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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 04/19/2011 - RESOLUTION 2011-039 AUTHORIZING THE CITY MANAGER T DATE : April 19 , 2011 STAFF : Mike Freeman - rim Resolution 2011 -039 Authorizing the City Manager to Execute a Revised Long-Term Airport Access Agreement and Grant of Access Easement with Rocky Mountain Airport Investments , LLC and Related Intergovernmental Agreement with One or More Metropolitan Districts at the Fort Collins-Loveland Municipal Airport. EXECUTIVE SUMMARY As part of the overall proposed agreement, the Developer has agreed , as specified in the Access Agreement and Intergovernmental Agreement (" IGA") , both of which are attached to the proposed Resolution , to provide proceeds from one or more Metropolitan Districts (5 mils ) to the Airport in exchange for the granting of an access easement to the Airport for aviation related uses . An access easement on the Airport is granted to the Developer from the Developer' s real property adjacent to the Airport . This an updated agreement from the one approved by both the Loveland and Fort Collins City Councils in September 2008 . This update addresses concerns related to sequencing for platting the parcels and creation of the metropolitan districts , and establishes a performance deadline of September 30 , 2012 for FAA approval of the access easement, creation of the Metropolitan Districts as to both the north and south parcels , and required improvements to the south parcel . The required improvements include infrastructure in both the proposed airpark and on the Airport to accommodate the proposed access . The required improvements on the north parcel must be completed by September 30 , 2019 . The new agreement is now 50 years , with no 30-year extension as contemplated in the original agreement. The 30- year extension was based on construction of an on-airport Fixed Based Operator ( FBO) business , no such investment is planned at this time , so the 30-year extension option is not included in this agreement. BACKGROUND / DISCUSSION Beginning in 2007 , City staff from Fort Collins and Loveland worked on a proposal by the Developer to develop an airpark located to the southeast and north of Airport ("the Airpark") , to access the Airport for limited aeronautical purposes through-the-fence . The Developer owns 200 acres adjacent to the Fort Collins — Loveland Municipal Airport (Airport) . The property is divided into two parcels ; one is identified as the north parcel and the other is the southeast parcel . The Access Agreement grants a 50 year Airport access easement to permit the lot owners in the Airpark to access the Airport from their property for limited aeronautical uses which are defined in detail in the Access Agreement. The granting of such an easement is subject to FAA approval . In return for the access easement, the Developer will create one or more metropolitan districts that include the Airpark properties , and will commit 5 mills of property taxes to the Airport in exchange for access ("the Metro Districts" ) . The payment from the Metro Districts satisfies the Airpark's need to pay an access fee to the Airport. This revenue projection for the first ten years of the Metro Districts payments beginning in 2012 equals $2 .4 million . Any revenue generated by the Airport is restricted to Airport uses and cannot be returned to the owner cities per FAA regulations . The proposed Access Agreement provides significant benefits to the Airport and Cities by furthering the goal of increasing revenue to the Airport to eliminate the general subsidy that the Cities provide . This is one of the most significant goals outlined by the Airport Steering Committee and City Councils in the Airport's Adopted Business Plan . There are two kinds of development that generally impact airports , development that takes place on the Airport property (or within the fence ) , and development that happens adjacent to the Airport that accesses the Airport through a fence . The Airport is a significant community asset that has been largely funded through Federal funds coming from the Federal Aviation Administration ( FAA) . There are advantages and disadvantages to either development on Airport April 19 , 2011 -2- ITEM 29 or adjacent. On-Airport development takes place on publically owned land and improvements ( i . e . a hanger) ultimately revert back to the Airport once the long-term lease is completed . The on-Airport lease rate ensures that the user is paying their fair share for accessing the Airport and its benefits . Off-Airport developments that literally access the Airport "through the fence" (TTF ) also have to pay for the privilege of accessing a public facility. The TTF payments to access the Airport typically take the form of an access fee . The fee to be paid to the Airport from an off-site user has to equal what the on-Airport user pays ; this is called "parity" . The core issue in negotiating the Access Agreement and IGA with the Developer has been working to achieve parity. This is done through the formation of the Metro Districts that will pay for the Airpark' s access fees . Properties within the Metro Districts will contribute 5 mills to the Airport as their fee . Periodically, the Airpark and Airport will evaluate the sufficiency of the 5 mills to ensure that parity is being maintained as the Airport increases its on-Airport lease rates and as the Airpark builds out . FINANCIAL / ECONOMIC IMPACTS The Developer will form one or more Metro Districts with a 5 mill rate that will generate property tax revenue for the Airport in exchange for paying an Airport access fee . It is assumed that the Metro Districts will be in place by the beginning of 2012 and will begin making payments in the year after it is formed . The Developer has an aggressive build-out plan for the Airpark that has been shared with City staff. City staff is more comfortable projecting a slower build out rate for the project to ensure that financial projections to the Airport are not overestimated . Staff projects that in 2012 , the Airpark project will contribute $56 , 000 in revenue to the Airport, growing to over $400 , 000 by 2020 . This assumes that approximately 1 . 5 million square feet are developed over this time period , or around 150 , 000 sq feet per year. Staff believes this is a reasonable build-out schedule . Should the Developer successfully built out the project faster, the Airport would receive additional revenue growth from the growth in assessed valuation and taxable property . • Major Provisions of the Access Agreement and IGA Term of the Access Agreement The Access Agreement and the access easement granted in the Access Agreement will terminate fifty (50 ) years after the effective date of the IGA. Use of Metro Districts The Developer intends to establish and record certain covenants , conditions and restrictions against the real property that makes up the Airpark. The Developer intends to establish one or more Metro Districts (" Districts") which shall , in part, manage the common areas of the Airpark and enforce the Airpark Covenants , Conditions and Restrictions (CC& R's) . Access to the Airport is contingent upon the Cities' prior execution of the IGAs with the Districts for aircraft access and use of the Airport from the Airpark under the terms and conditions stated in the Access Agreement. Prior to approval of the IGA, the following conditions must be met: • The Airpark is under actual construction . • The construction and improvement of taxilanes connecting the Airpark and the Airport and the taxiway on the Airport are completed and acceptable to the Cities . • The District(s ) are established in good standing and capable of imposing the 5 . 0 mill levy on the Adjacent Property together with any required adjustments thereto , and further capable of paying the Fee to the Cities and to pay the Cities any additional amount required in the IGA. The District(s ) shall also be required to have full voter authorization to increase the mill levy on the Adjacent Property, without the requirement of any future election , in order to provide any increases in revenue to the Cities as necessary to maintain compliance with the Cities' FAA grant assurances . • The Developer grants the Cities an access easement on the Airpark taxilane for emergency vehicles , FBO vehicles , maintenance/safety inspections , etc. April 19 , 2011 -3- ITEM 29 • The Airparks CC&R3s are recorded and in effect against the Airpark. • The construction of the Airport Taxiway is completed and deemed acceptable by the Cities . The Metro District for the entirety of the Adjacent Property ( north and south parcels ) must be formed and the other conditions met as to the south parcel on or before September 30 , 2012 or the Agreement and the Access Easement as to both parcels terminates . If this deadline is met, the other conditions must be met as to the north parcel by September 30 , 2019 or the Agreement and the Access Easement as to the north parcel terminates . Payment of Airport Access Fees In consideration of gaining access to the Airport's facilities , an access fee will be paid to the Cities as follows : • The Metro Districts will enter into an IGA with the Cities . • The Districts will pay to the Cities , subject to annual adjustments , an amount equal to 5 . 0 mills (" Fee")based on the assessed value of all taxable real property and improvements , (excluding personal property) within the Adjacent Property. • The Fee is intended , with annual adjustments , to provide the Airport with a source of revenue which is equal to , or greater than , the revenue that would otherwise be provided if the Airpark were developed upon Airport property . In addition , the Fee is intended to ensure that the lot owners within the Airpark pay fees and charges to the Cities that are at parity with those paid to the Cities by their on-Airport tenants . • The Cities shall have the ability to close access to the Airport from the Airpark through the point of ingress/egress in the event of nonpayment of the Fees due from the District(s ) . Termination of the Access Agreement The Access Agreement can be terminated for the following reasons : • If the Metro Districts for the entirety of the Adjacent Property ( north and south parcels ) are not formed and the other conditions are not met as to the south parcel on or before September 30 , 2012 , the Agreement and the Access Easement terminates as to both parcels . • If the conditions , other than creation of the Metro Districts , are not met as to the north parcel by September 30 , 2019 , the Agreement and the Access Easement terminates as to the north parcel only. • The Developer provides written notice of termination to the Cities . • The Developer does not make payments required under the terms of the Access Agreement and under any IGA. Litigation Expenses and Attorney's Fees In the event of the default of any of the provisions of the Access Agreement or the IGA by any party, as determined by a court, the defaulting party shall be liable to the non-defaulting party for the non-defaulting party's reasonable costs of litigation incurred by reason of the default, including reasonable attorneys' fees . Most Commercial Aeronautical Services are NOT permitted within the Adjacent Airport Property • Uses not allowed are those which are normally provided by the on-Airport FBO(s) . The uses not allowed include : aircraft line services ; aircraft, airframe and engine repair and maintenance ; flight training ; aircraft rental ; storage of aviation fuels and related other services such as the sale of air charts and miscellaneous pilots' supplies . Commercial Aeronautical uses that are allowed include the following : • The construction of hangars/buildings that are used for the storage , servicing and maintenance of aircraft that are used for private corporate or personal use ; aircraft research and development; aircraft manufacturing of parts and components ; assembly of aircraft parts and components ; final assembly of aircraft parts and components into completed aircraft; flighttesting associated with assembled aircraft; painting of manufactured aircraft and parts ; and airfreight services . • The Developer may not enter into a contract that prohibits any on-Airport FBO from selling fuel to tenants of the Airpark. April 19 , 2011 4- ITEM 29 • The Developer shall grant to the Cities an Avigation Easement which grants users of the Airport the right to fly over the Airpark property and make noise , vibrations and emissions associated with aircraft and the Airport' s other activities . Obligations of Developer • Taxilane construction — the Developer is responsible for constructing and paying forthe taxilane improvements that will connect the Airpark site with the Airport property. • Taxiway construction - the Developer is responsible for constructing an paying for the taxiway improvements that will extend the on-airport taxiway to the off-airport taxiways . • Security plan — the Developer must ensure there is an Airpark security plan in place that is in full compliance with Transportation Security Administration and FAA rules and regulations . • Avigation easement on their property — the Developer shall grant the cities an Avigation Easement to ensure that Airport operations adjacent and around the Airpark properties are not compromised . • Non-compromise of FNL activities — the Developer agrees that nothing in the Access Agreement or IGA will impact ongoing Airport operations or implementation of long-term plans . • Minimum Standards Compliance — the Developer agrees to abide by the Airport Minimum Standards within the Airpark property as they currently exist or may be amended by the Cities in the future . • Grant assurances — In the event that the FAA notifies the Cities verbally or in writing of an alleged violation of its grant assurances to the FAA as a result of the Access Agreement, or as a result of the action or inaction of any off-Airport uses , the Developer shall fully cooperate with the Cities to immediately rectify such violation . In the event that the FAA notifies the Cities formally of such a violation , such as , but not limited to , notification by a Director's Determination , the Cities may, in their sole discretion and without being required to appeal any such FAA determination , terminate this Agreement and any access to the Airport granted pursuant to this Agreement . However, if the FAA grants to the Cities a period of time to cure the violation , the Cities agree , prior to such termination , to allow the Developer that period of time to cure the circumstances causing the grant assurance violation . FAA Commentary Throughout the past 36 months , the FAA has been consulted by the Cities on numerous occasions , including in meeting with local leaders and the Colorado Congressional delegation . The FAA does not offer an opinion on through- the-fence agreements , they only offer advisement. Staff and the Developer have worked to address all the issues raised by FAA, including language on grant assurances , relief of issues , parity between on and off Airport uses , and security provisions . In the event a party on the Airport feels discriminated against by the uses off the Airport, there is a formal FAA process , known as a Part 16 complaint, which would be heard within the FAA process to determine if such complaint has merit. STAFF RECOMMENDATION Staff recommends adoption of the Resolution . ATTACHMENTS 1 . Powerpoint presentation ATTACHMENT 1 FORT COLLINS • LOVELAND AIRPORT ( FNL ) Rocky Mountain Airpark Through -the- Fence Agreement Intergovernmental Agreement April 19, 2011 Vision Statement The Fort Collins- Loveland ( FNL ) Airport will be Colorado ' s premier regional airport supporting general aviation , regional air carrier services , and business investment opportunities for both aviation and non - aviation uses . --= warcouANS , LOMAND AIRIJORT 1 Fort Collins - Loveland History effort with Congressional delegation Committee,— 1965 Commenced operations — Governance • Multiple models over the history — Joint, Ad Hoc Steering Committee, • Current — Joint • • Ownership, Steering• • . — Administrative Guidelines Memo - • • 4 Steering• - — Two Mayors, Two City Managers FNL Overview AI RPO It I 1 i FNL Statistics Airport Statistics 2011 Budget $ 2, 290390 Airport Revenue : $ 8001000 Contributions Govt : ' Cities : $ 160,000 Size 1 , 1oo Acres State & Federal $ 114001000* * Runway : Main 8600' X 100 ' Primary Expenses : Runway : Capital : $ 1,434, 000 Crosswind 2 , 273 ' X 40 ' Personnel : $ 381,000 Based Aircraft 245 Profess Serv: $ 198,000 Hangers 210 ANTICIPATED TO RECEIVE - $6, 000, 000 ADDITIONAL FAA GRANT Annual Takeoffs & Landings : 110, 000 Commercial Flights/Week : 6 Fixed Based Operators : 1 FOUCOLLINS • LOVELAND Master Plan v . Business Plan Airport Formation of the long term Establish strategies to physical needs . achieve goals objectives • 20 year time frame • Mission of the airport • Determine aviation needs • Governance • Address concerns of a Funding development plan • Maximize development and revenue potential FORT COLUNS • LOVELAND AIRIJOR'I' 3 FNL Revenue Projections Projected Operating Revenue ( 2007 - 2018 ) 000 OUa.C•n,IWUm La3oaaa . nlmsL L409= ■ Thauh the FHge _ortAkPxt Aa n. Fart LZUQ= ■MK t When• tsnAroFars J JD0.W0 J Law Lem mom ral.u.t Mtfal 400M SLnUAioarthd flu zoam CAL 01 Lmn, ,any G0&AUro RePWA I= 2511 WU 7013 Tail 7aLS AM Tau ZOLA FORT COLLINS • WVFI 1'. . :\ I R P O R I Through -the - Fence Agreements • What is a 'Through -the - Fence ' Agreement (TTF ) • FAA Position • Triad — 1986 — Center Point Business Park — Fees called for. . . never implemented a Maintenance, Airport Operations Fees — No association created ( until 2008 ) — Represents some owners — Developed differently than platted • Lots without access (43 of 70) — 2008 Bohemian Foundation loan for improvements • ( $ 262, 500) — Recommendation : Under renegotiation — Project to be completed Summer 2011 1'UHI LULUSS • W1'LLA\U AIRIJOR'I' 4 TTF Locations roug ce The Fen Current (Triad Future Water Valley Area Access Areas WIN Future Water Valley Area o,'OVA t . .. Airpark of the Rockies ell . . id j p • 'ti - - - — k ♦ . r . � -o— p -- 5 Through - the - Fence — Proposed 2008 Airpark of the Rockies Water Valley Development Financial Components — 230 acres — Metropolitan District — Taxiway/ Byrd Improvements — 5 mills to FNL — 20 months negotiations — Value increases as assessed — Multiple FAA reviews value rises — Down sides ? • Part 16 Claims Metro District FNL Revenue Projection 2011 - $84 , 900 2016 - $390 ,400 • Lawsuits 2012 - $ 142 , 700 2017 - $448 , 200 — Council approved 2013 - $200 , 500 2018 - $505 , 961 2014 - $258 , 300 2019 - $566 , 800 — September 2008 2015 - $316 , 000 2020 - $627 , 700 FOUCOLLI\5 • LOVELAYO Rocky Mountain Airpark 2011 Water Valley Development — 200 acres — Taxiway/ Byrd Improvements — September 2012 Performance — South Parcel — September 2019 Performance — North Parcel — 5 mills — Provisions for non - parity finding — 50-year term Metro District FNL Revenue Projection — No FBO provisions 2012 - $56 , 000 2017 - $257 , 000 2013 - $95 , 000 2018 - $295 , 000 2014 - $ 1325000 2019 - $333 , 000 2015 - $ 1705000 2020 - $3699600 FOR[ LOLUNS • LOVELA\O 2016 085500 2021 - $4149000 AIRIJOR'1' 6 Airpark TTF Development Process • January 20, 2011 — Airport Steering Committee — Staff Direction • March 10, 2011 — Developer signs new agreement • March 17, 2011 — Airport Steering Committee Approves new agreement • March 22 , 2011 — City of Loveland Approved TTF • April 19 , 2011 — Fort Collins Reviews TTF FORT COLLINS • LOVELAND AI RP < ) It ' I Closing Discussion FORT COLUNS • LOVELANO AIRIJOR'I' 7 RESOLUTION 2011-039 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CITY MANAGER TO EXECUTE A REVISED LONG-TERM AIRPORT ACCESS AGREEMENT AND GRANT OF ACCESS EASEMENT WITH ROCKY MOUNTAIN AIRPORT INVESTMENTS, LLC AND RELATED INTERGOVERNMENTAL AGREEMENTS WITH ONE OR MORE METROPOLITAN DISTRICTS AT THE FORT COLLINS-LOVELAND MUNICIPAL AIRPORT WHEREAS, the cities of Fort Collins and Loveland (jointly, "the Cities")jointly own and operate the Fort Collins-Loveland Municipal Airport ("the Airport"); and WHEREAS, the Cities have previously entered into that certain Intergovernmental Agreement for the Joint Operation of the Fort Collins-Loveland Municipal Airport dated May 16, 2000; and WHEREAS,Rocky Mountain Airport Investments,LLC,(the"Developer")is the owner and developer of certain parcels of real property which are immediately adjacent to the Airport (the "Adjacent Property"); and WHEREAS,the Developer desires to develop the Adjacent Property as an airpark, with the platted lots within the Adjacent Property having aircraft access to the Airport; and WHEREAS,the Developer intends to establish one or more Metropolitan Districts("Metro Districts")within the Adjacent Property to finance construction of improvements,make assessments to pay airport access fees,and to manage the common areas and enforce covenants,conditions, and restrictions against the real property; and WHEREAS, the Cities believe that allowing the Developer and its successors and assigns access to the Airport pursuant to certain terms and conditions, including the payment to the Cities of a fair and reasonable access fee, will increase public access to the Airport, increase revenues to the Airport, aid in making the Airport more financially self-sufficient, and contribute to improving the economic health of northern Colorado; and WHEREAS, on September 16, 2008, the City Council adopted Resolution 2008-088 approving a proposed agreement with the Developer to accomplish these purposes; and WHEREAS, that agreement was never executed by the parties; and WHEREAS, it has become apparent to both the Developer and the Cities that an updated agreement is needed in order to address concerns related to the sequencing of platting the parcels, creating the Metropolitan Districts,establishing a clear deadline for Federal Aviation Administration approval and establishing specific provisions pertaining to required improvements; and WHEREAS, the staff of the Cities and the Developer have negotiated a revised long-term airport access agreement,a copy of which is attached hereto as Exhibit"A"and incorporated herein by reference ("the Access Agreement"); and WHEREAS, attached to the Access Agreement as Exhibit "C" is an intergovernmental agreement to be executed by the Cities with the Metro Districts to be formed by the Developer upon . development of the Adjacent Property("IGA"); and WHEREAS, the proposed Access Agreement and IGA set forth the terms and conditions under which the Developer and its successors and assigns will be allowed access to the Airport and ensure that those terms and conditions are enforced; and WHEREAS, the Access Agreement and IGA contain the following major provisions: a. The Cities grant the Developer and its assignee Metro Districts a 50 year access easement ("Access Easement") onto the Airport from the specified Adjacent Property; b. The Developer and the Metro Districts will be responsible for the construction and maintenance costs of all improvements necessary to make the access connection, including fencing and gates; C. The Developer and the Metro Districts will not be permitted to have commercial aeronautical activities on the Adjacent Property, except for aircraft manufacturing and assembly, flight testing associated with assembled aircraft, painting of manufactured aircraft and parts, and air freight services; d. The Developer and the Metro Districts will pay the Cities a yearly access fee("Fee") equal to 5 mills on the assessed value of the real property within the Adjacent Property,which mill rate may be adjusted yearly at the request of either party in such a way so as to ensure that the Fee amount provides the Airport with a source of revenue which is not less than the revenue that would otherwise be provided if the Adjacent Property would have been developed on the Airport; e. In the event that the organization of the Metro Districts does not take place as contemplated in this Agreement or the Districts otherwise fail to comply,in any way whatsoever, with the terms of the IGA, the Developer agrees to pay annually to the Cities an amount equal to the Fee at all times during the term of this Agreement until such time as the Districts come into full compliance with the Agreement; f. A Federal Aviation Administration ("FAA") concern with grant assurance compliance would be cause for such an adjustment of the Fee; g. In the event of default by either party as determined by a court, the non-defaulting party will be entitled to attorney fees from the defaulting party; and -2- h. The Access Agreement, IGA and Access Easement will terminate if: (1) the Metro Districts for the entirety of the Adjacent Property(north and south parcels) are not formed and the other specified development conditions are not met as to the south parcel on or before September 30, 2012, in which event the Agreement and the Access Easement terminates as to both parcels. (2) the specified development conditions, other than creation of the Metro Districts, are not met as to the north parcel by September 30, 2019, in which event the Agreement and the Access Easement terminates as to the north parcel only. i. The Cities may terminate the Access Agreement if. (1) the Fee is not paid after 60 days notice. (2) the FAA formally notifies the Cities of a grant assurance violation; and WHEREAS, the City Council believes that adoption of the Access Agreement, the grant of Access Easement and the IGA are in the best interests of the City. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That with respect to the grant of Access Easement contained within the Access Agreement,the City Council hereby finds that said grant of Access Easement is in the best interests of the City. Section 2. That the Access Agreement and IGA are hereby approved. Section 3. That the City Manager is hereby authorized to execute the Access Agreement and IGA in substantially the forms which are attached hereto, subject to such modifications in form or substance as the City Manager, in consultation with the City Attorney, may deem necessary to effectuate the purposes of this Resolution or to protect the interests of the City. Passed and adopted at an adjourned meeting of the Council of the City of Fort Collins this 19th day of April, A.D. 2011. Mayor ATTEST: City Clerk -3- EXHIBIT A CITIES OF LOVELAND AND FORT COLLINS AIRPORT ACCESS AGREEMENT THIS FORT COLLINSILOVELAND AIRPORT ACCESS AGREEMENT (the "Agreement") is made and entered into this day of 2011, between and among Rocky Mountain Airport Investments, LLC, a Colorado limited liability company ("Developer") and the Cities of Fort Collins and Loveland, Colorado home rule municipalities, hereinafter jointly the "Cities." RECITALS A. Cities operate a municipal airport within the City of Loveland in Larimer County, Colorado, known as the Fort Collins/Loveland Municipal Airport(the "Airport"), which is legally described in EXHIBIT "A" attached hereto and incorporated herein by reference, and further described in the Intergovernmental Agreement between the Cities of Fort Collins and Loveland, Colorado, dated May 16, 2000. B. Developer is the owner and developer of certain parcels of real property which are immediately adjacent to the Airport(the "Adjacent Property") referred to generally as the "north" parcel or the "southeast" parcel. Developer desires to develop portions of the Adjacent Property as an airpark which will be comprised of all the platted lots within the Adjacent Property that border and that have, or are capable of having, aircraft access to the Airport from said individual lots ("the Airpark"). The Adjacent Property, including those parcels generally identified as the "north"parcel and"southeast" parcel, is more particularly identified in the legal description attached hereto and incorporated herein by this reference as EXHIBIT "B." C. Developer intends to establish and record certain covenants, conditions and restrictions (the "Airpark CC&R's") against the real property that makes up the Airpark. Developer intends to establish one or more Metropolitan Districts, hereinafter referred to collectively as "Districts", which shall, in part, manage the common areas of the Airpark and enforce the Airpark CC&R's. D. Developer desires to have the Cities allow Developer and his successors and assigns, the individual lot owners within the Airpark("the Lot Owners"), and the Lot Owners' tenants, subtenants, guests and invitees within the Airpark to access the Airport from the Airpark and to access the Airpark from the Airport, subject to the Airpark CC&R's. E. In consideration for the access to the Airport from the Airpark, the Developer desires for the Cities to enter into intergovernmental agreements with the Districts under which the Districts shall, subject to annual adjustment, pay annually to the Cities an amount equal to 5.000 mills based on the assessed value of all taxable real property and improvements (excluding personal property) within the Adjacent Property. The parties hereto acknowledge that this five mill fee(the "Fee") with annual adjustments, is intended to provide the Airport with a source of revenue which is equal to, or greater than, the revenue that would otherwise be provided if the Airpark were developed upon Airport property. In addition, the Fee is 1 intended to ensure that the Lot Owner pays fees and charges to the Cities that are at parity with those paid to the Cities by their on-Airport tenants. F. In the event that the organization of the Districts does not take place as contemplated in this Agreement or the Districts otherwise fail to comply, in any way whatsoever, with the terms of Paragraph 1.6 of this Agreement, the Developer agrees to pay annually to the Cities an amount equal to the Fee until such time as the Districts come into full compliance with Paragraph 1.6 of this Agreement. G. Cities are willing to enter into such intergovernmental agreements provided that all of the terms and conditions set forth in this Agreement are fully satisfied. NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual promises and agreement set forth herein, the parties agree as follows: AGREEMENT 1. Cities' Grant of Access Easement. Developer presently owns two parcels of land that may be developed at different times and that may comprise the Airpark. Cities and the Developer agree that the Developer and his successors and assigns, the Lot Owners, and the Lot Owners' tenants, subtenants, guests and invitees within the Airpark, shall have, and Cities hereby grant unto Developer, an aircraft access easement to the Airport through the designated Point of Ingress/Egress (defined in Paragraph 3.1 below) for the term hereinafter set forth in Paragraph 11 below (the "Access Easement."). The Access Easement granted by this Agreement shall be further set forth in an easement deed to be recorded after the conditions of this Paragraph 1 and its sub-paragraphs have been satisfied as set forth herein. Subject to the provisions of this Agreement and to the Airpark CC&R's against the property that makes up the Airpark, the Access Easement to the Airport granted herein includes permission to use the airside and public area of the Airport for the purposes stated in Paragraph 3.1 below, and includes both permission to enter upon the Airport from the Airpark and to exit from the Airport to the Airpark. The grant of the Access Easement made herein is contingent upon(i) the execution of intergovernmental agreement(s) with the Districts for aircraft access and use of the Airport from the Airpark under the terms and conditions stated in this Agreement, which said intergovernmental agreements shall be substantially in the form attached hereto as EXHIBIT "C"(the "IGA'') or(ii) compliance by the Developer with the covenant to pay the Fee as set forth in Paragraph 1.6(b)below,provided that all of the following conditions precedent(the "Conditions") have been fully satisfied prior to execution of the IGA: 1.1 The City of Loveland has approved, in its sole discretion,plats for the north and/or southeast parcels of the Adjacent Property sufficient to allow the construction related activities described in this Paragraph 1 to be completed. 1.2 The Cities have granted to the Developer, on terms and conditions satisfactory to the City in its sole discretion, a temporary construction easement that provides the Developer with the necessary access to complete construction of the Airpark, Airport Taxiway and Airpark taxilanes. 1.3. The Airpark is under actual construction. 2 1.4. The FAA has approved the exact points along the perimeter of the Airport, which Cities and Developer have mutually determined to be the appropriate location for access between the Airport and the Airpark(the "Point(s) of Ingress/Egress"), so that construction and improvement of taxilanes connecting both the Airpark and the Airport to the Points of Ingress/Egress has been completed and deemed acceptable by the Cities. The taxilanes must meet such additional requirements as may be stated under Paragraph 2 of this Agreement. Acceptance by Cities as used herein means approval by the City Managers of the Cities or designees, and is in addition to any development approvals otherwise required by the Cities'Codes. All construction and improvement of the taxilanes must comply with any applicable local, state or federal laws or regulations. 1.5 The City of Loveland City Council has, in its sole discretion, approved a service plan for the Districts such that the organization of the Districts may be placed on the November 8, 2011 ballot for approval by the eligible electors or the Developer has executed a written amendment to this Agreement confirming that the Developer has waived the right to obtain approval of such service plan and has agreed to be bound by Paragraph 1.6(b) hereof to pay the Fee. 1.6. (a)Unless the Developer has executed a written amendment to this Agreement confirming that the Developer has waived its right to obtain approval of a service plan from the City of Loveland and agreed to be bound by Paragraph 1.6(b) to pay the Fee, the Districts are established in good standing and capable of imposing the 5.000 mill levy on the Adjacent Property together with any required adjustments thereto, and further capable of paying the Fee to the Cities and to pay to the Cities any additional amount required to be paid by the District to the Cities pursuant to Paragraph 3 of the IGA. The Districts shall also be required to have full voter authorization under Article X, Section 20 of the Colorado Constitution ("TABOR") to increase the mill levy on the Adjacent Property, without the requirement of any future election, in order to provide any increases in revenue to the Cities as necessary to maintain compliance with the Cities' grant assurances to the Federal Aviation Administration ("FAA") and to enter into the IGA as a fully enforceable multi-fiscal year financial obligation under TABOR. (b) In the event that the organization of the Districts does not take place as contemplated in this Agreement or the Districts otherwise fail to comply, in any way whatsoever, with the terms of this Paragraph, the Developer agrees to pay annually to the Cities an amount equal to the Fee and other amounts that would have been required to be paid by the Districts under Paragraph 3 of the IGA until such time as the Districts come into full compliance with this Paragraph of the Agreement. (The provisions of this Paragraph 1.6 shall apply separately to the southeast parcel and to the north parcel of the Adjacent Property,provided that both parcels must be the subject of either an IGA with a District or the Developer's obligation pay the Fee and other amounts as set forth in Paragraph 1.6(b)within the time periods set forth in this Agreement.) 1.7. Developer has granted to the Cities an access easement on the Airpark taxilanes for the purposes described in Paragraph 3 of this Agreement for the term 3 set forth in Paragraph 11 below. 1.8. The Airpark Declaration of Covenants, Conditions and Restrictions of Record ("CC&R's"), containing provisions which include those listed in Paragraph 10 of this Agreement, have been approved by the Cities and are recorded and in effect against the Airpark. 1.9. The construction of the Airport Taxiway has been completed and deemed acceptable by the Cities as described in Subparagraph 2.2 of this Agreement. 1.10. Developer has submitted and obtained approval by the Cities, TSA and FAA a detailed Airpark Security Plan describing procedures, equipment and methodology to ensure operational compliance with the Airport's Security Plan and TSA regulations. A flow chart reflecting the foregoing Conditions and the intent of the Parties as to the satisfaction of the Conditions necessary to activation of the Access Easement granted herein is set forth on EXHIBIT "C-1" attached hereto and incorporated herein by this reference. As used herein related to obligations of the Developer to construct improvements, the term "Developer" shall include the Districts. The Districts, once approved, shall have full power and authority to perform Developer obligations of this Agreement. 2. Construction of Taxilanes. 2.1. Airpark Taxilane Construction. Developer shall construct and improve, at Developer's sole expense, the Airpark taxilane. Construction and improvement of the Airpark taxilane shall connect the taxilane, on one end, to the Airport boundary at the Point of Ingress/Egress, and on the other end, to the individual lots of the Airpark. The construction and improvement of the Airpark taxilane shall also include the permanent installation of vehicle barrier fencing and access control gates establishing a perimeter between the public roadway fronting the Adjacent Property and the Aircraft Operating Area("AOA") on the Airpark and Airport property. The barrier and gates may attach to a building or structure on an individual lot in the Airpark where such building or structure provides the barrier to such access to the AOA. Developer shall construct a fence, to the design designated by the Cities, along the common boundary between the Airport and the Airpark(excluding the Point of Ingress/Egress). This fence and gate shall become the Cities' property and shall be maintained by the Cities. However,the District shall reimburse the Cities for their costs to maintain the fence and gate as provided in Paragraph 3.6 of the IGA. All security related improvements shall be constructed in conformance with the Security Plan as described in Paragraph 17 below. 2.2. Airport Taxiway Construction. The taxiway Alpha A-1 Extension located at the southeast corner of the current ramp has been constructed by the Cities. This construction falls approximately 160 feet short of the Airpark property line. The Developer shall complete construction of this portion of the taxiway, to the design standards designated by the Cities, to the Airpark property line at its sole expense 4 and without reimbursement from the Cities. In addition, any needed upgrades to any portion of this taxiway necessary to accommodate larger aircraft to be located within the Airpark shall be completed by the Developer at its sole expense and without reimbursement from the Cities. This portion of the taxiway constructed by the Developer shall be dedicated to the Cities after construction is completed and the Developer shall provide to the Cities a two (2) year warranty bond or letter of credit for this improvement. In addition, as provided in Paragraph 3.6 of the IGA, the Districts shall be responsible and liable to the Cities for any and all maintenance costs incurred by the Cities for that portion of the taxiway improvements to be built by the Developer under this Paragraph 2.2. Maintenance costs shall mean all costs incurred by the Cities for snow removal, sweeping, repair, lighting, electricity, resurfacing, and all other expenses necessary to maintain that portion of the taxiway improvements built by the Developer under this Paragraph 2.2. 3. Limitations on Access. 3.1. Access between the Airport and the Airpark granted pursuant to this Agreement, shall be solely for aircraft access, airport service vehicles, emergency vehicles, FBO service vehicles, and vehicles performing maintenance/safety inspections of the taxilane/taxilane clearance areas, through the Points of Ingress/Egress designated by Cities for such purpose,the approximate locations of which are depicted in EXHIBIT "D ', which locations (one each for the north parcel and the southeast parcel) must first be approved by the FAA as acknowledged and agreed to in Paragraph 1.4 above, and which shall consist of a minimum one hundred twenty foot(120') wide portion of the boundary of the Airport. This Agreement does not grant entry onto the Airport from any other point of access, or by any method or means of travel other than as set forth in this Paragraph 3.1. 3.2. This Agreement shall not be deemed to grant or authorize the storage of aircraft or any personal property, aviation or non-aviation related, upon the Airport. 3.3. Any person accessing or using the Airport pursuant to this Agreement shall comply, at all times,with all applicable requirements of all statutes, acts, ordinances, regulations, codes, and standards of legally constituted authorities with jurisdiction, including, without limitation and, as applicable, the Loveland City Code, the Airport Rules and Regulations, the Airport Minimum Standards, the Airport Security Plan,the Cities' Federal grant assurances, and any other document that applies to the Cities' on-Airport tenants. 3.4. Access through the Point of Ingress/Egress shall be subject to those controls and restrictions that, from time to time, may be established by the Cities' Airport Director or designee when it is determined to be in the best interest of the Cities to do so, or when such controls and restrictions have been requested by the FAA or Transportation Security Administration ("TSA") or any other federal, state, or local agency. Restrictions may include, the denial, from time to time, of ingress or egress by any person or persons where the Airport Director determines, in good faith, that conditions at the Airport or Airpark are such that ingress or egress poses an immediate threat to the safe and efficient operation of the Airport, creates an aviation safety hazard on either the Airport or the Airpark, or otherwise makes aircraft operations on either the Airport or the Airpark unsafe. Except in the event of an emergency where a cure period is not practical, the Developer shall be allowed a reasonable amount of time to remedy the cause of such conditions or restrictions. 5 3.5. The Cities shall have the ability to close or limit, temporarily, access through the Point of Ingress/Egress from time to time in order to conduct Airport maintenance activities, and for other airport related activities such as air shows. The Cities shall endeavor to provide at least 48 hours notice of such closure. Notwithstanding the foregoing, the Cities shall reasonably accommodate the needs of the Lot Owners, their tenants, subtenants, guests and invitees within the Airpark in the use of the Airport during any such closure. 3.6. The Cities shall have the ability to close access through the Point of Ingress/Egress in the event of nonpayment of the Fee, as adjusted, or of any additional amount required to be paid pursuant to Paragraph 3 of the IGA after Cities give sixty(60) days written notice to the Districts or Developer of the nonpayment, if within such sixty-day period the nonpayment has not been cured. 4. Relocation. The Cities and the Developer may mutually agree in writing to relocate the Point of Ingress/Egress or establish any additional Point of Ingress/Egress. The party requesting the relocation will be responsible for expenses associated with the relocation and reasonable damages that may be incurred due to that relocation. In addition, the Cities reserve the right to designate additional points of ingress/egress at locations outside of the Airpark and not available to the Developer or otherwise permitted for use under this Agreement,provided that such additional designations shall not prevent access between the Airport and the Airpark through the Point of Ingress/Egress. The designation of additional points of access at locations outside of the Airpark may occur for any reason, including without limitation, the need to accommodate third parties or others to whom Cities may grant permission to ingress or egress from land adjacent to or contiguous to the Airport other than the Airpark. 5. Commercial Aeronautical Services Within the Adjacent Property and Airpark. 5.1 The Parties agree that the following commercial aeronautical activities that FBOs are authorized to conduct and provide to the general public on the Airport, as provided in Section 2.2 of the Airport Minimum Standards attached hereto as EXHIBIT "F", shall not be permitted within the Adjacent Property and the Airpark except as otherwise expressly authorized in Paragraph 5.2 below: all of the Aircraft Line Services described in Section 2.2.1. of the Minimum Standards; aircraft, airframe and engine repair and maintenance; flight training; aircraft rental; and related other services such as the sale of sectional or world aeronautical charts covering the territory within 300 miles of the Airport, flashlight and batteries, and plotters and computers generally used by pilots for flight planning.Notwithstanding the foregoing, fuel and other FBO goods and services may be delivered,provided and sold by any approved on-Airport FBO to customers located within the Airpark. 5.2 Notwithstanding the provisions of Paragraph 5.1 above, the following activities and uses shall be allowed to be conducted within the Adjacent Property and the Airpark: the construction, installation, maintenance and operation of a hangar or building or buildings to be used for the parking, storage, servicing, repair, maintenance, modification and construction of aircraft that are used for private corporate or personal use; aircraft research and development; aircraft manufacturing of parts and components; assembly of aircraft parts and components; final assembly of aircraft parts and components into completed aircraft; flight testing associated with assembled aircraft; painting of manufactured aircraft and parts; and air freight services such as those provided by United Parcel Service and Federal Express. 6 5.3. The Developer may not enter into a contract with users of the Airpark that prohibits any on-Airport FBO from selling fuel to such users. 5.4 Notwithstanding the provisions of 5.3, all on-Airport FBOs authorized by the Cities or like enterprise entering the Airpark shall provide to Developer or Developer's designee: 5.4.1. A written and executed hold harmless and indemnification agreement reasonably acceptable to Developer or Developer's designee. Such agreement shall provide, but not be limited to, the FBO or like enterprise agreeing to save and hold the Developer and its designees, their officers, employees, agents and representatives free and harmless of and from any loss, liability, expense, attorney fees, costs, suit or claim for damages in connection with any act or omission by the FBO or like enterprise, their officers, employees, agents and representatives. 5.4.2. A written and executed agreement reasonably acceptable to Developer or Developer's designee providing that the FBO or like enterprise shall: (a) not bring or keep anything which will in any way increase the existing rate of or affect any fire or other insurance upon the Airpark or cause cancellation of any insurance policy covering the Airpark or any part thereof; (b) not do or permit anything to be done in or about the Airpark which will in any way obstruct or interfere with the rights of other users of the Airpark or injure or annoy them or use or allow the Airpark to be used for any improper, unlawful or objectionable purposes; (c) not cause, maintain or permit any nuisance in, on, or about the Airpark; (d) not permit employees, customers, or visitors to smoke inside the Airpark; (e) not commit or suffer to be committed any waste in or upon the Airpark; (0 not use the Airpark or permit anything to be done in or about the Airpark which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated; and (g) at its sole cost and expense,promptly comply with all laws, statutes, ordinances and governmental rules, regulations or requirements now in force or which may hereafter be in force, and with the requirements of any 7 board of fire insurance underwriters or other similar bodies now or hereafter constituted, relating to or affecting the condition, use or occupancy of the Airpark. 5.4.3. Agree to provide insurance and the insurance required hereunder shall be in companies rated A+ Superior or better in "Best's Insurance Guide." 5.4.4. Obtain insurance at its cost and expense and keep in force a policy of commercial general liability insurance insuring Developer or its designee(s) against any liability arising out of the use of the Airpark and all areas appurtenant thereto, in amounts determined from time to time by the Developer or its designee(s) for injury or death and property damage including contractual liability coverage. The limit of said insurance shall not, however, limit the liability of the FBO or like enterprise. Such policies shall contain a provision that the Developer or its designee(s), although named as an insured, shall nevertheless be entitled to recover under said policies for any loss occasion to it, its servants, agents, or employees by reason of negligence of the FBO. Such insurance is to be obtained and other requirements may change from time to time in the sole discretion of the Developer or its designee(s) and by way of illustration may include, but shall not be limited to: (a) general liability - $5,000,000.00/aircraft- $10,000,000.00 per occurrence; (b)mobile equipment coverage(coverage to operate on private property); (c)hangar keepers liability insurance; (d)product liability insurance (i.e., bad fuel pumped into airplanes, etc.); (e) insurance protection for all risk coverage on the Airpark premises to the extent of 100% of the actual placement cost thereof. 5.4.5. Prior to entry to the Airpark and from time to time at the request to the Developer or its designee(s)provide copies of policies of liability insurance required herein or certificates evidencing the existence and amounts of such insurance with loss payable clauses satisfactory to Developer or Developer's designee. No policy shall be cancelable or subject to reduction of coverage except after ten(10) days prior written notice to Developer or Developer's designee. All such policies shall be written as primary policies not contributing with and not in excess of coverage which Developer or Developer's designee may carry. 5.4.6. Provide evidence of Workers'Compensation insurance coverage. 5.4.7. Provide evidence satisfactory to Developer or Developer's designee that anyone entering the Airpark has been properly trained, in Developer or Developer's designee's sole discretion, to properly enter and perform services in the Airpark. 5.4.8. Establish a reasonable process by which the FBO or a like enterprise will periodically check in with the Developer or the Developer's designee to coordinate with and provide reasonable notice to the Developer or the Developer's designee of the FBO's or like enterprise's planned entries into the Airpark to provide services to customers within the Airpark. 8 5.4.9. Reimburse Developer or Developer's designee(s) for any charges made to the Developer or Developer's designee(s) by the Cities due to any FBO or like enterprise entering the Airpark or providing any services or delivering any fuel, materials or supplies to the Airpark or occupants therein. 5.4.10. In the event of non-compliance with the provisions of this Paragraph 5.4, agree that the FBO or like enterprise, their officers, employees, agents and representatives, may be denied access to the Airpark by the Developer or the Developer's designee. 5.5. The Developer or the Developer's designee shall enforce and apply the requirements of Paragraph 5.4 with respect to all on-Airport FBOs and like enterprises in a reasonable, fair, equal and non-discriminatory manner. However, the Developer or the Developer's designee shall have the authority to waive any of the requirements in Paragraph 5.4 above either on a temporary or permanent basis so long as such waiver does not relate to a requirement of the provisions of the Minimum Standards and provided that any such waived requirement during any such time period is also waived as to all other FBOs and like enterprises serving the Airport and the Airpark. 6. Airpark Conditions. 6.1. No motor vehicle of any kind, except aircraft, airport service vehicles, emergency vehicles, Airport approved FBO service vehicles, airplane tugs, vehicles for towing aircraft, and vehicles performing maintenance/safety inspections of the taxilane/taxilane clearance areas, shall be used on the Airpark taxilane, except in areas specifically designated for motor vehicle use. 6.2. No motor vehicle of any kind or for any reason shall be parked upon, or impede aircraft movement on, the Airpark taxilane or any taxilane safety area except in the course of maintenance/safety inspections or maintenance of the taxilane/taxilane clearance area. 6.3. No person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in the use of the Airpark taxilane; and the Lot Owners, their tenants, subtenants, guests and invitees, shall use the taxilane subject to the Airpark CC&R's and in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Park 21,Nondiscrimination in Federally-assisted programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. 7. Non-liability. 7.1. Cities shall not be liable to the Developer or to any off-airport user for any acts or omissions of any person, whether or not a person authorized under this Agreement, who enters the Airpark through the Point of Ingress/Egress; or for any conditions occurring on the Airpark or the Adjacent Property resulting from the operations or activities of any such person; or for any loss or damage to any personal property or equipment of the Developer, or any property owner or any tenant, subtenant, guest, invitee or other person with legal possession of any lot within the Airpark or 9 the Adjacent Property, caused by or resulting from operations or activities of any person entering the Airpark through the Point of Ingress/Egress. 7.2. The Developer and its successors and assigns shall be liable to the Cities for their respective acts and omissions arising under this Agreement as a result of entering on to the Airport through the Point of Ingress/Egress; or for any conditions occurring on the Airport resulting from their respective operations or activities; or for any loss or damage to any personal property or equipment of the Cities caused by or resulting from their respective operations or activities related to entering the Airport through the Point of Ingress/Egress. 7.3. Nothing within this Agreement shall in any way or manner waive any defenses or limitations on damages provided for, under or pursuant to the Colorado Governmental Immunity Act (Sec. 24-10-101, et seq. C.R.S.), the Constitution, or the Charter, or under the common law or the laws of the State of Colorado, or of the United States, including but not limited to Section 42 U.S.C.1983. 8. Withdrawal of permission for any Person to Access or Use Airport. Pursuant to the Airport Rules and Regulations, the Airport Director may summarily deny access and use of the Airport to any person that is otherwise authorized to access and use the Airport pursuant to this Agreement who is in violation hereof or who violates Airport Rules and Regulations and is advised thereof but refuses to comply with such Rules and Regulations; provided, however, that such denial of access and use does not unreasonably impair the ability of the Districts to pay their indebtedness. Any person denied access and use of the Airport shall be given a reasonably opportunity to correct such action as gives rise to such denial of access and use. Notwithstanding the foregoing, any person may be denied access to and use of the Airport, with or without the opportunity to correct the violation, if required by any FAA or TSA rule, regulation or determination or if necessary or appropriate to comply with the Cities' federal grant assurances, regardless of the impact of such a denial on the ability of the District to pay its indebtedness. 9. Grant of Easement to Cities. Developer shall grant to Cities for the term of this Agreement a non-exclusive easement to enter upon the Airpark taxilane for the purpose of. (i) assuring compliance by Developer and/or Districts with the terms of this Agreement and compliance by Districts with the terms and conditions of the IGA; and(ii) allowing access by emergency and city service vehicles. This grant of easement shall be by separate instrument, in form reasonably approved by the Cities' Attorney(s), and shall be consented to and subrogated by the holder of any lien encumbering the underlying fee, and shall be deemed effective when recorded. 10. CC&R Provisions. In order to assure Cities that the Airpark taxilane will be properly operated and maintained so as to meet all local, state and federal standards applicable to Airport and/or aircraft operations, Developer and/or Districts shall adopt and record Airpark CC&R's, or amend current Airpark CC&R's, to provide in language and form including the following: 10.1. A prohibition against any motor vehicle, except aircraft, airport service vehicles, emergency vehicles, vehicles designated by any Airport approved fixed base operator as mobile fueling vehicles, and vehicles performing maintenance/safety inspections of the taxilane and taxilane clearance areas,being used on or accessing thru the Airpark taxilane, except in areas specifically designated for motor vehicle use, and against any motor vehicle, for any reason, being parked on or impeding aircraft movement on the 10 Airpark taxilane or any taxilane safety area. 10.2 The creation in accordance with State law of an Owners' Association or other common interest ownership entity that would permit the imposition of fees within all of the Adjacent Property. 10.3. The CC&R's shall be subject to prior review and reasonable approval by the Cities. An approved copy of the CC&R's shall be attached as an exhibit to any IGA between the Cities and the District(s). 10.4. The CC&R's shall provide that any on-Airport approved FBO shall have access to conduct business with all users within the Airpark,provided that such on-Airport FBO agrees to comply with the provisions of Paragraph 5.4 of this Agreement. 10.5 The CC&R's shall, in the event the organization of the Districts does not take place as contemplated by this Agreement or the Districts otherwise fail to comply in any way whatsoever, with the terms of the IGA, obligate the Developer and, as a successor to the Developer, an Owner's Association with the power to impose fees within all of the Adjacent Property, to pay annually an amount equal to the Fee, and as adjusted, and other amounts that would have been required to be paid by the Districts under Paragraph 3 of the IGA. 11. Term of Agreement. 11.1 This Agreement and the Access Easement granted herein, shall terminate fifty (50) years after the effective date of the IGA or the date on which the Developer has executed a written amendment to this Agreement confirming that the Developer has waived its right to obtain approval of a service plan under Paragraph 1 of this Agreement. 11.2(a) This Agreement and the Access Easement granted herein shall be deemed to have terminated and shall no longer be of any force or effect as to both the southeast and the north parcels of the Adjacent Property if all of the Conditions stated in Paragraph 1 have not been fully satisfied as to the southeast parcel and/or if the IGA for both the southeast and north parcels (or the amendment referenced in Paragraph 1.6(a) above)has not been entered into on or before September 30, 2012. (b) This Agreement and the Access Easement granted herein shall be deemed to have terminated and shall no longer be of any force or effect as to only the north parcel of the Adjacent Property is all of the Conditions stated in Paragraph 1 have not been fully satisfied as to the North parcel and/or the IGA for the North parcel (or the amendment referenced in Paragraph 1.6(a) above)is not in full force and effect as of September 30,2019. 11.3 In addition, this Agreement and the Access Easement granted herein shall be deemed to have terminated and shall no longer be of any force or effect as to either or both the southeast and the north parcels of the Adjacent property if: 11 11.3.1 Developer provides written notice of termination to the Cities; or 11.3.2 Subject to the cure provisions of Paragraph 12 of this Agreement, if the Cities do not receive the payments required to be paid to it under the terms of this Agreement and under any IGA, in which event the Cities shall have the right to terminate this Agreement and end all access to the Airport under the terms and conditions of this Agreement. 11.4 Nothing herein shall prevent the parties from negotiating and agreeing in writing to an extension of the above deadlines, which extension may be approved by the City Managers of the Cities upon their finding that such extension is in the best interests of the Cities, provided that the City Managers shall only be authorized to approve one extension for a period of time not to exceed five(5) years. 12. Remedies. 12.1. In the event of default by Developer, Cities may: (i) cancel this Agreement sixty (60) days after Cities give written notice to Developer of the default, if within such period the default has not been cured; or(ii) where the default has caused a monetary loss to Cities or may expose Cities to liability for money damages, Cities may, if the default has not been cured within the sixty(60) day period, proceed with whatever steps Cities may deem necessary in order to enforce the rights and remedies available to Cities under this Agreement, at law or in equity, including, without limitation, the right of specific performance of this Agreement or to recover its damages from Developer. 12.2 In the event of default by Cities, Developer may: (i) cancel this Agreement sixty (60) days after Developer gives written notice to Cities of the default, if within such period the default has not been cured; or(ii) where the default has caused a monetary loss to Developer or may expose Developer to liability for money damages, Developer may, if the default has not been cured within the sixty(60) day period,proceed with whatever steps Developer may deem necessary in order to enforce the rights and remedies available to Developer under this Agreement, at law or in equity, including, without limitation, the right of specific performance of this Agreement or to recover its damages from Cities. 13. Notices. All notices required or permitted to be given hereunder to any party to this Agreement shall be in writing and may be given in person or by United States mail or by delivery service. Any notice directed to a party shall become effective upon the earliest of the following: (i) actual receipt by that party; (ii) delivery to the designated address of that party, addressed to that party; (iii) delivery by overnight courier; or(iv) if given by certified United States mail, return receipt requested, forty-eight (48) hours after deposit with the United States Postal Service,postage prepaid, addressed to that party at its designated address. The designated address of a party shall be the address of that party shown below or such other address as that party, from time to time, may specify by written notice to the other party: 12 Cities: Fort Collins City Clerk City Hall West 300 LaPorte Avenue Fort Collins, CO 80521 and Loveland City Clerk 500 E. 3`d St., Ste. 230 Loveland, CO 8053 With copies to: Fort Collins/Loveland Municipal Airport Director 4900 Earhart Road Loveland, CO 80538 Developer: Rocky Mountain Airport Investments, LLC Att'n: Martin Lind 1625 Pelican Lakes Point, Suite 201 Windsor, Colorado 80550 With copies to: Gary R. White White, Bear&Ankele Professional Corporation 2154 E. Commons Ave, Suite 2000 Centennial, CO 80122 14. Further Assurances. Promptly upon the request of another party to this Agreement, a party shall do such further acts and shall execute, have acknowledged and deliver to the other party, as appropriate, any and all further documents or instruments reasonably requested in order to carry out the intent and purpose of this Agreement. 15. General Provisions. 15.1. Modification and Waiver. Except as expressly provided herein to the contrary, no supplement, modification or amendment of any term of this Agreement shall be deemed binding or effective unless in writing and signed by the parties hereto. No waiver of any of the provisions of this Agreement shall constitute or be deemed a waiver of any other provision, nor shall any waiver be a continuing waiver. Except as otherwise expressly provided herein, no waiver shall be binding unless executed in writing by the party making the waiver. 15.2. Exhibits. The Exhibits referred to herein and attached hereto (the "Exhibits") are incorporated herein by reference. 15.3. Time is of the Essence. Whenever this Agreement sets forth any time for any act to be performed by any of the parties, such time shall be deemed to be of the essence under this Agreement. 15.4. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law, but if any provision 13 of this Agreement shall be deemed invalid or prohibited thereunder, such provision shall be deemed severed from this Agreement, and this Agreement shall otherwise remain in full force and effect. 15.5. Entire Agreement. This Agreement, including the Exhibits attached hereto, constitutes the entire agreement among the parties. All terms and conditions contained in any other writings previously executed by the parties and all prior and contemporaneous arrangements and understandings between the parties are superseded hereby. No agreements, statements or promises about the subject matter hereof shall be binding or valid unless they are contained herein. 15.6. Counterparts. This Agreement may be executed by the signing in counterparts. The execution of this instrument by each of the parties signing a counterpart hereof shall constitute a valid execution, and this instrument and all of its counterparts so executed shall be deemed for all purposes to be a single instrument. 15.7. Applicable Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Colorado and venue for any judicial proceedings to enforce this Agreement shall be in Larimer County Court, except that venue for any federal cause of action shall be in the United States District Court for the District of Colorado, Denver Colorado. 15.8. Headings and Construction. The descriptive headings of the paragraphs of this Agreement are inserted only for convenience and shall not define, limit, extend, control or affect the meaning or construction of any provision herein. Where the context requires herein, the singular shall be construed as the plural and neuter pronouns shall be construed as masculine and feminine pronouns, and vice versa. This Agreement shall be construed according to its fair meaning and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement. 15.9. Non-Discrimination. As part of the consideration hereof, Developer does hereby covenant and agree, as a covenant running with the land, that (i) no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in the use of the Airpark taxilane; (ii) that in the construction of any improvements on, over or under the Airpark taxilane and the furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; and(iii) that the Airpark taxilane shall be used, operated and maintained in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. 15.10. Cities' Right to Develop the Airport. Cities reserve their right to further alter, 14 develop, expand or improve the Airport or, in their sole discretion, to close the Airport. In the event that the Cities permanently close the Airport, this Agreement and any access to the Airport granted pursuant to this Agreement shall immediately terminate, and the Cities shall have no further responsibility or liability to the Developer under this Agreement. 15.11. No Agency. The parties hereto understand and agree that: (i) the requirements imposed on Developer by the terms of this Agreement shall not be construed to make Developer, or any of its officers, employees or agents, an officer, employee or agent of the Cities; and (ii) the requirements imposed on Cities by the terms of this Agreement shall not be construed to make Cities, or any of their officers, employees or agents, an officer, employee or agent of Developer. 15.12. No Partnership; Third Parties. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership,joint venture or other arrangement between Developer and Cities. No term or provision of this Agreement is intended to, or shall, be for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder. 15.13. Declaration of Termination;No Warranty of Non-interference by Entities Outside Cities' Control. The parties hereto understand and recognize that the actions of local governmental units, parties holding land or living adjacent to the Airport, and governmental entities not subject to Cities influence and control, may have, in the future, adverse impacts upon the number and character of flight and other operations at the Airport. In such event, Developer has the option of declaring this Agreement terminated on ninety(90) days written notice to Cities and agrees not to seek recovery of any damages from Cities. 15.14. Warranty of Authority. The persons executing this Agreement for City and for Developer warrant that they are authorized by the respective party whom they represent to execute this Agreement. 15.15. Effective Date. The effective date of this Agreement shall be the date first above written. 15.16. Assignment. Except as intended in Paragraph 15.17 below, this Agreement shall not be assigned by Developer without the prior written consent of the Cities, which consent shall not be unreasonably withheld. However, any such assignment shall not relieve the Developer from liability for compliance with this Agreement. 15.17. Binding Effect. It is the intent of the parties that the respective rights and obligations set forth in this Agreement shall constitute covenants and equitable servitudes that run with the land and shall benefit and burden any successors and assigns of the parties. 15 15.18. Survival of Terms. To the extent necessary to carry out all of the financial and performance obligations that may have accrued as of the date of any termination under this Agreement, such financial and performance obligations shall continue to be enforceable under this Agreement beyond the termination date of this Agreement. 15.19. Third Party Beneficiaries. No rights created in favor of any party to this Agreement shall be construed as benefiting any other person or entity that is not a party to this Agreement. 15.20. Recording. This Agreement shall be recorded by the Cities with the Larimer County Clerk and Recorder at the Developer's expense. 15.21. Litigation Expenses and Attorneys' Fees. In the event of the default of any of the provisions hereof by either party, as determined by a court of competent jurisdiction,the defaulting party shall be liable to the non-defaulting party for the non-defaulting party's reasonable costs of litigation incurred by reason of the default, including reasonable attorneys' fees. 16. Avigation Easement. The Developer shall grant the Cities an Avigation Easement as further described on EXHIBIT "E". This easement shall be granted at the time of execution of this Agreement and shall burden all of the Adjacent Property. 17. Airport Security Plan Compliance. Developer agrees that any access granted to the Airport from any portion of the Adjacent Property shall be contingent upon full compliance with the TSA and the FAA rules, regulations or dictates on Airport security, and upon compliance with the Airport Security Plan, as they currently exist, or as they may be amended in the future. Accordingly, notwithstanding any conflicting provision herein, Airport access from the Adjacent Property shall be terminated by the Cities in the event of such noncompliance with TSA and FAA rules, regulations or dictates, or in the event of noncompliance with the Airport Security Plan or Airport Rules and Regulations. Prior to execution of any IGA with a District the Developer shall submit and obtain approval by the Cities, TSA and FAA a detailed Airpark Security Plan describing procedures, equipment and methodology to ensure operational compliance with the Airport's Security Plan and TSA regulations. The Airpark Security Plan shall provide that it will be modified as necessary in the future to maintain full compliance with any new or amended TSA regulations. The cost of compliance with this Paragraph 17, including any required construction, maintenance, repairs and modifications, shall be the joint and severable obligation of the Developer and of the District, as provided in Paragraph 10 of the IGA. Unless specifically required by law and notwithstanding the foregoing, such compliance shall not be more restrictive than required elsewhere in the Airport under similar conditions and circumstances. 18. Compliance with the Airport Minimum Standards. All commercial aeronautical uses within the Adjacent Property shall maintain full compliance with the Airport Minimum Standards as they currently exist, or as they may be amended in the future by public action of the City Councils of each City. Accordingly, Developer agrees that any access granted to the Airport from any portion of the Adjacent Property shall be contingent upon full compliance with the Airport Minimum Standards for the Airport dated September 26, 2008, a copy of which is attached hereto and incorporated herein by this reference as EXHIBIT "F," and as they may be amended in the future by public action of the City Councils of each City or as set forth in the Airport Intergovernmental Agreement between the 16 Cities. However,based on the Fee to be paid to the Cities as referenced in paragraph E. above, the Cities agree that under this Agreement that the Developer satisfies the financial surety requirements of Section 1.7.4 of the Minimum Standards. In addition, the Parties agree that if any provision of the Minimum Standards is in conflict with a provision of this Agreement, the provisions of the Minimum Standards shall control over the conflicting provision in this Agreement as applied to commercial aeronautical uses on the Adjacent Property unless this Agreement expressly provides that the provision of this Agreement shall control over the conflicting provision of the Minimum Standards. 19. Compliance with Grant Assurances. In the event that the FAA notifies the Cities verbally or in writing of an alleged violation of its grant assurances to the FAA as a result of this Agreement, or as a result of the action or inaction of any off-airport uses, the Developer shall fully cooperate with the Cities to immediately rectify such violation. In the event that the FAA notifies the Cities formally of such a violation, such as but not limited to notification by a Director's Determination, the Cities may, in their sole discretion, and without being required to appeal any such FAA determination, terminate this Agreement and any access to the Airport granted pursuant to this Agreement. However, if the FAA grants to the Cities a period of time to cure the violation, the Cities agree,prior to such termination, to allow the Developer that period of time to cure to the satisfaction of the Cities the circumstances causing the grant assurance violation. 20. Preservation of public health, safety and welfare.Nothing herein shall be construed as a waiver of the Cities' police power to protect the public health, safety and welfare. Accordingly, notwithstanding any conflicting provision herein, the Cities may terminate this Agreement and any access to the Airport granted pursuant to this Agreement as needed to protect the public health, safety and welfare or as required by a federal, state or local agency, providing in the case of termination, the Developer is given the rights to cure set forth in Paragraph 19 of this Agreement. Temporary termination of access may occur without an opportunity to cure in emergency situations as determined by the Airport Director. If the Airport Director temporarily terminates access due to an emergency situation,the Airport Director shall provide the Developer with a written explanation of the reasons for the closure and an estimated opening date. IN WITNESS WHEREOF the parties hereto have affixed their signatures the date first above written. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.] 17 DEVELOPER: ROCKY MOUNTAIN AIRPORT INVESTMENTS, LLC, a Colorado limited liability company By: Martin Lind, Manager STATE OF COLORADO ) ss. COUNTY OF ) The foregoing was acknowledged before me this day of 2011 by Martin Lind as Manager of Rocky Mountain Airport Investments, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission Expires Notary Public 18 I CITY OF FORT COLLINS, a Colorado home rule municipality By: Darin Atteberry, Fort Collins City Manager ATTEST: Fort Collins City Clerk STATE OF COLORADO ) ss. COUNTY OF LARIMER ) The foregoing was acknowledged before me this day of 2011 by Darin Atteberry, as City Manager of Fort Collins, Colorado. Witness my hand and official seal. My Commission Expires Notary Public APPROVED AS TO FORINI: Stephen J. Roy, Fort Collins City Attorney 19 CITY OF LOVELAND, a Colorado home rule municipality By: William D. Cahill, Loveland City Manager ATTEST: Loveland City Clerk STATE OF COLORADO ) ss. COUNTY OF LARIMER ) The foregoing was acknowledged before me this _ day of 2011 by William D. Cahill as City Manager of Loveland, Colorado. Witness my hand and official seal. My Commission Expires Notary Public APPROVED AS TO FORM: John R. Duval, Loveland City Attorney 20 EXHIBIT "A" (The "Airport") 21 Exhibit"A" to the Intergovernmental Agreement Airport Legal Description All of the Barnstorm Second.Addition to the City of Loveland, Colorado legally described as follows: All that portion of Section 28 and Section 33, Township 6 North, Range 68 West, and that portion of Section 4, Township 5 North, Range 68 West of the 6th P.M., Larimer County, Colorado, more particularly described as follows: Commencing at the Southwest corner of said Section 28, with all bearings relative to the West line of the Southwest Quarter of said Section 28 considered as bearing North 00°30'00" East, thence South 87°28'49" East, 50.00 to the TRUE POINT OF BEGINNING; thence North 00°30'00" East, 2678.39 feet; thence North 00'29'50" East, 2639.76 feet; thence South 86040'52" East, 795.07 feet; thence South 25°27'52" East, 107.65 feet; thence South 38°35'52" East, 152.85 feet; thence South 03°10'08" West, 157.83 feet; thence South 86'40'52" East, 231.41 feet; thence South 16°10'52" East, 131.00 feet; thence South 11°10'52" East, 150.00 feet; thence 150.48 feet along a tangent curve concave to the East, delta angle 39°44'00", radius 217.00 feet and chord South 31°02'52" East, 147.49 feet; thence along the centerline of the Louden Ditch for the following eighteen courses and distances: South 50°54'52" East, 115.00 feet; thence 68.45 feet along a tangent curve concave to the North, delta angle 43°06'00", radius 91.00 feet and chord South 72°27'52" East, 66.85 feet;thence North 85°59'08" East, 42.00 feet; thence 85.50 feet along a tangent curve concave to the South, delta angle 53°50'00", radius 91.00 feet and chord South 67°05'52" East, 82.39 feet; thence South 40°10'52" East, 167.00 feet; thence South 47010152" East, 170.00 feet; thence South 42'10'52" East, 118.00 feet; thence 109.88 feet along a tangent curve concave to the West, delta angle 16°42'00", radius 377.00 and chord South 33°49'52" East, 109.50 feet; thence 80.52 feet along a tangent reverse curve concave to the East, delta angle 29°12'00", radius 158.00 feet and chord South 40004152" East, 79.65 feet; thence 81.95 feet along a tangent reverse curve concave to the West, delta angle 36°24'00", radius 129.00 feet and chord South 36°28'52" East, 80.58 feet; thence South 18°16'52" East, 91.00 feet; thence 68.99 feet along a tangent curve concave to the East, delta angle 18°08'00", radius 218.00 feet and chord South 27°20'52" East, 68.71 feet;.thence South 36024152" East, 113.00 feet; thence 65.69 feet along a tangent curve concave to the East, delta angle 17°16'00", radius 218.00 feet and chord South 45°02'52" East, 65.45 feet; thence South 53040152" East, 256.00 feet; thence 135.14 feet along a tangent curve concave to the West, delta angle 26°42'00", radius 290.00 feet and chord South 40°19'52" East, 133.92 feet; thence 265.00 feet along a compound tangent curve concave to the West, delta angle 17°46'00", radius 82.17 feet and chord South 18005'52" East, 81.84 feet; thence 90.36 feet along a tangent reverse curve concave to the East, delta angle 43°08'44", radius 120.00 feet and chord South 30047'14" East, 88.24 feet to the North-South Quarter line of Section 28; thence South 00°39'13" West, 577.38 feet along the North-South Quarter line of Section 28, thence South 87°08'50"East, 2635.80 feet along the East-West Quarter line to the East One-Quarter corner of Section 28; thence South 00°32'09" West, 2647.71 feet to the Southeast comer of Section 28; thence South 00°00'10" West, 2599.29 feet to the East One-Quarter corner of Section 33; thence South 00°00'4I" East, 2568.62 feet along the East line of Section.33.to a point whence the Southeast comer of said Section 33 (and the Southwest corner of Section 34) bears South 00°00'41" East, 30.00 feet; thence North 89°59'19" East, 30.00 feet; thence South 00°00'41" East, 30.48 feet to the South line of Section 34 (and the North line of Section 3); thence along the East right-of-way line of County Road No. 7 South 01°45'45" West,2456.00 feet to the Northeasterly right-of-way line of Union Pacific Railroad; thence along said right-of-way as follows: North 48056'19" West, 3413.73 feet; thence 373.88 feet along a nontangent curve concave to the North, delta angle 5°43'13", radius 3744.93 feet and chord North 46°04'43" West, 373.73 feet; thence South 89°06'05" East, 177.04 feet along the South line of Section 33 to a point whence the South One Quarter corner of said Section 33 bears South 89006105" East, 76.88 feet; thence 794.66 feet along a nontangent curve concave to the North, delta angle 12°34'41", radius 3619.83 feet and chord North 38°52'49" West 793.07 feet; thence North 32°35'28"West, 3737.67 feet to the East right-of-way of County Road No. 9; thence North 00°08'21" West, 1619.75 feet along said East right-of-way to the TRUE POINT OF BEGINNING. EXHIBIT`B" (Adjacent Property, including the southeast parcel and the north parcel, and the Airpark) 15 EXHIBIT !/B" North Parcel: Tract B,Airpark North Addition, City of Loveland,County of Larimer, State of Colorado Southeast Parcel: Lot 2, Block 1, East Loveland Industrial Seventeenth Subdivision, City of Loveland, County of Larimer, State of Colorado Lot 1, Block 1, East Loveland Industrial Seventeenth Subdivision, City of Loveland, County of Larimer, State of Colorado Lot 3, Block 1, East Loveland Industrial Seventeenth Subdivision,City of Loveland, County of Larimer, State of Colorado Lot 1, Block 2, East Loveland Industrial Seventeenth Subdivision,City of Loveland, County of Larimer, State of Colorado A tract of land located in the West Yz of Section 34,Township 6 North, Range 68 West of the 61"P.M., in the City of Loveland,County of Larimer,State of Colorado,and being more particularly described as follows: Considering the West line of the Northwest''Y.of said Section 34,as bearing North 00922'13"West and with all bearings contained herein relative thereto: Beginning at the West''Y.corner of said Section 34; thence along the West line of the Northwest''/.of said Section 34, North 00922'13"West,a distance of 768.30 feet to the South line of that parcel described in Book 1768 at Page 133; thence along said South line and subsequently the South line of that parcel described in Book 2116 at Page 819, North 89926'17"East,a distance of 2,436.42 feet to the Westerly right-of-way line of Interstate Highway 25;thence along said Westerly right-of-way line,South 00936'41"West,a distance of 1,380.79 feet to the North line of that parcel described at Reception No. 2003013458; thence along said North line,South 89922'13" West,a distance of 889.16 feet to the Northwest corner of said parcel;thence along the West line of said parcel,South 00937'47" East,a distance of 929.75 feet to the North line of that parcel described in Book 2082 at Page 541;thence along said North line,North 89955'19"West,a distance of 1,527.70 feet to the West line of the Southwest''Y. of said Section 34;thence along said West line of the Southwest Y,of said Section 34; thence along said West line, North 00922'35"West, a distance of 1,525.95 feet to the Point of Beginning. Excepting therefrom that portion dedicated to the City of Loveland,a Colorado Municipal Corporation 1. by Deed of Dedication for Right-of-Way recorded August 1,2003,at Reception no. 20030098330. 4 County of Larimer,State of Colorado EXHIBIT "C" (Intergovernmental Agreement) 23 EXHIBIT "C" AIRPORT ACCESS INTERGOVERNMENTAL AGREEMENT THIS AGREEMENT is entered into this day of , 2011, by and between a Colorado Metropolitan District, hereinafter called "District", and the Cities of Fort Collins and Loveland, Colorado, home rule municipalities,jointly hereinafter called "Cities". RECITALS: WHEREAS, Cities operate a municipal airport within the City of Loveland in Larimer County, Colorado, known as the Fort Collins/Loveland Municipal Airport (the "Airport"), which is legally described in EXHIBIT "A" attached hereto and incorporated herein by reference, and further described in the Intergovernmental Agreement between the Cities of Fort Collins and Loveland, Colorado dated May 16, 2000. WHEREAS, certain real property which is immediately adjacent to the Airport(the "Adjacent Property"), referred to generally as the "north" parcel or the "southeast"parcel, is being developed into an airpark which will be comprised of all the platted lots within the Adjacent Property that border and have, or are capable of having, aircraft access to the Airport from said individual lots ("the Airpark"). The Adjacent Property, including those parcels generally identified as the "north" parcel and the "southeast' parcel, is more particularly identified in the legal description attached hereto and incorporated herein by this reference as EXHIBIT "B". WHEREAS, Cities and Rocky Mountain Airport Investments, LLC, a limited liability company("Developer') entered into a certain "Cities of Loveland and Fort Collins Airport Access Agreement' dated ("Access Agreement"), under which the Cities agreed to enter into this Intergovernmental Agreement with one or more Metropolitan Districts, to be established by Developer, allowing the Developer and his successors and assigns, the owners of individual lots in the Airpark ("Lot Owners"), and the Lot Owners' tenants, subtenants, guests and invitees within the Airpark, to access the Airport from the Airpark and to access the Airpark from the Airport, subject to the provisions of the Access Agreement and the Airpark Declaration of Covenants. Conditions and Restrictions of Record("CC&R's"), if all of the conditions set forth in Paragraph I of the Access Agreement are met. WHEREAS, as used in the Access Agreement related to obligations of the Developer to construct improvements, the term "Developer" shall include the District. The District shall have full power and authority to perform Developer obligations under the Access Agreement. I WHEREAS, in consideration for the Access Easement to the Airport from the Airpark, the District shall, subject to annual adjustment,pay a fee annually to the Cities in an amount equal to 5.000 mills based on the assessed value of all real property and improvements within the Adjacent Property(the "Fee"). The parties hereto acknowledge that the Fee is intended to provide the Airport with a source of revenue which is equal to, or greater than, the revenue that would otherwise be provided if the Airpark were developed upon Airport property and to ensure that the Lot Owners pay fees and charges to the Cities that are at parity with those paid to the Cities by their on-Airport tenants. WHEREAS, District is a Metropolitan District organized and in good standing under the laws of the state of Colorado and has authority to enforce the Airpark CC&R's, which are recorded with the Larimer County Recorder at WHEREAS, Cities and District acknowledge that the Conditions stated in Paragraph 1 of the Access Agreement have been met. WHEREAS, to further the development of the Adjacent Property, and the Airpark located therein, as a business park, it is in the best interest of Cities to enter into this Intergovernmental Agreement under the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises contained herein, the parties agree as follows: 1. Definitions. 1.1. Except as provided in Subparagraph 1.2 below or as expressly defined elsewhere in this Intergovernmental Agreement, the terms,phrases, words and their derivatives used in this Intergovernmental Agreement shall have the meanings given in the Fort Collins/Loveland Municipal Airport Rules and Regulations as adopted by the Fort Collins and Loveland City Councils and any subsequent amendments thereto (the "Airport Rules and Regulations"). 1.2. The terms "based" and "based location" have the same meaning as indicated in the definitions section of the Airport Rules and Regulations, except that any reference to "airport" or"the Airport" contained in such definitions will also mean the Airpark and aircraft that, by definition, is based at the Airpark shall be deemed to be based at the Fort Collins/Loveland Municipal Airport while this Intergovernmental Agreement is in effect. The terms "Airport Director", "City Manager" and "City Clerk", as used herein, denote those certain officials of the Cities and any designee of each such official. 1.3. Notwithstanding the foregoing, in the event of a conflict between this Intergovernmental Agreement and the Airport Rules and Regulations, and other documents that apply to on-airport tenants, then, for grant assurance purposes, the Airport Rules and Regulations, and other documents that apply to on-airport tenants shall control and govern. 2 2. Grant of Access. 2.1. Cities and the District agree that the District, the Developer and his successors and assigns, the Lot Owners, and the Lot Owners' tenants, subtenants, guests and invitees within the Airpark, shall have, and Cities hereby grant unto Developer, aircraft access to the Airport from the Airpark through the designated Point of Ingress/Egress (defined in Paragraph 3.1 of the Access Agreement) (the "Access Easement") as provided in and in accordance with the terms and conditions of the Access Agreement, and the Airpark CC&R's against the property that makes up the Airpark. The grant of the Access Easement made in the Access Agreement is contingent upon the prior execution of this Agreement with the District for aircraft access and use of the Airport from the Airpark under the terms and conditions stated in the Access Agreement. All of the other conditions outlined in Paragraph 1 of the Access Agreement, and its sub-paragraphs, have been fully satisfied prior to execution of this Agreement. 3. Compensation. 3.1. The Cities shall be compensated jointly by the District's payment to the City of Loveland or to such other entity as may be designated by the Cities an amount equal to 5.000 mills based on the assessed value of all taxable real property and improvements (excluding personal property) within the Adjacent Property. The parties hereto acknowledge that this five mill fee (the "Fee") with annual and other adjustments set forth herein, is intended to provide the Airport with a source of revenue which is equal to, or greater than, the revenue that would otherwise be provided if the Airpark were developed upon Airport property. In addition, the Fee is intended to ensure that the Lot Owners pay fees and charges to the Cities that are at parity with those paid to the Cities by their on-Airport tenants. Such funds shall be deposited into the Airport Fund and shall be used solely for Airport purposes. The mill levy shall be collected through the Larimer County Treasurer's office, which office shall forward payment to the District. The District shall then make payment of the Fee to the City of Loveland within 10 business days of receipt of any such payment from the Latimer County Treasurer's office. The District has full voter authorization under Article X, Section 20 of the Colorado Constitution ("TABOR") to increase the mill levy on the Adjacent Property, without the requirement of any future election, in order to provide any increases in revenue to the Cities as necessary to maintain compliance with the Cities' grant assurances to the Federal Aviation Administration ("FAA") and to enter into this Agreement as a fully enforceable multi-fiscal year financial obligation under TABOR. 3.2. The amount of the Fee may be adjusted at the written request of either the Cities or the District after each calendar year of the term of this Intergovernmental Agreement providing the party requesting the adjustment makes the request in writing within 120 days after the end of such calendar year. The Fee amount may also be adjusted at any time by the Cities upon written notice from the FAA stating that such adjustment is necessary to ensure continued grant assurances compliance. The adjusted Fee shall be based upon an evaluation of the amount of developed square footage of land within the Adjacent Property. Specifically, the square footage of land within the Adjacent Property shall be assigned a revenue amount that is equal to the ground lease rate the development would pay to the Cities if the development had been 3 located on Airport property. The Cities' then existing rental rate, including any adjustments for inflation, for unimproved land shall be used for this calculation. If this revenue amount is lower than the revenue that would otherwise be provided to the Cities if located on Airport property, the Fee amount shall be increased accordingly. In this event, the District shall be responsible for providing the additional Fee revenue source to the Cities without regard to approval of an increase in the mill levy assessed on the Adjacent Property. If the revenue amount is higher than the revenue that would otherwise be provided to the Cities if located on Airport property, the Fee amount shall be decreased accordingly. The adjustment is intended to ensure that the Fee amount provides the Airport with a source of revenue which is not less than the revenue that would otherwise be provided if the Airpark were developed upon Airport property and to ensure that the Lot Owners pay fees and charges to the Cities that are at parity with the fees and charges paid to the Cities by their on-Airport tenants. In calculating this comparison revenue, the Cities' "unimproved land" shall be deemed to be those lease properties for which the Cities did not build and provide site infrastructure to serve the leased land, such as utilities, taxiways and streets, but rather such infrastructure was constructed by the Cities' lessee. 3.3. Notwithstanding the provisions of Paragraph 3.2 above, if for any reason in any one year the amount of the Fee to be paid under Paragraph 3.1 above is less than the fees and charges required to be paid to the Cities by the Cities' on-Airport tenants having similar uses to the Lot Owners, the District shall pay to the Cities an amount representing the difference between the amount of the Fee actually paid under Section 3.1 and the greater amount paid by the Cities' said on-Airport tenants. Such amount shall be paid by the District to the Cities within sixty(60) days after the District receives an invoice from the Cities for such additional amount. 3.4. In the event the Cities terminate access in accordance with the Access Agreement for more than two consecutive months the District shall not be liable for the Fee, as adjusted, for the period of closure extending beyond such two month period until the access is reopened, so long as such termination of access is not the fault of the Developer, the District or the Lot Owners. 3.5. The District shall be responsible and liable to the City for any and all maintenance costs incurred by the Cities for the portion of the taxiway improvement to be built by the Developer under Paragraph 2.2 of the Access Agreement including the barrier fence and control gates. Maintenance costs shall mean all costs incurred by the Cities for snow removal, sweeping, repair, lighting, electricity, resurfacing, replacement and all other expenses necessary to maintain that portion of the taxiway improvements and the fence and gates built by the Developers under Paragraph 2.2 of the Access Agreement. The District shall so reimburse the Cities within thirty(30) days of receiving an invoice from the Cities for the costs to be reimbursed. The reimbursement of these costs shall be in addition to the Fee and other amounts to be paid to the Cities pursuant to Paragraph 3. of this Agreement. 3.6.In the event of the District's nonpayment of any of the amounts due to the Cities under this Paragraph 3.,the Cities may cancel the Access Agreement sixty(60)days after the Cities give written notice to the District of such nonpayment, if within such sixty (60) day period the nonpayment has not been cured by the District. 4. Duration of Intergovernmental Agreement. The duration of the rights,privileges and 4 authorizations granted in this Intergovernmental Agreement shall be for the fifty(50) year term of the Access Agreement or as extended as provided in Paragraph 11.1 of the Access Agreement, but subject to earlier termination by either party pursuant to the provisions of this Intergovernmental Agreement and the Access Agreement. 5. Non-Exclusive Rights. This Intergovernmental Agreement is non-exclusive and nothing herein shall prevent the Cities from accessing or using the Airport or shall prohibit the Cities from permitting other persons to access or use the Airport. Nothing herein shall be construed to bar the Cities from further alteration, development, expansion or improvement of the Airport, and the Cities expressly reserve the right to do so. 6. No Assignment. The District shall not sell, assign or otherwise transfer, by operation of law or otherwise, or make any attempt to sell, assign or otherwise transfer, by operation of law or otherwise, this Intergovernmental Agreement, or any rights, privileges or authorizations granted under this Intergovernmental Agreement. Any purported sale, assignment or other transfer of this Intergovernmental Agreement, or any rights, privileges or authorizations granted under this Intergovernmental Agreement, shall be deemed void. 7. Airpark Taxilane Signage. District shall place or post signs on the Airpark property to prohibit use of the Airpark taxilane or access to the Airport from the Airpark by unauthorized persons. Signs shall be placed so as not to interfere with or be an obstruction to taxiing aircraft. Cities may require the District to add, remove or replace signage, where the Airport Director or designee determines existing signage to be inadequate, improper or a safety hazard. The District shall be responsible for the maintenance of such signs. 8. Airpark Conditions. 8.1. No motor vehicle of any kind, except aircraft, airport service vehicles, emergency vehicles, Airport approved FBO service vehicles, airplane tugs, vehicles for towing aircraft, and vehicles performing maintenance/safety inspections of the taxilane/taxilane clearance areas, shall be used on the Airpark taxilane, except in areas specifically designated for motor vehicle use. 8.2. No motor vehicle of any kind or for any reason shall be parked upon, or impede aircraft movement on, the Airpark taxilane or any taxilane safety area except in the course of maintenance/safety inspections or maintenance of the taxilane/taxilane clearance area. 8.3. No person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in the use of the Airpark taxilane; and the Lot Owners, their tenants, subtenants, guests and invitees, shall use the taxilane subject to the Airpark CC&R's and in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Park 21,Nondiscrimination in Federally-assisted programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. 9. Commercial Aeronautical Services Within the Adjacent Property and Airpark. 5 9.1 The Parties agree that the following commercial aeronautical activities that FBOs are authorized to conduct and provide to the general public on the Airport, as provided in Section 2.2 of the Airport Minimum Standards attached hereto as EXHIBIT "C", shall not be permitted within the Adjacent Property and the Airpark except as otherwise expressly authorized in Paragraph 9.2 below: all of the Aircraft Line Services described in Section 2.2.1. of the Minimum Standards; aircraft, airframe and engine repair and maintenance; flight training; aircraft rental; and related other services such as the sale of sectional or world aeronautical charts covering the territory within 300 miles of the Airport, flashlight and batteries, and plotters and computers generally used by pilots for flight planning. Notwithstanding the foregoing, fuel and other FBO goods and services may be delivered, provided and sold by any approved on-Airport FBO to customers located within the Airpark. 9.2 Notwithstanding the provisions of Paragraph 9.1 above, the following activities and uses shall be allowed to be conducted within the Adjacent Property and the Airpark: the construction, installation, maintenance and operation of a hangar or building or buildings to be used for the parking, storage, servicing, repair, maintenance, modification and construction of aircraft that are used for private corporate or personal use; aircraft research and development; aircraft manufacturing of parts and components; assembly of aircraft parts and components; fmal assembly of aircraft parts and components into completed aircraft; flight testing associated with assembled aircraft; painting of manufactured aircraft and parts; and air freight services such as those provided by United Parcel Service and Federal Express. 10. Airport Security Plan Compliance. District agrees that any access granted to the Airport from any portion of the Adjacent Property shall be contingent upon full compliance with any Transportation Security Administration ("TSA") and FAA rules, regulations or dictates on Airport security, and upon compliance with the Airport Security Plan, as they currently exist, or as they may be amended in the future. Accordingly, notwithstanding any conflicting provision herein, Airport access from the Adjacent Property shall be terminated by the Cities in the event of such noncompliance with TSA and FAA rules, regulations or dictates, or in the event of noncompliance with the Airport Security Plan or Airport Rules and Regulations. Prior to execution of this Intergovernmental Agreement the District shall submit and obtain approval by the Cities, TSA and FAA a detailed Airpark Security Plan describing procedures, equipment and methodology to ensure operational compliance with the Airport's Security Plan and TSA regulations. The Airpark Security Plan shall provide that it will be modified as necessary in the future to maintain full compliance with any new or amended TSA regulations. The cost of compliance with this Paragraph 10., including any required construction, maintenance, repairs and modifications, shall be the joint and severable obligation of the Developer, as provided in Paragraph 17. of the Access Agreement, and of the District. Unless specifically required by law and notwithstanding the foregoing, such compliance shall not be more restrictive than required elsewhere in the Airport under similar conditions and circumstances. 11. Non-liability. 11.1. Cities shall not be liable to the District or to any off-airport user for any acts or omissions of any person, whether or not a person authorized under this Intergovernmental 6 Agreement, who enters the Airpark through the Point of Ingress/Egress-, or for any conditions occurring on the Airpark or the Adjacent Property resulting from the operations or activities of any such person; or for any loss or damage to any personal property or equipment of the District, or any property owner or any tenant, subtenant, guest, invitee or other person with legal possession of any lot within the Airpark or the Adjacent Property, caused by or resulting from operations or activities of any person entering the Airpark through the Point of Ingress/Egress. 11.2. To the extent allowed bylaw the District, its successors and assigns, shall be liable to Cities for their respective acts or omissions arising under this Intergovernmental Agreement as a result of entering on to the Airport through the Point of Ingress/Egress; or for any conditions occurring on the Airport resulting from their respective operations or activities; or for any loss or damage to any personal property or equipment of the Cities caused by or resulting from their operations or activities related to entering the Airport through the Point of Ingress/Egress. 11.3. Nothing within this Intergovernmental Agreement shall in any way or manner waive any defenses or limitations on damages provided for, under or pursuant to the Colorado Governmental Immunity Act(Sec. 24-10-101, et seq. C.R.S.), the Constitution, or the Charter, or under the common law or the laws of the State of Colorado, or of the United States, including but not limited to Section 42 U.S.C.1983. 12. Withdrawal of permission for any Person to Access or Use Airport. Pursuant to the Airport Rules and Regulations, the Airport Director may summarily deny access and use of the Airport to any person that is otherwise authorized to access and use the Airport pursuant to this Intergovernmental Agreement who is in violation hereof or who violates Airport Rules and Regulations and is advised thereof but refuses to comply with such Rules and Regulations; provided, however, that such denial of access and use does not unreasonably impair the ability of the Districts to pay their indebtedness. Any person denied access and use of the Airport shall be given a reasonable opportunity to correct such action as gives rise to such denial of access and use. In addition, in the event the Airport Director denies access to any individual or entity, the District agrees to cooperate with the Airport Director and to take action to prevent such access by that individual or entity. Notwithstanding the foregoing, any person may be denied access to and use of the Airport, with or without the opportunity to correct a violation, if required by any FAA or TSA rule, regulation or determination or if necessary or appropriate to comply with the Cities' federal grant assurances, regardless of the impact of such a denial on the ability of the District to pay its indebtedness. 13. Notices. Unless otherwise expressly stated, all notices required or permitted to be given by either Cities or District shall be in writing and may be given in person or by United States mail or by delivery service. Any notice directed by Cities to District or by District to Cities shall become effective upon the earliest of the following: (i) actual receipt by the Cities or the District; (ii) personal delivery to the designated address of the Cities of the District; (iii) delivery by overnight courier; or(iv) if given by certified United States mail, return receipt requested, forty-eight(48) hours after deposit with the United States Postal Service,postage prepaid, addressed to that Cities or District at their respective designated address. The designated address of Cities or District shall be the address indicated below or such other address as Cities or District, from time to time, may specify by written notice to the other: 7 Cities: Fort Collins City Clerk City Hall West 300 LaPorte Avenue Fort Collins, CO 80521 and Loveland City Clerk 500 E. 3rd St., Ste. 230 Loveland, CO 8053 With copies to: Fort Collins/Loveland Municipal Airport Director 4900 Earhart Road Loveland, CO 80538 District: With copies to: Martin Lind Rocky Mountain Airport Investments, LLC 1625 Pelican Lakes Point, Suite 201 Windsor, Colorado 80550 Gary R. White White, Bear&Ankele Professional Corporation 2154 East Commons Avenue, Suite 2000 Centennial, CO 80122 14. Miscellaneous Provisions. 14.1. Modification and Waiver. Except as expressly provided herein to the contrary, no supplement, modification or amendment of any term of this Intergovernmental 8 Agreement shall be deemed binding or effective unless in writing and signed by Cities and accepted by District. 14.2. Exhibits. The Exhibits referred to herein and attached hereto (the "Exhibits") are incorporated herein by reference. 14.3. Time is of the Essence. Whenever this Agreement sets forth any time for any act to be performed by any of the parties, such time shall be deemed to be of the essence under this Intergovernmental Agreement. 14.4. Severability. Whenever possible, each provision of this Intergovernmental Agreement shall be interpreted in such a manner as to be valid under applicable law, but if any provision of this Agreement shall be deemed invalid or prohibited thereunder, such provision shall be deemed severed from this Intergovernmental Agreement, and this Intergovernmental Agreement shall otherwise remain in full force and effect. 14.5. Entire Terms. All terms and conditions contained in any other writings previously executed by the parties and all prior and contemporaneous arrangements and understandings between the parties are superseded hereby. No agreements, statements or promises about the subject matter hereof shall be binding or valid unless they are contained herein. 14.6. No Waiver. District shall not be excused from complying with any of the terms and conditions of this Intergovernmental Agreement by any failure of Cities upon any one or more occasions to insist upon or to seek compliance with any such terms and conditions. 14.7. Applicable Law. This Intergovernmental Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Colorado and venue for any judicial proceedings to enforce this Agreement shall be in Larimer County District Court, except that venue for any federal cause of action shall be in the United States District Court for the District of Colorado, Denver Colorado. 14.8. Headings and Construction. The descriptive headings of the paragraphs of this Intergovernmental Agreement are inserted only for convenience and shall not define, limit, extend, control or affect the meaning of construction of any provision herein. Where the context requires herein, the singular shall be construed as the plural, and neuter pronouns shall be construed as masculine and feminine pronouns, and vice versa. This Intergovernmental Agreement shall be construed according to its fair meaning and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Intergovernmental Agreement. 14.9. Force Majeure. With respect to any provision of this Intergovernmental Agreement, the violation or noncompliance with which could result in the imposition of revocation or other sanction upon District, such violation or noncompliance shall be excused where such violation or noncompliance is the result of acts of God, war, civil disturbance, strike or other labor unrest, or similar events, the occurrence of which was not reasonably foreseeable . by District and is beyond its reasonable control. 9 14.10. Subordination to Federal and State Agreements. The provisions of this Intergovernmental Agreement shall be subordinate to any existing or future agreement between Cities and the United States Government or the State of Colorado relative to the operation or maintenance of the Ft. Collins/Loveland Municipal Airport, the execution of which has been or may be required as a condition precedent to the receipt of Federal or State funds for the development of the Airport. Failure of the District to comply with and/or to ensure that the Lot Owners comply with any of the requirements of any existing or future agreement between the Cities and the United States Government or the State of Colorado shall be cause for immediate termination of this Intergovernmental Agreement by the Cities. During a time of war or national emergency, Cities shall have the right to lease the landing area or any part thereof to the United States Government for military or other Federal or State Government purposes, and, if such lease is executed, the provisions of this Intergovernmental Agreement, insofar as they are inconsistent with the provisions of the lease to the government, shall be suspended and reinstated at such time as the lease with the Federal or State Government is terminated. Suspended time shall be considered as part of the term of this Intergovernmental Agreement and will not extend the expiration date of this Intergovernmental Agreement. Any fees pertaining to the non-exclusive grant of easement contained within this document will be waived during the suspended time defined within this paragraph. 14.11. No Agency. The provisions of this Intergovernmental Agreement shall not be deemed to make District, or any of its officers, employees or agents, an officer, employee or agent of the Cities; or to make Cities, or any of their officers, employees or agents an officer, employee or agent of District. 14.12. No Partnership; Third Parties. It is not intended by this Intergovernmental Agreement to, and nothing contained in this Intergovernmental Agreement shall, create any partnership,joint venture or other arrangement between District and Cities. No term or provision of this Intergovernmental Agreement is intended to, or shall, be for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder. 14.13. Effective Date. This Intergovernmental Agreement shall become effective upon its execution by both the Mayor of the Cities of Fort Collins and Loveland and by the authorized agent or officer of the District, and upon the document as fully executed being filed with the Fort Collins/Loveland City Clerk. 14.14. Cities' Right to Develop the Airport. Cities reserve their right to further alter, develop, expand or improve the Airport or, in their sole discretion, to close the Airport. In the event that the Cities close the Airport, this Intergovernmental Agreement and any access to the Airport granted pursuant to this Intergovernmental Agreement shall immediately terminate. 14.15. Survival of Terms. To the extent necessary to carry out all of the financial and performance obligations that may have accrued under this Agreement as of the date of the termination of this Agreement, such financial and performance obligations shall continue to be enforceable under this Agreement beyond that termination date. 10 14.16. Third Party Beneficiaries. No rights created in favor of any party to this Agreement shall be construed as benefiting any other person or entity that is not a party to this Agreement. 14.17. Litigation Expenses and Attorneys' Fees. In the event of the default of any of the provisions hereof by either party, as determined by a court of competent jurisdiction,the defaulting party shall be liable to the non-defaulting party for the non-defaulting parry's reasonable costs of litigation incurred by reason of the default, including reasonable attorneys' fees. 15. Remedies. 15.1. In the event of default by District, Cities may: (i) cancel this Agreement sixty(60) days after Cities give written notice to District of the default, if within such period the default has not been cured; or(ii) where the default has caused a monetary loss to Cities or may expose Cities to liability for money damages, Cities may, if the default has not been cured within the sixty(60) day period, proceed with whatever steps Cities may deem necessary in order to enforce the rights and remedies available to Cities under this Agreement, at law or in equity, including, without limitation, the right of specific performance of this Agreement or to recover its damages from District. 15.2 In the event of default by Cities, District may: (i) cancel this Agreement sixty (60) days after District gives written notice to Cities of the default, if within such period the default has not been cured; or(ii) where the default has caused a monetary loss to District or may expose District to liability for money damages, District may, if the default has not been cured within the sixty(60) day period, proceed with whatever steps District may deem necessary in order to enforce the rights and remedies available to District under this Agreement, at law or in equity, including, without limitation, the right of specific performance of this Agreement or to recover its damages from Cities. 16. Compliance with the Airport Minimum Standards. All commercial aeronautical uses within the Adjacent Property shall maintain full compliance with the Airport Minimum Standards as they currently exist, or as they may be amended in the future by public action of the City Councils of each City. Accordingly, District agrees that any access granted to the Airport from any portion of the Adjacent Property shall be contingent upon full compliance with the Airport Minimum Standards for the Airport dated September 26, 2008, a copy of which is attached hereto and incorporated herein by this reference as EXHIBIT "C", and as they may be amended in the future by public action of the City Councils of each City or as set forth in the Airport Intergovernmental Agreement between the Cities. However,based on the mill levy-based fee set forth in this Agreement, the Cities agree that under this Agreement that the District satisfies the financial surety requirements of Section 1.7.4 of the Minimum Standards. In addition, the Parties agree that if any provision of the Minimum Standards is in conflict with a provision of this Agreement, the provisions of the Minimum Standards shall control over the conflicting provision in this Agreement as applied to commercial aeronautical uses on the Adjacent Property unless this Agreement expressly provides that the provision of this Agreement 11 shall control over the conflicting provision of the Minimum Standards. 17. Compliance with Grant Assurances. In the event that the FAA notifies the Cities verbally or in writing of an alleged violation of its grant assurances to the FAA as a result of this Agreement, or as a result of the action or inaction of any off-airport uses, the District shall fully cooperate with the Cities to immediately rectify such violation. In the event that the FAA notifies the Cities formally of such a violation, such as but not limited to notification by a Director's Determination, the Cities may, in their sole discretion and without being required to appeal any such FAA determination, terminate this Agreement and any access to the Airport granted pursuant to this Agreement. However, if the FAA grants to the Cities a period of time to cure the violation, the Cities agree,prior to such termination, to allow the District that period of time to cure the circumstances causing the grant assurance violation. 18. Preservation of public health, safety and welfare.Nothing herein shall be construed as a waiver of the Cities' police power to protect the public health, safety and welfare. Accordingly, notwithstanding any conflicting provision herein, the Cities may terminate this Agreement and any access to the Airport granted pursuant to this Agreement as needed to protect the public health, safety and welfare or as required by a federal, state or local agency,providing in the case of termination, the District is given the rights to cure set forth in Paragraph 17 of this Intergovernmental Agreement. Temporary termination of access may occur without an opportunity to cure in emergency situations as determined by the Airport Director. If the Airport Director temporarily terminates access due to an emergency situation, the Airport Director shall provide the District(s) with a written explanation of the reasons for the closure and an estimated opening date. 19. Successor to Developer. For the purpose of ensuring the satisfaction of the Developer's financial obligations under the Access Agreement to the Cities, the District shall be considered a successor in interest to the Developer and the District shall be jointly and severally liable to the Cities for such obligations if for any reason the Developer cannot meet or satisfy its financial obligations to the Cities under the Access Agreement. CITY OF FORT COLLINS, a Colorado home rule municipality By: Darin Atteberry, Fort Collins City Manager ATTEST: Fort Collins City Clerk 12 APPROVED AS TO FORM: , Fort Collins City Attorney CITY OF LOVELAND, a Colorado home rule municipality By: William D. Cahill, Loveland City Manager ATTEST: Loveland City Clerk APPROVED AS TO FORM: , Loveland City Attorney METRO DISTRICT: a Colorado Metro District By: Its: 13 EXHIBIT"A" (The "Airport") 14 EXHIBIT"B" (Adjacent Property, including separate legal descriptions and drawings of the"southeast parcel" and the"north parcel', and the Airpark) 15 EXHIBIT"C" (AIRPORT MINIMUM STANDARDS) These will be the same Minimum Standards as are attached as Exhibit"F"to the Access Agreement. 16 Exhibit C-I (Flow Chart of Paragraph 1 Conditions) 24 EXHIBIT C = 1 ACCESS AGREEMENT AND CONDITIONAL ACCESS EASEMENT CONTINGENT ON : ACCESS AGREEMENT FAA Approval of AND CONDITIONAL Ingress/Egress EASEMENT If "N " TERMINATED Service Plan (Southeast and North Parcels) and Plat Approval (Southeast Parcel Only) If " Yes" Airport Tenant Fee Due to the Cities in If "No " Districts Organized with TABOR Lieu of 5 .000 Mill Authorization Levy Fee If " Yes" AIRPORT ACESSS 5 .000 Mills Fee Due to EASEMENT the Cities GRANTED BY ACCESS AND AGREEMENT Aii Cities Grant Construction Easement BECOMES " OPERATIONAL Airpark Under Actual 7 Construction Airport Tenant Fee Due to the Cities in AND Lieu of 5 .000 Mill Taxilanes Constructed and Deemed Levy Fee Acceptable by the Cities If "Y "NoAL Taxiway Constructed and Deemed Acceptable by the Cities Deadline for Southeast Parcel : D DISTRIC September 30, 2012 Cities Granted Easement to IGA CAN Airpark Taxilanes JEXECUTE Conditions for North Parcel: CC&R's Recorded Against September 30, 2019 Airpark EXHIBIT "D" (Depiction of Points of Ingress/Egress) 25 n Tr FORT COLLINS l LOVELAN6 AIRPOMT:=---t-tN) n Will 17. lot all 1�' :.�lit v R 40i Alt IT 40 '�� •�'��, �±� � `' � fin/ � /• ` 4' 5 lqiw MAUffri �IN1YlMC\ L - .AiR�,M1FXtsAe• � .5 y -t - _ • i war1�F}1. i.Q .,• 't`':'7N Y v _. y� _M1 'l . I I'•. l2{,•`'•�'• Ij'i8"' ^ f J • kI . 1. ` 'G f�� � ��� ��� �{yl • ;.y. x.. .i. AIRPARK o NORTH No 10. Igo^ aSs _NI .yam M ny� I AIRPA.RK OF THE ROCKIES NORTH WATER VVALLEY ROCK 1 E S LOVELAND, CO .. PT. COLLINSILOVRLANO-CO www.alrparko"herackles.com LLC EXHIBIT "E" (Avigation Easement) 26 AVIGATION EASEMENT WHEREAS, (hereinafter called the "Grantor'), is the owner in fee of that certain parcel of land situated in the County of Larimer, State of Colorado, more particularly described and depicted on Exhibit"A" attached hereto, herein called ("Grantor's Property"); WHEREAS, the CITY OF FORT COLLINS, COLORADO, a municipal corporation, and the CITY OF LOVELAND, COLORADO, a municipal corporation, hereinafter jointly called the "Grantees', are owners of the FORT COLLINS- LOVELAND MUNICIPAL AIRPORT, the legal description of which is set forth on Exhibit"B" attached hereto and incorporated herein by reference (the "Airport"). NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor, for itself, its heirs, administrators, executors, successors and assigns, does hereby grant, bargain, sell, and convey unto the Grantees, their successors and assigns for the use and benefit of the public, as easement and right-of-way, appurtenant to the Airport for the unobstructed use and passage of all Aircraft (as hereinafter defined) in and through the airspace above Grantor's Property beginning at a height consistent with the Airspace Plan described in the Fort Collins-Loveland Municipal Airport Master Plan Update adopted in 2006 (the "Airport Master Plan"), and as further defined by FAA Regulation, Part 77 and as depicted on Exhibit "C" attached hereto and incorporated herein by reference. Said easement and right-of-way shall be appurtenant to the Airport and for the benefit of the Grantees and their successors and assigns, guests, and invitees, including any and all persons, firms or corporations operating Aircraft to or from the Airport. Said easement and burden shall include all things which may be alleged to be incident to or resulting from the use and enjoyment of said easement, including, but not limited to the right to cause in all air space above or in the vicinity of the surface of Grantor's Property such noise, vibrations, fume, deposits of dust or other particulate matter, fuel particles (which are incidental to the normal operation of said Aircraft), fear, interference with sleep and communication and any and all other effects that may be alleged to be incident to or caused by the operation of Aircraft over or in the vicinity of Grantor's Property or in landing at or taking off from, or operation at or on the Airport, and Grantor does hereby fully waive, remise, and release any right or cause of action which it may now have or which it may have in the future against Grantees, their successor and assigns, due to such noise vibrations, fumes, dust, fuel particles and all other effects that may be caused or may have been caused by the usual and customary operation of Aircraft landing at, or taking off from, or operating at or on the Airport, or by Aircraft landing at, taking off from or operating on the Airport as part of an airshow conducted as a special event authorized by Grantees provided that, in connection with any such airshow, the Grantees have developed and implemented a traffic control plan so as to avoid a 1 material disruption to uses in place on the Grantor's Property, and provided further that no acrobatic flights involved in such an airshow shall operate within the airspace over the Grantor's Property unless the owner thereof or said owner's agent, consents to such aerobatic flights, which consent may be withheld in said owner's sole discretion. For purposes of this Avigation Easement, "aerobatic flight" means an intentional maneuver involving an abrupt change in an aircraft's attitude, an abnormal attitude, or abnormal acceleration, not necessary for normal flight. The easement and right-of-way hereby granted includes the continuing right in the Grantees to prevent the erection or growth upon Grantor's Property of any building, structure, tree, or other object within the air space easement granted hereby, and to remove from said air space, or at the sole option of the Grantees, as an alternative, to mark and light as obstructions to air navigation, any such building, structure, tree or other objects on upon, or which in the future may be upon Grantor's Property, together with the right of ingress to, egress from, and passage over Grantor's Property for the above purpose. The provisions of said easement shall apply to the following: (1) The current Airport facilities and the present operation of the Airport therein; and (2) Any expansion of, or change to, the Airport facilities or operation of the Airport therein which is consistent and in accordance with the City of Loveland 2005 Comprehensive Plan, as amended as of the date of this Avigation Easement(the "Comprehensive Plan") and the Airport Master Plan. "Comprehensive Plan" and "Airport Master Plan" as used herein shall specifically not include any amendments thereto adopted by the City after the date of this Avigation Easement. As used herein, and to the extent consistent with the Airport Master Plan, the term "Aircraft" shall mean any and all types of aircraft, whether now in existence or hereafter manufactured and developed, to include, but not be limited to,jet aircraft, propeller driven aircraft, civil aircraft, military aircraft, commercial aircraft, helicopters and all types of aircraft or vehicles now in existence or hereinafter developed, regardless of existing or future noise levels, for the purpose of transporting persons or property through the air, by whomsoever owned or operated. TO HAVE AND TO HOLD said easement and right-of-way, and all rights appertaining thereto unto the Grantees, their successors and assigns, until said Airport shall be abandoned or shall cease to be used for public airport purposes, at which time the easement and right-of-way hereby granted shall automatically revert to Grantor, its successors and assigns. AND for the consideration hereinabove set forth, the Grantor, for itself, its heirs, administrators, executors, successors, and assigns, does hereby further agree that that the 2 following covenants shall run with the Grantor's Property for and during the life of said easement and right-of-way: (a) All uses shall comply with Table I, Fort Collins-Loveland Municipal Airport Land Use Schedule set forth in Section 4.6 of the Comprehensive Plan, a copy of which Table is attached hereto as Exhibit"D" and incorporated herein by reference. (b) No building, structure, tree or other object shall extend into restricted air space as defined by FAA Regulation, Part 77, and the Grantee shall comply with all applicable notice requirements of such FAA Regulation. (c) No exterior lighting, reflective material, smoke emissions or electronic emissions shall be permitted within the property which would materially lower pilots' visibility or cause material interference with the Airport's navigation and communication systems. For purposes of this condition, "reflective material" is defined as glazing with a reflectivity of 65% or greater. (d) Grantor shall not hereafter use or authorize the use of Grantor's Property in such a manner as to make it difficult for flyers to distinguish between Airport lights and others. (e) Except to the extent otherwise required by applicable Federal law, all new bodies of water within the property and within a radius of 10,000 feet from the end of any runway of the Airport, shall be prohibited provided that: (1) they are larger than one-quarter acre in size; (2) they are designed to hold or retain water permanently or over extended periods of time; and (3) they are bird attractants. To the extent permitted by Federal law, this prohibition shall not apply to a relocation or expansion of any existing water body or to detention ponds that have outlet structures designed to prevent the permanent containment of water. (f) Grantor agrees, that with development of Grantor's Property, or any portion thereof, that all of the Grantor's covenants herein shall, as condition of approval of any subdivision plats by the City of Loveland, be included in development agreement(s) with the City of Loveland for such property as conditions of development and further agrees that all subdivision plats shall contain the following language: "All or a portion of the property being subdivided may be located within the Airport Influence Area of the Fort Collins- Loveland Municipal Airport. Such property may experience noise from low-flying aircraft as a result of 24 hour per day aircraft operations." 3 (g) Grantor shall include the following disclosure statement in all of its contracts for the sale of any of Grantor's Property and, further, shall include a provision in such sales contracts that the purchaser thereof shall include the following disclosure statement in all of its subsequent contracts for sale of such property: "The property subject to this contract may be located within the Airport Influence Area of the Fort Collins-Loveland Municipal Airport. Such property may experience noise from low-flying aircraft as a result of 24 hour per day aircraft operations." Each such contract subject to this condition shall expressly provide that the disclosure provision survives closing and is enforceable at law or in equity by the City as a third party beneficiary of such contract. Grantor furthermore waives any and all damages and claims for damages caused or alleged to be caused by or incidental to the prohibition of the activities described in subparagraphs(a) through(g) above. It being understood and agreed that all of the aforesaid covenants and agreements shall run with the Grantor's Property and shall be forever binding upon the heirs, administrators, executors, successors and assigns of the Grantor. IN WITNESS WHEREOF, the Grantor has hereunto set its hand and seal this day of 2008. GRANTOR: By: STATE OF COLORADO ) )ss COUNTY OF LARIMER ) The foregoing Avigation Easement was acknowledged before me this day of 2008 by WITNESS my hand and official seal. Commission Expiration Notary Public 4 Exhibit "A" Grantor's Property Legal Description 5 Exhibit"B" Airport Legal Description All of the Barnstorm Second Addition to the City of Loveland, Colorado legally described as follows: All that portion of Section 28 and Section 33, Township 6 North, Range 68 West, and that portion of Section 4, Township 5 North, Range 68 West of the 6th P.M., Larimer County, Colorado, more particularly described as follows: Commencing at the Southwest corner of said Section 28, with all bearings relative to the West line of the Southwest Quarter of said Section 28 considered as bearing North 00°30'00" East, thence South 87°28'49" East, 50.00 to the TRUE POINT OF BEGINNING; thence North 00°30'00" East, 2678.39 feet; thence North 00°29'50" East, 2639.76 feet; thence South 86°40'52" East, 795.07 feet; thence South 25°27'52" East, 107.65 feet; thence South 38°35'52" East, 152.85 feet; thence South 03°10'08" West, 157.83 feet; thence South 86°40'52" East, 231.41 feet; thence South 16010'52" East, 131.00 feet; thence South 11'10'52" East, 150.00 feet; thence 150.48 feet along a tangent curve concave to the East, delta angle 39°44'00", radius 217.00 feet and chord South 31°02'52" East, 147.49 feet; thence along the centerline of the Louden Ditch for the following eighteen courses and distances: South 50°54'52" East, 115.00 feet; thence 68.45 feet along a tangent curve concave to the North, delta angle 43°06'00", radius 91.00 feet and chord South 72°27'52" East, 66.85 feet; thence North 85°59'08" East, 42.00 feet; thence 85.50 feet along a tangent curve concave to the South, delta angle 53°50'00", radius 91.00 feet and chord South 67°05'52" East, 82.39 feet; thence South 40°10'52" East, 167.00 feet; thence South 47°10'52" East, 170.00 feet; thence South 42'10'52" East, 118.00 feet; thence 109.88 feet along a tangent curve concave to the West, delta angle 16°42'00", radius 377.00 and chord South 33°49'52" East, 109.50 feet; thence 80.52 feet along a tangent reverse curve concave to the East, delta angle 29°12'00", radius 158.00 feet and chord South 40°04'52" East, 79.65 feet; thence 81.95 feet along a tangent reverse curve concave to the West, delta angle 36°24'00", radius 129.00 feet and chord South 36°28'52" East, 80.58 feet; thence South 18°16'52" East, 91.00 feet; thence 68.99 feet along a tangent curve concave to the East, delta angle 18°08'00", radius 218.00 feet and chord South 27°20'52" East, 68.71 feet; thence South 36°24'52" East, 113.00 feet; thence 65.69 feet along a tangent curve concave to the East, delta angle 17°16'00", radius 218.00 feet and chord South 45°02'52" East, 65.45 feet; thence South 53°40'52" East, 256.00 feet; thence 135.14 feet along a tangent curve concave to the West, delta angle 26°42'00", radius 290.00 feet and chord South 40°I9'52" East, 133.92 feet; thence 265.00 feet along a compound tangent curve concave to the West, delta angle 17°46'00", radius 82.17 feet and chord South 18°05'52" East, 81.84 feet; thence 90.36 feet along a tangent reverse curve concave to the East, delta angle 43°08'44", radius 120.00 feet and chord South 30°47'14" East, 88.24 feet to the North-South Quarter line of Section 28; thence South 00°39'l) West, 577.38 feet along the North-South Quarter line of Section 28; thence South 87°08'50" East, 2635.80 feet along the East-West Quarter line to the East One-Quarter 6 corner of Section 28; thence South 00°32'09" West, 2647.71 feet to the Southeast corner of Section 28; thence South 00°00'10" West, 2599.29 feet to the East One-Quarter corner of Section 33; thence South 00°00'41" East, 2568.62 feet along the East line of Section 33 to a point whence the Southeast corner of said Section 33 (and the Southwest corner of Section 34) bears South 00°00'41" East, 30.00 feet; thence North 89°59'19" East, 30.00 feet; thence South 00°00'41" East, 30.48 feet to the South line of Section 34 (and the North line of Section 3); thence along the East right-of-way line of County Road No. 7 South 01°45'45" West, 2456.00 feet to the Northeasterly right-of-way line of Union Pacific Railroad; thence along said right-of-way as follows: North 48°56'19" West, 3413.73 feet; thence 373.88 feet along a nontangent curve concave to the North, delta angle 5°43'13", radius 3744.83 feet and chord North 46°04'43" West, 373.73 feet; thence South 89°06'05" East, 177.04 feet along the South line of Section 33 to a point whence the South One Quarter corner of said Section 33 bears South 89°06'05" East, 76.88 feet; thence 794.66 feet along a nontangent curve concave to the North, delta angle 12°34'41", radius 3619.83 feet and chord North 38°52'49" West 793.07 feet; thence North 32035'28" West, 3737.67 feet to the East right-of-way of County Road No. 9; thence North 00°08'21" West, 1619.75 feet along said East right-of-way to the TRUE POINT OF BEGINNING. 7 Exhibit"C" Depiction of Airspace Plan 8 Exhibit"D" Table I—Airport Land Use Schedule 9 EXHIBIT "F" (AIRPORT MINIMUM STANDARDS) 27