Loading...
HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 12/04/2018 - ITEMS RELATING TO LAND DEDICATION AND PAYMENT IN LAgenda Item 17 Item # 17 Page 1 AGENDA ITEM SUMMARY December 4, 2018 City Council STAFF Ginny Sawyer, Policy and Project Manager John Duval, Legal SUBJECT Items Relating to Land Dedication and Payment in Lieu Fee Agreements with Thompson and Poudre School Districts. EXECUTIVE SUMMARY A. First Reading of Ordinance No. 171, 2018, Amending Article III in Chapter 7.5 of the Code of the City of Fort Collins Pertaining to the City’s Imposition of Land Dedication Requirements and Fees in Lieu of Land Dedication for Public School Site Acquisition and Development. B. Resolution 2018-114 Approving an Amended and Restated Intergovernmental Agreement Between the City and the Poudre School District Pertaining to the Land Dedication and In-Lieu Fee Requirements in Article III of Chapter 7.5 of the Code of the City of Fort Collins. C. Resolution 2018-115 Approving an Amended and Restated Intergovernmental Agreement Between the City and the Thompson School District Pertaining to the Land Dedication and In-Lieu Fee Requirements in Article III of Chapter 7.5 of the Code of the City of Fort Collins. The purpose of this item is to update the Intergovernmental Agreements (IGAs) with Poudre and Thompson School Districts and to amend the Municipal Code to be consistent with the updated IGAs. STAFF RECOMMENDATION Staff recommends adoption of the Resolutions and Ordinance on First Reading. BACKGROUND / DISCUSSION Since 1998, the City of Fort Collins has had an IGA to require land dedications or to collect a fee-in-lieu of land dedication for both the Poudre School District and Thompson School District (jointly, the “Districts”). The fees allow a residential developer to pay a school site fee to the Districts rather than dedicate a parcel of land to the Districts for development of future schools. The authority of the City to require such land dedication or payment of fee is recognized under Colorado Law. This legal and encouraged partnership helps ensure both cooperative planning and readily accessible schools for the community as a whole. Increased residential development impacts school facilities and other infrastructure and these long-standing IGAs help to ensure a portion of land or funding to meet demand. The original 1998 IGA stated a term of 10 years with an automatic renewal of 10 years, expiring on April 21, 2018. An extension to these agreements was approved by Council in April 2018 through December 31, 2018 to allow the staffs of the City and the Districts to negotiate new intergovernmental agreements and to determine any needed updates to the relevant City Code provisions. Agenda Item 17 Item # 17 Page 2 The City has been working closely with Poudre School District staff, and has been in contact with Thompson staff, in the drafting of the proposed IGAs. Changes of note include: ▪ Clearly outlining appropriate use of fees in the definition of “School Facilities.” o This helps address the expansion and needs of existing school sites. ▪ Replacing the GMA boundary for high school feeder boundary in the methodology for fee calculation. o Allows greater flexibility for the districts to expand schools anywhere in the City as well as acquire land along the periphery of the City with growth is more prominent. ▪ Added Permanent Supportive Housing for adults under exemptions. o Helps affordable housing projects of this nature by exempting them from the land dedication and fee requirements. ▪ Limited any proposed fee change to no more than a 10% increase. o Attempt to protect both builders and the districts from significant fee changes. Proposed fee change schedules have been irregular over time and this provision provides a cap on any change. o Historic changes have ranged from an 11% decrease to a 136% increase. ▪ Clarifies that a fee will remain in place until such time as a review process and proposed change is brought forward. o The original IGAs called for biennial updates. ▪ Language has been included in the proposed Poudre School District IGA to specifically address the Prospect Site location and any potential annexation by the Town of Timnath. o This language has been added to address any possible confusion while this site is being addressed by other IGAs agreed upon by the City and Timnath. CITY FINANCIAL IMPACTS The agreements and collection of fees on behalf of school districts will not have a financial impact on the City. Revenues from the fees will pass through City accounts. Collections to date: Poudre School District Thompson School District Years Sum of Actual Amount Year Sum of Actual Amount 2000 684,858 2000 47,810 2001 799,629 2001 82,104 2002 964,309 2002 184,386 2003 993,659 2003 292,402 2004 582,358 2004 163,948 2005 658,100 2005 150,284 2006 639,925 2006 4,782 2007 532,629 2007 5,571 2008 663,989 2008 55,891 2009 256,217 2009 51,728 2010 335,649 2010 35,393 2011 703,448 2011 21,780 2012 753,304 2012 164,714 2013 1,526,988 2013 107,540 Agenda Item 17 Item # 17 Page 3 2014 1,554,501 2014 70,786 2015 1,378,632 2015 21,537 2016 1,530,257 2016 5,688 2017 1,642,226 2017 21,780 2018 875,020 2018 5,445 Grand Total 17,075,697 Grand Total 1,493,571 -1- ORDINANCE NO. 171, 2018 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING ARTICLE III IN CHAPTER 7.5 OF THE CODE OF THE CITY OF FORT COLLINS PERTAINING TO THE CITY’S IMPOSITION OF LAND DEDICATION REQUIREMENT AND FEES IN LIEU OF LAND DEDICATION FOR PUBLIC SCHOOL SITE ACQUISITION AND DEVELOPMENT WHEREAS, Section 22-54-102(3)(a) of the Colorado Revised Statutes (“C.R.S.”) recognizes the authority of local governments and school districts to cooperate through intergovernmental agreements to fund, construct, maintain and manage capital construction projects, provided that funding is derived from a source of local government revenue that is otherwise authorized by law; and WHEREAS, under its home rule powers in Article XX of the Colorado Constitution and its broad powers to regulate zoning and land use in Article 23 of Title 31 of the Colorado Revised Statutes, the City is authorized to impose land-dedication and fee-payment requirements on land developed within its boundaries to mitigate the impacts of that development on the need for public improvements and services, and to otherwise adopt appropriate ordinances and regulations for the purpose of promoting and preserving the public health, safety and welfare of the City’s residents; and WHEREAS, the growth in residential land development in the City creates for the two school districts located within the City, the Poudre School District and Thompson School District (jointly, the “School Districts”), the need to build additional school facilities or to expand existing school facilities in order to accommodate the corresponding increases in the student population, which requires, in connection with such new development within the City, the dedication of land for new school facilities or the payment of an in-lieu fee to be used by the School Districts to buy the needed land or to expand existing school facilities to help to meet such demand ("In-lieu Fee"); and WHEREAS, there is an essential nexus between the need for the dedication of school sites or the payment of an In-lieu Fee and the legitimate public purposes of promoting and preserving the public health, safety and welfare of the residents living in the boundaries of the City and the School Districts; and WHEREAS, to establish the City’s authority to impose land dedication and In-lieu Fee requirements on behalf of the School Districts, in May of 1998 the City Council added a new Article III to City Code Chapter 7.5, which Article III has been amended by Council several times since then; and WHEREAS, in April 1998, the City entered into an intergovernmental agreement with each of the School Districts, which agreements implemented the City’s authority established in Article III of Code Chapter 7.5 by providing for the dedication of land to each of the affected School Districts by developers of residential dwelling units to be used for the construction of new schools as needed to offset the impacts of those developments or, in the alternative, for the payment of a fee in-lieu of such dedication (the “School District IGAs”); and -2- WHEREAS, the term of each of the School District IGAs expired on April 21, 2018, but as authorized by the City Council in Resolution 2018-037, these terms were extended by the parties by written agreement through December 31, 2018, to give the staffs of the City and the School Districts more time to negotiate the terms of new intergovernmental agreements; and WHEREAS, the staffs have completed those negotiations and City Council has been presented for its consideration those amended and restated intergovernmental agreements, but in order for the terms and conditions of these new agreements to be consistent with the provisions of Article III in Code Chapter 7.5, the significant amendments in this Ordinance to Article III are needed; and WHEREAS, the City Council hereby finds and determines that these amendments, as set forth in this Ordinance, are necessary for the public’s health, safety and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That Section 7.5-46 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 7.5-46. - Intent. The provisions of this Article are intended to impose a requirement upon new residential development in the City that land be reserved for future dedicationed for school sites or, alternatively, thatthe payments of a fee be made in lieu of such reservation and dedication. The imposition of such requirement is intended to regulate the use and development of land by ensuring that new growth and development in the City bear a proportionate share of the costs of acquiring and developing such school sites, in relation to the amount of the real property needed to provide adequate schools to serve such developments. Funds collected from any fees in lieu of land dedication imposed pursuant to this Article shall be used solely to fund the acquisition and development of such school sites and the planning of capital facilities to be developed thereon. All such amounts collected by the City shall be collected for the benefit of and remitted to the school districts serving the areas in which such fees are collected. Section 3. That Section 7.5-47 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 7.5-47. - Definitions. When used in this Article, the following words and terms shall have the following meanings: Building permit shall mean the permit required for construction of new dwelling units under Article II of Code Chapter 5and additions to existing dwelling units under Division 2.7 of the Land Use Code or, if applicable, Section 29-5(a) of the Transitional Land Use Regulations and -3- the permit required for the installation of a mobile home pursuant to Code SubsSection 18-8(b). of this Code; provided, however, that the term building permit, as used herein, shall not be deemed to include permits required for the following: (1) Alteration or expansion of a dwelling unit not exceeding a net increase of one thousand (1,000) square feet of the existing dwelling unit. (2) Replacement of a dwelling unit in which the replacement does not exceed a net increase of one thousand (1,000) square feet of the dwelling unit being replaced. (3) The installation of any mobile home that replaces a previously existing mobile home on an existing mobile home lot under Subsection 18-8(b) of this Code. (4) Construction of an accessory building or structure. (5) Long-term care facilities or group homes as defined in the Land Use Code. (6) Land development projects (or portions thereof) that are subject to recorded covenants permanently restricting the age of all residents of all dwelling units such that the dwelling units may be classified as "housing for older persons" pursuant to the Federal Fair Housing Amendments Act of 1988. Developer shall mean the person or entity seeking land-use approval from the City for a Land Development Project or the person or entity otherwise responsible for land dedication or payment of fees in lieu of such dedication under this Article. Dwelling unit shall mean one (1) or more rooms and a single kitchen and at least one (1) bathroom, designed, occupied or intended for occupancy as separate quarters for the exclusive use of a single family for living, cooking and sanitary purposes, located in a single-family, two- family or multi-family dwelling or mixed-use building, as these terms are defined in the Land Use Code. GMA shall mean the “Growth Management Area,” the boundaries of which are established in the Intergovernmental Agreement (Regarding Cooperation on Managing Urban Development) dated June 24, 2008, nunc pro tunc October 17, 2006, between the City and Larimer County, as such boundaries may be changed from time to time by written agreement of the City and Larimer County. Land development project or project shall mean: (1) any site specific development plan (as that term is defined in the Land Use Code); or (2) an amendment to any approved site specific development plan that will result in a population density or population greater than that contemplated by the original land development project. any proposed land development project for which a development application or development application for permitted use has been filed with the City under the Land Use Code or any subsequent amendment to a previously approved subdivision and which, if approved, could result in the construction of new dwelling units. Land Use Code shall mean the City’s Land Use Code referenced in Code Section 29-1. School district shall mean a public school district having an intergovernmental agreement with the City concerning the imposition of land dedication or fees in lieu of land dedication for school purposes. -4- School facility shall mean any building, structure or appurtenant facility, whether combined in a single structure or separate structures, that is required in the judgment of the school district’s board of education for the provision of K-12 educational services within the GMA or other geographical area as permitted by intergovernmental agreement between the City and the school district, including, without limitation, any classroom building, administrative office building, transportation center, athletic field and/or structure, stadium, indoor pool, maintenance building, teacherage and other employee housing and/or training facility. School planning standards or standards shall mean the school district’s adopted land use standards, which have been approved and agreed to by the City pursuant to an intergovernmental agreement with the school district, which include student yields per dwelling unit for the three separate school levels, school facility capacities and the estimated fair market value of real property that is located within the boundaries of the City and the school district. Said fair market value shall be determined on the basis of the average value of developed sites for residential uses in the City as approved for development by the City, with curb, gutter, streets and utilities to the site, according to City engineering standards. These standards shall also include any methodology or formulas used to calculate land dedication requirements and the in-lieu fee based on the standards. School site shall mean a tract or parcel of land dedicated by express language in the final plat of a land development project for the construction or expansion of school facilities. School site acquisition and development shall mean the preparation of a site for the construction or expansion of school facilities on such site and shall include, without limitation, survey work, grading and the installation of utilities. the purchase and/or preparation of a school site and shall include, without limitation, survey work, grading, installation of utilities, street improvements, raw water acquisition, mobile classrooms and the expansion of existing school facilities. The term “purchase” for purposes of this definition refers to the dedication and conveyance of a school site to the school district and any other means by which the school district may obtain the legal right to develop, use and occupy a tract or parcel of land. The term “preparation” as used in this definition, may include expenditures for infrastructure on property adjacent to or related to the development of a school site itself. By way of illustration and not limitation, such expenditures may include streets and roads, extension of utilities and drainage structures and facilities. Section 4. That Section 7.5-48 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 7.5-48. - Land dedication or in-lieu fees imposed. (a) The owner or developer of every land development project in the City ("applicant") must file with the Building Official of the City, prior to the issuance of a building permit for any dwelling unitresidential structure in such project, written proof confirming that the appropriate land reservation for future dedication has been made to the school district, or the developer shall pay at the applicant has paid anthe in-lieu fee, in accordance with the provisions of this Article. (b) Prior to or at the time that any proposed land development project is submitted to the City for review, the superintendent of the school district, or his or her designee, shall meet with the -5- applicant developer for the purpose of determining whether the school district desires the reservation of any land for future dedication of land foras a school site within the land development project or, at the school district’s election, desires payment of the in-lieu fee. Any such dedication or in-lieu fee requirement shall be consistent with school district planning standards established by the school district. Said standards shall reflect, without limitation:. (1) The student yields and technical and educational specifications for various school facilities (elementary, middle and high school levels), consistent with the policy of the Board of Education of the school district; (2) The capacity demand for each category of school facility resulting from the construction of dwelling units in the land development project; and (3) School site acreage requirements. Any reservation of sites or land areas required under the provisions of this Article shall occur in the following fashion. At or before the time of final approval of any land development project by the City, the sites or land areas to be dedicated to the school district shall be reserved by designation on the plat submitted to the City for approval in connection with the land development project. On or before the date that the first building permit for the project is issued by the City, such reserved site or land area shall be dedicated to the school district. In the event that the school district determines, in its sole discretion, that the dedication of a reserved site is necessary prior to the issuance of any building permit for the project within which such site is located, the school district shall so notify the person(s) shown by the records of the County Assessor as being the then current owner(s) of such site. Said notice shall be sent by certified mail, return receipt requested, and a copy of said notice shall be provided to the City's Director of Community Development and Neighborhood Services. Within sixty (60) days of the mailing of said notice, the reserved property that is the subject of the mailing shall be dedicated to the school district by the owner(s) thereof. (c) Any land dedication required under this Article shall be accomplished by the execution of a general warranty deed by the developerproperty owner conveying to the school district the land required to be dedicated, free and clear of all liens, encumbrances and exceptions except those approved in writing by the school district, including, without limitation, real property taxes, which shall be prorated and paid by the developer as of to the date of conveyance. The property owner developer shall also provide to the school district a title insurance commitment and policy in an amount equal to the fair market value of the dedicated property. At the time of dedication, the dedicated site shall have overlot grading, direct access to a publicly dedicated street improved to City standards and utilities stubbed to the school site. Upon completion of the conveyance in accordance with the provisions of this Section, the school district shall promptly certify to the City in writing that the dedication has been made. (d) In the event that the dedication of sites or land areas for school site purposes within a particular land development project is not deemed feasible or in the best interests of the school district as determined by the superintendent, or his or her designee, the school district shall so notify the City's Director of Community Development and Neighborhood Services in writing, and the City shall require the applicant developer to pay the in-lieu fees as provided in this Article. The amount of the in-lieu fees to be paid under the provisions of this Article shall be established by intergovernmental agreement between the City and the school district. with the -6- school district and shall be equal to the full market value of the sites or land areas within a land development project that could be required to be reserved for future dedication for school site purposes under Subsection (b) above. Said fair market value shall be determined on the basis of the average value of developed sites for residential uses in the City as approved for development by the City, with curb, gutter, streets and utilities to the site, according to City engineering standards. . . . (f) Notwithstanding any of the foregoing in this Section, each of the following shall be exempt from the land-dedication requirement and the in-lieu fee payment requirement in this Article: (1) previously-approved and recorded land development projects, other than those phases for which final plats have not been approved; (2) alteration or expansion of a dwelling unit; (3) the installation of any mobile home that replaces a previously existing mobile home on an existing mobile home lot under Code Section 18-8(b); (4) replacement of a dwelling unit; (5) construction of an accessory building or structure; (6) long-term care facilities or group homes as defined in the Land Use Code; (7) land development projects (or portions thereof) that are subject to recorded covenants permanently restricting the age of all residents of all dwelling units in the project to persons 55 years of age or older, such that the dwelling units may be classified as "housing for older persons" pursuant to the Federal Fair Housing Amendments Act of 1988, 42 U.S.C. § 3607 (b) (2) (B); (8) land development projects (or portions thereof) that are subject to recorded covenants permanently restricting the age of all residents to 18 years of age or older and permanently restricting the affordability for all residents of all dwelling units and which combine the housing with services that help people who face the most complex challenges to live with stability, autonomy and dignity, such that the dwelling units may be classified as "permanent supportive housing"; and (9) land development projects for which the land-dedication requirement or the in- lieu fee payment requirement of this Article is prohibited by law. Unless the land-dedication requirement or in-lieu fee payment requirement is prohibited by law, any claim of exemption as provided in this Section must be made by the developer no later than the time of submission of the application for the developer’s land development project. Any claim of exemption not so made shall be deemed waived by the developer. Section 5. That Section 7.5-50 of the Code of the City of Fort Collins is hereby amended to read as follows: -7- Sec. 7.5-50. - Use of funds by school district. (a) All in-lieu fees collected by the City on behalf of the school district shall be paid over to the school district quarterly, less a two-percent administrative fee. Upon receipt of the in- lieu fees from the City, the school district shall properly identify the fees and promptly deposit the fees into a trust fund to be established and held as a separate account by the school district. The school district shall be the owner of the funds in the account and shall comply with the provisions of Section 29-1-801 et. seq., C.R.S. All payments of the in-lieu fee collected by the City shall be promptly deposited into a separate account held by the City for the benefit of the school district. The City shall remit to the school district, no less than quarterly, all funds it has collected and deposited into the account, less a two percent (2%) administrative fee. The school district shall be the owner of the funds in the account and shall comply with the provisions of C.R.S. Section 29-1-801 et. seq. The school district shall be solely responsible for the funds it receives. Funds collected shall not constitute revenue of the City under the provisions of Article X, Section 20 of the Colorado Constitution. (b) The funds deposited into the account shall be earmarked and expended solely for the purposes of school site acquisition, expansion or development or for capital facilities planning. When expenditures from the account are made for the acquisition, expansion or development of elementary, middle school or junior high school sites, or for capital facilities planning related to such sites, such expenditures shall be made only for sites located within the senior high school feeder attendance area boundaries that include the land development project for which the payment was made. When expenditures from the account are made for the acquisition, expansion or development of high school sites, or for capital facilities planning related to such sites, the expenditures may be made for sites located anywhere within the City. Subject to the limitations contained in this Article, the time for, nature, method and extent of such planning or development shall be within the sole discretion of the school district. Except as may be otherwise provided by intergovernmental agreement between the City and school district, the funds deposited into the account shall be earmarked and expended only for the purposes of school site acquisition and development within the GMA or other geographical area as permitted by intergovernmental agreement between the City and the school district. When expenditures from the account are made for the acquisition of a school site or the expansion of a school facility, the expenditures may be made for school sites located anywhere within the GMA or other geographical area as permitted by intergovernmental agreement between the City and the school district. Subject to the limitations contained in this Article, the time for, nature, method and extent of such planning or development shall be within the sole discretion of the school district. (c) Any in-lieu fees which have not been expended by the school district for the purposes set forth in this Section within ten (10) years of the date of collection shall be refunded, with interest equal to the interest that would have been earned over the same period by depositing the in-lieu fee in a Colorado Local Government Liquid Asset Trust Plus Account, as established and authorized in Part 7 of Article 75 in Title 24 of the Colorado Revised Statutes, the rate of six (6) percent per annum compounded annually, to the person(s) shown by the records of the Larimer County Assessor as being the then-current owner(s) of the property which was subject to the payment (the "property owner"), as of the ten-year anniversary of the date of collection. Notice of such refund opportunity shall be mailed to the property owner's address as reflected in the records of the Larimer County Assessor at the end of the ten-year -8- period. If the property owner does not file a written claim for such refund with the school district within ninety (90) days of the mailing of such notice, such refund shall be forfeited and shall revert to the school district to be utilized for future school site acquisition and development purposes within the CityGMA or other geographical area as permitted by intergovernmental agreement between the City and the school district. The City Council may extend the ten-year expenditure deadline set forth herein upon the request of the school district for good cause shown and following a public hearing. “Good cause” for purposes of extending the ten-year deadline shall include, without limitation, a showing by the school district that it has plans approved by its school board for school site acquisition and development within the GMA or other geographical area as permitted by intergovernmental agreement between the City and the school district that will occur within the period of the extension requested and for which the in-lieu fees are needed. Section 6. That Section 7.5-47 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 7.5-51. - Annual audit and review by school district and City. (a) The school district and the City shall each separately cause an audit to be performed annually of the in-lieu payments they have each respectively collected and expended in accordance with this Article. The audit shall be conducted in accordance with generally accepted accounting principles for governmental entities and may be a part of any general audit annually conducted by the school district and the City. A copy of said school district’s audit shall be furnished to the City. The cost of the school district’s audit shall be paid from the school district's general fund. A copy of the City’s audit shall be furnished to the school district. The cost of the City’s audit shall be paid from the City’s general fund. (b) The City Council shall at least every two (2) years, review and update, as necessary, the land dedication and in-lieu fee schedule requirements as set forth in the intergovernmental agreement. The City shall hold a public hearing before revising the dedication or in-lieu payment obligations imposed under the provisions of this Article. The school planning standards adopted pursuant to the provisions of the intergovernmental agreement between the City and the school district shall remain in effect unless and until updated by the school district and approved by the City Council. If and when updates are adopted by the school district, a copy of such updates shall be furnished to the City within thirty (30) days after their adoption by the school district. The City Council shall thereafter either approve or reject the updated school planning standards; provided, however, that the City Council shall not unreasonably withhold or delay approval. Notwithstanding the foregoing, the City Council shall not be required to approve any school planning standards that propose an increase in the school site dedication requirements or the in- lieu fee amounts that are in excess of 10% of the requirements and amounts that are in the school planning standards being replaced and in no event shall the City Council be required to approve any school planning standards that propose land dedication requirements or in-lieu fee amounts that the City is not authorized by law to impose. The land dedication requirements and in-lieu fee amounts associated with the newly approved school planning standards shall be effective from the date of approval by the City Council. The City Council shall hold a public hearing before approving any new school planning standards. -9- Introduced, considered favorably on first reading, and ordered published this 4th day of December, A.D. 2018, and to be presented for final passage on the 18th day of December, A.D. 2018. __________________________________ Mayor ATTEST: _____________________________ City Clerk Passed and adopted on final reading on this 18th day of December, A.D. 2018. __________________________________ Mayor ATTEST: _____________________________ City Clerk -1- RESOLUTION 2018-114 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING AN AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY AND THE POUDRE SCHOOL DISTRICT PERTAINING TO THE LAND DEDICATION AND IN-LIEU FEE REQUIREMENTS IN ARTICLE III OF CHAPTER 7.5 OF THE CODE OF THE CITY OF FORT COLLINS WHEREAS, effective April 21, 1998, the City entered into an intergovernmental agreement with the Poudre School District (“PSD”), which agreement provides for the dedication of land by developers of residential properties in the City to PSD for the construction of new schools needed to offset the impacts of such development or, in the alternative, for the payment of a fee in-lieu of such dedication, and which has been amended by the City and PSD as authorized in City Council Resolution 1998-073, Resolution 1999-044, Ordinance No. 079, 2001, Ordinance No. 150, 2006, Ordinance No. 059, 2011 and Ordinance No. 080, 2013 (the “PSD Agreement”); and WHEREAS, before the City entered into the PSD Agreement, the City Council amended the City Code to establish the City’s authority to impose the land dedication and in-lieu fee requirements on behalf of PSD as provided in the PSD Agreement by adopting Ordinance No. 74, 1998 in May of 1998, in which the City Council added a new Article III to City Code Chapter 7.5, which Article III has been amended by Council several times since then; and WHEREAS, the term of the PSD Agreement expired on April 21, 2018, but as authorized by the City Council in Resolution 2018-037, the term of the PSD Agreement was extended by the parties by written agreement through December 31, 2018, to give the staffs of the City and PSD additional time to negotiate the terms and conditions of a new intergovernmental agreement; and WHEREAS, City and PSD staffs have completed their negotiations and City Council has been presented for its consideration the “Amended and Restated Intergovernmental Agreement Concerning Land Dedication or Payment of a Fee in Lieu of Land Dedication for School Purposes” attached as Exhibit “A” and incorporated herein by reference (the “PSD Amended and Restated Agreement”); and WHEREAS, the City Council has also been presented for its consideration proposed Ordinance No. 171, 2018, which contains the amendments to Article III of Code Chapter 7.5 that are needed to ensure that the provisions of the PSD Amended and Restated Agreement and Article III are consistent and not in conflict; and WHEREAS, the PSD Amended and Restated Agreement provides that it will be effective January 1, 2019, and that it will supersede and replace in all respects the PSD Agreement; and WHEREAS, the City and PSD are each authorized to enter into the PSD Amended and Restated Agreement pursuant to Sections 29-20-105 and 22-54-102(3)(a) of the Colorado Revised Statutes; and -2- WHEREAS, the City Council hereby finds and determines that entering into the PSD Amended and Restated Agreement is in the best interest of the City and necessary for the public’s health, safety and welfare and, in entering into it, intends for the PSD Amended and Restated Agreement to supersede and replace in all respects the PSD 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 and adopts the determinations and findings contained in the recitals set forth above. Section 2. That the City Council hereby approves PSD Amended and Restated Agreement. Section 3. Provided that Ordinance No. 171, 2018, is adopted by City Council on second reading and becomes law as provided in the City Charter, the Mayor is authorized to execute the PSD Amended and Restated Agreement in substantially the form attached hereto as Exhibit “A,” subject to such minor modifications as the Mayor, in consultation with the City Manager and City Attorney, may determine to be necessary and appropriate to protect the interests of the City or to effectuate the purposes of this Resolution. That when so executed by the Mayor, the PSD Amended and Restated Agreement shall supersede and replace in all respects the PSD Agreement. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 4th day of December, A.D. 2018. _________________________________ Mayor ATTEST: _____________________________ City Clerk Page 1 AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT CONCERNING LAND DEDICATION OR PAYMENT OF A FEE IN LIEU OF LAND DEDICATION FOR SCHOOL PURPOSES THIS AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT (this “IGA”) is entered into by and between Poudre School District R-1, a political subdivision of the State of Colorado, ("School District") and the City of Fort Collins, a Colorado home rule municipality, (“City”), with the School District and City being referred to jointly herein as the “Parties” or individually as “Party”. This IGA shall be effective as of the 1st day of January, 2019 ("Effective Date") and shall amend, restate, replace, and supersede the Parties’ “Intergovernmental Agreement Concerning Land Dedications or Payments in Lieu of Land Dedications for School Purposes,” dated April 21, 1998, as extended by mutual agreement of the Parties through December 31, 2018 (the “1998 Agreement”). RECITALS A. Local governments are encouraged and authorized to cooperate or contract with other units of government, pursuant to Section 29-20-105 of the Colorado Revised Statutes (“C.R.S.”), for the purpose of planning or regulating the development of land, including, but not limited to, the joint exercise of planning, zoning, subdivision, building and related regulations. B. C.R.S. Section 22-54-102(3)(a) recognizes the authority of local governments and school districts to cooperate through intergovernmental agreements to fund, construct, maintain and manage capital construction projects, provided that funding is derived from a source of local government revenue that is otherwise authorized by law. C. The growth in residential land development in the City and throughout the GMA creates for the School District the need to build additional School Facilities or to expand existing School Facilities in order to accommodate the corresponding increases in the student population, which requires, in connection with such new development within the City and throughout the GMA, the dedication of land for new School Facilities or the payment of an in-lieu fee to be used to buy the needed land or to expand existing School Facilities ("In-lieu Fee") to help to meet such demand. D. The School District has adopted certain planning standards and a methodology for calculating the School District’s need for additional land or expanded School Facilities that will result from any proposed land-use approval by the City. E. The City is authorized to adopt appropriate ordinances and regulations for the purpose of promoting and preserving the public health, safety and welfare of the City’s residents. F. There is an essential nexus between the need for the dedication of School Sites or the payment of an In-lieu Fee and the legitimate public purposes of promoting and preserving the public health, safety and welfare of the residents living in the boundaries of the City and the School District. Page 2 G. In order to provide adequate School Facilities to serve new residential land developments, it is imperative that the School District be consulted regarding land dedication or the payment of an In-lieu Fee for school sites in order to achieve rational and cost-effective planning and to assure that the requirements for land dedications or payment of an In-lieu Fee are sufficient to serve student populations in areas that are experiencing new development. H. School land dedication or payment of an In-lieu Fee serve to implement the City's Comprehensive Plan by making provisions for public improvements in a manner appropriate for a modern, efficiently functioning municipality. I. The City, upon consideration of the effect of residential land developments and the ability of the School District to provide school facilities both within and outside the City and throughout the GMA, has determined that it is in the best interests of the City and its residents to enter into this IGA for the purpose of providing for the dedication of land for School Sites or the payment of an In-lieu Fee as provided in this Agreement. J. Based upon their mutual experience over the past twenty years under the 1998 Agreement, the City and School District desire to amend and restate their respective rights and obligations with respect to the planning, collection and use of such land dedications and the payment of an In-lieu Fee and, in doing so, intend that this IGA shall replace and supersede the 1998 Agreement in all respects. K. In order to implement the provisions of the 1998 Agreement, the Fort Collins City Council (the “City Council”) adopted Ordinance No. 74, 1998, in which it added to City Code Chapter 7.5 a Division 1 in Article III and subsequently amended Division 1 in ordinances adopted in 2000, 2002, 2012, 2013 and 2017 and, most recently, City Council adopted Ordinance No. 171, 2018 making amendments to specifically implement this IGA (collectively, the “Implementing Ordinance”). AGREEMENT NOW, THEREFORE, in consideration of the objectives, policies and findings expressed in the Recitals of this Agreement, which are hereby adopted by the Parties and incorporated by this reference, and the mutual promises contained in this IGA, the City and School District agree as follows: 1. Definitions. These words and terms, when capitalized in this IGA, shall be given the following meanings: "Building Permit" means the permit required for the construction of new Dwelling Units under Article II in City Code Chapter 5 and the permit required for the installation of a mobile home pursuant to City Code Section 18-8(b). “City Code” means the Fort Collins Municipal Code, as amended. "Developer" means the person or entity seeking land-use approval from the City Page 3 for a Land Development Project or the person or entity otherwise responsible for land dedication or payment of an In-lieu Fee under this IGA. "Dwelling Unit" means one (1) or more rooms and a single kitchen and at least one (1) bathroom, designed, occupied or intended for occupancy as separate quarters for the exclusive use of a single family for living, cooking and sanitary purposes, located in a single-family, two-family or multi-family dwelling or mixed- use building, as these italicized terms are defined in the Land Use Code. “GMA” means the “Growth Management Area,” the boundaries of which were established in the Intergovernmental Agreement (Regarding Cooperation on Managing Urban Development) dated June 24, 2008, nunc pro tunc October 17, 2006, between the City and Larimer County (the “GMA IGA”), as such boundaries may be changed from time to time by written agreement of the City and Larimer County as provided in Section 11 of the GMA IGA. "Land Development Project" or "Project" means any proposed land development project for which a development application or development application for permitted use has been filed with the City under the Land Use Code or any subsequent amendment to a previously approved subdivision and which, if approved, could result in the construction of new Dwelling Units. “Land Use Code” means the City of Fort Collins Land Use Code, as amended. "Methodology" means the formulas, based upon the School Planning Standards, for calculating land dedication requirements and the In-lieu Fee, as set forth in Exhibit A attached hereto and incorporated herein by this reference. “School Facility” means any building, structure or appurtenant facility, whether combined in a single structure or separate structures, that is required in the judgment of the School District Board of Education for the provision of K-12 educational services within the GMA, including, without limitation, any classroom building, administrative office building, transportation center, athletic field and/or structure, stadium, indoor pool, maintenance building, teacherage and other employee housing and/or training facility. "School Planning Standards" or "Standards" means the adopted School District land use standards set forth in Exhibit B attached hereto and incorporated herein by this reference, which include student yields per dwelling unit for the three separate school levels, School Facility capacities, and the estimated fair market value of real property that is located within the boundaries of both the City and the School District. “School Site” means a tract or parcel of land dedicated by express language in the final plat of a Project for the construction or expansion of School Facilities. Page 4 "School Site Acquisition and Development" means the purchase and/or preparation of a School Site and shall include, without limitation, survey work, grading, installation of utilities, street improvements, raw water acquisition, mobile classrooms and the expansion of existing School Facilities. The term “purchase” for purposes of this definition refers to the dedication and conveyance of a School Site to the School District and any other means by which the School District may obtain the legal right to develop, use and occupy a tract or parcel of land. The term “preparation” as used in this definition, may include expenditures for infrastructure on property adjacent to or related to the development of a School Site itself. By way of illustration and not limitation, such expenditures may include streets and roads, extension of utilities and drainage structures and facilities. “School Site Acreage Requirements” means the minimum acreage needed for each School Site for each of the three separate school levels. The School Site Acreage Requirements are set forth in Exhibit B attached hereto and incorporated herein by reference. 2. Determination of Land Dedication and In-lieu Fee Requirements a. The City and School District find and agree that the current School Planning Standards in Exhibit B and the Methodology in Exhibit A are reasonable, and that the implementation of the School Planning Standards and Methodology as written will ensure the following as to each proposed Land Development Project: i. That there will be an essential nexus between the dedication or payment contemplated and a legitimate public purpose; ii. That the dedication or In-lieu Fee payment will be reasonably proportional, both in nature and extent, to School District’s need for additional space to serve an increased student population expected to result from the proposed Land Development Project; and iii. That the amount of any In-lieu Fee payment to the School District will be based upon the market value of the land needed as a result of the Land Development Project. b. Prior to or at the time that an application is submitted to the City for any Land Development Project, the School District shall have the right to obtain from the Developer any and all information the School District deems reasonably necessary for the purpose of determining whether the School District desires the dedication of any land for School Facilities within the Project, consistent with the School Planning Standards. c. Notwithstanding any provision in this IGA to the contrary, the School District may request a dedication of land that, based upon the application of the Standards and Methodology, results in a parcel that in and of itself would not meet the School Site Acreage Requirements, provided that the School District has a plan for acquisition of the balance of the Page 5 property needed to meet the School Site Acreage Requirements. In such event, the District agrees to discuss with the Developer the potential reservation by the Developer or acquisition by the School District of the balance of the property needed to provide an adequate School Site. Additionally, nothing herein shall be construed to prevent the School District from purchasing or otherwise acquiring property in excess of the School Site Acreage Requirements in any particular instance. d. If the School District determines that the dedication of School Sites is not feasible, is not consistent with School Facilities planning or usage or is otherwise not in the best interests of the School District, the School District agrees to accept from the Developer the payment of an In-lieu Fee as provided in this IGA. e. Upon the City receiving an application for any proposed Land Development Project, the City shall submit the Developer's application to the School District for its review, comment and recommendation concerning the adequacy of School Sites and School Facilities within the context of the proposed Land Development Project. The School District shall review the proposed Project within the time allotted on the City’s “Project Comment Sheet” or “Referral Notice,” and shall submit its comments and recommendations, if any, to the City; provided, however, that the School District shall have a minimum of three weeks for new projects and two weeks for subsequent reviews of an existing project in which to complete its review and provide comments. f. The School District shall make a determination concerning the space available in its existing School Sites and School Facilities to serve the increased student populations expected to result from the Project based upon the School Planning Standards in effect at the time the Developer's application is submitted to the School District for its review. g. The City shall review any and all comments, recommendations and determinations made by the School District concerning the Project and, if the School District’s recommendations and determinations are substantially in accordance with the Standards, the Methodology and any other applicable provisions of this IGA, the City shall adopt the School District’s recommendations and determinations and shall impose such requirements on the Developer that will ensure the implementation of the same as provided in this IGA. h. If the School District determines that it would be beneficial for a Developer to dedicate land, the School District may negotiate with the Developer for such dedication. If the Developer and the School District do not reach agreement on a School Site within the time set forth for the School District to submit its comments to the City, the City agrees to defer action on the Land Development Project’s application until a future time to allow the City, School District and Developer to negotiate further, but in no event shall the City be required to defer action on the application beyond an additional ninety (90) days. i. The City agrees to conduct its process to review applications for Land Development Projects in a manner that encourages each Developer to cooperate with the School District’s requests for information and participation in meetings as necessary for the Page 6 determinations and undertakings contemplated in this Section 2. 3. Dedication and Conveyance of School Sites a. If, as a result of the process set forth in Section 2. above, agreement is reached between the School District and Developer for a School Site to be dedicated to the School District as part of the approval of any Land Development Project, the School District shall notify the City in writing. Upon receipt of such notification, the City shall thereafter accept the final plat for the Land Development Project, or any portion of it, for recording only if such plat provides for the contemporaneous dedication and conveyance of such School Site to the School District. b. If, as a result of the process set forth in Section 2. above the School District determines that it would be beneficial for a Developer to dedicate land, but no agreement is reached between the School District and Developer for dedication of a School Site as part of the approval of the Land Development Project, the School District shall so notify the City in writing within the time provided in paragraph h. of Section 2. above. Upon receipt of such notification, and provided that the School District’s land dedication requirement is substantially in accordance with the Standards, the Methodology and any other applicable provisions of this IGA, the City shall adopt the School District’s determination and shall reject the final plat for the Land Development Project, or any portion of it. Thereafter, the final plat for such Land Development Project shall be accepted for recording only if such plat provides for the contemporaneous dedication and conveyance of a School Site acceptable to the School District. c. Dedication of a School Site shall occur no later than the date of final approval of the Land Development Project and shall be evidenced by dedication language set forth in the final plat for the Project. d. The following shall occur prior to the issuance of the first Building Permit for the Land Development Project containing a School Site: i. The School Site shall have overlot grading, direct access to a publicly dedicated street improved to City standards and utilities stubbed to the School Site; and ii. Title to the School Site shall be conveyed to the School District by general warranty deed, free and clear of all liens, encumbrances and exceptions (except those approved in writing by the School District), including, without limitation, real property taxes, which will be prorated and paid as of the date of conveyance. The Developer shall provide the School District with a title insurance commitment and policy in an amount equal to the fair market value of the dedicated property. 4. Assessment and Amount of In-Lieu Fee If the School District determines that it wishes to receive a payment of the In-lieu Fee, then the amount of the In-lieu Fee payment shall be determined according to the Methodology then in effect and paid to the School District prior to issuance of any Building Permit for the Land Page 7 Development Project. 5. Methodology for Assessing In-Lieu Fee a. The Parties agree that the Methodology has been developed in a manner so as to fairly apportion the cost of acquiring School Sites made necessary by residential development and to ensure that any In-lieu Fee revenues received by the School District will be used by it for the purposes of School Site Acquisition and Development or the expansion of School Facilities, and all occurring within the GMA’s boundaries except as provided in paragraph 6.b. All dedication requirements and In-lieu Fee payments shall be based upon the School Planning Standards and the Methodology, as the same may be amended from time to time in accordance with paragraph b. below, which are in effect at the time the Developer submits to the City the application for the subject Land Use Development. b. The School Planning Standards and Methodology adopted pursuant to the provisions of this IGA shall remain in effect unless and until updated by the School District and approved by the City Council. If and when updates are adopted by the School District, a copy of Exhibits A and B, reflecting such updates, shall be furnished to the City within thirty (30) days after their adoption by the School District. The City Council shall thereafter either approve or reject the updated School Planning Standards and/or Methodology and revised assessment figures; provided, however, that the City Council shall not unreasonably withhold or delay approval. Notwithstanding the foregoing, the City Council shall not be required to approve any School Planning Standards or Methodology that proposes an increase in the School Site dedication requirements or the In-Lieu Fee amounts that are in excess of 10% of the requirements and amounts that are in the Standards and Methodology being replaced and in no event shall the City Council be required to approve any Standards or Methodology that propose dedication requirements or In- Lieu Fee amounts that the City is not authorized by law to impose. The last approved Standards and Methodology and assessment figures shall be in effect until such revised Standards and Methodology are approved. Assessments associated with the newly approved Methodology shall be effective from the date of approval by the City Council. 6. Collection, Deposit and Expenditure of In-Lieu Fee a. All payments of the In-Lieu Fee collected by the City shall be properly identified and promptly deposited into a separate account held by the City for the benefit of the School District. The City shall remit to the School District, no less than quarterly, all funds it has collected and deposited into the account, less a two percent (2%) administrative fee. The School District shall be the owner of the funds in the account. The School District shall be solely responsible for the funds it receives. Funds collected shall not constitute revenue of the City under the provisions of Article X, Section 20 of the Colorado Constitution. b. The funds deposited into the account shall be earmarked and expended only for the purposes of School Site Acquisition and Development, expansion of School Facilities and for the planning and development of such acquisitions and expansions. When expenditures from the account are made for the acquisition of a School Site or the expansion of a School Facility, the expenditures may be made for School Sites located anywhere within the GMA. Notwithstanding Page 8 the immediately preceding sentence, expenditures under this Agreement may be made for the high school project to be constructed on a site encompassing approximately 100 acres located at the northwest corner of County Road 5 and East Prospect Road, Fort Collins, Colorado (the “Prospect Site”) regardless of whether the Prospect Site is located within the GMA, but only until such time as the Prospect Site is annexed by the Town of Timnath, if ever. Subject to the limitations contained in this Agreement, the time for, nature, method and extent of such planning or development shall be within the sole discretion of the School District. 7. Exemptions a. Each of the following shall be exempt from the land-dedication requirements and the In-lieu Fee payment requirements in this IGA: i. Previously-approved and recorded Land Development Projects, other than those phases for which final plats have not been approved; ii. The installation of any mobile home that replaces a previously existing mobile home on an existing mobile home lot under City Code Section 18- 8(b); iii. Alteration or expansion of a Dwelling Unit; iv. Replacement of a Dwelling Unit; v. Construction of an accessory building or structure; vi. Long-term care facilities or group homes as defined in the Land Use Code; vii. Land Development Projects (or portions thereof) that are subject to recorded covenants permanently restricting the age of all residents of all dwelling units in the Project to persons 55 years of age or older, such that the dwelling units may be classified as "housing for older persons" pursuant to the Federal Fair Housing Amendments Act of 1988, 42 U.S.C. § 3607 (b) (2) (B); viii. Land Development Projects (or portions thereof) that are subject to recorded covenants permanently restricting the age of all residents to 18 years of age or older and permanently restricting the affordability for all residents of all dwelling units and which combine the housing with services that help people who face the most complex challenges to live with stability, autonomy and dignity, such that the dwelling units may be classified as "permanent supportive housing"; and ix. Land Development Projects for which the land-dedication requirement or the In-lieu Fee payment requirement of this IGA are prohibited by law. Page 9 b. Unless exempt by law from the In-Lieu Fee, any claim of exemption as provided in this Section 8 must be made no later than the time of submission of the application for the Land Development Project. Any claim of exemption not so made shall be deemed by the School District and the City to have been waived by the Developer. c. In addition, the School District acknowledges and agrees that its right to receive and retain In-lieu Fees under this IGA is subject to and governed by: (i) City Code Section 7.5- 48(e) authorizing the City Council to waive In-lieu Fees for certain affordable housing Projects; (ii) City Code Section 7.5-49 allowing for developers to appeal to the City Manager the amount of In-lieu Fees imposed; and (iii) City Code Section 7.5-50(c) requiring the refunding of In-lieu Fees collected if not used by the School District for the purposes authorized under this IGA within ten years of collection; provided, however, that the City Council may extend the ten-year expenditure deadline set forth in City Code Section 7.5-50(c) upon the request of the School District for good cause shown and following a public hearing. “Good cause,” for purposes of extending the ten- year deadline, shall include, without limitation, a showing by the School District that it has plans approved by its board for School Site Acquisition and Development within the GMA that will occur within the period of the extension requested and for which the In-lieu Fees are needed. 8. Accounting and Audit. a. The School District shall establish and maintain an accounting system to ensure that all revenues it receives from the In-lieu Fee are expended in accordance with Section 6.b. of this IGA. b. At any time it deems necessary, the City may request an accounting from the Superintendent of the School District concerning the expenditure of the In-lieu Fee revenues the School District has received under this IGA and the School District agrees to promptly provide such accounting. c. The City and the School District also agree to each conduct annual audits of the In-lieu Fees they have each respectively collected and expended as provided in City Code Section 7.5-51(a). 9. Term The term of this IGA shall commence on the Effective Date and shall continue for a period of five (5) years thereafter. This IGA shall automatically renew for successive and additional five (5) year terms unless one of the Parties notifies the other of intent to non-renew at least thirty (30) days prior to the expiration of any of these five-year terms. 10. Prior Agreements The 1998 Agreement and any other prior agreements or understandings of the Parties pertaining to the matters addressed in this IGA are hereby canceled and superseded as of the Effective Date and thereafter shall have no further force or effect. Page 10 11. Miscellaneous a. Faith and Credit: Neither Party shall extend the faith or credit of the other to any third person or entity. b. Amendments: This IGA may be amended only by agreement of the Parties evidenced by a written instrument authorized and executed with the same formality as accorded this IGA. c. Notice: Any notice required by this IGA shall be in writing. If such notice is hand delivered or personally served, it shall be effective immediately upon such delivery or service. If given by mail, it shall be certified with return receipt requested and addressed to the following addresses: City 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 Poudre School District 2407 LaPorte Avenue Fort Collins, Colorado 80521 Attention: Superintendent of Schools Notice given by mail shall be effective three (3) days after it is deposited in the United States mail depository correctly addressed and with sufficient postage for delivery. d. Governing Law and Venue: This IGA and the rights and obligations of the Parties under it shall be interpreted and construed in accordance with the laws of the State of Colorado, the City Code, the Land Use Code and the Implementing Ordinance (collectively, the “Controlling Laws”). In the event of any conflict between this IGA and the Controlling Laws, the Controlling Laws shall control the interpretation of the IGA and the Parties’ performance of their obligations under it. Neither Party shall be obligated under this IGA to take any action that would be a violation of or in conflict with any of the Controlling Laws. The Parties agree that venue for any judicial action to interpret, enforce or seek damages under this IGA shall be in the District Court of Larimer County, Colorado. e. Severability: If this IGA, or any portion of it, is for any reason held invalid or unlawful by any court of competent jurisdiction, such portion shall be deemed a separate, distinct Page 11 and independent provision, and such holding shall not affect the validity of the remaining portions of the IGA. f. Indemnification: The City and School District agree to cooperate with one another in the defense of any legal action that may be brought contesting the validity of this IGA or the Implementing Ordinance. To the extent permitted by law, the School District shall be responsible for defending such claim (whether filed against the City, the School District or both) and for the payment of any final monetary judgment entered against the City in any such action. Nothing contained in this IGA shall constitute any waiver by the City or the School District of any defenses, immunities or limitations of liability under the Colorado Governmental Immunity Act or available under any other applicable Colorado or federal law. This paragraph f. shall survive termination of this IGA and be enforceable until all claims are precluded by statutes of limitation. g. Survival: Any provision or obligation of this IGA, for the benefit of either Party, that has not been fully performed or discharged at the time of termination shall survive such termination and continue to bind the defaulting Party until the expiration of any applicable legal or equitable period of limitation. h. Financial Obligations: This IGA shall not be deemed a pledge of the credit of the City or the School District, or a guarantee of collection or payment by the City to the School District. Nothing in this IGA shall be construed to create a multiple-fiscal year direct or indirect City or School District debt or financial obligation. i. No Third-Party Beneficiaries: None of the terms, conditions or covenants in this IGA shall give or allow any claim, benefit or right of action by any third person or entity not a party hereto. j. No Assignment: The rights, benefits and obligations of this IGA shall not be assigned by either of the Parties without the other Party’s prior written consent. Any assignment without such prior written consent shall be deemed null and void and of no effect. k. Binding Effect: This IGA shall inure to the benefit of and be binding on the Parties’ respective successors and permitted assigns. l. Recording of Agreement: This IGA shall be recorded with the Larimer County Clerk and Recorder at the shared cost of the Parties. IN WITNESS WHEREOF, the Parties have executed this IGA as of the date indicated below and this IGA shall be in full force and effect on the Effective Date. CITY OF FORT COLLINS, COLORADO By Wade Troxell, Mayor Page 12 ATTEST: City Clerk Date APPROVED AS TO LEGAL FORM: Deputy City Attorney POUDRE SCHOOL DISTRICT R-1 BY ATTEST: President, Board of Education Secretary Date APPROVED AS TO LEGAL FORM: School District Attorney Exhibit A Poudre School District School District Methodology Based on the School District Planning Standards contained in Exhibit B, calculation of land dedication or In-lieu Fee payments uses the following procedures: 1. The student yield is determined by the number of attached dwelling units. (e.g. Category A, Elementary School = 0.35). 2. The amount of land required per student is calculated by dividing the acreage by the capacity. (e.g. Elementary School = 15 acres / 525 students = 0.029). 3. The acreage per dwelling unit is determined by multiplying the student yield by the per student land requirement. (e.g. 0.35 yield x 0.029 acres = 0.010) 4. To convert the land dedication requirement into in-lieu payments, the acreage per dwelling unit is multiplied by the developed land value. (e.g. 0.010 acres x $100,000 = $1,000.00) Summary The total land dedication or In-lieu Fee payment per dwelling unit is: Category A 1 to 4 attached units Category B 5 or more attached units Land PILO1 Land PILO1 Elementary School 0.0100 acres $ 950 0.005 acres $475 Middle School 0.0040 acres $ 380 0.002 acres $190 High School 0.0040 acres $ 380 0.002 acres $190 Total 0.0180 acres $1,710 0.009 acres $855 To determine the land or In-lieu Fee payments for a proposed residential development, the per dwelling unit totals above would be multiplied by the total number of dwelling units in the development. (e.g. 300 single family units = 0.0180 x 300 = 5.4-acre dedication or $1,710 x 300 = $513,000 PILO) 1 PILO means “payment-in-lieu-of” land dedication Exhibit B Poudre School District School District Planning Standards and School Site1 Acreage Requirements Planning Standards i. Student Yield Per Dwelling Unit 2 Category A 1 to 4 attached dwelling units Category B 5 or more attached dwelling units Elementary School 0.35 ½ Category A Middle School 0.10 ½ Category A High School 0.09 ½ Category A Total 0.54 students ½ Category A ii. School Enrollment Capacities 3 Elementary School 525 students Middle School 750 students High School 1,800 students iii. Developed Land Value for 2012 4 $95,000 School Site Acreage Requirements 2 Elementary School 15 acres Middle School 30 acres High School 80 acres 1 This Exhibit is limited to requirements for instructional buildings in the nature of a typical school building within the School District. Standards for other types of School Facilities will be determined on a case by case basis. 2Average student yields for elementary, middle school, and high school based on information collected by Western Demographics, Inc. includes all residential dwelling types within the School District. 2Based on Poudre School District’s current educational specifications. 3Average land value based on report prepared by Shannon and Associates dated March 14, 2006 and updated August 13, 2008, December 29, 2010, and November 16, 2012. Adjustments to occur every 2 years in the even year based on changes to the Larimer County Assessor’s “Residential Lot Classification”. -1- RESOLUTION 2018-115 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING AN AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY AND THE THOMPSON SCHOOL DISTRICT PERTAINING TO THE LAND DEDICATION AND IN-LIEU FEE REQUIREMENTS IN ARTICLE III OF CHAPTER 7.5 OF THE CODE OF THE CITY OF FORT COLLINS WHEREAS, effective April 21, 1998, the City entered into an intergovernmental agreement with the Thompson School District (“TSD”), which agreement provides for the dedication of land by developers of residential properties in the City to TSD for the construction of new schools needed to offset the impacts of such development or, in the alternative, for the payment of a fee in-lieu of such dedication, and which has been amended by the City and TSD as authorized in City Council Resolution 1998-074, Resolution 1999-044, Ordinance No. 079, 2001 and Ordinance No. 150, 2006 (the “TSD Agreement”); and WHEREAS, before the City entered into the TSD Agreement, the City Council amended the City Code to establish the City’s authority to impose the land dedication and in-lieu fee requirements on behalf of TSD as provided in the TSD Agreement by adopting Ordinance No. 74, 1998 in May of 1998, in which the City Council added a new Article III to City Code Chapter 7.5, which Article III has been amended by Council several times since then; and WHEREAS, the term of the TSD Agreement expired on April 21, 2018, but as authorized by the City Council in Resolution 2018-037, the term of the TSD Agreement was extended by the parties by written agreement through December 31, 2018, to give the staffs of the City and TSD additional time to negotiate the terms and conditions of a new intergovernmental agreement; and WHEREAS, City and TSD staffs have completed their negotiations and City Council has been presented for its consideration the “Amended and Restated Intergovernmental Agreement Concerning Land Dedication or Payment of a Fee in Lieu of Land Dedication for School Purposes” attached as Exhibit “A” and incorporated herein by reference (the “TSD Amended and Restated Agreement”); and WHEREAS, the City Council has also been presented for its consideration proposed Ordinance No. 171, 2018, which contains the amendments to Article III of Code Chapter 7.5 that are needed to ensure that the provisions of the TSD Amended and Restated Agreement and Article III are consistent and not in conflict; and WHEREAS, the TSD Amended and Restated Agreement provides that it will be effective January 1, 2019, and that it will supersede and replace in all respects the TSD Agreement; and WHEREAS, the City and TSD are each authorized to enter into the TSD Amended and Restated Agreement pursuant to Sections 29-20-105 and 22-54-102(3)(a) of the Colorado Revised Statutes; and -2- WHEREAS, the City Council hereby finds and determines that entering into the TSD Amended and Restated Agreement is in the best interest of the City and necessary for the public’s health, safety and welfare and, in entering into it, intends for the TSD Amended and Restated Agreement to supersede and replace in all respects the TSD 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 and adopts the determinations and findings contained in the recitals set forth above. Section 2. That the City Council hereby approves TSD Amended and Restated Agreement. Section 3. Provided that Ordinance No. 171, 2018, is adopted by City Council on second reading and becomes law as provided in the City Charter, the Mayor is authorized to execute the TSD Amended and Restated Agreement in substantially the form attached hereto as Exhibit “A,” subject to such minor modifications as the Mayor, in consultation with the City Manager and City Attorney, may determine to be necessary and appropriate to protect the interests of the City or to effectuate the purposes of this Resolution. That when so executed by the Mayor, the TSD Amended and Restated Agreement shall supersede and replace in all respects the TSD Agreement. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 4th day of December, A.D. 2018. _________________________________ Mayor ATTEST: _____________________________ City Clerk Page 1 AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT CONCERNING LAND DEDICATION OR PAYMENT OF A FEE IN LIEU OF LAND DEDICATION FOR SCHOOL PURPOSES THIS AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT (this “IGA”) is entered into by and between Thompson School District R2-J, a political subdivision of the State of Colorado, ("School District") and the City of Fort Collins, a Colorado home rule municipality, (“City”), with the School District and City being referred to jointly herein as the “Parties” or individually as “Party”. This IGA shall be effective as of the 1st day of January, 2019 ("Effective Date") and shall amend, restate, replace, and supersede the Parties’ “Intergovernmental Agreement Concerning Land Dedications or Payments in Lieu of Land Dedications for School Purposes,” dated April 21, 1998, as extended by mutual agreement of the Parties through December 31, 2018 (the “1998 Agreement”). RECITALS A. Local governments are encouraged and authorized to cooperate or contract with other units of government, pursuant to Section 29-20-105 of the Colorado Revised Statutes (“C.R.S.”), for the purpose of planning or regulating the development of land, including, but not limited to, the joint exercise of planning, zoning, subdivision, building and related regulations. B. C.R.S. Section 22-54-102(3)(a) recognizes the authority of local governments and school districts to cooperate through intergovernmental agreements to fund, construct, maintain and manage capital construction projects, provided that funding is derived from a source of local government revenue that is otherwise authorized by law. C. The growth in residential land development in the City and throughout the GMA creates for the School District the need to build additional School Facilities or to expand existing School Facilities in order to accommodate the corresponding increases in the student population, which requires, in connection with such new development within the City and throughout the GMA, the dedication of land for new School Facilities or the payment of an in-lieu fee to be used to buy the needed land or to expand existing School Facilities ("In-lieu Fee") to help to meet such demand. D. The School District has adopted certain planning standards and a methodology for calculating the School District’s need for additional land or expanded School Facilities that will result from any proposed land-use approval by the City. E. The City is authorized to adopt appropriate ordinances and regulations for the purpose of promoting and preserving the public health, safety and welfare of the City’s residents. F. There is an essential nexus between the need for the dedication of School Sites or the payment of an In-lieu Fee and the legitimate public purposes of promoting and preserving the public health, safety and welfare of the residents living in the boundaries of the City and the School District. EXHIBIT A Page 2 G. In order to provide adequate School Facilities to serve new residential land developments, it is imperative that the School District be consulted regarding land dedication or the payment of an In-lieu Fee for school sites in order to achieve rational and cost-effective planning and to assure that the requirements for land dedications or payment of an In-lieu Fee are sufficient to serve student populations in areas that are experiencing new development. H. School land dedication or payment of an In-lieu Fee serve to implement the City's Comprehensive Plan by making provisions for public improvements in a manner appropriate for a modern, efficiently functioning municipality. I. The City, upon consideration of the effect of residential land developments and the ability of the School District to provide school facilities both within and outside the City and throughout the GMA, has determined that it is in the best interests of the City and its residents to enter into this IGA for the purpose of providing for the dedication of land for School Sites or the payment of an In-lieu Fee as provided in this Agreement. J. Based upon their mutual experience over the past twenty years under the 1998 Agreement, the City and School District desire to amend and restate their respective rights and obligations with respect to the planning, collection and use of such land dedications and the payment of an In-lieu Fee and, in doing so, intend that this IGA shall replace and supersede the 1998 Agreement in all respects. K. In order to implement the provisions of the 1998 Agreement, the Fort Collins City Council (the “City Council”) adopted Ordinance No. 74, 1998, in which it added to City Code Chapter 7.5 a Division 1 in Article III and subsequently amended Division 1 in ordinances adopted in 2000, 2002, 2012, 2013 and 2017 and, most recently, City Council adopted Ordinance No. 171, 2018 making amendments to specifically implement this IGA (collectively, the “Implementing Ordinance”). AGREEMENT NOW, THEREFORE, in consideration of the objectives, policies and findings expressed in the Recitals of this Agreement, which are hereby adopted by the Parties and incorporated by this reference, and the mutual promises contained in this IGA, the City and School District agree as follows: 1. Definitions. These words and terms, when capitalized in this IGA, shall be given the following meanings: "Building Permit" means the permit required for the construction of new Dwelling Units under Article II in City Code Chapter 5 and the permit required for the installation of a mobile home pursuant to City Code Section 18-8(b). “City Code” means the Fort Collins Municipal Code, as amended. "Developer" means the person or entity seeking land-use approval from the City Page 3 for a Land Development Project or the person or entity otherwise responsible for land dedication or payment of an In-lieu Fee under this IGA. "Dwelling Unit" means one (1) or more rooms and a single kitchen and at least one (1) bathroom, designed, occupied or intended for occupancy as separate quarters for the exclusive use of a single family for living, cooking and sanitary purposes, located in a single-family, two-family or multi-family dwelling or mixed- use building, as these italicized terms are defined in the Land Use Code. “GMA” means the “Growth Management Area,” the boundaries of which were established in the Intergovernmental Agreement (Regarding Cooperation on Managing Urban Development) dated June 24, 2008, nunc pro tunc October 17, 2006, between the City and Larimer County (the “GMA IGA”), as such boundaries may be changed from time to time by written agreement of the City and Larimer County as provided in Section 11 of the GMA IGA. "Land Development Project" or "Project" means any proposed land development project for which a development application or development application for permitted use has been filed with the City under the Land Use Code or any subsequent amendment to a previously approved subdivision and which, if approved, could result in the construction of new Dwelling Units. “Land Use Code” means the City of Fort Collins Land Use Code, as amended. "Methodology" means the formulas, based upon the School Planning Standards, for calculating land dedication requirements and the In-lieu Fee, as set forth in Exhibit A attached hereto and incorporated herein by this reference. “School Facility” means any building, structure or appurtenant facility, whether combined in a single structure or separate structures, that is required in the judgment of the School District Board of Education for the provision of K-12 educational services within the GMA, including, without limitation, any classroom building, administrative office building, transportation center, athletic field and/or structure, stadium, indoor pool, maintenance building, teacherage and other employee housing and/or training facility. "School Planning Standards" or "Standards" means the adopted School District land use standards set forth in Exhibit B attached hereto and incorporated herein by this reference, which include student yields per dwelling unit for the three separate school levels, School Facility capacities, and the estimated fair market value of real property that is located within the boundaries of both the City and the School District. “School Site” means a tract or parcel of land dedicated by express language in the final plat of a Project for the construction or expansion of School Facilities. Page 4 "School Site Acquisition and Development" means the purchase and/or preparation of a School Site and shall include, without limitation, survey work, grading, installation of utilities, street improvements, raw water acquisition, mobile classrooms and the expansion of existing School Facilities. The term “purchase” for purposes of this definition refers to the dedication and conveyance of a School Site to the School District and any other means by which the School District may obtain the legal right to develop, use and occupy a tract or parcel of land. The term “preparation” as used in this definition, may include expenditures for infrastructure on property adjacent to or related to the development of a School Site itself. By way of illustration and not limitation, such expenditures may include streets and roads, extension of utilities and drainage structures and facilities. “School Site Acreage Requirements” means the minimum acreage needed for each School Site for each of the three separate school levels. The School Site Acreage Requirements are set forth in Exhibit B attached hereto and incorporated herein by reference. 2. Determination of Land Dedication and In-lieu Fee Requirements a. The City and School District find and agree that the current School Planning Standards in Exhibit B and the Methodology in Exhibit A are reasonable, and that the implementation of the School Planning Standards and Methodology as written will ensure the following as to each proposed Land Development Project: i. That there will be an essential nexus between the dedication or payment contemplated and a legitimate public purpose; ii. That the dedication or In-lieu Fee payment will be reasonably proportional, both in nature and extent, to School District’s need for additional space to serve an increased student population expected to result from the proposed Land Development Project; and iii. That the amount of any In-lieu Fee payment to the School District will be based upon the market value of the land needed as a result of the Land Development Project. b. Prior to or at the time that an application is submitted to the City for any Land Development Project, the School District shall have the right to obtain from the Developer any and all information the School District deems reasonably necessary for the purpose of determining whether the School District desires the dedication of any land for School Facilities within the Project, consistent with the School Planning Standards. c. Notwithstanding any provision in this IGA to the contrary, the School District may request a dedication of land that, based upon the application of the Standards and Methodology, results in a parcel that in and of itself would not meet the School Site Acreage Requirements, provided that the School District has a plan for acquisition of the balance of the Page 5 property needed to meet the School Site Acreage Requirements. In such event, the District agrees to discuss with the Developer the potential reservation by the Developer or acquisition by the School District of the balance of the property needed to provide an adequate School Site. Additionally, nothing herein shall be construed to prevent the School District from purchasing or otherwise acquiring property in excess of the School Site Acreage Requirements in any particular instance. d. If the School District determines that the dedication of School Sites is not feasible, is not consistent with School Facilities planning or usage or is otherwise not in the best interests of the School District, the School District agrees to accept from the Developer the payment of an In-lieu Fee as provided in this IGA. e. Upon the City receiving an application for any proposed Land Development Project, the City shall submit the Developer's application to the School District for its review, comment and recommendation concerning the adequacy of School Sites and School Facilities within the context of the proposed Land Development Project. The School District shall review the proposed Project within the time allotted on the City’s “Project Comment Sheet” or “Referral Notice,” and shall submit its comments and recommendations, if any, to the City; provided, however, that the School District shall have a minimum of three weeks for new projects and two weeks for subsequent reviews of an existing project in which to complete its review and provide comments. f. The School District shall make a determination concerning the space available in its existing School Sites and School Facilities to serve the increased student populations expected to result from the Project based upon the School Planning Standards in effect at the time the Developer's application is submitted to the School District for its review. g. The City shall review any and all comments, recommendations and determinations made by the School District concerning the Project and, if the School District’s recommendations and determinations are substantially in accordance with the Standards, the Methodology and any other applicable provisions of this IGA, the City shall adopt the School District’s recommendations and determinations and shall impose such requirements on the Developer that will ensure the implementation of the same as provided in this IGA. h. If the School District determines that it would be beneficial for a Developer to dedicate land, the School District may negotiate with the Developer for such dedication. If the Developer and the School District do not reach agreement on a School Site within the time set forth for the School District to submit its comments to the City, the City agrees to defer action on the Land Development Project’s application until a future time to allow the City, School District and Developer to negotiate further, but in no event shall the City be required to defer action on the application beyond an additional ninety (90) days. i. The City agrees to conduct its process to review applications for Land Development Projects in a manner that encourages each Developer to cooperate with the School District’s requests for information and participation in meetings as necessary for the Page 6 determinations and undertakings contemplated in this Section 2. 3. Dedication and Conveyance of School Sites a. If, as a result of the process set forth in Section 2. above, agreement is reached between the School District and Developer for a School Site to be dedicated to the School District as part of the approval of any Land Development Project, the School District shall notify the City in writing. Upon receipt of such notification, the City shall thereafter accept the final plat for the Land Development Project, or any portion of it, for recording only if such plat provides for the contemporaneous dedication and conveyance of such School Site to the School District. b. If, as a result of the process set forth in Section 2. above the School District determines that it would be beneficial for a Developer to dedicate land, but no agreement is reached between the School District and Developer for dedication of a School Site as part of the approval of the Land Development Project, the School District shall so notify the City in writing within the time provided in paragraph h. of Section 2. above. Upon receipt of such notification, and provided that the School District’s land dedication requirement is substantially in accordance with the Standards, the Methodology and any other applicable provisions of this IGA, the City shall adopt the School District’s determination and shall reject the final plat for the Land Development Project, or any portion of it. Thereafter, the final plat for such Land Development Project shall be accepted for recording only if such plat provides for the contemporaneous dedication and conveyance of a School Site acceptable to the School District. c. Dedication of a School Site shall occur no later than the date of final approval of the Land Development Project and shall be evidenced by dedication language set forth in the final plat for the Project. d. The following shall occur prior to the issuance of the first Building Permit for the Land Development Project containing a School Site: i. The School Site shall have overlot grading, direct access to a publicly dedicated street improved to City standards and utilities stubbed to the School Site; and ii. Title to the School Site shall be conveyed to the School District by general warranty deed, free and clear of all liens, encumbrances and exceptions (except those approved in writing by the School District), including, without limitation, real property taxes, which will be prorated and paid as of the date of conveyance. The Developer shall provide the School District with a title insurance commitment and policy in an amount equal to the fair market value of the dedicated property. 4. Assessment and Amount of In-Lieu Fee If the School District determines that it wishes to receive a payment of the In-lieu Fee, then the amount of the In-lieu Fee payment shall be determined according to the Methodology then in effect and paid to the School District prior to issuance of any Building Permit for the Land Page 7 Development Project. 5. Methodology for Assessing In-Lieu Fee a. The Parties agree that the Methodology has been developed in a manner so as to fairly apportion the cost of acquiring School Sites made necessary by residential development and to ensure that any In-lieu Fee revenues received by the School District will be used by it for the purposes of School Site Acquisition and Development or the expansion of School Facilities, and all occurring within the GMA’s boundaries except as provided in paragraph 6.b. All dedication requirements and In-lieu Fee payments shall be based upon the School Planning Standards and the Methodology, as the same may be amended from time to time in accordance with paragraph b. below, which are in effect at the time the Developer submits to the City the application for the subject Land Use Development. b. The School Planning Standards and Methodology adopted pursuant to the provisions of this IGA shall remain in effect unless and until updated by the School District and approved by the City Council. If and when updates are adopted by the School District, a copy of Exhibits A and B, reflecting such updates, shall be furnished to the City within thirty (30) days after their adoption by the School District. The City Council shall thereafter either approve or reject the updated School Planning Standards and/or Methodology and revised assessment figures; provided, however, that the City Council shall not unreasonably withhold or delay approval. Notwithstanding the foregoing, the City Council shall not be required to approve any School Planning Standards or Methodology that proposes an increase in the School Site dedication requirements or the In-Lieu Fee amounts that are in excess of 10% of the requirements and amounts that are in the Standards and Methodology being replaced and in no event shall the City Council be required to approve any Standards or Methodology that propose dedication requirements or In- Lieu Fee amounts that the City is not authorized by law to impose. The last approved Standards and Methodology and assessment figures shall be in effect until such revised Standards and Methodology are approved. Assessments associated with the newly approved Methodology shall be effective from the date of approval by the City Council. 6. Collection, Deposit and Expenditure of In-Lieu Fee a. All payments of the In-Lieu Fee collected by the City shall be properly identified and promptly deposited into a separate account held by the City for the benefit of the School District. The City shall remit to the School District, no less than quarterly, all funds it has collected and deposited into the account, less a two percent (2%) administrative fee. The School District shall be the owner of the funds in the account. The School District shall be solely responsible for the funds it receives. Funds collected shall not constitute revenue of the City under the provisions of Article X, Section 20 of the Colorado Constitution. b. The funds deposited into the account shall be earmarked and expended only for the purposes of School Site Acquisition and Development, expansion of School Facilities and for the planning and development of such acquisitions and expansions. When expenditures from the account are made for the acquisition of a School Site or the expansion of a School Facility, the expenditures may be made for School Sites located anywhere within the GMA. Subject to the Page 8 limitations contained in this Agreement, the time for, nature, method and extent of such planning or development shall be within the sole discretion of the School District. 7. Exemptions a. Each of the following shall be exempt from the land-dedication requirements and the In-lieu Fee payment requirements in this IGA: i. Previously-approved and recorded Land Development Projects, other than those phases for which final plats have not been approved; ii. The installation of any mobile home that replaces a previously existing mobile home on an existing mobile home lot under City Code Section 18- 8(b); iii. Alteration or expansion of a Dwelling Unit; iv. Replacement of a Dwelling Unit; v. Construction of an accessory building or structure; vi. Long-term care facilities or group homes as defined in the Land Use Code; vii. Land Development Projects (or portions thereof) that are subject to recorded covenants permanently restricting the age of all residents of all dwelling units in the Project to persons 55 years of age or older, such that the dwelling units may be classified as "housing for older persons" pursuant to the Federal Fair Housing Amendments Act of 1988, 42 U.S.C. § 3607 (b) (2) (B); viii. Land Development Projects (or portions thereof) that are subject to recorded covenants permanently restricting the age of all residents to 18 years of age or older and permanently restricting the affordability for all residents of all dwelling units and which combine the housing with services that help people who face the most complex challenges to live with stability, autonomy and dignity, such that the dwelling units may be classified as "permanent supportive housing"; and ix. Land Development Projects for which the land-dedication requirement or the In-lieu Fee payment requirement of this IGA are prohibited by law. b. Unless exempt by law from the In-Lieu Fee, any claim of exemption as provided in this Section 8 must be made no later than the time of submission of the application for the Land Development Project. Any claim of exemption not so made shall be deemed by the School District and the City to have been waived by the Developer. Page 9 c. In addition, the School District acknowledges and agrees that its right to receive and retain In-lieu Fees under this IGA is subject to and governed by: (i) City Code Section 7.5- 48(e) authorizing the City Council to waive In-lieu Fees for certain affordable housing Projects; (ii) City Code Section 7.5-49 allowing for developers to appeal to the City Manager the amount of In-lieu Fees imposed; and (iii) City Code Section 7.5-50(c) requiring the refunding of In-lieu Fees collected if not used by the School District for the purposes authorized under this IGA within ten years of collection; provided, however, that the City Council may extend the ten-year expenditure deadline set forth in City Code Section 7.5-50(c) upon the request of the School District for good cause shown and following a public hearing. “Good cause,” for purposes of extending the ten- year deadline, shall include, without limitation, a showing by the School District that it has plans approved by its board for school Site Acquisition and Development within the GMA that will occur within the period of the extension requested and for which in In-lieu Fees are needed. 8. Accounting and Audit. a. The School District shall establish and maintain an accounting system to ensure that all revenues it receives from the In-lieu Fee are expended in accordance with Section 6.b. of this IGA. b. At any time it deems necessary, the City may request an accounting from the Superintendent of the School District concerning the expenditure of the In-lieu Fee revenues the School District has received under this IGA and the School District agrees to promptly provide such accounting. c. The City and the School District also agree to each conduct annual audits of the In-lieu Fees they have each respectively collected and expended as provided in City Code Section 7.5-51(a). 9. Term The term of this IGA shall commence on the Effective Date and shall continue for a period of five (5) years thereafter. This IGA shall automatically renew for successive and additional five (5) year terms unless one of the Parties notifies the other of intent to non-renew at least thirty (30) days prior to the expiration of any of these five-year terms. 10. Prior Agreements The 1998 Agreement and any other prior agreements or understandings of the Parties pertaining to the matters addressed in this IGA are hereby canceled and superseded as of the Effective Date and thereafter shall have no further force or effect. 11. Miscellaneous a. Faith and Credit: Neither Party shall extend the faith or credit of the other to any third person or entity. Page 10 b. Amendments: This IGA may be amended only by agreement of the Parties evidenced by a written instrument authorized and executed with the same formality as accorded this IGA. c. Notice: Any notice required by this IGA shall be in writing. If such notice is hand delivered or personally served, it shall be effective immediately upon such delivery or service. If given by mail, it shall be certified with return receipt requested and addressed to the following addresses: City 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 Thompson School District 800 South Taft Avenue Loveland, CO 80537 Attention: Superintendent of Schools Notice given by mail shall be effective three (3) days after it is deposited in the United States mail depository correctly addressed and with sufficient postage for delivery. d. Governing Law and Venue: This IGA and the rights and obligations of the Parties under it shall be interpreted and construed in accordance with the laws of the State of Colorado, the City Code, the Land Use Code and the Implementing Ordinance (collectively, the “Controlling Laws”). In the event of any conflict between this IGA and the Controlling Laws, the Controlling Laws shall control the interpretation of the IGA and the Parties’ performance of their obligations under it. Neither Party shall be obligated under this IGA to take any action that would be a violation of or in conflict with any of the Controlling Laws. The Parties agree that venue for any judicial action to interpret, enforce or seek damages under this IGA shall be in the District Court of Larimer County, Colorado. e. Severability: If this IGA, or any portion of it, is for any reason held invalid or unlawful by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of the IGA. f. Indemnification: The City and School District agree to cooperate with one another in the defense of any legal action that may be brought contesting the validity of this IGA Page 11 or the Implementing Ordinance. To the extent permitted by law, the School District shall be responsible for defending such claim (whether filed against the City, the School District or both) and for the payment of any final monetary judgment entered against the City in any such action. Nothing contained in this IGA shall constitute any waiver by the City or the School District of any defenses, immunities or limitations of liability under the Colorado Governmental Immunity Act or available under any other applicable Colorado or federal law. This paragraph f. shall survive termination of this IGA and be enforceable until all claims are precluded by statutes of limitation. g. Survival: Any provision or obligation of this IGA, for the benefit of either Party, that has not been fully performed or discharged at the time of termination shall survive such termination and continue to bind the defaulting Party until the expiration of any applicable legal or equitable period of limitation. h. Financial Obligations: This IGA shall not be deemed a pledge of the credit of the City or the School District, or a guarantee of collection or payment by the City to the School District. Nothing in this IGA shall be construed to create a multiple-fiscal year direct or indirect City or School District debt or financial obligation. i. No Third-Party Beneficiaries: None of the terms, conditions or covenants in this IGA shall give or allow any claim, benefit or right of action by any third person or entity not a party hereto. j. No Assignment: The rights, benefits and obligations of this IGA shall not be assigned by either of the Parties without the other Party’s prior written consent. Any assignment without such prior written consent shall be deemed null and void and of no effect. k. Binding Effect: This IGA shall inure to the benefit of and be binding on the Parties’ respective successors and permitted assigns. l. Recording of Agreement: This IGA shall be recorded with the Larimer County Clerk and Recorder at the shared cost of the Parties. IN WITNESS WHEREOF, the Parties have executed this IGA as of the date indicated below and this IGA shall be in full force and effect on the Effective Date. CITY OF FORT COLLINS, COLORADO By ATTEST: Wade Troxell, Mayor City Clerk Date Page 12 APPROVED AS TO LEGAL FORM: Deputy City Attorney THOMPSON SCHOOL DISTRICT R2-J BY ATTEST: President, Board of Education Secretary Date APPROVED AS TO LEGAL FORM: School District Attorney Exhibit A Thompson School District R2-J Loveland, Colorado School District Planning Standards i. Student Yield Per Dwelling Unit 1 Category A 1 to 4 attached dwelling units Category B 5 or more attached dwelling units Elementary School 0.19 0.15 Middle School 0.12 0.07 High School 0.16 0.11 Total 0.47 students 0.33 students ii. School Facility Enrollment Capacities 2 Elementary School 550 students Middle School 900 students High School 1,500 students iii. School Site Acreage Requirements 2 Elementary School 12 acres Middle School 30 acres High School 45 acres iv. Developed Land Value for 2006 3 $106,325 1Average student yields for elementary, middle school, and high school based on Census 2000 and District’s October 1, 2000 enrollment report. Includes all residential dwelling types within the School District. 2Based on Thompson School District Board of Education Policy FBC and Regulation FBC-R. 3Average land value per acre of $38,170 plus raw water requirements and infrastructure costs per acre (utilities stubbed to the site, ½ of street development costs for a site, and overlot grading) of $68,155. Details of calculations and sources of base numbers available from the Planning Services office of the District. Annual adjustments to occur based on Dodge Index changes. Exhibit B Thompson School District R2-J Loveland, Colorado School District Methodology Based on the School District Planning Standards contained in Exhibit A, calculation of land dedication or in-lieu payments uses the following procedures: 1. The student yield is determined by the number of attached dwelling units. (e.g. Category A, middle school = 0.12). 2. The amount of land required per student is calculated by dividing the acreage by the capacity. (e.g. Middle School = 30 acres / 900 students = 0.0333). 3. The acreage per dwelling unit is determined by multiplying the student yield by the per student land requirement. (e.g. 0.12 yield x 0.0333 acres = 0.0040) 4. To convert the land dedication requirement into in-lieu payments, the acreage per dwelling unit is multiplied by the developed land value. (e.g. 0.0040 acres x $106,325 = $425.30) Summary The total land dedication or in-lieu payment per dwelling unit is: Category A 1 to 4 attached units Category B 5 or more attached units Land PILO1 Land PILO1 Elementary School 0.0042 acres $ 447 0.0033 acres $351 Middle School 0.0040 acres $ 425 0.0023 acres $245 High School 0.0048 acres $ 510 0.0032 acres $350 Total 0.0130 acres $1,382 0.0089 acres $946 To determine the land or in-lieu payments for a proposed residential development, the per dwelling unit totals above would be multiplied by the total number of dwelling units in the development. (e.g. 300 single family units = 0.0130 x 300 = 3.9 acre dedication or $1,382 x 300 = $414,600 PILO) 1 PILO means “payment-in-lieu-of” land dedication