HomeMy WebLinkAbout118 - 11/06/2012 - APPROVING THE FIRST AMENDED INTERGOVERNMENTAL AGREEMENT PERTAINING TO THE DEVELOPMENT OF THE INTERST ORDINANCE NO. 118, 2012
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING THE FIRST AMENDED INTERGOVERNMENTAL
AGREEMENT PERTAINING TO THE DEVELOPMENT OF THE
INTERSTATE 25/STATE HIGHWAY 392 INTERCHANGE
i
WHEREAS, on January 3, 2011, the City of Fort Collins (the "City") and the Town of
Windsor (the "Town") entered into an Intergovernmental Agreement (the "Original Agreement")
setting forth certain understandings between the City and the Town with regard to the development
of the Interstate 25/State Highway 392 Interchange; and
WHEREAS, the Original Agreement anticipated the future adoption of ordinances and
resolutions by the City and the Town necessary to implement the provisions of that Agreement;and
WHEREAS, since the adoption of the Original Agreement, staff of the City and the Town
have developed a number of proposed changes to the Original Agreement; and
WHEREAS, the proposed changes are of sufficient substance to require a full amendment
of the Original Agreement; and
WHEREAS,the City Council believes that the changes recommended by staff are in the best
interests of the City.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that the First Amended Intergovernmental Agreement Pertaining to the Development of
the Interstate 25/State Highway 392 Interchange,in substantially the form attached hereto as Exhibit
"A" and incorporated herein by this reference, is hereby approved by the City Council, with such
changes in form or substance as the City Manager,in consultation with the City Attorney,determines
to be necessary and appropriate to protect the interests of the City, and the Mayor is hereby
authorized to execute the same on behalf of the City.
Introduced, considered favorably on first reading, and ordered published this 23rd day of
October, A.D. 2012, and to be presented for final passage on the 6th day of November, A.D. 2012.
FORT CO M or
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City Clerk ;:p
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Passed and adopted on final reading on the 6th day of November, A.D. 2012.
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EXHIBIT A
FIRST AMENDED INTERGOVERNMENTAL AGREEMENT
PERTAINING TO THE DEVELOPMENT OF THE
INTERSTATE 25/STATE HIGHWAY 392 INTERCHANGE
THIS AGREEMENT is entered into this day of , 20129 by
and between the City of Fort Collins, Colorado, a Colorado home rule municipality (the
"City"), and the Town of Windsor, Colorado, a Colorado home rule municipality (the
"Town"), collectively referred to herein as the "Parties".
RECITALS
WHEREAS, the City and the Town are situated on opposite sides of Interstate 25
and are both committed to planned and orderly development; to regulating the location
and activities of development which may result in increased demand for services ; to
providing for the orderly development and extension of urban services ; to simplifying
governmental structure when possible; to promoting the economic vitality of both
municipalities ; to protecting the environment; and to raising revenue sufficient to meet
the needs of their citizens ; and
WHEREAS , on January 3 , 2011 , the City and the Town entered into an
Intergovernmental Agreement ("the Original Agreement") setting forth certain
understandings between the City and the Town with regard to the development of the
Interstate 25/State Highway 392 Interchange; and
WHEREAS , the Original Agreement anticipated the future adoption of ordinances
and resolutions by the City and the Town necessary to implement the provisions of that
Agreement; and
WHEREAS , since the adoption of the Original Agreement, the City and the Town
have agreed upon a number of changes to the Original Agreement; and
WHEREAS , the changes agreed to are of sufficient substance to require a full
amendment of the Original Agreement; and
WHEREAS , this First Amended Intergovernmental Agreement ( `this
Agreement") reflects the changes agreed to by the City and the Town as well as restating
and reaffirming those provisions of the Original Agreement which the City and the Town
desire to remain in full force and effect; and
WHEREAS, the Colorado Constitution, Section 29-20- 101 et seq. , of the
Colorado Revised Statutes, and the home rule charters of both the City and Town
authorize the City and the Town to enter into mutually binding and enforceable
agreements regarding the joint exercise of planning, zoning and related powers as those
powers are exercised in the provisions of this Agreement.
1
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, the Parties hereto agree as follows .
SECTION 1 . DEFINITIONS
In this Agreement, unless a different meaning clearly appears from the context,
the following definitions shall apply:
1 . 1 . "Agreement" means this First Amended Intergovernmental Agreement and
attachments hereto .
1 .2 . "City" means the City of Fort Collins, Colorado.
1 . 3 . "CDOT" means the Colorado Department of Transportation.
1 .4 . "Corridor Activity Center" or "CAC" means that joint planning area referred to
above and more fully described on Exhibit "A," attached hereto and incorporated herein
by this reference.
1 . 5 . "Developable Land" means that portion of each parcel of real property within the
CAC upon which buildings, infrastructure or other improvements may lawfully be
constructed, taking into consideration the physical characteristics of the property and all
applicable state and local laws and regulations .
1 . 6 . "Development Proposal" means an application for the development of a parcel of
land within the CAC .
1 . 7 . "Effective Date" means the date that the last party signs this Agreement, or ten
days after the final approval by the last governing board of the City or Town.
1 . 8 . "Enhanced Improvements" means any improvements within the vicinity of the
Interchange that are deemed necessary or appropriate by the governing bodies of the City
and the Town, which improvements shall be constructed and maintained by the City and
the Town.
1 . 9 . "Foster Study" means the report prepared by Foster Valuation Company, LLC,
attached hereto as Exhibit `B"
1 . 10 . "Interchange" means the Interstate 25 and State Highway 392 interchange .
1 . 11 . "Original Agreement" means the Intergovernmental Agreement between the City
and the Town dated January 3 , 2011 .
1 . 12 . "Project" means the construction by CDOT of a new Interchange at Interstate
Highway 25 and Colorado State Highway 392 .
Page 2 of 14
1 . 13 . "Property Owner" shall mean and include the current and any future fee owner of
a CAC property.
1 . 14 . "Property Tax Increment" means the net new revenue generated by property taxes
on real property located within the boundaries of the CAC, using as the baseline a base
rate of 9 . 797 mils, as applied to the assessed valuation developed by Larimer County as
of the Effective Date.
1 . 15 . "Redevelopment Proposal" means an application for the redevelopment of a
previously developed parcel of land within the CAC .
1 . 16 . "Sales Tax Increment" means the net new sales tax revenues generated by sales
within the boundaries of the CAC, using as the baseline a base rate of 2 .25 % and the
amount of tax revenue received in the twelve ( 12) months immediately preceding the
Effective Date .
1 . 17 . "Town" means the Town of Windsor, Colorado .
SECTION 2. CONFIGURATION OF THE CAC
For the purposes of this Agreement, the Parties have agreed upon the boundaries of the
CAC and those boundaries are more fully described on Exhibit "A" to this Agreement.
SECTION 3. REVIEW OF DEVELOPMENT AND
REDEVELOPMENT PROPOSALS
3 . 1 . Permitted uses . Pursuant to the Original Agreement, the Parties have by
ordinance adopted approved land uses for the CAC. Except by written agreement
approved by both Parties, the Parties hereby agree that for a term of twenty-five (25 )
years from the date of the execution of this Agreement, neither Party shall repeal or
otherwise amend their respective ordinances adopting these land uses .
3 .2 . Applicable Standards . Pursuant to the Original Agreement, the Parties have
lawfully adopted standards and guidelines for development of the properties in the CAC,
including, but not limited to, the standards contained in the Northern Colorado Regional
1-25 Corridor Plan (2001 ) . These standards and guidelines are referred to herein
collectively as the CAC Design Standards . Except by written agreement approved by
both Parties, these CAC Design Standards shall remain in full force and effect for a term
of twenty-five (25) years .
3 . 3 . Review and Approval of Site Specific Development Proposals .
3 . 3 . 1 In order to promote and maintain the commitments of the City and Town
with regard to development within the CAC, the Parties hereby jointly
agree to the following review process for Development or Redevelopment
Proposals for property within the CAC .
Page 3 of 14
a. Neither the City nor Town shall, without the prior written consent
of the other Parry, approve the construction of any improvements within
the CAC which are inconsistent with the CAC Design Standards .
b. Plans and specifications for any Development or Redevelopment
Proposal on land located within the CAC that are received by either Party
after the Effective Date shall, no later than thirty (30) business days prior
to taking action, be submitted by the Party having jurisdiction over the
proposal to the other Party for review and comment; provided, however,
that the Parties may mutually agree to a shorter or longer review and
comment period.
c . Such plans and specifications shall include a brief written
description of the Development or Redevelopment Proposal and the
surrounding vicinity, development maps and graphics, and renderings of
all proposed improvements .
d. The receiving Party shall review the materials and respond to the
other Party with written comments within the aforementioned thirty (30)
business days . Each party agrees that it shall use its best efforts to provide
comments in a timely fashion. However, the Parties expressly agree that
any delay in submitting comments shall not require the delay of hearings
or decisions by the party having jurisdiction over the Development
Proposal.
e . The Parties shall designate a single point of contact for the
communication of materials and comments contemplated by this Section.
f. The review and comment provided for herein is intended to be
cooperative in nature, and is not intended to be binding upon the party
having jurisdiction to grant, modify, or deny a Development or
Redevelopment Proposal and shall not preclude the approval of any such
proposal that is consistent with the CAC Design Standards and the
provisions of this Agreement.
3 . 3 .2 . Notice of Incentives.
In the event that either Party extends, or agrees to extend, to any applicant
for approval of a Development or Redevelopment Proposal within the
CAC, any financial or other incentives in connection with such
Development or Redevelopment Proposal, such Party shall provide the
other Party with a detailed description of such financial or other incentives
prior to the formal approval of the same, excluding only such information
as is proprietary in nature. The provision and funding of any such
incentives shall be the sole responsibility of the Party having jurisdiction
over the Development or Redevelopment Proposal, unless the Parties
agree to the contrary in a written amendment to this Agreement.
Page 4 of 14
SECTION 4. COST SHARING
4. 1 . Funding of the Project.
4. 1 . 1 The Project, which is now nearing completion, has been constructed,
managed, and in large part funded by CDOT. Each of the Parties has
appropriated the necessary amounts to complete the funding of the Project
pursuant to an Intergovernmental Agreement between the Parties and
CDOT dated January 3 , 2011 . In addition to this contribution to the
funding of the construction of the Project, the City and the Town have also
appropriated funds for the construction of the Enhanced Improvements .
The Enhanced Improvements shall not include enhanced wetland
mitigation on the west side of Interstate 25 . The City may, in its discretion,
pay for the cost of such enhanced wetland mitigation, and the Town shall
have no obligation to help fund such mitigation.
4. 1 .2 The Parties have agreed to recover an amount not to exceed Fifty Percent
(50%) of the actual contribution made by the City and the Town for the
construction of the Project and the Enhanced Improvements from the
Property Owners in the CAC . The City and the Town shall each adopt
ordinances authorizing such recovery and establishing fees and
appropriate methodologies for such recovery.
4. 1 . 3 There shall be no further contributions to the Project by the Parties except
by a written agreement approved by the governing bodies of both Parties .
4.2 . CAC Fee Revenue Fund.
4.2 . 1 The Parties shall, within sixty (60) days after collecting any fee revenues
from Property Owners as described in Section 4 of this Agreement,
deposit such revenues into a CAC Fee Revenue Fund ("Fee Revenue
Fund") to be established and administered by one of the Parties pursuant
to a written administrative agreement approved by the Town Manager and
the City Manager, which agreement shall include a provision whereby the
Parties will equitably share the costs incurred in administering the Fee and
managing the Fee Revenue Fund. The amounts deposited into the Fee
Revenue Fund shall be disbursed annually to the Parties in equal amounts,
without regard to whether the properties that generated the Fee revenues
are located with the territorial limits of the City or the Town. Such
disbursements shall continue until the City and the Town have been fully
reimbursed in accordance with the provisions of Section 4 of this
Agreement.
4.2 .2 Either Party may elect to forego the collection of all or any portion of the
fee revenues due from a particular Property Owner in exchange for the
Property Owner's provision of a reciprocal benefit to such Party, which
benefit may include, but need not be limited to, the setting aside or
Page 5 of 14
dedication to the public of a portion of the developable land within the
parcel for purposes such as wetlands, open space, parks or other
improvements or amenities. In the event that either party elects to forego
the collection of any fee revenue pursuant to this provision, such Party
shall nonetheless pay into the Fee Revenue Fund the full amount of the
Fee that would have been due from the Property Owner had such election
not been made .
SECTION 5. REVENUE SHARING
5 . 1 . Terms and Conditions. The Parties shall, pursuant to the following terms and
conditions, share the Property Tax Increment and Sales Tax Increment generated by
properties and businesses located within the boundaries of the CAC .
5 . 1 . 1 All tax revenues generated by the Property Tax Increment and Sales Tax
Increment shall be deposited by each Party in a separate account and shall
not be intermingled with any other funds of that Party.
5 . 1 .2 Sixty-five percent (65 %) of the Property and Sales Tax Increment
revenues generated in the CAC shall be retained by each Party for use as
that Party sees fit. The remaining thirty-fix percent (35 %) of such
revenues shall be transferred to the other Party within sixty (60) days of
December 31 of each year. Annual statements showing calendar year total
receipts of all such revenues from each of the Property Owners and
retailers within the CAC shall be shared with the other Party within thirty
(30) days of December 31 of each year, and the Parties agree that these
statements are being disclosed solely for tax-related purposes and are
therefor to remain confidential.
5 . 1 . 3 Any interest earned on deposits in the account described in Section 5 . 1 . 1
above shall remain the property of the Party that collected the revenue
upon which the interest was earned and shall not be shared.
5 . 1 .4 The share distribution shall begin on the Effective Date.
5 . 1 . 5 Any increase or decrease in the sales or property tax rates of either the
City or the Town shall not affect the Property Tax Increment or the Sales
Tax Increment due from the City or the Town for the revenue sharing
purposes of this Section.
5 . 1 . 6 In the event either the City or the Town creates one or more exemptions
from sales taxes or property taxes, and such exemption(s) results in a
reduction in the amount of revenue collected by such Party in the CAC,
the Party creating the exemption(s) shall include the exempted amount in
its calculation of the amount of Property and Sales Tax Increment revenue
that is due to the other Party under this Section as if the exemption(s) had
not been created.
Page 6 of 14
5 . 1 . 7 To the extent permitted by law, this sharing of revenues shall continue in
perpetuity.
5 .2 . Cooperation in Attracting New Development. The Parties acknowledge and agree
that they may need to cooperate in an effort to attract desirable development. Nothing
herein shall preclude the Parties from entering into a subsequent agreement modifying the
within Section and creating incentives for development in the CAC beneficial to both
Parties . This shall include, but shall not be limited to , an agreement to reduce or
eliminate the revenue sources identified in this Section. Any such agreement shall be in
writing and set forth the terms under which a modification of this Section will occur.
5 . 3 . Bonding. Nothing in this Agreement is intended to restrict either Party from
being able to utilize its sixty-five percent (65 %) share of the Property Tax Increment
revenue and Sales and Use Tax Increment revenue as collateral or use in underwriting
any bond, note, debenture, or other municipal borrowing.
SECTION 6. INSPECTION OF RECORDS,
The City and the Town shall each have the right to inspect and audit the tax revenue and
fee collection records of the other pertaining to this Agreement. If any discrepancy is
discovered, the auditing Party shall provide written notice, including a copy of the audit
report, to the other Party. Any amount due must be paid within thirty (30) days following
the written notice or the Parties must engage in negotiations regarding the discrepancy. If
a mutual agreement is not reached in sixty (60) days, the provisions of Section 8 below
will apply.
To the extent permitted by law, all tax and revenue collection information which is
obtained by and pursuant to the inspection and audit provisions of this Agreement shall
be deemed privileged, confidential and proprietary information and is being disclosed
solely for tax-related purposes, including the calculation of revenue sharing payments
pursuant to this Agreement.
The Parties agree that they will not disclose any information to any person not having a
legitimate need-to-know for purposes authorized by this Agreement.
The period of limitation for the recovery of any funds payable under this Agreement shall
be three (3 ) years from the date on which the payment is due . Upon the expiration of this
period of limitation and any action for collection or recovery of unpaid revenue sharing
funds shall be barred.
Each Party and its authorized agents may, upon thirty (30) days ' advance written notice
to the other, audit the other' s records of those taxes and fees which are collected within
the CAC and which are being shared pursuant to this Agreement.
Page 7 of 14
SECTION 7. ANNEXATION
7 . 1 . Amendment of Growth Management Area Boundaries. In order to promote
ongoing cooperation and collaboration between the Parties with respect to land use
planning on both sides of Interstate 25 , and to further the purposes contained in C .R. S .
Section 31 - 12- 102 of the Municipal Annexation Act of 1965 , the Parties agree that
Interstate 25 shall become the boundary between the Fort Collins Growth Management
Area ("FCGMA") and the Windsor Growth Management Area ("WGMA"),
Accordingly, after the Effective Date, neither Party shall annex, or accept any petition to
annex, property within the other Party' s growth management area as amended in
accordance with this provision. Nor shall either Party annex, or accept any petition to
annex, or include within its growth management area, the right of way for Interstate 25
adjacent to the other Party ' s growth management area without the prior written consent
of the other Party. Any future amendments to the contiguous boundaries of the FCGMA
and the WGMA shall be made only if agreed upon in writing by both Parties .
7 .2 . County pproval of GMA Boundary Amendments . Both Parties have heretofore
entered into intergovernmental agreements with Larimer County that establish the growth
management areas of the Parties, which agreements provide for, among other things , the
way in which development applications for properties within the FCGMA and the
WGMA will be processed by Larimer County. Accordingly, in order to ensure the
cooperation of Larimer County in implementing the provisions of this Section, each Party
shall, within one ( 1 ) year of the Effective Date, seek the approval of Larimer County to
amend its agreement with Larimer County so as to reflect the amendments to the
FCGMA and WGMA required hereunder. However, the failure of Larimer County to
approve either or both such amendments shall not affect the obligation of the Parties to
refrain from annexing territory within the FCGMA, the WGMA or the right of way for
Interstate 25 as required in Section 7 . 1 above.
7 . 3 . Effect on Prior Annexation Agreements . The provisions of this Section shall
supersede and take precedence over any conflicting provisions contained in those certain
agreements between the Parties entitled "Intergovernmental Agreement (Regarding
Annexations East of Interstate Highway 25)" and "Intergovernmental Agreement
(Regarding Annexations in the Fort Collins Cooperative Planning Area Adjacent to
Fossil Creek Reservoir) , both of which are dated June 28 , 1999 .
SECTION 8. MEDIATION/ARBITRATION
8 . 1 . Enforceability of Agreement. The parties acknowledge that agreements between
municipalities for the purposes set forth herein are mutually binding and enforceable. The
parties likewise acknowledge that the unique nature of agreements between
municipalities often require equally unique remedies to ensure compliance with the
provisions of such agreements while preserving the obligations of the parties to one and
other and promoting the continued existence and effectiveness of such agreements. It is
the intent of the parties to this Agreement to provide enforcement remedies through a
Page 8 of 14
combination of alternative dispute methodologies including mediation and binding
arbitration, and thereby eliminate the necessity of judicial enforcement of this
Agreement. Nothing herein shall be deemed to preclude either party from seeking judicial
enforcement of any mediation agreement reached between the parties or binding
arbitration order entered as a result of the alternate dispute methodologies set forth
herein.
8 .2 . Mediation/Arbitration Process in General. Should either party fail to comply with
the provisions of this Agreement, the other party, after providing written notification to
the non-complying party, and upon the failure of the non-complying party to achieve
compliance within forty five (45) days after said notice, the issue of non-compliance shall
be submitted to mediation and thereafter, assuming no resolution has been reached
through the mediation process, shall be submitted to binding arbitration. The mediation
and binding arbitration processes shall in accordance with the provisions hereinafter set
forth. These mediation and arbitration provisions shall be in addition to questions of non-
compliance as aforesaid, apply to all disagreements or failure of the parties to reach
agreement as may be required by the terms of this Agreement. This shall include, but
shall not be limited to, the creation of joint land use designs and standards, approval or
rejection of Development Proposals, and disputed matters concerning shared revenues.
8 . 3 . Sharing of Costs . All costs of the mediation/binding arbitration process shall be
divided equally between the Parties.
8 .4 . Mediation Process . The dispute resolution process shall commence with the
appointment of a mediator who shall be experienced in matters of local government and
the legal obligations of local government entities. In the event the parties are unable to
agree upon a mediator within fifteen ( 15) days of the commencement of the process, each
party shall within five (5) days appoint an independent third party, and the third parties so
appointed shall select a mediator within fifteen ( 15 ) days of their appointment. Mediation
shall be completed no later than sixty (60) days after a mediator is selected by the parties
or by the independent third parties . The procedures and methodology for mediation shall
be determined by the mediator, but shall be in compliance with applicable law.
8 . 5 . Binding Arbitration Process . In the event the parties are unable to reach
agreement through the mediation process, the matter in dispute shall be submitted to
binding arbitration. The parties agree that the order resulting from the arbitration process
shall be deemed a final and conclusive resolution of the matter in dispute. The parties
shall agree on the appointment of an arbitrator who shall be experienced in matters of
local government and the legal obligations of local government entities. It is understood
and agreed that the parties may agree upon the appointment of that person who conducted
the mediation portion of this process as the arbitrator, but are not bound to do so . In the
event the parties are unable to agree upon an arbitrator within fifteen ( 15) days, each
party will appoint an independent third party, and the third parties so appointed shall
select a mediator within fifteen ( 15) days of their appointment. Arbitration shall be
completed no later than ninety (90) days after an arbitrator is selected by the parties or by
Page 9 of 14
the independent third parties. The procedures and methodology for binding arbitration
shall be determined by the arbitrator, but shall be in compliance with applicable law.
SECTION 9. CONTINGENT ON APPROPRIATIONS
The obligations of the City and Town do not constitute an indebtedness of the City or
Town within the meaning of any constitutional or statutory limitation or provision. The
obligations of the City and Town for payment of the Sales Tax Increment under this
Agreement shall be from year to year only and shall not constitute a mandatory payment
obligation of the City or Town in any fiscal year beyond the present fiscal year. This
Agreement shall not directly or indirectly obligate the City or Town to make any
payments of Sales Tax Increment beyond those appropriated for any fiscal year in which
this Agreement shall be in effect. The City and Town Manager (or any other officer or
employee at the time charged with the responsibility of formulating budget proposals) is
hereby directed to include in the budget proposals and appropriation ordinances
submitted to the City Council and the Town Board, in each year prior to expiration of this
Agreement, amounts sufficient to meet its obligations hereunder, but only if it shall have
received such amounts in the form of Sales Tax Increment, it being the intent, however,
that the decision as to whether to appropriate such amounts shall be at the discretion of
the City Council and Town Board.
SECTION 10. MISCELLANEOUS
10 . 1 . Amendment. This Agreement is the entire and only agreement between the
Parties regarding the sharing of ( 1 ) costs for the Project; and (2) net new tax revenues
generated with the CAC boundaries. There are no promises, terms, conditions, or other
obligations other than those contained in this Agreement. This Agreement may be
amended only in writing signed by the Parties .
10 .2 . Severability. Except as otherwise provided in this Agreement, if any part, term,
or provision of this Agreement is held by the courts to be illegal or otherwise
unenforceable, such illegality or unenforceability will not affect the validity of any other
part, term, or provision of this Agreement and the rights of the Parties will be construed
as if that part, term, or provision was never part of this Agreement.
10 . 3 . Colorado Law. This Agreement is made and delivered with the State of Colorado
and the laws of the State of Colorado will govern its interpretation, validity, and
enforceability.
10 .4 . Jurisdiction of Courts . Personal jurisdiction and venue for any civil action
commenced by any of the Parties to this Agreement for actions arising out of or relating
to this Agreement will be the District Court of Larimer County, Colorado .
10 . 5 . Representatives and Notice . Any notice or communication required or permitted
under the terms of this Agreement will be in writing and may be given to the Parties or
their respective legal counsel by (a) hand delivery; (b) deemed delivered three business
days after being deposited in the United States mail, with adequate postage prepaid, and
Page 10 of 14
sent via registered or certified mail with return receipt requested; or (c) deemed delivered
one business day after being deposited with an overnight courier service of national
reputation have a delivery area of Northern Colorado, with the delivery charges prepaid.
The representatives will be :
If to the City: City Manager
300 LaPorte Avenue
PO Box 580
Fort Collins, CO 80524
With a copy to
City Attorney
300 LaPorte Avenue
PO Box 580
Fort Collins, CO 80524
If to the Town: Town Manager
Windsor Town Hall
301 Walnut Street
Windsor, CO 80550
With a copy to
Town Attorney
c/o Town Manager
Windsor Town Hall
301 Walnut Street
Windsor, CO 80550
10 . 6 . Good Faith. In the performance of this Agreement or in considering any
requested approval, acceptance, or extension of time, the Parties agree that each will act
in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably
withhold, condition or delay any approval, acceptance or extension of time required or
requested pursuant to this Agreement.
10 . 7 . Authorization. The signatories to this Agreement affirm and warrant that they are
fully authorized to enter into and execute this Agreement, and all necessary action,
notices, meetings, and hearings pursuant to any law required to authorize their execution
of this Agreement have been made.
10. 8 . Assignment. Neither this Agreement, nor the City or Towns ' rights, obligations
or duties may be assigned or transferred in whole or in part by either Party without the
prior written consent of the other Party.
10. 9 . Execution in Counterparts . This Agreement may be executed in multiple
counterparts, each of which will be deemed an original and all of which taken together
will constitute one and the same agreement.
Page 11 of 14
10 . 10 . No Third Party BeneficiM. It is expressly understood and agreed that the
enforcement of the terms and conditions of this Agreement, and all rights of action
relating to such enforcement, are strictly reserved to the Parties and nothing in this
Agreement shall give or allow any claim or right or cause of action whatsoever by any
other person not included in this Agreement. It is the express intention of the Parties that
no person and/or entity, other than the undersigned Parties, receiving services or benefits
under this Agreement shall be deemed any more than an incidental beneficiary only.
10. 11 . Recordation of Agreement. The City shall record a copy of this Agreement in the
office of the Clerk and Recorder of Larimer County, Colorado .
10 . 12 . Execution of Other Documents . The Parties agree to execute any additional
documents and to take any additional actions necessary to carry out the terms of this
Agreement.
Approved as to Form: CITY OF FORT COLLINS
City Attorney Mayor
ATTEST :
City Clerk
TOWN OF WINDSOR
Mayor
ATTEST :
Town Clerk
Page 12 of 14
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EXHIBIT B
to the Amended IGA
October 3 , 2012
Mr. Rick Richter
Capital Projects Manager
Engineering Department
City of Fort Collins
P . O . Box 580
Fort Collins, Colorado 80522-0580
John P . Frey, Esq.
Frey McCargar & Plock, LLC
The Historic Harmony Mill
131 Lincoln Avenue, Suite 100
Fort Collins, CO 80524
RE : Interstate 25 and Colorado State Highway 392 Reimbursement Study-
Revised October 3 , 2012
Dear Mr. Richter and Mr. Frey:
At your request, I am submitting my revised appraisal consulting report,
which involves a reimbursement study prepared to estimate an equitable manner to
assess property owners within the Fort Collins Growth Management Area (GMA)
and the Windsor GMA who benefit from the capital improvement project
proposed to improve traffic flow and reduce congestion at the Interstate 25 and
Colorado State Highway 392 interchange .
Scope of the Assignment
City of Fort Collins and Town of Windsor officials have committed to fund
approximately $2 . 3 million as their share of the proposed interchange construction
costs and an additional $250 , 000 for interchange enhancements . This study is to
determine a fair and equitable manner for the two municipalities to assess property
owners and be reimbursed based on the estimated influence the project is to have
on the value of those properties in proximity to the project.
The study involves making a determination of which properties within the
City of Fort Collins and the Town of Windsor growth management areas in
proximity to the Interstate 25 and Colorado State Highway 392 interchange are
W. West Foster, MAI, CRE, SR/WA ♦ Sue Anne Foster, MAI, SRA
Jon M. Vaughan, MAI, SR/WA ♦ Christine Antonio ♦ Michael Smith
Certified General Real Estate Appraisers ♦ 910 5e Avenue, Suite 210. Greeley, Colorado 80634
Phone (970) 352- 1117 ♦ FAX (970) 323-2753
Mr. Rick Richter and John P . Frey, Esq.
Page 2
October 3 , 2012
being benefitted from the proposed interchange improvements and to what extent
the properties are enhanced by the proposed access enhancements . The properties
within the two growth management areas in proximity to the interchange were
studied to formulate an opinion as to the extent they are estimated to benefit from
the proposed interchange improvements . The areas of influence are reduced
typically based on the diminished proximity to the interchange . The conclusion
was reached that when confined to properties within both communities' growth
management areas , the sites within the corridor activity center (CAC) boundary
were those deemed to possess the most influence from the interchange
improvements .
The initial focus of my investigation was to study the influences on land
value in proximity to newly developed interstate highway interchanges . The four
interchanges that had the most significant and relevant data were in the Denver
Metropolitan area. The two interchanges where the most significant data were
found included the recently constructed Interstate 25 and 144th Avenue
interchange and the Interstate 25 and 1361h Avenue interchange . Data in proximity
to the E-470 and East Smoky Hill Road interchange and the E-470 and the South
Gartrell Road interchange were also studied.
These data were then utilized to estimate the extent to which the land
around this interchange would increase in value after the interchange
improvements are made . Based on the data gathered at the four interchanges
mentioned, it was concluded that there are four areas of influence, which I have
labeled Value Enhancement Zones A through D . On the attached I25 - State
Highway 392 Interchange Value Enhancement Zones map , Zones A and A- 1 are
highlighted in red, Zones B and B - 1 are in orange, Zone C is shown in pale green,
and Zone D is highlighted in darker green.
Zones A and A- 1 feature the best proximity to the interchange and, in my
opinion, will benefit the greatest from the interchange improvements . Zone A
consists of commercially-zoned land. Zone A- 1 consists of commercial lots on the
east side of Interstate 25 straddling Colorado State Highway 392 . Based on the
investigation of data surrounding the four interchanges discussed above, Zone A
prices increased from the period before the interchanges were constructed to the
period after the interchanges were nearing completion on the average of $7 . 00 to
$7 . 50 per square foot.
Mr. Rick Richter and John P . Frey, Esq.
Page 3
October 3 , 2012
Zones B and B - 1 are slightly farther removed from the interchange, but still
possess strong influence for potential commercial uses . Zone B consists strictly of
vacant commercially-zoned land. The Zone B - I parcel consists of a commercial
site on the west side of Interstate 25 north of Colorado State Highway 392 that has
been significantly improved with buildings . Zone B prices increased from the
period before the interchanges were constructed to the period after the inter-
changes were nearing completion on the average of $4 . 50 to $4 . 75 per square foot.
Zone C is farther removed from the interchange, and the data at the
interchanges studied suggest that these sites are influenced by interstate frontage
and benefit from good accessibility. Zone C prices increased from the period
before the interchanges were constructed to the period after the interchanges were
nearing completion on the average of $ 3 . 50 to $4 . 00 per square foot.
Zone D is yet farther removed from the interchange, and the data at the
interchanges studied suggest that these sites are also influenced by interstate
frontage and benefit from good accessibility due to the interchange improvements .
Zone D prices increased from the period before the interchanges were constructed
to the period after the interchanges were nearing completion on the average of
$2 . 00 to $2 . 25 per square foot.
The preceding data are generated from newly developed interchanges
where none previously existed. The value increases at the Interstate 25 and
Colorado State Highway 392 interchange are not expected to be quite as dramatic .
Value Enhancement Fee Estimates
Each property within the four primary zones discussed above is shown in
the attached Value Enhancement Zone Analysis spreadsheet and is identified by
Larimer County assessor's parcel number and ownership as indicated in county
records . The gross land area has been calculated using the best available
information; and the non-developable areas have been calculated using City of
Fort Collins Geographical Information System (GIS) data, which then results in a
developable land area calculation per square foot. The value enhancement fees
will be assessed based on developable land area per square foot at the time the
sites are developed or when the sites are redeveloped.
Mr. Rick Richter and John P . Frey, Esq.
Page 4
October 3 , 2012
At the newly constructed interchanges studied, the Zone A prices increased
on the average of $7 . 00 to $7 . 50 per square foot. Since no interchanges existed
before, these average increases are greater than what would be expected at
Interstate 25 and Colorado State Highway 392 when the interchange
improvements are completed since that interchange already exists . Using 25 to 50
percent of the $ 7 . 00 to $7 . 50 per square foot estimated value after the interchange
improvements are made results in a forecast increase from $ 1 . 88 to $ 3 . 75 per
square foot for Zones A and A- 1 . There are 1 ,576,345 square feet of developable
land area in Zones A and A- 1 . It is forecast that value increases in Zone A
category will be from just over $2 . 9 million to nearly $ 6 million.
In Zones B and B - 1 prices increased on the average of $4 . 50 to $4 . 75 per
square foot at the interchanges studied. Again, since an interchange already exists
at Interstate 25 and Colorado State Highway 392 , the increase is not expected to
be as great. If a range of 25 to 50 percent is utilized again, it results in a forecast
increase from $ 1 . 16 to $2 . 32 per square foot within Zones B and B - 1 . There are
4 , 333 , 889 square feet of developable land area in Zones B and B - 1 . It is forecast
that value increases in Zones B and B - 1 will be from $ 5 . 0 to nearly $ 10 . 1 million.
Land prices in Zone C at the interchanges studied increased on the average
of $3 . 50 to $4 . 00 per square foot due to the new interchange construction. Again,
since the Interstate 25 and Colorado State Highway 392 interchange already exists ,
the increase is not expected to be as great. If a range in forecast value increases of
25 to 50 percent is utilized again, it results in a forecast increase from $ 0 . 94 to
$ 1 . 88 per square foot within Zone C . There are 6,682 , 600 square feet of
developable land area in Zone C . It is forecast that value increases in the Zone C
category will be from $ 6 . 3 to nearly $ 12 . 6 million.
At the interchanges studied, land prices in Zone D increased on the average
of $2 . 00 to $2 .25 per square foot as a result of the new interchange being
constructed. As with the preceding zones analyzed, since the Interstate 25 and
Colorado State Highway 392 interchange already exists, the increase is not
expected to be as great. If a range in forecast value increases of 25 to 50 percent is
utilized again, it results in a forecast increase from $ 0 . 53 to $ 1 . 06 per square foot
within Zone D . There are 9 , 320 ,291 square feet of developable land area in
Zone D . It is forecast that value increases in the Zone C category will be from
$4 . 9 to nearly $ 9 . 9 million.
Mr. Rick Richter and John P . Frey, Esq.
Page 5
October 3 , 2012
It is clear from the data gathered at the four interchanges studied that the
improvements proposed at the Interstate 25 and Colorado State Highway 392
interchange will enhance property values within the CAC at a minimum of $ 19 . 1
million, which is greater than the $2 . 55 million being assessed.
Respectfully bmitted,
f�
W. West Foster, MAI, CRE, SR/WA
CO Certification #CG00001795
Exhibit A : I25 - State HWY 392 Interchange Map
Exhibit B : Value Enhancement Zone Analysis spreadsheet
Exhibit C : Qualifications of W. West Foster
Exhibit D : Certification
ADDENDA
EXHIBIT A
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ADDENDA
EXHIBIT B
ATTACHMENT ONE - VALUE ENHANCEMENT ZONE ANALYSIS
September 2012 Foster Valuation Company LLC
GROSS NON-DEV DEVELOPABLE TOTAL TOTAL PROXIMITY
OWNER LAND AREA LAND AREA LAND AREA FEE/SF FEES COMPONENT OF FEE REMARKS
ZONE A
86150-00-007 INTERSTATE LAND HOLDINGS, LLC 645,519 347,609 297,910 $0.28 $82,892 $41,446 NWQ ofI-25 and SH 392 Interchange
86154-05-001 WINDSOR INVESTMENTS LTD 73,410 0 73,410 $0.28 $20,426 $10,213 Ptarmigan Business Park Developed Lot
86154-05-002 WINDSOR INVESTMENTS LTD 73,324 0 73,324 $0.28 $20,402 $10,201 Ptarmigan Business Park Developed Lot
86154-07-001 BANK OF CHOICE 55,889 0 55,889 $0.28 $15,551 $7,775 Ptarmigan Business Park Developed Lot
86154-07-002 WINDSOR INVESTMENTS LTD 74,479 0 74,479 $028 $20,723 $10,362 Ptarmigan Business Park Developed Lot
86154-05-007 BUSINESS PARK I OF 392 49,185 0 49,185 $0.28 $13,686 $6,843 Ptarmigan Business Park Developed Lot
86220-00-014 VPD392/PRATO, LLC 186,550 0 186,550 $0.28 $51,907 $25,953 Prime SW Quadrant of I-25 and SH 392
ZONE A-1
86154-05-003 KHUONG HUONG TANG, et al 26,196 0 26,196 $0.28 $7,289 $3,644 Ptarmigan Business Park Developed and Improved Lot
86154-05-004 WESTGATE PARTNERS LLC 36,568 0 36,568 $0.28 $10,175 $5,087 Ptarmigan Business Park Developed and Improved Lot
86154-05-006 WESTGATE PARTNERS LLC 60,807 0 60,807 $0.28 $16,919 $8,460 Ptarmigan Business Park Developed and Improved Lot
86221-45-002 MICHAEL I. MAXWELL, et al 55,178 0 55,178 $0.28 $15,353 $7,677 Westgate Commercial Center Developed and Improved Lot
86221-45-001 THE BAILEY COMPANY 43,963 01 43,963 $0.28 $12,233 $6,116 Westgate Commercial Center Developed and Improved Lot
86221-43-001 SCHRADER PROPERTIES, LLC 66,211 01 66,211 $0.28 $18,423 $9,211 Westgate Commercial Center Developed and Improved Lot
86221-43-002 TACO JOHNS INTERNATIONAL INC 49,223 01 49,223 $0.28 $13,696 $6,848 Westgate Commercial Center Developed and hnproved Lot
86221-45-003 FORMER TCE, LLC 100,887 0 100,887 $0.29 $28,071 $14,036 Westgate Commercial Center Developed and Improved Lot
86221-45-004 WESTGATE HOSPITALITY LLC 96,118 0 96,118 $0.28 $26,744 $13,372 Westgate Commercial Center Developed and Improved Lot
86221-47-001 MEYERS 4701 LLC 152,444 0 152,444 $0.28 $42,417 $21,208 Westgate Commercial Center Developed and Improved Lot
86221-43-003 KINDERCARE LEARNING CENTERS 78,003 0 78,003 $0.28 $21,704 $10,852 Westgate Commercial Center Developed and hnproved Lot
ZONE B
86154-06-001 WINDSOR INVESTMENTS LTD 772,886 21,283 751,603 $0.21 $156,848 $78,424 I-25 Frontage in NEQ of interchange
86I50-00-014 YEAGER, NANCY L TRUSTEE 786,783 53,648 733,135 $0.21 $152,994 $76,497 North side of SH 392 east of Bus. Park
86154-08-001 WINDSOR INVESTMENTS LTD 653,873 242,4101 411,463 $0.21 $85,866 S42,933 East of Frontage Rd. N. of SH 392
8622247-701&2 LODGEPOLE INVESTMENTS, LLC 578,912 01 578,912 $0.21 $120,810 $60,405 West of Frontage Rd. S. of SH 393
8622147-002 POUDRE VALLEY HEALTH CARE INC 995,327 85,593 909,734 $0.21 $189,847 $94,924 Frontage on east side ofI-25 S. Of SH 392
86220-00-003 POUDRE VALLEY HEALTH CARE INC 1,324,499 711,956 612,543 $0.21 $127,828 $63,914 Frontage on east side ofI-25 S. Of SH 392
ZONEB - 1
86150-00-009 B3 VENTURES LLC 407,722 71,223 336,499 $0.21 $70,222 $35,111I-25 Frontage N of SH 392 in NWQ of interchange
ZONE C
86I50-00-005 FOSSIL POINT, LLC 1,026,879 71,728 955,151 $0.12 $110,736 $55,368 Frontage on west side ofI-25 N. Of SH 392
86I50-00-013 BURNETTE/YOUNG INVESTMENTS 939,698 352,269 587,429 $0.12 $68,104 $34,052 Frontage on east side ofI-25 N. Of SH 392
86154-06-003 WINDSOR INVESTMENTS LTD 126,260 85,128 41,132 $0.12 $4,769 $2,384 East ofI-25 and North of SH 392
86154-06-004 WINDSOR INVESTMENTS LTD 317,882 15,897 301,985 $0.12 $35,011 $17,505 East of 1-25 and North of SH 392
86154-06-005 WINDSOR INVESTMENTS LTD 291,695 0 291,695 $0.12 $33,818 $16,909 East ofI-25 and North of SH 392
86154-06-006 WINDSOR INVESTMENTS LTD 37,858 0 37,858 $0.12 $4,389 $2,195 East of 1-25 and North of SH 392
86I50-00-017 JBT ASSOCIATES, LLC 1,767,708 236,095 1,531,613 $0.12 $177,569 $88,784 West Side of LC Road 5 N. of SH 392
86220-00-014 VPD392/PRATO, LLC 1,041,071 444,571 596,500 $0.12 $69,156 $34,578 South of SH 392; West of Wetlands
8622247-701 LODGEPOLE INVESTMENTS, LLC 244,668 163,264 81,404 $0.12 $9,438 $4,719 West of Frontage Rd. S. of SH 393; West of wetlands
86222-47-702 LODGEPOLE INVESTMENTS, LLC 903,159 221,691 681,468 $0.12 $79,006 $39,503 West of Frontage Rd. S. of SH 393; West of wetlands
86220-00-017 IVAN CLEAVE, TERRY/MARY 1,708,402 132,037 1,576,365 $0.12 $182,757 $91,379 Farther South of SH 392 West ofI-25
ZONE D
86220-00-004 WINDSOR GOLD COAST LLC 2,544,953 224,297 2,320,656 $0.05 $107,619 $53,809 Farther South of SH 392 on east side ofI-25
86150-00-021 HORTON, MARY A/ET AL 1,555,303 501,653 1,053,650 $0.05 $48,862 $24,431 Farther North of SH 392 on east side of I-25
86100-00-016 HORTON, MARY A/ET AL 1,030,219 419,817 610,402 $0.05 $28,307 $14,153 Farther North of SH 392 on east side of I-25
86100-00-011 THREE T INVESTMENTS LLLP 1,045,838 486,358 559,480 $0.05 $25,945 $12,973 Farther North of SH 392 on east side ofI-25
86150-00-001 THREE T INVESTMENTS LLLP 1,444,331 381,052 1,063,279 $0.05 $49,309 $24,654 Farther North of SH 392 on east side ofI-25
86100-00-002 THREE T INVESTMENTS LLLP 94,626 69,233 25,393 $0.05 $1,178 $589 Farther North of SH 392 on east side ofI-25
86100-00-015 IHORTON FEEDLOTS INC 1,625,207 469,646 1,155,561 $0.05 $53,588 $26,794 Farther North of SH 392 east of I-25 to LC Road 5
86150-00-020 IHORTON FEEDLOTS INC 3,452,929 921,059 2,531,870 $0.05 $117,414 $58,707 Farther North of SH 392 east ofI-25 to LC Road
21,913,1251 $2,550,000 $216,111
ADDENDA
EXHIBIT C
QUALIFICATIONS OF W. WEST FOSTER
Education
M. S . Degree in Regional Economics, Colorado State University.
B . S . Degree in General Business, Colorado State University.
All of the basic courses required for the MAI designation given by the American Institute of Real
Estate Appraisers; Course III (Rural Properties); Course IV (Litigation Valuation);
Course VI (Real Estate Investment Analysis); Course VII (Industrial Valuation); Course
520 (Highest and Best Use and Market Analysis); Course 550 (Advanced Applications);
and all Litigation courses offered in the Professional Development Program. This partial
list of courses was all given by the Appraisal Institute or its predecessor organizations.
Principles of Real Estate Engineering, The Appraisal of Partial Acquisitions, and several
relocation courses, given by the International Right of Way Association.
Management and Leasing of Shopping Centers, by the Institute of Real Estate Management.
Advanced Ranch Appraisal, by the American Society of Farm Managers and Rural Appraisers .
Seminars : Computer-Enhanced Cash Flow Modeling, Subdivision Appraisal, Uniform Appraisal
Standards for Federal Land Acquisitions, plus numerous real estate seminars given by the
American Institute of Real Estate Appraisers and later by the Appraisal Institute.
Memberships and Designations
Appraisal Institute : Designated Member (MAI)
1982 to 1986 - National Division of Curriculum
1986 to 1987 - National committee to write The Appraisal of Real Estate, 9" Edition
1987 to 1991 - Board of Examiners, General Demonstration Appraisal Reports
1987 to 1994 - Regional Member, Review and Counseling Division
1991 to 1994 - Regional Representative, Region II
1992 to 2008 - Contributor to The Appraisal of Real Estate, 10 ' through 13 ' Editions
1995 - National Vice Chair, Review and Counseling Division
1995 - Vice Chair, Region I1 and National Board of Directors
1996 to 1997 - Chair, Region II and National Board of Directors
1996 - National Chair, Ethics Administration Division
1997 to 2008 - National Chair, Professional Ethics and Counseling Committee
American Society of Real Estate Counselors : Counselor of Real Estate (CRE)
1994 - Vice Chair, Colorado Chapter
1995 - Chair, Colorado Chapter
International Right of Way Association: Senior Right of Way Professional (SR/WA)
Northern Colorado Commercial Association of Realtors
Certified General Real Estate Appraiser: State of Colorado, #CG00001795
Professional Experience
Foster Valuation Company: Fee Appraiser, April 1981 to present, specializing in valuation and
counseling with respect to a variety of nonresidential properties.
Robert J. Mitchell, MAI, & Associates : Fee Appraiser, March 1976 to March 1981 , specializing
in rural and income property valuation.
Qualified in District and Federal Courts as an Expert Valuation Witness.
ADDENDA
EXHIBIT D
CERTIFICATION
I certify that, to the best of my knowledge and belief:
1 . The statements of fact contained in this report are true and correct.
2 . The reported analyses, opinions, and conclusions are limited only by the reported
assumptions and limiting conditions, and are my personal, impartial, and unbiased
professional analyses, opinions, conclusions, and recommendations .
3 . I have no present or prospective interest in the property that is the subject of this
report, and I have no personal interest with respect to the parties involved.
4. I have performed no services, as an appraiser or in any other capacity, regarding the
property that is the subject of this report within the three-year period immediately
preceding acceptance of this assignment.
5 . I have no bias with respect to any property that is the subject of this report or to the
parties involved with this assignment.
6 . My engagement in this assignment was not contingent upon developing or reporting
predetermined results .
7 . My compensation for completing this assignment is not contingent upon the
development or reporting of a predetermined value or direction in value that favors
the cause of the client, the amount of the value opinion, the attainment of a
stipulated result, or the occurrence of a subsequent event directly related to the
intended use of this appraisal consulting assignment.
8 . My analyses , opinions, and conclusions were developed, and this report has been
prepared, in conformity with the Uniform Standards of Professional Appraisal
Practice.
9 . I have made a personal inspection of the property that is the subject of this report.
10 . No one provided significant real property appraisal or appraisal consulting
assistance to the person signing this certification.
11 . The use of this report is subject to the requirements of the Appraisal Institute
relating to review by its duly authorized representatives .
12 . As of the date of this appraisal consulting report, I have completed the requirements
of the continuing education program of the Appraisal Institute .
I estimate the reimbursement amounts to be based as shown on the attached Value
Enhancement Zone Analysis, as of October 3 , 2012, to be as shown in the attached:
October 3 , 2012
Date W. West Foster, MAI, CRE, SR/WA
Colorado Certification #CG00001795