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IGA; Boulder County; funding the 6400 Arapahoe purchase INTERGOVERNMENTAL AGREEMENT BETWEEN THE COUNTY OF BOULDER AND THE CITY OF BOULDER: FUNDING FOR 6400 ARAPAHOE PURCHASE THIS INTERGOVERNMENTAL AGREEMENT ("Agreement") is made and entered into this ~ day of~, 2009, by and between the City of Boulder, a Colorado home rule city, (the "City") and the County of Boulder, a body corporate and politic, (the "County"). The City and the County are collectively referred to herein as the "Parties." RECITALS A. Section 18(2)(a) of Article XIV of the Colorado Constitution and Sections 29-1- 201, et seq., and 29-20-105 of the Colorado Revised Statutes authorize and encourage governments to cooperate by contracting with one another for their mutual benefit. B. The County entered into a Purchase Agreement with Colorado Tennis Facilities, LLC, ("Seller") dated June 11, 2009 (the 'Purchase Agreement"). According to the terms of the Purchase Agreement, the County is to purchase approximately 9.7 acres of land located in Boulder County, Colorado, from Seller ("Parcel 1") (the "Property"). The Property is generally located at 6400 Arapahoe, and is legally described in Exhibit A to the Purchase Agreement and Exhibit A to this Agreement. C. The purchase price in the Purchase Agreement for the Property is $5,450,000.00 (the "Purchase Price"). D. The County assigned its rights to purchase the Property to the City by way of an Assignment of Purchase Agreement dated July 23, 2009 (the "Purchase Assignment Agreement'). E. The City intends to fund the purchase of the Property though a bond sale that was authorized by the voters pursuant to a ballot measure described in City Ordinance No. 5649. The bonds will be repaid primarily through the collection of taxes authorized by the ballot measure, commonly referred to as Chapter 3-10, "Trash Tax," B.R.C. 1981. F. The City anticipates and will make good faith efforts to ensure that such bond sale closing shall occur prior to January 1, 2010. G. The County intends to fund the purchase until such time as the City has the proceeds from the bond sale and the City agrees to reimburse the County for the purchase price, as described in this Agreement. H. The Parties desire to enter into an agreement whereby the County is reimbursed by the City for the purchase money for the Property in accordance with the provision contained in this Agreement together with any additional terms and conditions. OFFICIAL CENTRAL RECORDS COPY 20090819-5086 6400 Arapahoe IGA 8/18/09 page 1 of 7 AGREEMENT NOW, THEREFORE, in consideration of the recitals, promises, covenants, and undertakings hereinafter set forth, the Parties agree as follows: 1. County agrees to provide funding for the purchase of the Property in the amount of $5,440,000 (an additional $10,000 is in escrow with Land Title Guarantee Company). The County agrees to wire said funds to the Property closing, scheduled for August 25, 2009 or at such other time as the City may instruct the County. 2. The Parties agree that reimbursement to the County will occur on the following schedule: a. Within 30 days after closing on the Property, the City agrees to pay to the County one half of the earnest money further described in the Purchase Assignment Agreement in the amount of $5,000.00. This shall be the total reimbursement by the City to the County of earnest money. b. No later than December 31, 2009, or at such time as is reasonably practical after the City's bond sale, the City agrees to pay the County the amount of $4,940,000.00. The City will pay to the County simple interest of three percent per annum on .any outstanding balances beginning on the day after the County provides funding at the closing of the sale of the Property from the Seller to the City. 3. In addition to providing a loan the City in the amount of $4,940,00.00, as set forth in Paragraph 2(b) above, the County agrees to provide an additional loan of $500,000.00 to the City to be used towards the purchase price of the Property (the "Long-Term Loan"), subject to the following terms and conditions: a. If the City proposes to sell any portion of the Property while any portion of the Long-Term Loan is outstanding, the City agrees to offer the County a first right to purchase the portion of the Property that the City proposes to sell at fair market value, with any outstanding portion of the Long-Term Loan serving as credit towards the purchase price. b. If, during the period in which any portion of the Long-Term Loan is outstanding, the County declines to exercise its first right to purchase a portion of the Property, the City may sell that portion of the Property for fair market value. In the case of a sale, the County is to receive from the City that portion of the sales price that represents the sale price per square foot, divided by the City's purchase price per square foot, multiplied by the outstanding balance on the Long-Term Loan, less the City's reasonable expenses associated with the annexation, subdivision and sale of that portion of the Property sold. During the time period that any portion of the Long-Term Loan is 6400 Arapahoe IGA 8/18/09 page 2 of 7 outstanding, the City agrees that it will not sell any portion of the Property for below fair market value without first receiving the consent of the County. C. In the event that no portion of the Property has been earlier sold by the City, on or before September 1, 2011, the City agrees, subject to City Council appropriation, to pay the County the amount of $250,000.00, plus simple interest of three percent per annum beginning on the day after the County provides funding at the closing of the sale of the Property from the Seller to the City. d. In the event that no portion of the Property has been earlier sold by the City, on or before September 1, 2013, the City agrees, subject to City Council appropriation, to pay the County the amount of $250,000.00, plus simple interest of three percent per annum beginning on the day after the County provides funding at the closing of the sale of the Property from the Seller to the City. 4. The Parties agree that should the City fail to repay the loans described in Paragraphs 2 or 3 above within the time periods set forth above, the City agrees to convey an undivided interest in the Property in an amount that is proportional to the payments due to the County and the value of the Property at the time of such conveyance. The City agrees to sign all documents necessary to carry out this change including, but not limited to, a special warranty deed. After receipt of full repayment of the loans described in Paragraphs 2 and 3, the County agrees to convey any interest in the Property back to the City pursuant to a deed that is similar in quality to the deed by which the County receives such interest, if any such deed has been received. 5. The City agrees that within 30 days of the transfer of title from the Seller to the parties herein, the City will assign to the County the City's option to purchase the Brickyard property, a parcel of land approximately 4 acres in size generally located at 6032 Butte Mill Road, Boulder, Colorado, subject to the requirements and contractual obligations in the Annexation Agreement between the City of Boulder and Western Disposal dated August 6, 2009 (the "Western Annexation Agreement"). 6. Nothing in this Agreement shall be deemed or construed as creating a multiple fiscal year obligation or indebtedness for the purpose of any provision of the constitution of the state of Colorado with respect to either Party. All financial obligations of the Parties under this Agreement are subject to annual appropriation. Notwithstanding the foregoing, however, the Parties covenant and agree that they will use their utmost good faith and best efforts to annually appropriate the funds necessary to meet their financial obligations under this Agreement. In the event either Party fails to appropriate the funds necessary to meet its obligations under this Agreement, the Parties agree that they shall negotiate in good faith a supplemental agreement, the purpose of which shall be to make whole the unpaid Party as a result of such non- appropriation. 7. The Parties agree to cooperate in the event that either party, or the Seller or any other party referred to in this Agreement needs additional documentation to implement the terms of this Agreement. 6400 Arapahoe IGA 8/18/09 page 3 of 7 8. The validity and effect of this Agreement shall be determined in accordance with the laws of the State of Colorado. 9. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same agreement. Facsimile signatures shall be acceptable to and binding upon all parties. 10. If any part of this Agreement is found, decreed or held to be void or unenforceable, such finding, decree or holding shall not affect the other remaining provisions of this Agreement which shall remain in full force and effect. 11. If any person allegedly aggrieved by any provision of this Agreement should make a claim against the City for the actions of the City, City shall defend such claim. Defense costs shall be paid solely by the City. If any person allegedly aggrieved by any provision of this Agreement should make a claim against the County for actions of the County, the County shall defend such claim at its own cost. If any person allegedly aggrieved by any provision of this Agreement should make a claim against both the City and the County as a result of this Agreement or joint actions of the City and the County, the City shall take the lead in defending both the City and the County; each to pay its own defense costs. The County and the City shall fully cooperate with each other in the resolution of any aforementioned claim. 12. The City and the County acknowledge that each Party, their officers and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101, C.R.S. et seq., as it is from time to time amended, or otherwise available to the Parties, their officers, or employees. 13. This Agreement may be recorded in the land records of the Boulder County Clerk and Recorder's Office by either party. 6400 Arapahoe IGA 6/16109 page 4 of 7 IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed this Z/jday of dv17aSr 2009. CITY OF BOULDER, a Colorado home rule city By: \Jo' 6. . Jane S. Brautigam, City M lager ATTEST: By. A~ 0 4~" City Clerk APPROVED AS TO FORM: By: T Q/ ity Att rn 6400 Arapahoe IGA 8/18/09 page 5 of 7 COUNTY OF BOULDER, a body corporate and politic By: Ben Pearlman, Chair By: ~L-XCSa,S~I Cindy Domenico, Vice-C air By: Will Toor, Commissioner APPROVED AS TO FORM: By: Oc~'_~ pz~ - County Attney STATE OF COLORADO ) ) ss. COUNTY OF BOULDER ) The foregoing instrument was acknowledged before me this day of by Ben Pearlman, Chair, Cindy Domenico, Vice-Chair, and Will Toor, Commissioner, o the Board of County Commissioners of Boulder County. Witness my hand and official seal. \ My Commission Expires: (S E A L) ~OTg9~. u~ LI Notary Public 9 '~U@G oo co~OQP ~~~~~1D9/2o11 6400 Arapahoe IGA 8118/09 page 6 of 7 EXHIBIT A That tract of land located in the NW 1/4 of Section 35, Township 1 North, Range 70 West of the 6a' P.M., City of Boulder, County of Boulder, State of Colorado, known by the street address of 6400 Arapahoe Avenue, Boulder, Colorado. C:\Documents and Settings\mryder\LOCal Settings\Temporary Internet Files\COntent.Outlook\IU676XBQ\BOULDER COUNTY-#150746-v1- 6400_ARAPAHOE_IGA_(FINAL_COUNTY_VERSION_W_APPROPRIATION_LANGUAGE).doc