HomeMy WebLinkAbout011 - 02/03/2009 - APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN TIMNATH AND FORT COLLINS REGARDING GROWTH MANAGEMEN ORDINANCE NO. 011, 2009
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN
TIMNATH AND FORT COLLINS REGARDING
GROWTH MANAGEMENT AREAS AND ASSOCIATED ISSUES AND
AUTHORIZING THE DISPOSITION OF PROPERTY AS PROVIDED THEREIN
WHEREAS,a dispute has arisen between the City of Fort Collins(the"City")and the Town
of Timnath (the "Town")with regard to a number of land use and storm drainage issues and related
matters,which dispute has been the subject of protracted mediation between the City and the Town;
and
WHEREAS, officials of the City and Town have, in the interest of regional cooperation,
worked diligently to resolve these issues and have reached an agreement intended to resolve said
dispute, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference
(the "Agreement"); and
WHEREAS, state law provides broad authority to local governments to enter into mutually
enforceable agreements to plan for and regulate the use of property within their respective
jurisdictions, and the City Charter also authorizes the Council to enter into agreements and
cooperative activities with other govermnental bodies, and
WHEREAS, pursuant to the Agreement, the City Council has, this same date, approved
Ordinance No. 012, 2009, which appropriates the sum of$1.2 million and irrevocably pledges an
additional $800,000 in General Fund reserves, to be paid to the Town as partial reimbursement for
storm drainage improvements the Town intends to construct for the purposes of. (a) mitigating the
flow of storm waters from portions of Boxelder Creek adjacent to the Town; and (b) removing
certain areas within the Timnath Growth Management Area from the Boxelder Creek floodplain(the
"Project"); and
WHEREAS, in order to allow the Project to proceed,Timnath will require an easement from
the City over a portion of the Arapahoe Bend Natural Area east of Interstate 25, for the purpose of
facilitating the westerly flow of stormwater from the Boxelder Creek (the "Boxelder Easement");
and
WHEREAS, the Agreement provides that the location, size and impacts of the Boxelder
Easement and any improvements built on and in the vicinity of said Natural Area shall be minimized
to the extent reasonably possible, and that the Easement shall be upon terms and conditions to be
mutually agreed upon by the parties,including a requirement that Timnath carry out its activities on
the Boxelder Easement in a manner that is sensitive to the natural features of the affected property
and restore, at its own expense, the area impacted by construction activities within the Boxelder
Easement to pre-construction natural condition to the extent reasonably possible, using native
vegetation; and
WHEREAS,in view of the benefits to the Stormwater Utility from the Project,as more fully
described in Ordinance No. 012, 2009, the Stormwater Utility shall, upon conveyance of the
Boxelder Easement to Timnath, reimburse the Natural Areas Fund for the value of that Easement:
and
WHEREAS, the Agreement provides in part that the City grant to Timnath an option for a
terns of one year to acquire the Vangbo Property, as more specifically described in Exhibit 4 to the
Agreement, from the City for the amount of$1,417,664 plus interest on such amount from August
15, 2005 through the date of conveyance calculated as provided in the Agreement, and
WHEREAS, under Section 23-111 of the Code of the City of Fort Collins, the Council is
authorized to sell or otherwise dispose of any and all interests in real property owned in the name
of the City, provided that Council first finds by ordinance that the sale or disposition is in the best
interests of the City.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby finds and determines that the Agreement will
be beneficial to the citizens of Fort Collins and to the ratepayers of the Fort Collins Stormwater
Utility, and that said Agreement is in the best interests of the City.
Section 2. That the Mayor is hereby authorized to execute the Agreement, in
substantially the form shown on Exhibit A,attached hereto and incorporated herein by this reference,
subject to such modifications, amendments or additions thereto as may be determined by the City
Manager, in consultation with the City Attorney, to be necessary or appropriate to protect the
interests of the City.
Section 3. That the conveyance of the Boxelder Easement as described herein is in the
best interests of the City.
Section 4. That the Mayor is hereby authorized to execute an agreement conveying the
Boxelder Easement consistent with the terms of this Ordinance over specifically described property
and containing such terms and conditions as the City Manager, in consultation with the City
Attorney, determines to be necessary or appropriate to protect the interests of the City.
Section 5. That the conveyance of an option to purchase the Vangbo Property and the
conveyance of the Vangbo Property, as described herein, is in the best interests of the City.
Section 6. That the Mayor is hereby authorized to execute a deed or such other document
of conveyance as may be necessary to convey the Vangbo Property to Timnath consistent with the
terms of this Ordinance and containing such terms and conditions as the City Manager, in
consultation with the City Attorney,determines to be necessary or appropriate to protect the interests
of the City.
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Introduced, considered favorably on first reading, and ordered published this 20th day of
January, A.D. 2009, and to be presented for final passage on t R day of February, A.D. 09.
• Mayo
ATTEST:
T�QLAL "AL AA
City Clerk
Passed and adopted on final reading on the 3rd day of February, A.D. 2009.
Mayo
ATTEST:
(i..a)�k Tk�O.A n'A
City Clerk
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Exhibit A to Ordinance No. 011, 2009
INTERGOVERNMENTAL AGREEMENT
(Regarding Cooperation on Annexation, Growth Management and Development)
THIS INTERGOVERNMENTAL AGREEMENT ("Areement") is made and entered
into this day of 2009 (the "Effective Date"), by and between THE
TOWN OF TIMNATH, COLORADO, a Colorado home rule town, hereinafter referred to as
"Timnath," and THE CITY OF FORT COLLINS, COLORADO, a Colorado home rule
municipal corporation, hereinafter referred to as "Fort Collins".
RECITALS
WHEREAS, the parties desire to resolve certain differences that have arisen between
them regarding a variety of planning and growth management issues and to lay the groundwork
for future cooperative activities between them while respecting each other's growth management
areas., and
WHEREAS, resolving such differences and fostering such cooperation is of critical
importance to both Timnath and Fort Collins and to the entire surrounding Northern Colorado
region; and
WHEREAS, productive regional cooperation between Timnath and Fort Collins can
result in better management of development of each party's respective growth management area;
and
WHEREAS, maintaining and enhancing areas of urban development in a thoughtful and
deliberate way involves cooperation in land use, transportation, planning and development, in the
implementation of growth management policies, and in the identification and preservation of
open space and natural areas; and
WHEREAS, the parties acknowledge and agree that each party should make its own
decisions regarding the acquisition of community separators, open space, and similar amenities
within its own growth management area; and
WHEREAS, in Title 29, Article 20, Colorado Revised Statutes, as amended, the General
Assembly of the State of Colorado (the "General Assembly") has found and declared that in
order to provide for planned and orderly development within Colorado and a balancing of the
basic human needs of a changing population with legitimate environmental concerns, the policy
of the State of Colorado is to clarify and provide broad authority to local governments to plan for
and regulate the use of property within their respective jurisdictions; and
WHEREAS, in furtherance of said policy, the General Assembly has designated certain
powers to local governments, among them the power to regulate the location of activities and
developments which may result in significant changes in population density, the power to
provide for phased development of services and facilities, the power to regulate the use of
property on the basis of the impact thereof on the community or surrounding areas, and the
power to otherwise plan for and regulate the use of property so as to provide planned and orderly
use of property and protection of the environment in a manner consistent with constitutional
rights; and
WHEREAS, the General Assembly has also authorized and encouraged local
governments to cooperate or contract with other units of government for the purpose of planning
and regulating the development of property, including but not limited to the joint exercise of
planning, zoning, subdivision, building, and related regulations; and
WHEREAS, it is in the best interests of the citizens of Timnath and the citizens of Fort
Collins for Timnath and Fort Collins to enter into an intergovernmental agreement for the
purposes of resolving their differences, availing themselves of the foregoing grant of statutory
authority and implementing their respective growth management plans; and
WHEREAS, the agreements and understandings set forth below will promote increased
coordination between Timnath and Fort Collins and result in better planning and growth
management in the Timnath and Fort Collins areas.
NOW, THEREFORE, in consideration of the covenants and obligations herein
expressed, it is agreed by and between the parties hereto as follows:
ARTICLE 1
DEFINITIONS
The following terms and references shall have the meanings indicated:
1.1 "Avera,,e Annual Interest Rate" shall have the meaning provided in Section 6.1.
1.2 "Boxelder Easement" shall have the meaning provided in Section 7.1.
1.3 "Boxelder Overflow Project" or "Project" shall mean the engineering and
installation of certain improvements designed to mitigate the potential overflow of water from
Boxelder Creek during large storm events, as further described on Exhibit 1, attached hereto and
incorporated herein by this reference.
1.4 "Conservation Easements" shall mean, collectively, those conservation
easements located on the Hansen Property, the Cribari Property and the Person Property.
1.5 "Cribari Property" shall mean the approximately seventy-six (76) acres of
undeveloped property located east of Interstate Highway 25 (1-25"), within the TGMA, across
which Chris Cribari has granted to Fort Collins a conservation easement pursuant to that certain
Deed of Conservation Easement, recorded with the Clerk of Larimer County on March 21, 2005,
at Reception No. 2005-0021923, incorporated herein by reference.
1.6 "Default" shall have the meaning provided in Section 10.1.
1.7 "District Court Petition" shall mean that certain Petition for Annexation Election
and to Hold Annexation Proceedings in Abeyance tiled by Fort Collins in the District Court in
and for the Eighth Judicial District of Colorado, on November 12, 2008, Case No. 08-CV-1156.
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1.8 "Effective Date" shall have the meaning provided in the introductory paragraph
of this Agreement.
1.9 "FEMA" shall mean the Federal Emergency Management Agency.
1.10 "FCGMA" shall mean the Fort Collins Growth Management Area as established
in that certain Intergovernmental Agreement between Fort Collins and Larimer County,
Colorado, dated November 21, 2000.
1.11 "Fort Collins" shall have the meaning provided in the introductory paragraph of
this Agreement.
1.12 "Fort Collins City Council" or "City Council" shall mean the governing body of
Fort Collins, composed of seven (7) elected officials including a mayor and six (6)other council
members.
1.13 "Fort Collins' Contribution" shall have the meaning provided in Section 7.3.
1.14 "Fort Collins Gateway Second and Third Annexations" shall mean that portion of
the 1-25 right-of-way shown on Exhibit 2 attached hereto and incorporated herein, for which Fort
Collins received a petition for annexation on October 14, 2008, as amended on October 29, 2008.
1.15 "GMA" shall mean growth management area.
1.16 "Hansen Property" shall mean the approximately eighty-two (82) acres of
undeveloped property located east of I-25, within the TGMA, across which Myrna J. Hansen has
granted to Fort Collins a conservation easement pursuant to that certain Deed of Conservation
Easement (Hansen Property), recorded with the Clerk of Larimer County on August 26, 2004, at
Reception No. 2004-0084248, incorporated herein by reference.
1.17 "Option Notice" shall have the meaning provided in Section 6.1.
1.18 "Option Period" shall have the meaning provided in Section 6.1.
1.19 "Option Purchase Price" shall have the meaning provided in Section 6.1.
1.20 "Option Transaction" shall have the meaning provided in Section 6.1.
1.21 "Person Property" shall mean the approximately thirty-five (35) acres of
undeveloped property located east of 1-25, within the TGMA, across which Rod Person and
Alison Person have granted to Fort Collins a conservation easement pursuant to that certain Deed
of Conservation Easement (Person Property), recorded with the Clerk of Larimer County on
November 18, 2005, at Reception No. 2005-0098259, incorporated herein by reference.
1.22 "Purchase Option" shall have the meaning provided in Section 6.1.
1.23 "Riverwalk Annexation" shall mean the approximately two hundred seventy four
(274) acres of undeveloped property located east and west of I-25 at the intersection of I-25 and
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Harmony Road, as shown on Exhibit 3, attached hereto and incorporated herein, for which
Timnath received a petition for annexation on June 30, 2008.
1.24 "Riverwalk Petition" shall mean that certain Petition for Annexation filed with
Timnath by Stoner and other neighboring property owners on or about June 30, 2008.
1.25 "Riverwalk Project" shall mean that certain proposed mixed-use development
project, which will include office, commercial, retail, and residential uses.
1.26 "Stoner" shall mean collectively, Jay Stoner, an individual, and Stoner and
Company, a Colorado corporation, owners of the Stoner Property.
1.27 "Stoner Property" shall mean the approximately two hundred eighty (280) acres
of undeveloped property located at the southwest corner of the intersection of I-25 and Colorado
State Highway 68 (Harmony Road) on which Stoner proposes to develop the Riverwalk Project.
1.28 "TABOR" shall mean Article X, § 20 of the Colorado Constitution.
1.29 "TGMA" or "Timnath Growth Management Area" shall mean that certain area
shown on Exhibit 7, attached hereto.
1.30 "Tinmath" shall have the meaning provided in the introductory paragraph of this
Agreement.
1.31 "Timnath Town Council" shall mean the governing body of Timnath, composed
of five (5) elected officials including a mayor and four(4) council members.
1.32 "Van bg o Property" shall mean the approximately one hundred six (106) acres of
undeveloped property located east of I-25 within the TGMA, which Fort Collins acquired in fee
title on August 15, 2005, as more fully described on Exhibit 4 attached hereto and incorporated
herein.
1.33 "Van bg o Proposal" shall have the meaning provided in Section 6.2.
ARTICLE 2
GROWTH MANAGEMENT AREAS
2.1 Generally. Except as otherwise expressly provided herein, I-25 will become the
boundary between the Fort Collins Growth Management Area ("FCGMA") and the Timnath
Growth Management Area ("TGMA"), and the I-25 right-of-way will not be annexed by, or
included within the GMA, of either party. Each party shall revise its GMA accordingly, shall .
respect the other party's GMA and shall not:
(a) annex, or accept any petition to annex, property within the other party's
GMA;
(b) acquire any property within the other party's GMA for the purpose of
future community separators, natural areas, community parks, recreation or open space, without
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the consent of the other party, either in fee or through conservation or other easements, either
under its own authority or through participation with or financial contribution to third parties or
entities, except to the extent that such acquisitions may be incidental to the acquisition of
property for other legitimate municipal purposes, including, but not limited to transportation
rights-of-way and storm drainage facilities, in which case each party shall use reasonable efforts
to provide written notice to the other party prior to taking any action pursuant this exception;
(c) annex any portion of the I-25 right-of-way without the express written
consent of the other party except as provided in Section 3.3 and except that Fort Collins may
annex those portions of I-25 that are or will be bounded on both sides by property within its
municipal limits.
Any future amendments to the contiguous boundaries of the TGMA and FCGMA shall be made
only if agreed upon in writing by both parties.
2.2 Fort Collins Growth Management Area.
(a) The boundary of the FCGMA on the east side of I-25, from State Highway
392 on the south to Larimer County Road 52 on the north, as shown on Exhibit 51 attached and
incorporated herein, shall be coterminous with its current municipal boundary except that the
five parcels 'of property shown on Exhibit 6, attached hereto and incorporated herein, shall
remain in the FCGMA, three of which properties are located in the northeast corner of the
intersection of I-25 and Highway 14 (Mulberry) and two of which are located on the southeast
corner of the intersection of I-25 and Highway 14 (Mulberry).
(b) Fort Collins shall, within one (1) year following the date hereof, seek the
approval of Larimer County to amend the boundaries of the FCGMA in accordance with Section
2.2(a) above. In addition, and irrespective of whether or not Larimer County approves such
amendment, Fort Collins shall within the same period take all actions necessary to amend the
boundaries of the FCGMA as it exists independently of the Intergovernmental Agreement
between Fort Collins and Larimer County, Colorado dated November 21, 2000, to conform the
FCGMA to the limitations of Section 2.2(a) above, it being the intention and agreement of the
parties that the requirements of Section 2.1 shall apply to the (as hereby described and amended)
FCGMA boundaries irrespective of any action by Larimer County.
2.3 Timnath Growth Management Area.
(a) The boundaries of the TGMA shall be located exclusively on the east side
of I-25 and outside the FCGMA as amended pursuant to Section 2.2 and as shown on Exhibit 7,
attached hereto and incorporated herein.
(b) Tinuiath shall amend the TGMA in accordance with Section 2.3(a) above
within one (1) year following the date hereof.
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ARTICLE 3
RIVERWALK AND GATEWAY ANNEXATIONS
3.1 The Riverwalk Annexation. Timnath shall forthwith provide written notice to
Stoner that Timnath does not intend to proceed with the Riverwalk Annexation or otherwise
annex the Stoner Property, and Timnath shall request that Stoner withdraw the Riverwalk
Petition currently pending before the Timnath Town Council. If Stoner nevertheless elects to
continue to pursue the Riverwalk Petition, the Timnath Town Council shall deny the Riverwalk
Petition and shall take no further action to annex the property that is the subject of the Rivenvalk
Annexation.
3.2 Dismissal of the District Court Petition. Promptly upon the withdrawal or denial
of the Rivenvalk Petition, Timnath and Fort Collins shall file with the District Court in and for
the Eighth Judicial District of Colorado, a stipulation of dismissal with prejudice and proposed
order granting the stipulation of dismissal with prejudice, for the dismissal of the District Court
Petition. Upon the District Court's dismissal of the District Court Petition, Fort Collins may
complete its annexation of Harmony Road up to the west access ramps of 1-25, as more
specifically shown on Exhibit 9, and Timnath may annex Harmony Road up to the east access
ramps of I-25, as more specifically shown on Exhibit 9, which Exhibits are attached hereto and
incorporated herein by reference.
3.3 Gateway Second and Third Annexations/I-25 Annexations. Fort Collins shall
take no further action to annex any portions of the I-25 right-of-way in connection with the Fort
Collins Gateway Second and Third Annexations. Similarly, Timnath shall take no further action
to annex any portion of the I-25 right-of-way that is adjacent to the FCGMA, except that portion
of the I-25 right-of-way, if any, that has been conveyed to Timnath by the Colorado Department
of Transportation in connection with the vacation of the former I-25 frontage road at the
southeast corner of the intersection of I-25 and Harmony Road.
ARTICLE 4
FUTURE COOPERATION
4.1 Cooperation on Certain Improvements. The parties shall work cooperatively to
study, design, and plan the implementation of a proposed pedestrian and transit connection
between the Riverwalk Project and the property opposite the Riverwalk Project on the east side
of I-25, which connection may include a pedestrian bridge across I-25. Notwithstanding the
foregoing, the parties acknowledge that any such agreement to cooperate in the study, design and
plan for the implementation of those certain improvements shall not be deemed to be a
commitment by either party to provide financing for the planning, design, engineering, right-of-
way acquisition or construction of any such improvements.
4.2 Plan Review and Revenue Sharing. Absent a future agreement to the contrary,
neither party shall be entitled to any share of the revenues generated by any parcel of property
located in the other party's GMA, nor shall either party be entitled to any design or development
.review, other than such statutory review as both parties agree is applicable to home-rule
municipalities and such review as may be required by the municipal code of one party, in its sole
and exclusive discretion, in granting review rights to the other.
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ARTICLE 5
CONSERVATION EASEMENTS
5.1 Joint Management. Fort Collins shall work diligently, reasonably and
cooperatively with Timnath in response to any proposal provided to Fort Collins by Timnath
within one-hundred and eighty (180) days after the Effective Date that would: (1) create a
legally permissible structure for the joint management of the Conservation Easements and related
sharing of management costs, whether through the creation of a third-party entity or through
certification of Timnath as a "qualified conservation organization," as defined under the Internal
Revenue Service Code and the Colorado Revised Statutes, and (2) transfer to, or contract for,
management of the Conservation Easements by such entity or structure within one (1) year
following the date hereof. The parties shall prepare and execute such documentation and take
such actions as will be required to effectuate the joint management of the Conservation
Easements within such one-year period, which documentation shall establish a mechanism for
resolving any disputes that may arise between the parties with regard to such management.
5.2 Restrictions on Assi ng ment. The parties acknowledge that the documents
creating the Conservation Easements contain certain restrictions on the assignment of such
Conservation Easements. The parties shall work within those restrictions in creating any joint
management structure set forth in Section 5.1 above.
5.3 Compliance with this Article 5. So long as the parties work diligently and
cooperatively following the Effective Date of this Agreement to effectuate the provisions of this
Article 5, both parties will be deemed to have complied with the provisions hereof even if no
joint ownership or management structure has been devised which meets all of the criteria set
forth in this Article 5.
ARTICLE 6
OPTION TO PURCHASE
6.1 Option to Purchase. During the twelve (12) month period immediately following
the Effective Date of this Agreement (the "Option Period"), Timnath may, at its option, exercise
the right to purchase the Vangbo Property from Fort Collins ("Purchase Option") for the amount
of$1,417,664.00 plus interest on such amount from August 15, 2005 (the date that Fort Collins
acquired the Vangbo Property) to the closing date of the Option Transaction (collectively, the
"Option Purchase Price") by providing written notice to Fort Collins within the Option Period of
the exercise of its Purchase Option ("Option Notice"). The interest rate, which is designed to
recover for the Fort Collins Natural Areas fund the amount of interest that would have been
generated had the amount of $1,417,664.00 not been used by Fort Collins to purchase the
Vangbo Property, shall be calculated based on the average interest that would have been earned
on such amount in each calendar year (the "Average Annual Interest Rate"), and shall be capped
at the rate of four percent (4.0%). For purposes of calculating the interest rate, Fort Collins shall
provide Timnath with evidence of the Annual Average Interest Rate. In the event Timnath
exercises its Purchase Option, the parties shall cooperate in the preparation and execution of any
necessary documentation to effectuate the purchase and sale of the Vangbo Property and the
transfer of title to Timnath (the "Option Transaction") and shall close the Option Transaction
within one (1) year following the date of the Option Notice.
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6.2 Proposed Use Alternative. During the Option Period, as an alternative to
Timnath's Purchase Option set forth above, Timnath may, at its option, submit to Fort Collins a.
written proposal setting forth Timnath's proposed use for all or a portion of the Vangbo Property
(the "Vangbo Proposal"), which use shall conform with the Fort Collins Natural Area
Guidelines. Fort Collins, in its sole discretion, may reject or accept Timnath's Vangbo Proposal
by sending written notice of such rejection or acceptance to Timnath within thirty (30) days of
receipt of the Vangbo Proposal. In the event Fort Collins accepts the Vangbo Proposal, the
parties shall jointly prepare and execute such documentation as is reasonably necessary for the
joint implementation of the Vangbo Proposal and management of the Vangbo Property, and all
associated costs, shall thereafter be as set forth in the Vangbo Proposal. In the event Fort Collins
rejects the Vangbo Proposal, Fort Collins shall provide written notice setting forth its reasons for
such rejection, and Timnath shall be entitled to resubmit a revised Vangbo Proposal at any time
during the remainder of the Option Period.
6.3 No Action. During the Option Period, Fort Collins shall not sell, develop, or
otherwise encumber the Vangbo Property, including, without limitation, the acquisition of a
conservation easement on the Vangbo Property without the written consent of Timnath.
6.4 Expiration of Option Period. If during the Option Period Timnath fails to exercise
its Purchase Option, or if Fort Collins fails to accept any Vangbo Proposal, then Timnath's
Purchase Option and right to submit a Vangbo Proposal shall expire at the end of the Option
Period and Fort Collins shall no longer be bound by any restrictions or obligations contained in
this Article 6. In such event, however, the Vangbo Property shall nonetheless remain within the
TGMA and the restrictions and obligations contained in Section 2.1 shall apply. Upon
Timnath's annexation of the Vangbo Property, Timnath shall have land use jurisdiction over any
future development or use of the Vangbo Property.
ARTICLE 7
BOXELDER OVERFLOW PROJECT
7.1 Grant of Easement. If and to the extent required by the engineering and design of
the Boxelder Overflow Project, Fort Collins shall grant to Timnath an easement through a
portion of the Arapahoe Bend Natural Area east of I-25 in a location and upon terms and
conditions to be mutually agreed upon by the parties for the purpose of westerly flow of
stormwater from the Boxelder Creek (the "Boxelder Easement"). The location, size and impacts
of the Boxelder Easement and improvements built on and in the vicinity of said Natural Area
shall be minimized to the extent reasonably possible. Fort Collins shall execute such documents
and take such action as will be required to effectuate the Boxelder Easement; provided, however,
that such documents shall include a requirement that Timnath carry out its activities on the
Boxelder Easement in a manner that is sensitive to the natural features of the affected property
and restore, at its own expense, the area impacted by construction activities within the Boxelder
Easement to pre-construction natural condition to the extent reasonably possible, using native
vegetation.
7.2 Federal Emergency Management Agency Application. Fort Collins shall not
oppose or interfere with Timnath's application to FEMA in connection with the Boxelder
Overflow Project. In addition, Fort Collins will provide a letter to FEMA stating that, as an
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affected property owner, Fort Collins supports the Project, subject to the requirements of, and
without waiving any of its rights under applicable federal law or Colorado statute, as the same
may be amended from time to time, and if necessary for FEMA approval, will support the
application through signature or other reasonable mechanism. Fort Collins will also provide a
similar letter of support to the Larimer County Flood Review Board as to Fort Collins' position
-on the Project.
7.3 Cost Sharing. Subject to the following conditions, Fort Collins agrees to
reimburse Timnath for up to fifty percent (50%) of the costs actually incurred by Timnath in the
design, engineering, right-of-way acquisition and construction of the Boxelder Overflow Project
("Fort Collins' Contribution"), but in no event shall Fort Collins' Contribution exceed Two
Million and 00/100`h Dollars ($2,000,000.00). Said amount shall be appropriated by Fort Collins
or placed in reserve as irrevocably pledged to meet the obligations of Fort Collins hereunder,
pursuant to the following schedule:
• $1,200,000 shall be appropriated and $800,000 in existing non-departmental
appropriations or other available funds shall be irrevocably set aside in reserves
contemporaneously with approval of this Agreement
• $200,000 of the foregoing $800,000 shall be appropriated on or before February
1, 2010
• an additional $200,000 of the foregoing $800,000 shall be appropriated on or
before February 1, 2011
• an additional $200,000 of the foregoing $800,000 shall be appropriated on or
before February 1, 2012
• an additional $200,000 of the foregoing $800,000 shall be appropriated on or
before February 1, 2013
Upon appropriation of the foregoing funds, Fort Collins agrees to deposit the same into a
federally insured escrow account with an institution to be mutually agreed upon by the parties,
and such funds shall be disbursed by the institution pursuant to the provisions hereof as
necessary to meet Fort Collins' reimbursement obligation under paragraph (c) of this Section 7.3.
(a) Fort Collins' Stormwater Utility staff will provide technical review of the
engineering documents for the Boxelder Overflow Project so as to provide assistance with the
costs-effectiveness and regulatory review of the Project.
(b) Contemporaneously with the approval of this Agreement, the Fort Collins
City Council shall consider an ordinance appropriating the initial $1.2 Million Dollars necessary
to satisfy the Fort Collins' 2009 financial obligation under this Article 7 and, to the extent such
fiords are appropriated from Fort Collins' Stormwater Utility fund, make a determination and
finding that the expenditure of such funds for the purposes stated herein is for a specific utility
purpose that is beneficial to the ratepayers of said utility, as required by Article XII, Section 6 of
the Fort Collins City Charter. The City Council's failure to approve such appropriation shall not
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constitute a violation of this Article 7 or a breach of this Agreement. However, the parties
acknowledge that the City Council's appropriation of the initial $1.2 Million Dollars constitutes
a condition precedent to Timnath's execution of this Agreement.
(c) Upon appropriation of the necessary funds by the City Council, payment
by Fort Collins to Timnath shall be on a reimbursement basis and shall be tendered within ninety
(90) days of Fort Collins' receipt of documentation evidencing Tinmath's expenditure of
amounts for design, engineering, right-of-way acquisition or construction of the Project totaling
at least twice the amount requested from Fort Collins for each such payment. Timnath shall be
entitled to reimbursement under this provision for design, engineering, and right-of-way
acquisition costs incurred up to and including the Effective Date, notwithstanding the fact that
such costs have been incurred prior to FEMA approval of the Project. However, Timnath shall
obtain FEMA approval and all other applicable permits and approvals for the Project before
being entitled to reimbursement for any construction costs for the Project.
(d) Prior to requesting payment of any amounts hereunder, Timnath shall
ensure that the Riverwalk Annexation petition has been withdrawn by Stoner or, if not, the
Timnath Town Council shall have denied said petition as provided in Section 3.1.
(e) It is the intent of the parties that the Fort Collins Contribution fully
satisfies any obligation that Fort Collins may have to Timnath to contribute to the management
of stone drainage waters flowing from Boxelder Creek insofar as such waters or the floodplain
related thereto, may affect property within Timnath's municipal boundaries or within the TGMA.
Accordingly, in consideration of the City Council's appropriation of the funds referenced in this
Section 7.3 and the deposit of the same into escrow, Timnath hereby releases Fort Collins and its
officers, employees, agents and assigns, from any and all claims or causes of action of any kind
whatsoever for any monetary damages or for any other remedy at law or in equity arising from,
connected with or in any way related to the flow, blockage or diversion of storm waters from
Boxelder Creek, the installation, operation and maintenance of culverts and other storm water
facilities related to that portion of I-25 that is adjacent to the TGMA, or the determination of
rainfall standards for areas within Timnath's municipal boundaries or the TGMA, insofar as such
claim or cause of action is based upon any acts or omissions of Fort Collins or any of its officers,
employees, agents or assigns, on or before the Effective Date.
(f) The parties acknowledge and agree that, in the 1980's, at Fort Collins'
request, the Colorado Department of Highways (CDOT) installed two additional box culverts
under I-25 at a location that would, if the culverts were opened, allow a substantially greater
volume of storm waters to flow from Boxelder Creek under I-25 and into portions of the Fort
Collins GMA and municipal limits and that such increased flows could do considerable damage
to property within such area and that, in order to properly manage and contain such flows, Fort
Collins would need to construct extensive new storm water facilities at great expense to Fort
Collins. The parties also acknowledge and agree that one of the primary justifications for Fort
Collins paying a portion of the cost of the Project is to avoid such outcome. Accordingly,
Timnath agrees that, if Fort Collins appropriates or irrevocably pledges funds in the amounts and
in the manner set forth in this Section 7.3 and deposits the same into escrow as required
hereunder, neither Timnath nor any of its officers, employees, agents or assigns, shall attempt,
directly or indirectly, at any time after the execution of this Agreement, to persuade CDOT to
10
take any action that would reasonably be expected to result in the opening of said culverts. In
addition, if a third party takes, or attempts to take, any such action, Timnath agrees to support
Fort Collins' opposition to such action by providing a letter to CDOT to that effect upon the
request of Fort Collins.
7.4 The parties acknowledge that, notwithstanding Fort Collins' Contribution to the
Project, Timnath shall retain sole control and decision-making authority with regard to all
aspects of the Project, including, without limitation, engineering, planning, timing, and
construction. Accordingly, Timnath shall also be responsible for obtaining all necessary permits
and approvals for the Project and for issuing a notice of award for construction activities for the
Project by a qualified contractor. In the event that any claim is filed against Fort Collins or any
of its officers or employees by any person or entity in connection with or in any way related to or
arising from the design, engineering approval, construction, maintenance or operation of the
Project, Timnath will, to the extent permitted by law and without waiving its rights or protections
pursuant to the Colorado Governmental Immunity Act (§ 24-10-101 et seq. C.R.S.), as amended
from time to time, indemnify Fort Collins, its officers, agents, employees, representatives,
successors and assigns from all such claims and liability, including reasonable attorneys' fees
and costs.
7.5 Nothing in this Section or elsewhere in this Agreement shall in any way or
manner be construed as an admission of liability by Fort Collins or its officers or employees for
any claim or damages arising from or in any way related to the construction of the Boxelder
Overflow Project, the overflow of waters from Boxelder Creek, FEMA's designation of certain
areas within the TGMA as being within a floodplain, or any related matters, nor shall anything
herein be construed as a waiver of any defenses, limitations and immunities established pursuant
to the Colorado Governmental Immunity Act (§24-10-101, et seq. C.R.S.), the United States and
Colorado Constitutions, or under the common law or laws of the State of Colorado or of the
United States, including but not limited to Section 42 U.S.C. 1983.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
8.1 Representations by and Warranties of Timnath. Timnath represents and warrants
that:
(a) Timnath is a home rule town, duly organized and validly existing under
the laws of the State of Colorado.
(b) Timnath has the power to enter into and has taken all actions required to
authorize this Agreement and to carry out its obligations hereunder.
(c) Except for the District Court Petition, there is no litigation, proceeding or
investigation contesting the power or authority of Timnath or its officials to enter into or
consummate the transactions contemplated by this Agreement, and Timnath is unaware of any
such litigation, proceeding or investigation that has been threatened.
(d) The execution and delivery of this Agreement and the documents required
hereunder and the consummation of the transactions contemplated by this Agreement will not (a)
11
conflict with or contravene any law, order, rule or regulation applicable to Timnath, or (b) result
in the breach of any of the terms or provisions or constitute a default under any agreement or
other instrument to which Timnath is a party or by which it may be bound or affected.
8.2 Representations by and Warranties of Fort Collins. Fort Collins represents and
warrants that:
(a) Fort Collins is a home rule municipal corporation duly organized and
validly existing under the laws of the State of Colorado.
(b) Fort Collins has the power to enter into and has taken all actions required
to authorize this Agreement and to carry out its obligations hereunder.
(c) There is no litigation, proceeding or investigation contesting the power or
authority of Fort Collins or its officials to enter into or consummate the transactions
contemplated by this Agreement, and Fort Collins is unaware of any such litigation, proceeding
or investigation that has been threatened.
(d) Fort Collins holds fee title to the Vangbo Property.
(e) The execution and delivery of this Agreement and the documents required
hereunder and the consummation of the transactions contemplated by this Agreement will not (a)
conflict with or contravene any law, order, rule or regulation applicable to Fort Collins, or (b)
result in the breach of any of the tenns or provisions or constitute a default under any agreement
or other instrument to which Fort Collins is a party or by which it may be bound or affected.
ARTICLE 9
TABOR
9.1 Notwithstanding other provisions in this Agreement to the contrary, the parties
understand and acknowledge that they are subject to TABOR.
(a) The parties do not intend to violate the terms and requirements of TABOR
by the execution of this Agreement.
(b) It is understood and agreed that this Agreement does not create a multi-
fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore,
notwithstanding anything in this Agreement to the contrary, all payment obligations of the
parties are expressly dependent and conditioned upon the continuing availability of funds beyond
the term of the parties' current fiscal period ending upon the next succeeding December 31.
(c) Financial obligations of the parties payable after the current fiscal year are
contingent upon funds for that purpose being appropriated, budgeted, and otherwise made
available in accordance with ordinances and resolutions of the responsible party and other
applicable law.
12
ARTICLE 10
MISCELLANEOUS
10.1 Default; Remedies. Upon the failure of either party to comply with any of its
obligations contained herein (a "Default"), the non-defaulting party shall provide written notice
of the Default to the defaulting party. Immediately upon receipt of such notice, the defaulting
party shall promptly proceed to cure such Default within thirty (30) days, or if not susceptible of
cure within thirty (30) days, within such time as agreed upon by the non-defaulting party for the
cure of such Default. If the defaulting party fails to cure or remedy the Default within the time
period prescribed, the non-defaulting party may proceed to protect and enforce any or all of its
rights and the obligations of the defaulting party under this Agreement by suit in equity or action
at law, in a court of competent jurisdiction, whether for the specific performance of any
covenants or agreements contained in this Agreement or otherwise, or take any action authorized
or permitted under applicable law, and shall be entitled to require and enforce the performance of
all acts and things required to be performed hereunder by the other party. Each and every
remedy of either party shall, to the extent permitted by law, be cumulative and shall be in
addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
10.2 Amendments. This Agreement may only be amended, changed, modified or
altered in writing signed by both parties hereto.
0.3 Binding Agreement. Both Timnath and Fort Collins intend that this shall
Agreement be binding upon them.
10.4 Implementing Agreements and Further Assurances. The parties hereto agree to
execute such documents, and take such action, as will be reasonably requested by the other party
hereto to confirm or clarify the intent of the provisions hereof and to effectuate the agreements
herein contained.
10.5 Term; Termination. This Agreement shall remain in force and effect for a period
of twenty (20) years from the Effective Date. Thereafter, it shall be automatically renewed for
successive five (5) year terms unless, at least six (6) months prior to its scheduled expiration,
either party notifies the other party, in writing, of its decision that the Agreement not be renewed.
10.6 No Third Party Beneficiaries. 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.
10.7 Severability. In the event either party is prevented by court order from
performing or enforcing any provision of this agreement, or enforcing any regulations, both
parties shall have the option of terminating this Agreement upon mutual consent.
10.8 Prior Agreements. This Agreement supersedes all prior agreements between the
parties with regard to annexation, growth management and development.
10.9 Jointly Drafted; Rules of Construction. The parties hereto agree that this
Agreement was jointly drafted, and, therefore, waive the application of any law, regulation,
13
holding or rule of construction providing that ambiguities in an agreement or other document
will be construed against the party drafting such agreement or document.
10.10 Notices. All notices, certificates or other communications to be given hereunder
shall be sufficiently given and shall be deemed given when delivered or mailed by certified,
registered or overnight mail, postage prepaid, addressed as follows:
If to Timnath:
Town of Timnath
4800 Goodman
Timnath CO 80547
Attn: Town Manager
with a copy to:
Murray, Dahl, Kuechenmeister& Renaud LLP
2401 151h Street, Suite 200
Denver, Colorado 80202
Attn: Gerald E. Dahl, Esq.
If to Fort Collins:
City of Fort Collins
300 Laporte Avenue
P.O. Box 580
Fort Collins, CO 80522-0580
Attn: City Manager
with a copy to:
City Attorney's Office
300 LaPorte Avenue
PO Box 580
Fort Collins, Colorado 80522
Attn: Stephen J. Roy, Esq.
and
Hayes, Phillips, Hoffmann & Carberry, P.C.
1350 17`h Street, Suite 450
Denver, CO 80202-1517
Attn: Corey Y. Hoffmann, Esq.
The parties may, by written notice, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
14
10.11 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
10.12 Section Headings. The captions or headings herein are for convenience only and
in no way define, limit or describe the scope or intent of any provisions or sections of this
Agreement.
10.13 Usage of Terms. When the context in which words are used herein indicates that
such is the intent, words in the singular number shall include the plural and vice versa. All
pronouns and any variations thereof shall be deemed to refer to all genders.
10.14 Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
10.15 Exhibits, Riders R. Addenda. The exhibits, riders and addenda set forth below
shall be deemed to be a part of this Lease and are hereby incorporated herein:
Exhibit 1 —Boxelder Overflow Project
Exhibit 2 —Fort Collins Gateway Second and Third Annexations
Exhibit 3 —Riverwalk Annexation
Exhibit 4—Vangbo Property
Exhibit 5 — FCGMA
Exhibit 6— Properties to be Included in FCGMA
Exhibit 7—TGMA
Exhibit 8 —Permitted I-25 Ramp Annexation (Fort Collins)
Exhibit 9 — Permitted 1-25 Ramp Annexation (Timnath)
[Remainder of Page Intentionally Left Blank. Signature Pages Follow.]
15
IN WITNESS WHEREOF, the Town of Timnath and the City of Fort Collins have
executed this Agreement as of the day and year first above written.
THE TOWN OF TIMNATH, COLORADO
By:
Mayor
ATTEST:
Town Clerk
APPROVED AS TO FORM:
Town Attorney
[Signatures Continue On Following Page]
THE CITY OF FORT COLLINS, COLORADO
By:
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
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Exhibit 6
Properties to be included in FCGMA
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4 8715000012 R0191710 4.09 o'Coffins City Limas
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Exhibit 9
Permitted 1-25 Ramp Annexation (Timnath)
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