________________ Assistant City Attorney STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this _____ day of , 20__, by Darin A. Atteberry, as City Manager of THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation. WITNESS my hand and official seal. My commission expires: ____________________________________ Notary Public 1 Packet Pg. 370 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) OWNER: _________________________ By: ________________________________ [name, title] STATE OF COLORADO ) ) ss. COUNTY OF _________ ) The foregoing instrument was acknowledged before me this _____ day of______________, 20__, by______________, as _______________, of________________, a Colorado________________________. WITNESS my hand and official seal. My commission expires: ____________________________________ Notary Public 1 Packet Pg. 371 Attachment: Exhibit A (3808 : Downtown Hotel Parking Structure Partnership RESO) City of Fort Collins Page 1 Wade Troxell, President City Council Chambers Gerry Horak, District 6, Vice President City Hall West Bob Overbeck, District 1 300 LaPorte Avenue Ray Martinez, District 2 Fort Collins, Colorado Gino Campana, District 3 Kristin Stephens, District 4 Cablecast on City Cable Channel 14 Ross Cunniff, District 5 on the Comcast cable system Carrie Daggett Darin Atteberry Wanda Winkelmann City Attorney Executive Director Secretary The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221-6515 (TDD 224- 6001) for assistance. General Improvement District No. 1 Board Regular Meeting November 17, 2015 (amended 11/16/15) (after the Regular Council Meeting, which begins at 6:00 p.m.) CALL MEETING TO ORDER ROLL CALL 1. Consideration and Approval of the Minutes of the November 3, 2015 General Improvement District No. 1 Board Meeting. The purpose of this item is to approve the minutes of the November 3, 2015 General Improvement District No. 1 Board Regular meeting. 2. Second Reading of Ordinance No. 067, Determining and Fixing the Mill Levy for the General Improvement District No. 1 for the Fiscal Year 2016; Directing the Secretary of the District to Certify such Levy to the Board of Commissioners of Larimer County; and Making the Fiscal Year 2016 Annual Appropriation. (staff: Mike Beckstead; no staff presentation; 3 minute discussion) This item to be postponed to December 1 This Ordinance, unanimously adopted on First Reading on November 3, 2015, includes the GID’s annual appropriation for 2016 at $193,877. This item also sets the GID mill levy for 2016 at 4.924 mills, which will generate approximately $280,000 for fiscal year 2016. The mill levy remains unchanged from previous years. Additional revenue for the GID from automobile specific ownership taxes, ad valorem taxes, and interest earnings are anticipated in 2016 to total $33,000 resulting in an expected revenue total of $313,000 for 2016. OTHER BUSINESS ADJOURNMENT GENERAL IMPROVEMENT DISTRICT NO. 1 BOARD Agenda Item 1 Item # 1 Page 1 AGENDA ITEM SUMMARY November 17, 2015 General Improvement District No. 1 Board STAFF Wanda Winkelmann, City Clerk SUBJECT Consideration and Approval of the Minutes of the November 3, 2015 General Improvement District No. 1 Board Meeting. EXECUTIVE SUMMARY The purpose of this item is to approve the minutes of the November 3, 2015 General Improvement District No. 1 Board Regular meeting. ATTACHMENTS 1. November 3, 2015 (PDF) 1 Packet Pg. 2 City of Fort Collins Page 1 GENERAL IMPROVEMENT DISTRICT NO. 1 BOARD November 3, 2015 10:08 PM ROLL CALL PRESENT: Campana, Troxell, Cunniff, Horak, Martinez, Stephens ABSENT: Overbeck Staff Present: Atteberry, Daggett, Winkelmann 1. First Reading of Ordinance No. 067, Determining and Fixing the Mill Levy for the General Improvement District No. 1 for the Fiscal Year 2016; Directing the Secretary of the District to Certify such Levy to the Board of Commissioners of Larimer County; and Making the Fiscal Year 2016 Annual Appropriation. (Adopted on First Reading) The sum of $280,000 is anticipated to be collected from the mill levy of 4.924 mills for fiscal year 2016 imposed within the General Improvement District No. 1 (GID) boundaries. Additional revenue for the GID from automobile specific ownership taxes, ad valorem taxes, and interest earnings are anticipated in 2016 to total $33,000 resulting in an expected revenue total of $313,000 for 2016. The Ordinance appropriates funds in the amount of $193,877 for the operation of the GID in 2016. Vice President Horak made a motion, seconded by Boardmember Cunniff, to adopt Ordinance No. 067 on First Reading. RESULT: ADOPTED ON FIRST READING [UNANIMOUS] MOVER: Gerry Horak, District 6 SECONDER: Ross Cunniff, District 5 AYES: Campana, Troxell, Cunniff, Horak, Martinez, Stephens ABSENT: Overbeck ADJOURNMENT The meeting adjourned at 10:10 PM. ______________________________ Chair ATTEST: _________________________________ Secretary 1.1 Packet Pg. 3 Attachment: November 3, 2015 (3812 : GID minutes 11/3) Agenda Item 2 Item # 2 Page 1 AGENDA ITEM SUMMARY November 17, 2015 General Improvement District No. 1 Board This item to be postponed to December 1, 2015 STAFF Mike Beckstead, Chief Financial Officer SUBJECT Second Reading of Ordinance No. 067, Determining and Fixing the Mill Levy for the General Improvement District No. 1 for the Fiscal Year 2016; Directing the Secretary of the District to Certify such Levy to the Board of Commissioners of Larimer County; and Making the Fiscal Year 2016 Annual Appropriation. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on November 3, 2015, includes the GID’s annual appropriation for 2016 at $193,877. This item also sets the GID mill levy for 2016 at 4.924 mills, which will generate approximately $280,000 for fiscal year 2016. The mill levy remains unchanged from previous years. Additional revenue for the GID from automobile specific ownership taxes, ad valorem taxes, and interest earnings are anticipated in 2016 to total $33,000 resulting in an expected revenue total of $313,000 for 2016. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, November 3, 2015 (PDF) 2. Boundary map (PDF) 3. Ordinance No. 067 (PDF) Agenda Item 1 Item # 1 Page 1 AGENDA ITEM SUMMARY November 3, 2015 General Improvement District No. 1 Board STAFF Mike Beckstead, Chief Financial Officer SUBJECT First Reading of Ordinance No. 067, Determining and Fixing the Mill Levy for the General Improvement District No. 1 for the Fiscal Year 2016; Directing the Secretary of the District to Certify such Levy to the Board of Commissioners of Larimer County; and Making the Fiscal Year 2016 Annual Appropriation. EXECUTIVE SUMMARY The sum of $280,000 is anticipated to be collected from the mill levy of 4.924 mills for fiscal year 2016 imposed within the General Improvement District No. 1 (GID) boundaries. Additional revenue for the GID from automobile specific ownership taxes, ad valorem taxes, and interest earnings are anticipated in 2016 to total $33,000 resulting in an expected revenue total of $313,000 for 2016. The Ordinance appropriates funds in the amount of $193,877 for the operation of the GID in 2016. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION The recommended appropriations for this amount are as follows: GID Expenses: $ 26,000 to be used for other capital improvements in the downtown area $ 14,314 for staffing $ 11,500 for the Larimer County Treasurer's fee for collecting the property tax $ 23,000 for property tax rebate program $ 2,500 for estimated electrical costs for downtown lighting and water $ 1,563 for miscellaneous expenses $115,000 for transfer to other funds $193,877 Total FINANCIAL / ECONOMIC IMPACTS This Ordinance includes the GID’s annual appropriation for 2016 at $193,877. This item also sets the GID mill levy for 2016 at 4.924 mills, which will generate approximately $280,000 for fiscal year 2016. The mill levy remains unchanged from previous years. Additional 2016 revenue includes automobile specific ownership taxes, ad valorem taxes, and interest which together are projected to be $33,000 in fiscal year 2016. ATTACHMENTS 1. Boundary map (PDF) ATTACHMENT 1 2.1 Packet Pg. 5 Attachment: First Reading Agenda Item Summary, November 3, 2015 (3781 : SR 067 GID Budget) ATTACHMENT 2 2.2 Packet Pg. 6 Attachment: Boundary map (3781 : SR 067 GID Budget) ORDINANCE NO. 067 OF THE COUNCIL OF THE CITY OF FORT COLLINS, COLORADO EX-OFFICIO THE BOARD OF DIRECTORS OF GENERAL IMPROVEMENT DISTRICT NO. 1, DETERMINING AND FIXING THE MILL LEVY FOR THE GENERAL IMPROVEMENT DISTRICT NO. 1 FOR THE FISCAL YEAR 2016; DIRECTING THE SECRETARY OF THE DISTRICT TO CERTIFY SUCH LEVY TO THE BOARD OF COMMISSIONERS OF LARIMER COUNTY; AND MAKING THE FISCAL YEAR 2016 ANNUAL APPROPRIATION WHEREAS, City of Fort Collins General Improvement District No. 1 (the “GID”) in Fort Collins, Colorado, has been duly organized in accordance with the ordinances of the City and the statutes of the State of Colorado; and WHEREAS, the GID staff has considered the amount of money to be raised by a levy on the taxable property in the GID and recommends that a levy of 4.924 mills upon each dollar of the assessed valuation of all taxable property within the limits of the GID is required during 2016 to pay the cost of operating the GID; and WHEREAS, the GID staff estimates a levy of 4.924 mill will result in $280,000 of revenue; and WHEREAS, the amount of this proposed mill levy is not an increase over prior years so that prior voter approval of the levy is not required under Article X, Section 20 of the Colorado Constitution; and WHEREAS, C.R.S. Section 39-5-128(1) requires certification of any tax levy to the Board of County Commissioners no later than December 15 of each year; and WHEREAS, additional revenue is collected by the GID from such sources as the automobile ownership tax, ad valorem taxes, and interest earnings and that revenue for 2016 is anticipated to be $33,000; and WHEREAS, the City Council, acting as the ex-officio Board of Directors of the GID, desires to appropriate the necessary funds for operating costs and capital improvements of the GID for the fiscal year beginning January 1, 2016, and ending December 31, 2016; and WHEREAS, in 2014, the City Council previously approved in Ordinance No. 153, 2014, the GID’s budget for the period beginning January 1, 2015 and ending December 31, 2016, which budget remains unchanged for 2016. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS, Ex-Officio the Board of Directors of City of Fort Collins General Improvement District No. 1, as follows: 2.3 Packet Pg. 7 Attachment: Ordinance No. 067 (3781 : SR 067 GID Budget) Section 1. That, for the purpose of providing the necessary funds to meet the expenses to be incurred in the General Improvement District No. 1 in 2016, 4.924 mills is hereby levied upon each dollar of the assessed valuation of all taxable property within the General Improvement District No.1 as of December 31, 2015. Section 2. That the City Clerk is hereby designated as the Secretary of the General Improvement District No. 1 and is hereby authorized and directed to certify such mill levy to the Board of Larimer County Commissioners as provided by law. Section 3. That the City Council, acting ex-officio as the Board of Directors of City of Fort Collins General Improvement District No. 1, hereby appropriates out of the revenues of General Improvement District No. 1 for the fiscal year beginning January 1, 2016, and ending December 31, 2016, the sum of ONE HUNDRED NINTEY THREE THOUSAND EIGHT HUNDRED SEVENTY SEVEN DOLLARS ($193,877) to be raised by taxation and additional revenue to be expended for the authorized purposes of the General Improvement District No.1. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, A.D. 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. _________________________________ Mayor, Ex Officio President ATTEST: _____________________________ City Clerk, Ex Officio Secretary Passed and adopted on final reading on the 17th day of November, A.D. 2015. _________________________________ Mayor, Ex Officio President ATTEST: _____________________________ City Clerk, Ex Officio Secretary 2.3 Packet Pg. 8 Attachment: Ordinance No. 067 (3781 : SR 067 GID Budget) City of Fort Collins Page 1 Wade Troxell, President City Council Chambers Gerry Horak, District 6, Vice President City Hall West Bob Overbeck, District 1 300 LaPorte Avenue Ray Martinez, District 2 Fort Collins, Colorado Gino Campana, District 3 Kristin Stephens, District 4 Cablecast on City Cable Channel 14 Ross Cunniff, District 5 on the Comcast cable system Carrie Daggett Darin Atteberry Wanda Winkelmann City Attorney Executive Director Secretary The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221-6515 (TDD 224- 6001) for assistance. Skyview South General Improvement District No. 15 Board Meeting November 17, 2015 (after the General Improvement District No. 1 Meeting) CALL MEETING TO ORDER ROLL CALL 1. Consideration and Approval of the Minutes of the November 3, 2015 Skyview South General Improvement District No. 15 Meeting. The purpose of this item is to approve the minutes of the November 3, 2015 Skyview South General Improvement District No. 15 regular meeting. 2. Second Reading of Ordinance No. 007, Determining and Fixing the Mill Levy for the Skyview South General Improvement District No. 15 for the Fiscal Year 2016; Directing the Secretary of the District to Certify Such Levy to the Board of Commissioners of Larimer County; and Making the Fiscal Year 2016 Annual Appropriation. (staff: Mike Beckstead; no staff presentation; 3 minute discussion) This Ordinance, unanimously adopted on First Reading on November 3, 2015, includes the annual appropriation for 2016 of $1,000 for the expenses of the Skyview South General Improvement District No. 15 (GID No. 15). The sum of $25,200 is anticipated to be collected from the mill levy of 10.0 mills for fiscal year 2016. Additional revenue for GID No. 15 from interest earnings is anticipated to generate $432. The total 2016 revenue for GID No. 15 is expected to be $25,632. The total amount will be used in the future to maintain and repair roads in the Skyview subdivision. OTHER BUSINESS ADJOURNMENT SKYVIEW SOUTH GENERAL IMPROVEMENT DISTRICT NO. 15 BOARD Agenda Item 1 Item # 1 Page 1 AGENDA ITEM SUMMARY November 17, 2015 Skyview South General Improvement District No. 15 Board STAFF Wanda Winkelmann, City Clerk SUBJECT Consideration and Approval of the Minutes of the November 3, 2015 Skyview South General Improvement District No. 15 Meeting. EXECUTIVE SUMMARY The purpose of this item is to approve the minutes of the November 3, 2015 Skyview South General Improvement District No. 15 regular meeting. ATTACHMENTS 1. November 3, 2015 (PDF) 1 Packet Pg. 2 City of Fort Collins Page 1 SKYVIEW SOUTH GENERAL IMPROVEMENT DISTRICT NO. 15 BOARD November 3, 2015 10:10 PM ROLL CALL PRESENT: Campana, Troxell, Cunniff, Horak, Martinez, Stephens ABSENT: Overbeck Staff Present: Atteberry, Daggett, Winkelmann 1. First Reading of Ordinance No. 007, Determining and Fixing the Mill Levy for the Skyview South General Improvement District No. 15 for the Fiscal Year 2016; Directing the Secretary of the District to Certify Such Levy to the Board of Commissioners of Larimer County; and Making the Fiscal Year 2016 Annual Appropriation. (Adopted on First Reading) This Ordinance includes the annual appropriation for 2016 of $1,000 for the expenses of the Skyview South General Improvement District No. 15 (GID No. 15). The sum of $25,200 is anticipated to be collected from the mill levy of 10.0 mills for fiscal year 2016. Additional revenue for GID No. 15 from interest earnings is anticipated to generate $432. The total 2016 revenue for GID No. 15 is expected to be $25,632. The total amount will be used in the future to maintain and repair roads in the Skyview subdivision. Vice President Horak made a motion, seconded by Boardmember Cunniff, to adopt Ordinance No. 007 on First Reading. RESULT: ADOPTED ON FIRST READING [UNANIMOUS] MOVER: Gerry Horak, District 6 SECONDER: Ross Cunniff, District 5 AYES: Campana, Troxell, Cunniff, Horak, Martinez, Stephens ABSENT: Overbeck ADJOURNMENT The meeting adjourned at 10:12 PM. ______________________________ Chair ATTEST: _________________________________ Secretary 1.1 Packet Pg. 3 Attachment: November 3, 2015 (3811 : Skyview minutes 11/3) Agenda Item 2 Item # 2 Page 1 AGENDA ITEM SUMMARY November 17, 2015 Skyview South General Improvement District No. 15 Board STAFF Mike Beckstead, Chief Financial Officer SUBJECT Second Reading of Ordinance No. 007, Determining and Fixing the Mill Levy for the Skyview South General Improvement District No. 15 for the Fiscal Year 2016; Directing the Secretary of the District to Certify Such Levy to the Board of Commissioners of Larimer County; and Making the Fiscal Year 2016 Annual Appropriation. EXECUTIVE SUMMARY This Ordinance, unanimously adopted on First Reading on November 3, 2015, includes the annual appropriation for 2016 of $1,000 for the expenses of the Skyview South General Improvement District No. 15 (GID No. 15). The sum of $25,200 is anticipated to be collected from the mill levy of 10.0 mills for fiscal year 2016. Additional revenue for GID No. 15 from interest earnings is anticipated to generate $432. The total 2016 revenue for GID No. 15 is expected to be $25,632. The total amount will be used in the future to maintain and repair roads in the Skyview subdivision. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. ATTACHMENTS 1. First Reading Agenda Item Summary, November 3, 2015 (PDF) 2. Boundary map (PDF) 3. Ordinance No. 007 (PDF) 2 Packet Pg. 4 Agenda Item 1 Item # 1 Page 1 AGENDA ITEM SUMMARY November 3, 2015 Skyview South General Improvement District No. 15 Board STAFF Mike Beckstead, Chief Financial Officer SUBJECT First Reading of Ordinance No. 007, Determining and Fixing the Mill Levy for the Skyview South General Improvement District No. 15 for the Fiscal Year 2016; Directing the Secretary of the District to Certify Such Levy to the Board of Commissioners of Larimer County; and Making the Fiscal Year 2016 Annual Appropriation. EXECUTIVE SUMMARY This Ordinance includes the annual appropriation for 2016 of $1,000 for the expenses of the Skyview South General Improvement District No. 15 (GID No. 15). The sum of $25,200 is anticipated to be collected from the mill levy of 10.0 mills for fiscal year 2016. Additional revenue for GID No. 15 from interest earnings is anticipated to generate $432. The total 2016 revenue for GID No. 15 is expected to be $25,632. The total amount will be used in the future to maintain and repair roads in the Skyview subdivision. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION In 2009, the City annexed Phase 3 of the Southwest Enclave Annexation. The area annexed included the entire GID No. 15. A map of GID No. 15 is attached. Larimer County organized GID No. 15 in 1997. Pursuant to C.R.S. Section 31-25-603, since the annexation area included the entire area within the improvement district boundaries, upon annexation, GID No.15 became a City-operated district and Council has thereafter acted as the ex officio Board of Directors of the District. Under State law, the City is required to set the annual mill levy for the GID No. 15 and to certify the amount of the levy to the Board of County Commissioners for Larimer County. This Ordinance continues the establishment, as in years past, of a mill levy of 10.0. CITY FINANCIAL IMPACTS This Ordinance sets the GID No. 15 mill levy at 10.0 mills, which will generate approximately $25,200 for fiscal year 2016. Additional 2016 revenue for GID No. 15 includes interest earnings, which are projected to be $432 in fiscal year 2016. In addition the 2016 Budget will include the use of $1,000 for the Larimer County Treasurer’s fee for collecting the property tax. ATTACHMENTS 1. Boundary map (PDF) ATTACHMENT 1 2.1 Packet Pg. 5 Attachment: First Reading Agenda Item Summary, November 3, 2015 (3785 : SR 007 Skyview Budget) W TRILBY RD S COLLEGE AVE W SKYWAY DR CONSTELLATION DR MARS DR VENUS AVE ARAN ST ORBIT WAY DEBRA DR H OLYOKE C T P O L A R I S DR S T A R W A Y S T AV O NDALE R D RAMA H D R N E P T U N E D R GALA X Y W A Y URANUS ST F LA G L E R R D ORDINANCE NO. 007 OF THE COUNCIL OF THE CITY OF FORT COLLINS, COLORADO ACTING AS THE EX-OFFICIO BOARD OF DIRECTORS OF SKYVIEW SOUTH GENERAL IMPROVEMENT DISTRICT NO. 15, DETERMINING AND FIXING THE MILL LEVY FOR THE SKYVIEW SOUTH GENERAL IMPROVEMENT DISTRICT NO. 15 FOR THE FISCAL YEAR 2016; DIRECTING THE SECRETARY OF THE DISTRICT TO CERTIFY SUCH LEVY TO THE BOARD OF COMMISSIONERS OF LARIMER COUNTY; AND MAKING THE FISCAL YEAR 2016 ANNUAL APPROPRIATION WHEREAS, the Skyview South General Improvement District No. 15 (the “GID”) was created by Larimer County in 1997 and annexed into the City by Phase Three of the Southwest Enclave Annexation in 2009; and WHEREAS, pursuant to C.R.S. Sections 31-25-603 and 31-25-609, as a result of the annexation of the entire GID into the City, the GID is now a district of the City and the City Council is to act as the ex-officio board of directors of the GID; and WHEREAS, GID staff has considered the amount of revenue to be raised by a levy on the taxable real property within the GID boundaries, and recommends imposing a levy of 10.0 mills upon each dollar of the assessed valuation of all such taxable real property for 2016; and WHEREAS, GID staff estimates a levy of 10.0 mills will result in $25,200 of revenue; and WHEREAS, the amount of this proposed mill levy is not an increase over prior years; as such, prior voter approval of the proposed levy is not required under Article X, Section 20 of the Colorado Constitution; and WHEREAS, C.R.S. Section 39-5-128(1) requires certification of any tax levy to the Board of Commissioners of Larimer County no later than December 15 of each year; and WHEREAS, additional revenue totaling $432 for 2016 is expected to be collected by the GID from interest earnings; and WHEREAS, in 2014, the City Council previously approved in Ordinance No. 153, 2014, the GID’s budget for the period beginning January 1, 2015, and ending December 31, 2016, which budget remains unchanged for 2016. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS, acting ex-officio as the Board of Directors of the City of Fort Collins Skyview South General Improvement District No. 15, as follows: Section 1. That the 2016 mill levy rate for taxation upon each dollar of the assessed valuation of taxable real property within the GID boundaries shall be 10.0 mills. 2.3 Packet Pg. 7 Attachment: Ordinance No. 007 (3785 : SR 007 Skyview Budget) Section 2. That the City Clerk acting ex-officio as the Secretary for the GID shall certify this levy of 10.0 mills to the County Assessor and the Board of Larimer County Commissioners as provided by law. Section 3. That the City Council, acting ex-officio as the Board of Directors of the City of Fort Collins General Improvement District No. 15, hereby appropriates out of the revenues of the GID for the fiscal year beginning January 1, 2016, and ending December 31, 2016, the sum of ONE THOUSAND DOLLARS ($1,000). Section 4. That revenue to be raised by taxation and additional revenue of the GID will be reserved in fund balance until such future time as authorized by the Board of Directors for the purposes of the GID. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, A.D. 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. _________________________________ Mayor, Ex Officio President ATTEST: _____________________________ City Clerk, Ex Officio Secretary Passed and adopted on final reading on the 17th day of November, A.D. 2015. _________________________________ Mayor, Ex Officio President ATTEST: _____________________________ City Clerk, Ex Officio Secretary 2.3 Packet Pg. 8 Attachment: Ordinance No. 007 (3785 : SR 007 Skyview Budget) City of Fort Collins Page 1 u r b a n r e n e w a l a u t h o r i t y Wade Troxell, Chairperson City Council Chambers Gerry Horak, Vice-Chairperson City Hall West Bob Overbeck 300 LaPorte Avenue Ray Martinez Fort Collins, Colorado Gino Campana Kristin Stephens Ross Cunniff Cablecast on City Cable Channel 14 on the Comcast cable system Carrie Daggett Darin Atteberry Wanda Winkelmann City Attorney Executive Director Secretary The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221-6515 (TDD 224- 6001) for assistance. URBAN RENEWAL AUTHORITY BOARD REGULAR MEETING November 17, 2015 (after the Skyview South GID No. 15 meeting) CALL MEETING TO ORDER ROLL CALL AGENDA REVIEW Executive Director’s Review of Agenda. CITIZEN PARTICIPATION Individuals who wish to make comments regarding items remaining on the Consent Calendar or wish to address the Board on items not specifically scheduled on the agenda must first be recognized by the Chairperson or Vice Chair. Before speaking, please sign in at the table in the back of the room. The timer will buzz once when there are 30 seconds left and the light will turn yellow. The timer will buzz again at the end of the speaker’s time. Each speaker is allowed 5 minutes. If there are more than 6 individuals who wish to speak, the Chairperson may reduce the time allowed for each individual. State your name and address for the record. Applause, outbursts or other demonstrations by the audience are not allowed Keep comments brief; if available, provide a written copy of statement to Secretary Address your comments to Council, not the audience City of Fort Collins Page 2 CITIZEN PARTICIPATION FOLLOW-UP STAFF REPORTS COMMISSIONER REPORTS Discussion Items The method of debate for discussion items is as follows: ● Chairperson introduces the item number and subject; asks if formal presentation will be made by staff ● Staff and/or Applicant presentation (optional) ● Chairperson requests citizen comment on the item (five-minute limit for each citizen) ● Board questions of staff on the item ● Board motion on the item ● Board discussion ● Final Board comments ● Board vote on the item Note: Time limits for individual agenda items may be revised, at the discretion of the Chairperson, to ensure all citizens have an opportunity to speak. Please sign in at the table in the back of the room. The timer will buzz when there are 30 seconds left and the light will turn yellow. It will buzz again at the end of the speaker’s time. 1. Resolution No. 078 Adopting the 2016 Budget for the Fort Collins Urban Renewal Authority. (staff: Patrick Rowe, Josh Birks; 5 minute staff presentation; 5 minute discussion) The purpose of this item is to adopt the 2016 budget and to appropriate the funds to be spent under it for the Fort Collins Urban Renewal Authority, comprising of the North College Tax Increment Financing (TIF) District, the Prospect South TIF District, and the Foothills TIF District. The budget revenues include property and sales tax increment, and interest earned on investments, totaling $3,126,850. Budget expenses include general operations and debt service payments, totaling $2,889,600. The 2016 annual operating appropriation for 2016 is $2,889,600. OTHER BUSINESS ADJOURNMENT Agenda Item 1 Item # 1 Page 1 AGENDA ITEM SUMMARY November 17, 2015 Urban Renewal Authority Board STAFF Patrick Rowe, Real Estate Specialist III Josh Birks, Economic Health Director SUBJECT Resolution No. 078 Adopting the 2016 Budget for the Fort Collins Urban Renewal Authority. EXECUTIVE SUMMARY The purpose of this item is to adopt the 2016 budget and to appropriate the funds to be spent under it for the Fort Collins Urban Renewal Authority, comprising of the North College Tax Increment Financing (TIF) District, the Prospect South TIF District, and the Foothills TIF District. The budget revenues include property and sales tax increment, and interest earned on investments, totaling $3,126,850. Budget expenses include general operations and debt service payments, totaling $2,889,600. The 2016 annual operating appropriation for 2016 is $2,889,600. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION This Resolution adopts the 2016 budget for the Fort Collins Urban Renewal Authority (URA). Revenue for the URA is generated from property and sales tax increment collections, as well as interest earned on investments. Property tax increment is determined by the County Assessor’s Office. The Assessor’s Office prepares a preliminary estimate of property value and tax collections for the next year in August and finalizes this in December. The August estimate has historically been very accurate and is relied on for the purposes of the 2016 URA budget. Property tax increment sources include the North College TIF district and the Prospect South TIF district (no property tax increment is estimated in the Foothills District in 2016). Sales tax increment is calculated by the City Finance Department and only applies to the Foothills District. North College TIF District The total tax increment revenue for the North College Plan Area in 2016 is projected to be $1,451,855. Additional revenue is collected from interest earned on investments, which totals $85,665. Combined, the 2016 total estimated revenue for the North College URA is $1,537,520. This is a positive swing from the approved 2015 budget and reflects an increase of generated tax increment in the North College district. URA expenses are a combination of operating costs and debt service payments. The operations line item includes cost for personnel, on-call consulting services, and the County fee for collection of TIF. Operating expenses for the North College TIF District for 2016 include the following: 1 Packet Pg. 3 Agenda Item 1 Item # 1 Page 2 Operations $ 286,133 Total $ 286,133 The North College TIF District’s annual debt service payments (principal and interest) are for the following outstanding loans: North College Bond Payment $945,863 Rocky Mountain Innosphere $132,598 Total $1,078,461 2015 Budget 2016 Budget Difference Revenues $ 1,214,759 $ 1,537,520 $ 322,761 Operating Expenses $ 273,023 $ 286,133 $ $ 13,110 - Debt Service $ 1,079,461 $ 1,078,461 $ (1,000) Total Expenses $ 1,352,484 $ 1,364,594 $ 12,110 North College District Comparison of 2015 Budget with Current 2016 Budget The Resolution would appropriate the operating and debt service budget for the North College District, which totals $1,364,594 for 2016. Prospect South District The total tax increment revenue for the Prospect South Plan Area in 2016 is projected to be $449,859. Additional revenue is collected from interest earned on investments, which totals $326. Combined, the 2016 total estimated revenue for the Prospect South District is $450,185. URA expenses are a combination of operating costs, project costs, and debt service payments. The operations line item includes cost for personnel and a County fee for collection of property taxes. Operating expenses for the Prospect South TIF District for 2016 include the following: Operation $ 8,997 Project Cost - Prospect Station $11,762 Total $ 20,759 The Prospect South District’s annual debt service payments (principal and interest) are for the following outstanding loans: Capstone $274,325 Prospect Station $17,459 Revenue Sharing with City (Capstone) $73,318 Total $365,102 1 Packet Pg. 4 Agenda Item 1 Item # 1 Page 3 2015 Budget 2016 Budget Difference Revenues $ 339,713 $ 450,185 $ $ 110,472 - Operating Expenses $ 6,789 $ 20,759 $ 13,970 Project Costs $ 726,281 $ - $ (726,281) Debt Service $ 313,059 $ 365,102 $ 52,043 Total Expenses $ 1,046,129 $ 385,861 $ (660,268) Prospect South District Comparison of 2015 Budget with Current 2016 Budget The Resolution appropriates the operating and debt service budget for the Prospect South District, which totals $385,861 for 2016. Foothills District The total tax increment revenue for the Foothills District in 2016 is projected to be $1,139,145. This represents estimated sales tax increment based on updated leasing activity and assumptions. There is no property tax increment estimated for 2016. URA expenses are a combination of operating costs and debt service payments. There are no operating cost line items in 2016. The Foothills District annual debt service payments are for the following outstanding loans: Metro District Bond $1,139,145 Total $1,139,145 2015 Budget 2016 Budget Difference Revenues $ 849,900 $ 1,139,145 $ $ 289,245 - Operating Expenses $ - $ - $ $ - - Debt Service $ 849,900 $ 1,139,145 $ 289,245 Total Expenses $ 849,900 $ 1,139,145 $ 289,245 Comparison of 2015 Budget with Current 2016 Budget Foothills District The Resolution appropriates the operating and debt service budget for the Foothills District, which totals $1,139,145 for 2016. CITY FINANCIAL IMPACTS This Resolution includes the annual operating appropriation for 2016 at $2,889,600 for the North College, Prospect South, and Foothills TIF districts. Any specific appropriations related to URA participation in projects will be presented to the URA Board separately so that the URA funding is approved on a project by project basis. BOARD / COMMISSION RECOMMENDATION The URA Finance Committee reviewed the 2016 URA Budget on November 26, 2015; please refer to the attached meeting minutes (Attachment 1). 1 Packet Pg. 5 Agenda Item 1 Item # 1 Page 4 PUBLIC OUTREACH As an informational item, the 2016 URA Budget was provided to the North College Citizens Advisory Group at its November 5, 2015 meeting. ATTACHMENTS 1. URA Finance Committee Meeting Minutes, October 26, 2015 (PDF) 1 Packet Pg. 6 4 The other policy to consider is an existing policy that was first developed and approved in 2008 - the Metro District Policy. At that time no Metro Districts existed and a proposal to create one was in the works. The Council Finance Committee wanted a policy to guide them before considering any proposals. Staff recommends no changes to the existing Metro District Policy. General Direction Sought: 1. Is the Pension Funding policy ready to bring to City Council for adoption? 2. Is the Metro District policy satisfactory as is and no changes are needed? Mike’s expectation is that we will take this policy to Council for approval. Josh stated that these types of policies are a guide… After further discussion, it was determined that some guides should be provided. Mike will make this adjustment, and will place the item on consent at a future Council meeting. Mike informed CFC that the approved policies are now available on FCGOV.com with current revision dates. The Council Finance Committee adjourned their meeting and reconvened into URA Committee at 11:13 a.m. URA COMMITTEE TIF ASSISTANCE PROPOSAL Hickory Commons, a proposed development located within the North College Tax Increment Financing (TIF) district of the Fort Collins Urban Renewal Authority (URA), has submitted an application for TIF financing assistance in the amount of $136,072. If approved, the TIF would be provided as a reimbursement for stormwater facility costs, including a neighborhood drainage outfall which may benefit several properties within the vicinity of the proposed development. The TIF assistance would be paid out over time based on actual increment collected from the project, in keeping with current URA practices. Total Project Cost - $4,909,886 The TIF request is for a maximum of $136,072 for the reimbursement of costs related to the construction of the development’s stormwater system. This system includes the construction and oversizing of proposed drainage outfall, which may be a benefit to neighboring properties. Additionally, the stormwater system will pick-up historic flows from Hickory Street and a neighboring property to the west. The repay eligible portion of this request is estimated to be $40,000 and would be assigned to the URA fi the application is approved. General Direction Sought from CFC: 1. Does the URA Finance Committee concur with staff’s recommended reimbursement approach (terms and timeline)? 2. Does the URA Finance Committee have questions, comments, or concerns that should be addressed before this item is presented to the URA Board? Wade asked what the expected use was going to be. Patrick indicated that the warehouse is being built on a speculative basis. They are working on marketing aspects at this time; no user currently slated for the space. Patrick stated that the owner has owned the site for an extended period of time. Ross stated that in general, the proposal makes sense; however, he wants to be careful about the justifications that we are using going forward. Although not required, he also felt it would be helpful to write a letter to the other taxing districts, Josh stated that they are having a lot more interaction with the county. Patrick further indicated that he has URA Finance Committee October 26, 2015 ATTACHMENT 1 1.1 Packet Pg. 7 Attachment: URA Finance Committee Meeting Minutes, October 26, 2015 (3790 : URA 2016 Budget Appropriation) 5 gone through KAG and they have voiced their approval. Gerry was concerned about the number of warehouse properties in north Ft. Collins, which is not what we would like to see in north Ft. Collins. Ross did say that one advantage would be the stormwater improvements as a public benefit. However, he does agree with Gerry in that we do not want to keep doing more of the same. Darin indicated that he and Mike has been serving on a Steering Committee (County-wide URA) and how it’s relating to the Districts; they are not real concerned about the one- off projects, but more concerned about the accumulative impact with the larger projects. Ross suggested a letter be submitted to them for public awareness. Gerry stated that this should be standard practice. Wade stated that he does not want the URA to be part of investing in financial deals. Josh will look into the zoning, and if there is any way to restrict the benefit being tied to excluding certain uses. URA 2016 BUDGET This item pertains to the 2016 budget for the Fort Collins Urban Renewal Authority (URA). The budget is comprised of revenues and expenses from the three tax increment financing districts within the URA, as well as general URA operating costs. The 2016 annual operating appropriation for 2016 is $2,889,600. General Direction Sought: No discussion planned - this item is provided as information only; staff is available for questions. Wade adjourned the URA Committee and reconvened Council Finance Committee at 11:32 a.m. OTHER BUSINESS Revenue Diversification Opportunities Mike stated that he had a meeting two weeks ago with David Roy and they talked about reviewing this item at CFC. Mike’s recollection was that Council asked staff to come back at a future meeting with a list of all of the opportunities and actions we have explored in the past and to get direction from CFC about which 2 or 3 that should be pursued over the course of the next 3-6 months. Mike sought direction about when this should be scheduled, given the limited time available at the November and December meetings. After further discussion, it was determined that Mike will place the item on the November 18th CFC meeting agenda. Reschedule January and February 2016 CFC Meetings Mike sought direction on rescheduling the January and February 2016 Council Finance Meetings due to following on Holidays. It was determined that staff will work with Sarah Kane in City Manager’s Office to reschedule. Meeting Adjourned at 11:36 a.m. 1.1 Packet Pg. 8 Attachment: URA Finance Committee Meeting Minutes, October 26, 2015 (3790 : URA 2016 Budget Appropriation) RESOLUTION NO. 078 OF THE BOARD OF COMMISSIONERS OF THE FORT COLLINS URBAN RENEWAL AUTHORITY ADOPTING THE 2016 BUDGET FOR THE FORT COLLINS URBAN RENEWAL AUTHORITY WHEREAS, the Fort Collins Urban Renewal Authority (the "URA") was created on January 5, 1982, by City Council's adoption of Resolution 1982-010, which resolution designated the City Council as the Board of Commissioners (“Board”) of the Authority; and WHEREAS, the URA operates to eliminate blight and prevent the spread of blight within the urban renewal area in accordance with the Colorado Urban Renewal Law, C.R.S. Section 31- 25-101. et seq.; and WHEREAS, the URA has considered a proposed budget for fiscal year 2016 and the Board wishes to adopt it. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE FORT COLLINS URBAN RENEWAL AUTHORITY as follows: Section 1. That the budget shown on Exhibit “A” attached hereto and incorporated herein by this reference, is approved and the amounts stated therein are appropriated for fiscal year 2016. Section 2. That the Chief Financial Officer of the City, ex officio the Financial Officer of the URA, is hereby directed to file a certified copy of the attached budget with the office of the Division of Local Government, Department of Local Affairs, State of Colorado. Passed and adopted at a regular meeting of the Board of Commissioners of the Fort Collins Urban Renewal Authority this 17th day of November A.D. 2015. ____________________________________ Chairperson ATTEST: _________________________________ Secretary Packet Pg. 9 EXHIBIT A North College Urban Renewal Plan Area Estimated Revenue: 2016 Original 2016 Delta Explanation Tax Increment Collections $1,451,855 $1,273,169 $178,686 Updated Revenue per Larimer County Interest on Investments $5,001 Interest from Rocky Mountain Innosphere Loan $80,664 $85,665 $0 Total estimated Revenue for the URA $1,537,520 Expenses: Operations $286,133 $280,114 $6,019 Operations Cost Updated due to 2% fee paid to Larimer county (higher revenue = higher fee) Total Operational Costs $286,133 Annual Debt Service Payments 2013 Bond Payment $945,863 Rocky Mountain Innosphere Interest $132,598 Total Debt Service Payments $1,078,461 $1,078,461 $0 Fund 800 2016 Budget $1,364,594 URBAN RENEWAL AUTHORITY NORTH COLLEGE DISTRICT 2016 BUDGET 1 Packet Pg. 10 Attachment: 2016 URA Budget EXHIBIT A (3805 : URA 2016 Budget RESO) EXHIBIT A Midtown Urban Renewal Plan Area (Prospect South TIF District) Estimated Revenue: Original 2016 Delta Explanation Tax Increment Collections $449,859 $381,394 $68,465 Updated Revenue per Larimer County Interest on Investments $326 $326 $0 Total estimated Revenue for the URA $450,185 Expenses: Operations $8,997 $7,628 $1,369 Operations Cost Updated due to 2% fee paid to Larimer county (higher revenue = higher fee) Developer Payback $11,762 $11,762 $0 Project Storefront $0 Total Operational Costs $20,759 Annual Debt Service Payments Capstone $274,325 Prospect Station $17,459 $291,784 $0 Revenue Sharing with City (Capstone) $73,318 $39,087 $34,231 Revenue sharing is 50%, higher revenue = higher sharing Total Debt Service Payments $365,102 Fund 801 2016 Budget $385,861 2016 URBAN RENEWAL AUTHORITY PROSPECT SOUTH DISTRICT 2016 BUDGET 1 Packet Pg. 11 Attachment: 2016 URA Budget EXHIBIT A (3805 : URA 2016 Budget RESO) EXHIBIT A Midtown Urban Renewal Plan Area (Foothills TIF District) Estimated Revenue: Original 2016 Delta Explanation Tax Increment Collections $1,139,145 $3,222,600 $2,083,455 Interest on Investments $0 Total estimated Revenue for the URA $1,139,145 Expenses: Annual Debt Service Payments Foothills Metro District Bond $1,139,145 $3,222,600 $2,083,455 100% of profit is currently being returned Total Debt Service Payments $1,139,145 Fund 803 2016 Budget $1,139,145 2016 Revenue lower due to delayed timing of mall and updated payment schedule (fiscal years do not align between City/Agreement) URBAN RENEWAL AUTHORITY FOOTHILLS DISTRICT 2016 BUDGET 1 Packet Pg. 12 Attachment: 2016 URA Budget EXHIBIT A (3805 : URA 2016 Budget RESO) IDALIA DR Y U M A CT I D A L I A CT RICK DR SOLAR CT M E R C U R Y D R W SATURN DR F O S S IL CREST DR E TRILBY RD E SATURN DR G A L A X Y CT E SKYWAY DR PLATEAU CT AURORA WAY LEO CT OR I O N CT PLUTO CT SUNDOWN CT FL A G L E R RD General Improvement Skyview South District No. 15 Legend General Improvement District #15 Parcels 1 inch = 600 feet ATTACHMENT 2 2.2 Packet Pg. 6 Attachment: Boundary map (3785 : SR 007 Skyview Budget) PREFINISHED ALUMINUM -COLOR 3 PREFINISHED ALUMINUM -COLOR 4 INTERLOCKING METAL PANEL - (PREWEATHERED ZINC) PRECAST CONCRETE PARAPET CAP GROUND FACE CMU PREFINISHED OMEGA ECO FENCING GALVANIZED STEEL WELDED BAR GRATING 15.4 Attachment: Parking Structure Renderings (3772 : Downtown Hotel Parking Structure Partnership) GALVANIZED STEEL WELDED BAR GRATING 15.4 Attachment: Parking Structure Renderings (3772 : Downtown Hotel Parking Structure Partnership) PREFINISHED ALUMINUM -COLOR 3 PREFINISHED ALUMINUM -COLOR 4 INTERLOCKING METAL PANEL - (PREWEATHERED ZINC) PRECAST CONCRETE PARAPET CAP GROUND FACE CMU PREFINISHED OMEGA ECO FENCING GALVANIZED STEEL WELDED BAR GRATING 15.4 Attachment: Parking Structure Renderings (3772 : Downtown Hotel Parking Structure Partnership) )5$0( $57:$// 35(&$673/$17(5 &2/25 &2/25 5$0383%(<21' (6&$$/67 ( & + (67187675((7 BRICK VENEER ATTACHMENT 4 15.4 Attachment: Parking Structure Renderings (3772 : Downtown Hotel Parking Structure Partnership) 18'-11" 1 18 SPACES P E C A A E A S 9'-0" 1 2nd & 3rd Floor Plans ISOMETRIC EXPRESS RAMP GROUND LEVEL SECOND LEVEL THIRD LEVEL EL. 25'-8" EL. 15'-0" EL. 0'-0" CAR COUNT BASE OPTION 9'-0" 90° STANDARD SPACE (LOS B+) 8'-9" 65° STANDARD SPACE (LOS B) TIER STANDARD VAN ACCESSIBLE ACCESSIBLE TOTAL GROUND 80 3386 SECOND 117 03 120 THIRD 117 0 2 119 TOTAL 314 3 8 325 15.3 Packet Pg. 264 Attachment: Parking Garage plans (3772 : Downtown Hotel Parking Structure Partnership) GROUND LEVEL SECOND LEVEL THIRD LEVEL EL. 25'-8" EL. 15'-0" EL. 0'-0" Ground Floor Plan POTENTIAL RETAIL/OFFICE FLEX SPACE RETAIL/OFFICE FLEX SPACE ATTACHMENT 3 15.3 Packet Pg. 263 Attachment: Parking Garage plans (3772 : Downtown Hotel Parking Structure Partnership) o n g P o n d H o r s e t o o t h R e s e r v o i r L i ttleCac h e l a Poud r e D i tc h S u n f i s h P o n d O a k R i d g e F e d r a l B l d g P o n d C l a y m o r e L a k e L a r i m e r C o u n t y C a nal # 2 New M ercer Ditch N ew M e rc e r D it c h Lari m e r Co u n t y C a na l #2 M c M u r y P o n d M a i l C r e e k Jackson Ditch W o d w a r d G o v e r n o r P o n d L i n d e n m e i e r L a k e R i c h a r d ' s L a k e G o l d e n M e a d o w s P o n d P l e a sant Vall e y a n d Lak e C a na l C o t o n w o d G l e n P o n d Shel d on L ake A r t h u r C anal Larimer County Canal #2 T e r r y L a k e S p ring C ree k E a st CoPyond F o s s i l C r e e k L a k e S h e r w o o d H o r s e P a s t u r e P o n d C o l l e g e L a k e T a f t H i l W M o b i l e P o n d N P le as a nt V a l l e y a n d L a ke C a na l New M ercer Ditch O a k R i d g e F e d e r a l B l d g P o n d H a r m o n y R e s e r v o i r P a r k w o o d L a k e P l e a sant V alle y and Lak e Ca n a l N e w M e r c er D i tc h L a r i me r Count y Canal # 2 S prin g Creek N e w M e rc e r Dit c h S p r i n g C r e k P a r k P o n d Sherwood Lateral Di xon C a n y o n L a t e r a l Little Cachela Pou dre Ditch R o l a n d M o r e P o n d W a r r e n L a k e F o s s i l C r e e k F o s s i l C r e e k S h e r w o o d L a t e r a l ³I ³I ÕZYXW ÕZYXW ÕZYXWÕZYXW üZYXW Overhill Dr W Laurel St W WilloxLn S C o u n t y R o a d 2 3 W Elizabeth St G 12th St N Lemay Ave S Lemay Ave N Howes St S Shields St S Overland Trl E Mountain Ave R i v e r s i d e A v e NTaft Hill Rd Country Club Rd S C e n t e n n i a l D r E Mulberry St N Shields St E Prospect Rd W Mountain Ave E W i l l o x L n Remington St Landings Dr WMulberry St N Mason St S M as o n St WProspect Rd Laporte Ave N College Ave S Taft Hill Rd W C o u n t y R o a d 3 8 E N R W Vine Dr E Drake E Vine Dr W Drake Rd E Harm o ny R S Lemay Ave G r e g o r y Rd S College Ave Lincoln Ave E Horsetooth R County Road42C N County Road 23 B o a r d w a l k D r W Horsetooth Rd E L i n c o l n A v W Harmony Rd S M a s o n S t E Troutman Pkwy W County Road 52 N O v e r l a n d Rist Canyon Rd E H a rm on ± Maxwell Natural Area 10.1 Packet Pg. 203 Attachment: Location map (3765 : Maxwell Easement) $2.908 per 1,000 gallons of water use, measured sewage flow or winter quarter water use, whichever is applicable, plus the following applicable base charge: Size of water Base charge 6.7 Packet Pg. 164 Attachment: Ordinance No. 144, 2015 (Option B) (3783 : SR 140-146 Utilities Rates) by any person or entity. Printed: March 05, 2015 Easement from Top of Bank 20' West Side / 25' East Side Lakes, Rivers, Streams 0Property 0.015 0.03 0.045 0.06 Brinks James S Trust Miles Scale212 1:4,© 4.2 Packet Pg. 65 Attachment: Ordinance No. 137, 2015 (3779 : SR 137 City Ditch-Brinks Agreement)