HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/21/2001 - FIRST READING OF ORDINANCE NO. 134, 2001, AUTHORIZ AGENDA ITEM SUMMARY ITEM NUMBER: 28
FORT COLLINS CITY COUNCIL DATE: August 21, 2001STAFF• Gale McGaha Miller
Michael B. Smith
SUBJECT:
First Reading of Ordinance No. 134, 2001, Authorizing the Conveyance of Approximately 360 Acres of Land
on the Former Rockwell Ranch to the United States Forest Service in Exchange for the Conveyance to the City .
of the Land Underlying Joe Wright Reservoir, Subject to a Non-exclusive Conservation Easement for Use of the
Reservoir Property by the Public and the Colorado Division of Wildlife.
RECOMMENDATION:
Staff, the Water Board and the Natural Resources Advisory Board recommend adoption of the
Ordinance on First Reading.
FINANCIAL IMPACT:
This land exchange will require that the City pay $22,000 to equalize the land values between
US Forest Service land (Joe Wright Reservoir) and three parcels of City land (Rockwell Ranch).
Additionally, the biological opinion issued by the US Fish and Wildlife Service requires a one-
time lump sum payment of$61,288 to the Fish and Wildlife Foundation to comply with Federal
requirements to participate in the South Platte Recovery Program. Appropriations are available
for this purpose in the Water Fund. A subsequent sale of a fourth parcel of Rockwell Ranch will
place the last parcel of Rockwell Ranch in Forest Service ownership and add approximately
$353,500 of revenue to the Water Fund.
EXECUTIVE SUMMARY:
In 1996, the City Council directed staff to pursue an exchange of the City-owned Rockwell
properties for the land under and around the City's Joe Wright Reservoir owned by the United
States Forest Service (USFS). At that time there was concern expressed by the Natural
Resources Advisory Board (NRAB) that the exchange be made utilizing the USFS's
administrative procedure instead of a legislative solution being promoted by the City of Greeley,
Water Supply and Storage Company, and the Water Board. The NRAB was concerned that the
legislative process would preempt the necessary environmental reviews. The Council, after
considerable discussion, directed staff to utilize the USFS's administrative procedure. Since that
time, staff has worked with the USFS and the United States Fish and Wildlife Service in
processing the land exchange using the administrative procedure, including all of the necessary
environmental assessments and reviews. This Ordinance is supported by the NRAB and Water
Board and calls for the following actions:
• Approval of the land exchange involving the acquisition of Joe Wright Reservoir property
owned by the USFS in exchange for Rockwell Ranch parcels A, C, and D owned by the City
with a payment of$22,000 by the City to equalize land values.
DATE: August 21, 2001 2 ITEM NUMBER: 28
• Approval of a one-time lump sum payment of$61,288 by the City to the Fish and Wildlife
Foundation to comply with Federal requirements to participate in the South Platte Recovery
Program.
• Approval of the granting of a conservation easement to the Federal government for the Joe
Wright property to ensure that current operational conditions are maintained.
BACKGROUND:
In the 1920's the Cities of Fort Collins and Greeley jointly acquired various parcels of land near
the upper Cache la Poudre River known as Rockwell Ranch. The intent of this purchase was that
the land would someday serve as a site for one or more water storage reservoirs. As years
passed, it became apparent that these parcels were not well placed as reservoir sites. In 1997,the
parcels were divided out between the two cities so that each individually owned its own parcel.
Today this land is surrounded by National Forest and in some cases Forest Service Wilderness
Lands.
Fort Collins Utilities ("Utilities") has used Joe Wright Reservoir as a water storage facility since
1977. While the City owns the water rights, dam, and other aspects of the facility, it does not
own the land beneath the reservoir; the USFS has owned the land since 1917. USFS has granted
to the City permission to operate the reservoir on its land through an easement that spells out
details of the operation and management of the facility. However, the Utilities has found that
negotiating such easements can be an arduous and uncertain process, and it prefers to own the
land beneath the reservoir outright. Likewise, USFS operates the Kelly Flats Campground on
one of the parcels of Rockwell Ranch owned by the City. While it, too, operates under a long-
term lease, USFS would prefer to own that land outright. The remaining parcels of Rockwell
Ranch are inholdings surrounded by USFS lands, and the USFS also desires to gain ownership of
those parcels.
In 1996, the City Council adopted Resolution 96-26 which directed staff to pursue a land
exchange with the USFS, utilizing the USFS's administrative process. The USFS agreed to
pursue a land exchange that would deed ownership of the land beneath Joe Wright Reservoir to
the City in exchange for land of equal value in the City's Rockwell Ranch parcels. In 1997, the
ownership of Rockwell Ranch, which was previously shared with the City of Greeley, was
formally divided between the two cities so that this exchange could occur. At that time, water
rights associated with Rockwell Ranch were also divided equally between the two cities. The
intent for the water rights was that, upon completion of the land exchange, the conditional
storage decree for 4,900 acre feet of water for the Rockwell Reservoir would be declared
abandoned by the City and the absolute 1888 direct flow water rights totaling 5.95 cfs would be
conveyed to the Colorado Water Conservation Board for the maintenance of an instream flow.
The Water Board and NRAB support these actions.
Since that time, Utilities staff and the USFS have been working on the land exchange. The
process involves over sixty steps, including public input, surveys, appraisals, and assessments of
environmental, biological and archeological impacts. The Utilities and USFS have completed all
steps of this process, with the USFS issuing a favorable Environmental Assessment in May 2001.
The U.S. Fish and Wildlife Service (USFWS) has reviewed a biological assessment report on the
land exchange and issued a draft biological opinion with a decision notice to proceed and
DATE: August 21,2001 3 ITEM NUMBER: 28
"Finding, of No Significant Impact" (FONSI). The draft opinion calls for a guarantee of the
Utilities' ongoing participation in the South Platte Recovery Program. The Utilities' current
required participation in the Interim South Platte Recovery Plan calls for contributing an annual
payment of $4,903 to the Fish and Wildlife Foundation. The reason for this required
participation is due to presumed impacts caused by depletions from Joe Wright Reservoir on
Platte River flows far downstream in Central Nebraska. In order to accomplish ongoing
participation in the recovery program, the USFWS agreed to a one-time lump sum payment to
assure that, through interest on that payment, the City's share in the Recovery Plan would be
paid in perpetuity. This will be a final, permanent solution so that the land exchange can move
forward. A payment of$61,288 is the amount that, if invested in long-term treasury notes (8%)
will yield the required $4,903 per year on a continual basis (simple interest only), which is the
amount attributable to the City's presumed depletions.
In addition to the issue of depletions, concerns were raised about the ongoing use of Joe Wright
Reservoir as a fishery and as habitat for the greenback cutthroat trout. To address these
concerns, a conservation easement has been drafted with the Federal government as grantee. The
conditions of the easement maintain the operating procedures and agreements currently in effect
and do not add any new conditions for operating the reservoir. The easement stipulates that the
City will maintain a 687 acre-foot conservation pool in the reservoir for the protection of the
trout. It also allows continued sport fishing, pedestrian access, and the use of hand propelled or
electric trolling boats. It requires that the City maintain a minimum water flow in Joe Wright
Creek. The easement allows the Colorado Department of Wildlife access to manage the reservoir
as a fishery and to perform research at an existing spawning bed. Finally, the easement indicates
that the City will make reasonable efforts to continue to participate in the Joint Operations Plan
between the City, Water Supply and Storage, and the City of Greeley.
The original intent of the land exchange was for the City to convey parcels to the USFS equal in
value to the Joe Wright property. The appraisals show that the four Rockwell Ranch parcels
owned by the City have a much higher monetary value than the Joe Wright property. The
property is comprised of four parcels: A, B, C and D. The land values are as follows:
Parcel A, 40 acres $ 216,000
Parcel B, 157.09 acres$ 350,000
Parcel C, 160 acres $ 288,000
Parcel D. 160 acres $ 288,000
Total 517.09 acres $1,142,000
The 203.51 acres at Joe Wright property appraised at$814,000.
USFS propose's to exchange Joe Wright for Parcels A, C, and D, which total $792,000 in value.
The difference in value between Joe Wright and these three parcels is $22,000, which the City
would pay at closing.
USFS cannot pay cash for the remaining parcel B at this time due to statutes limiting the amount
of cash it can spend for a land exchange. The USFS plans to acquire Parcel B in a future three-
way land exchange with Winter Park Recreation Association, in which Winter Park would
purchase Parcel B and then use it in a land exchange with the USFS. Once that exchange is
complete, Parcel B will be owned by the USFS and Winter Park will have paid the City
approximately $350,000 for the property.
ORDINANCE NO. 134, 2001
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CONVEYANCE OF APPROXIMATELY 360 ACRES OF
LAND ON THE FORMER ROCKWELL RANCH TO
THE UNITED STATES FOREST SERVICE IN EXCHANGE FOR THE CONVEYANCE TO
THE CITY OF THE LAND UNDERLYING JOE WRIGHT RESERVOIR,
SUBJECT TO A NON-EXCLUSIVE CONSERVATION EASEMENT
FOR USE OF THE RESERVOIR PROPERTY BY THE PUBLIC AND
THE COLORADO DIVISION OF WILDLIFE
WHEREAS, the City of Fort Collins is the owner of that certain real property located in
Larimer County,Colorado,previously known as Rockwell Ranch,which was purchased by the water
utility for water utility purposes, a portion of which,totaling 360 acres in size, is more particularly
described on Exhibit"A",attached hereto and incorporated herein by this reference(the"Rockwell
Property"); and
WHEREAS,the Rockwell Property is an enclave within the Roosevelt National Forest and
is no longer needed for the water utility purposes originally contemplated; and
WHEREAS, the Rockwell Property is in part leased to the United States Forest Service
("USFS") for use as Kelly Flats Campground; and
WHEREAS, it is the policy and objective of USFS to arrange for the exchange of such
enclave properties for outholding of USFS that are not within the boundaries of national forest land,
in order to consolidate said lands and improve efficiency and effectiveness of the management of
those lands; and
WHEREAS,USFS is the owner of that certain real property underlying and surrounding Joe
Wright Reservoir, which Reservoir the City began using for water storage in 1977, and which
property,totaling 203.51 acres in size,is more particularly described on Exhibit`B",attached hereto
and incorporated herein by this reference (the "Joe Wright Property"); and
WHEREAS,in 1996,the City Council adopted Resolution 96-26,directing staff to proceed
to utilize the USFS administrative procedure for the negotiation and approval of an exchange of the
Rockwell Property for the Joe Wright Property,including the abandonment of a conditional storage
decree for 4,900 acres feet of water on the Rockwell Property and the conveyance of the absolute
1888 direct flow water rights totaling 5.95 cubic feet per second ("cfs") to the Colorado Water
Conservation Board for the maintenance of an instream flow; and
WHEREAS, since 1996, City staff has worked with USFS staff to carry out the numerous
steps involved in the administrative land exchange process, including public input, surveys,
appraisals, and assessments of environmental, biological and archeological impacts, and as the
is culmination of this process,USFS issued a favorable Environmental Assessment in May 2001;and
WHEREAS, the biological assessment conducted by the United States Fish and Wildlife
Service "USFWS") called for a guarantee of the City's ongoing participation in the South Platte
Recovery Program, in order to offset presumed impacts caused by depletions from Joe Wright
Reservoir on Platte River flows far downstream in central Nebraska; and
WHEREAS, the City currently is required pursuant to its existing easement from USFS to
store water on the Joe Wright Property to contribute annually to the Fish and Wildlife Foundation
the amount of$4,903; and
WHEREAS, because the conveyance of the Joe Wright Property to the City will eliminate
said easement and the related contribution requirement, USFWS agreed that a one-time payment
by the City to the Fish and Wildlife Foundation in the amount of$61,288 will,through interest on
the investment of the same,result in an ongoing income source equivalent to the continuation of the
current annual payments by the City; and
WHEREAS, in addition, USFS has conditioned the above-described exchange upon the
conveyance by the City of a conservation easement preserving the rights of the public to use the Joe
Wright Property for recreation and fishing,the rights of the Colorado Division of Wildlife to operate
a fishery on the Joe Wright Property and to stock fish in the Reservoir,to maintain and to conduct
research at an existing spawning bed and requiring the City to maintain a 687 acre-foot conservation
pool in the Reservoir for the protection of the greenback cutthroat trout for which the Reservoir
provides habitat and to maintain a minimum water flow in Joe Wright Creek below the Reservoir
(the"Conservation Easement"); and
WHEREAS, City staff has negotiated with the USFS an Exchange Agreement,pursuant to
which the City and USFS will be obligated to complete the above-described terms and conditions
of the exchange; and
WHEREAS, the above-described Conservation Easement, including additional terms and
conditions as described therein, dated August 2, 2001, is on file in the office of the City Clerk and
available for public review and inspection; and
WHEREAS, the appraised value of the Joe Wright Property (including the value of the
existing easement for water storage on that property, for which the City has not previously
compensated USFS) is $814,000; and
WHEREAS, the appraised value of the Rockwell Property (which includes three of four
parcels originally considered for exchange -parcels A, C and D) is $792,000; and
WHEREAS, in order to compensate for the difference is these values, the Exchange
Agreement calls for the City to pay to USFS the amount of$22,000 at the closing of the exchange;
and
WHEREAS,ownership by the City of the Joe Wright Property will ensure the City's ongoing
rights to maintain its water storage facility on that property, and will eliminate the risk that USFS
may disallow that use in the future; and
WHEREAS, Section 23-111 of the City Code provides that the City Council is authorized
to sell, convey or otherwise dispose of real property owned by the City, provided the Council first
finds by ordinance that any sale or disposition of real property owned by the City will not materially
impair the viability of any City utility system as a whole of which the property is a part,will be for
the benefit of the City's citizens, and will be 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 above described conveyance of the Rockwell Property and the
Conservation Easement on the Joe Wright Property, in exchange for conveyance to the City of title
to the Joe Wright Property, will not materially impair the viability of the City's water utility as a
whole, will be for the benefit of the City's citizens, and is in the best interests of the City.
Section 2. That the Mayor is hereby authorized to execute the Exchange Agreement, the
Conservation Easement, and such documents of conveyance or commitment as are necessary to
convey the Rockwell Property and the Conservation Easement to USFS, to accept the Joe Wright
Property from USFS, and as are otherwise necessary to carry out the terms of the Exchange
Agreement and the Conservation Easement, consistent with the terms and conditions described
above.
Introduced, considered favorably on first reading, and ordered published this 21st day of
August, A.D. 2001, and to be presented for final passage on the 4th day of September, A.D. 2001.
Mayor
ATTEST:
City Clerk
Passed and adopted on final reading this 4th day of September, A.D. 2001.
Mayor
ATTEST:
City Clerk
EXHIBIT A
Legal Description of the Rockwell Ranch Property
Sixth Principal Meridian
T. 8 N., R. 72 W.
Sec. 5, SWl/4SE1/4.
T 8 N., R. 73 W.
Sec. 15, S 1/2NE1/4,NW 1/4SE 1/4,NEl/4SW 1/4;
Sec. 26, SWl/4NW1/4,NW1/4SW1/4; and
Sec. 27.NE1/4SE1/4, SEl/4NE1/4.
Containing 360.0 acres, more or less, in Larimer County.
EXHIBIT B
Legal Description of the Joe Wright Property
A tract of land comprised of the following Government Lots: Lots 2, 4, 6, 7, 10, 12, and
14 located in Section 24, Lots 2, 3, 6, 7, 10, 12, and 15 in Section 25 and Lot 2 in Section
26, all in T. 7 N., R. 76 W., Sixth Principal Meridian, Larimer County, Colorado as
shown on the Dependent Re-Survey and Metes and Bounds Survey Plat of the Joe Wright
Reservoir Parcel, approved January 26, 1999, and recorded in the Public Records of
Larimer County at Reception#
Containing 203.51 acres,more or less.
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CONSERVATION EASEMENT
THIS INDENTURE, made this_day of 2001,between theCITY OF FORT
COLLINS,COLORADO,a municipal corporation, whose address is 700 Wood Street, P. O. Box
580,Fort Collins, CO 80522-0580,hereinafter called"GRANTOR," and the UNITED STATES OF
AMERICA, whose POST OFFICE address is Washington, D.C.,hereinafter called"GRANTEE."
WITNESSETH:
WHEREAS,Grantor is the sole owner in fee simple of certain real property in Larimer County,
Colorado, more particularly described in Exhibit A,attached hereto and incorporated by this reference
(the "Property");and
WHEREAS,the Property possesses significant fish habitat and recreational values (collectively called
"Conservation Values"); and
WHEREAS,Grantor intends that the Conservation Values of the Property be preserved and
maintained by the continuation of land use patterns, existing at the time of this grant; and
WHEREAS,Grantor further intends, as owner of the Property,to convey to Grantee the right to
preserve and protect the Conservation Values of the Property in perpetuity.
NOW THEREFORE: That the said Grantor, for in consideration of the sum ofONE AND N0/100
DOLLARS ($1.00),to the Grantor, in hand paid by the United States, the receipt of which is hereby
acknowledged, pursuant to the Act of October 10, 1978 (92 star. 1065; 7 U.S.C. 2269) does by these
presents, grant,bargain, sell, convey, and confirm unto the United States, its successors and assigns in
interest, this Conservation Easement, in perpetuity, over the Property described in Exhibit A of this
Instrument, and subject to those items of record contained therein. This Conservation Easement shall
be enforceable by the United States and its successors and assigns in interest. This Conservation
Easement is referred to hereinafter as the"EASEMENT."
j 1. PURPOSE. It is the purpose of this Easement to assure that the Property's fish and recreational
values will be maintained forever,together with and consistent with the continued use of the Property
i as a munci al water storage facility and to prevent any use of the Property Ythat will significantly impair
or interfere with the conservation values of the Property, subject to the intended use of the Property as a
water storage facility. Grantor intends that this Easement will confine the use of the Property to such
activities as are consistent with the purposes of this Easement.
2. RIGHTS OF GRANTEE. To accomplish the purposes of this Easement, the following rights are
conveyed to Grantee by this Easement:
I
A. To preserve and protect the Conservation Values of the Property, subject to the intended use of
the Property as a water storage facility;
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Aaeust 2.2001
B. To enter upon the Property at reasonable times in order to monitor Grantor's compliance with
and otherwise enforce the terms of this Easement;provided that such entry shall be upon prior
i
reasonable notice to Grantor, and Grantee shall not unreasonably interfere with Grantor's use and
quiet enjoyment of the Property; and
C. To prevent any activity on or use of the Property that is inconsistent with the purpose of this
Easement, and to require the restoration of such areas or features of the Property that may be
damaged by any inconsistent activity or use,pursuant to paragraph 5.
i
3.AFFIRMATIVE OBLIGATIONS: Without limiting the generality of the foregoing,the
following affirmative obligations are the responsibility of the Grantor:
A) Grantor shall allow access to the Property by the general public,without charge, for the
following uses, within the described parameters:
1. Sport fishing subject to rules and regulations of the Colorado Divison of Wildlife
2. Pedestrian access
3. Use of hand propelled or electric trolling boats
The Grantor may impose the following restrictions on use by the general public,together with
any other restrictions as necessary from time to time to address or prevent immediate threats to
the public health or safety or the water stored on the Property:
1. Prohibit the use of motorized water craft or motorized vehicles
2. Prohibit overnight camping
3. Prohibit use of stock animals.
B) During the period of April 1 through September 30, annually,maintain a water flow in Joe
Wright Creek, immediately below Joe Wright Reservoir, at or above the lesser of the following:
the natural inflow into Joe Wright Reservoir or three(3)cubic feet per second.
C) During the period of October I through March 31,annually, shall maintain a water flow in Joe
Wright Creek,immediately below Joe Wright Reservoir, at or above the lesser of the following:
the natural inflow into Joe Wright Reservoir or one (1)cubic foot per second.
D) Shall maintain a minimum volume of 687 acre feet of water in Joe Wright Reservoir.
I
E) Shall provide access to the Property to the Colorado Division of Wildlife, without charge, for
the purpose of managing the fishery. Such management activities shall be consistent with the
intended use of the Property by the Grantor as a municipal reservoir.
Shall provide access to the Property to the Colorado Division of Wildlife,without charge, for
the purpose of operating a constructed fish spawning channel on the property. Such channel
shall be owned and operated entirely at the expense of the Colorado Division of Wildlife.
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4. RESERVED RIGHTS. Grantor reserves to itself, and to its successors and assigns, all rights
accruing from their ownership of the Property, including the right to engage in or permit or invite
others to engage in all uses of the Property that are not expressly prohibited herein and are not
inconsistent with the purpose of this Easement.
5. GRANTEE'S REMEDIES. If Grantee determines that Grantor is in violation of the terms of this
easement or that a violation is threatened,Grantee shall give written notice to Grantor of such violation
and demand corrective action sufficient to cure the violation and,where the violation involves injury to
the Property resulting from any use or activity inconsistent with the purpose of this Easement,to
restore the portion of the Property so injured. If Grantor failsto cure the violation within the timeframe
specified by the Grantee,after receipt of notice thereof from Grantee, or fails to continue diligently to
cure such violation until finally cured,Grantee may bring an action at law or in equity in a court of
competent jurisdiction to enforce the terms of this Easement, to enjoin the violation,exparte as
necessary,by temporary or permanent injunction,to recover any damages to which it may be entitled
for violation of the terms of this Easement or injury to any Conservation Values protected by this
Easement, including damages for the loss of scenic, aesthetic,or environmental values, and to require
the restoration of the Property to the condition that existed prior to any such injury. Without limiting
Grantor's liability therefore,Grantee, in its sole discretion,may apply any damages recovered to the
cost of undertaking any corrective action on the Property. If Grantee, in its sole discretion,determines
that circumstances require immediate action to prevent or mitigate significant damage to the
Conservation Values of the Property,Grantee may pursue its remedies under this paragraph without
prior notice to Grantor or without waiting for the period provided for cure to expire. Grantee's rights
under this paragraph apply equally in the event of either actual or threatened violations of the terms of
this Easement, and Grantor agrees that Grantee's remedies at law for any violation of the terms of this
Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this
paragraph, both prohibitive and mandatory, in addition to such other relief to which Grantee may be
entitled, including specific performance of the terms of this Easement, without the necessity of proving
either actual damages or the inadequacy of otherwise available legal remedies. Grantee's remedies
described in this paragraph shall be cumulative and shall be in addition to all remedies now or hereafter
existing at law or in equity.
5.1 COSTS OF ENFORCEMENT. Any costs incurred by Grantee in enforcing the terms of this
Easement against Grantor, including, without limitation, costs of suit and attorneys' fees, and any costs
of restoration necessitated by Grantor's violation of the terms of this Easement shall be home by
Grantor. If Grantor prevails in any action to enforce the terms of this Easement,Grantor's costs of suit,
including,without limitation, attorneys' fees, shall be borne by Grantee as provided by applicable
Federal law.
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5.2 GRANTEE'S DISCRETION. Enforcement of the terms of this Easement shall be at the
discretion of Grantee, and any forbearance by Grantee to exercise its rights under this Easement in the
event of any breach of any term of this Easement by Grantor shall not be deemed or construed to be a
waiver by Grantee of such term or of any subsequent breach of the same or any other term of this
Easement or of any of Grantee's rights under this Easement. No delay or omission by Grantee in the
exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be
construed as a waiver.
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5.3 WAIVER OF CERTAIN DEFENSES. Grantor hereby waives any defense of laches,estoppel,
or prescription.
5.4 ACTS BEYOND GRANTORS' CONTROL. Nothing contained in this Easement shall be
construed to entitle Grantee to bring any action against Grantor for any injury to or change in the
Property resulting from causes beyond Grantor's control, including,without limitation, fire, flood,
storm, and earth movement,or from any prudent action taken by Grantor under emergency conditions
to prevent,abate,or mitigate significant injury to the Property resulting from such causes.
6. COSTS AND LIABILITIES. Grantor retains all responsibilities and shall bear all costs and
liabilities of any kind related to the ownership,operation,upkeep, and maintenance of the Property,
including the maintenance of adequate comprehensive general liability insurance coverage. Grantor
shall keep the Property free of any liens arising out of any work performed for,materials furnished to,
or obligations incurred by Grantor.
6.1 TAXES. Grantor shall pay before delinquency all taxes, assessments, fees , and charges of
whatever description levied on or assessed against the Property by competent authority(collectively
"taxes"), including any taxes imposed upon, or incurred as a result of, this Easement, and shall furnish
Grantee with satisfactory evidence of payment upon request.
7. HOLD HARMLESS. Grantor shall hold harmless,indemnify, and defend Grantee, successors,
and assigns of each of them(collectively"Indemnified Parties") from and against all liabilities,
penalties, costs, losses, damages, expenses, causes of action,claims, demands, or judgments, including,
without limitation,reasonable attorneys' fees, arising from or in any way connected with: (1) injury to
or the death of any person, or physical damage to any property,resulting from any act, omission,
condition, or other matter related to or occurring on or about the Property,regardless of cause,unless
due solely to the negligence of any of the Indemnified Parties; (2)the obligations specified in
paragraphs 6 and 6.1; and(3)the existence or administration of this Easement.
8. ASSIGNMENT. This Easement is transferable. As a condition of such transfer,Grantee shall
require that the conservation purposes that this grant is intended to advance continue to be carried out.
9. SUBSEQUENT TRANSFERS. Grantor agreesto incorporate the terms of this Easement in any
deed or other legal instrument by which it divests itself of any interest in all or a portion of the
Property, including,without limitation, a leasehold interest. Grantor further agrees to give written
notice to Grantee of the transfer of any interest at least 30 days prior to the date of such transfer. The
failure of Grantor to perform any act required by this paragraph shall not impair the validity of this
Easement or limit its enforceability in any way.
10. ESTOPPEL CERTIFICATES. Upon request by Grantor, Grantee shall within 30 days execute
and deliver to Grantor any document, including an estoppel certificate,which certifies Grantor's
compliance with any obligation of Grantor contained in this Easement and otherwise evidences the
status of this Easement as may be requested by Grantor.
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Auam 2.2001
11. NOTICES. Any notice,demand,request,consent, approval, or communication that either party
desires or is required to give to the other shall be in writing and either served personally or sent by first
class mail,postage prepaid, addressed as follows:
To Grantor: City of Fort Collins, Colorado
700 Wood Street
Post Office Box 580
Fort Collins,CO 80522-0580
To Grantee: Forest Supervisor
Arapaho and Roosevelt National Forests
240 W.Prospect Road
Ft. Collins, CO 80526
or to such other address as either party from time to time shall designate by written notice to the other.
12. RECORDATION. Grantee shall record this instrument in timely fashion in the official records of
Larimer County, Colorado, and may re-record it at any time as may be required to preserve its rights in
this Easement.
13. GENERAL PROVISIONS.
A. Controlling Law. The interpretation and performance of this Easement shall be governed by
the laws of the State of Colorado and the laws of the United States.
B. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this
Easement shall be liberally construed in favor of the grant to effect the purpose of this Easement.
If any provision in this instrument is found to be ambiguous, an interpretation consistent with the
purpose of this Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
C. Severability. If any provision of this Easement, or the application thereof to any person or
circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the
application of such provision to persons or circumstances other than those as to which it is found
to be invalid, as the case may be, shall not be affected thereby.
D. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect
to the Easement and supersedes all prior discussions, negotiations, understandings, or agreements
relating to the Easement, all of which are merged herein.
E. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's
title in any respect.
F. Successors. The covenants, terms, conditions, and restrictions of this Easement shall be
binding upon, and inure to the benefit of, the parties hereto and their respective personal
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representatives, successors, and assigns and shall continue as a servitude running in perpetuity
with the Property.
G. Termination of Rights and Obligations. A parry's rights and obligations under this
Easement terminate upon transfer of the parry's interest in the Easement or Property,except that
liability for acts or omissions occurring prior to transfer shall survive transfer.
H. Captions. The captions in this instrument have been inserted solely for convenience of
reference and are not a part of this instrument and shall have no effect upon construction or
interpretation.
TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.
IN WITNESS WHEREOF,Grantor has set its hand on the day and year first above written.
CITY OF FORT COLLINS,COLORADO,a municipal
corporation
By:
Its:
ACKNOWLEDGMENT
STATE OF )
SS:
COUNTY OF )
On this day of , 2001,before me, a Notary Public
in and for County, State of personally appeared
as , of the City of Fort Collins, Colorado, a
municipal corporation, and known to me to be the person described in and who executed the foregoing
instrument and who duly acknowledged to me that he/she executed the same freely and voluntarily and
for the uses and purposes therein mentioned.
WITNESS my hand and official seal.
Notary Public Signature
My Commission expires:
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EXHIBIT A
Legal Description of Property Subject to Easement
A tract of land comprised of the following Government Lots: Lots 2,4, 6, 7, 10, 12,and 14 located in
Section 24, Lots 2, 3, 6, 7, 10, 12,and 15 in Section 25 and Lot 2 in Section 26, all in T. 7 N., R. 76
W., Sixth Principal Meridian, Larimer County, Colorado as shown on the Dependent Re-Survey and
Metes and Bounds Survey Plat of the Joe Wright Reservoir Parcel, approved January 26, 1999,and
recorded in the Public Records of Larimer County at Reception#
Containing 203.51 acres, more or less.
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EXCHANGE AGREEMENT
This Exchange Agreement, made this day of 2001, between the City of Fort
Collins, Colorado, a municipal corporation, whose address is 700 Wood Street, P.O. Box 580, Fort
Collins, CO 80522-0580, hereinafter referred to as the non-Federal party, and the United States of
America, acting by and through the Forest Service, Department of Agriculture, in consideration of the
appraisals by the parties hereto of the land or interest in land herein described and other good and
valuable considerations, the receipt of which is hereby acknowledged, do hereby severally agree as
follows:
WITNESSETH:
Pursuant to the General Exchange Act of March 20, 1922, as amended (42 Stat. 465), the Act of
October 21, 1976, as amended (90 Stat. 2743), and the Federal Land Exchange Facilitation Act of
August 20, 1988 (102 Stat. 1086), the non-Federal party does hereby agree to convey to the United
States of America the real property described in Schedule "A" enclosed hereto and made a part hereof.
In exchange therefore, the United States of America agrees to convey to the non-Federal party by patent
issued by the Department of the Interior, the real property described in Schedule "B" enclosed hereto
and made a part hereof. There will be a need to equalize exchange values pursuant to Section 206(b) of
the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1716) by the non-Federal party paying
TWENTY-TWO THOUSAND and NO/100 Dollars ($22,000.00) to the United States of America. The
agreed to values for this exchange are:
Property of the non-Federal party: $792,000
Property of the United States: $814,000
First, the non-Federal party agrees to convey by Warranty Deed in accordance with Department of
Justice standards when requested by the Forest Service, the lands or interest in lands described in
Schedule "A" to the United States of America and its assigns, together with necessary documents
required to convey good title, free from all encumbrances except those set forth in Schedule "A."
Second, the non-Federal party agrees to deliver all necessary documents to the Forest Supervisor,
Arapaho and Roosevelt National Forests, who will act as escrow holder.
Third, the non-Federal party agrees to furnish title evidence on the real property described in Schedule
"A" in a form satisfactory to the Office of General Counsel of the United States Department of
Agriculture and pay any escrow expenses incurred herein.
When title has been accepted by the Forest Service, the United States of America agrees to convey by
patent the real property described in Schedule "B," subject to any encumbrances noted therein.
OMB NO. 0596-0105
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Both parties agree not to do, or suffer others to do, any act by which the value of the real property which
is the subject of the Agreement may be diminished or further encumbered. In the event any such loss or
damage occurs from any cause, including acts of God, to the real property described in Schedules "A"
and "B," prior to execution of deed or issuance of patent, either party may refuse without liability to
complete the exchange.
Each party to this agreement is responsible to provide the other documentation of the existence or non-
existence of storage of hazardous substances stored on their respective lands for one (1) year or more or
disposed of or released on said lands. If evidence of hazardous substances are found, either party may
refuse without liability, to complete the exchange.
This Agreement will be terminated in the event that either party cannot convey a good and sufficient
title to the real property agreed to be exchanged.
This Agreement is legally binding on all parties, subject to the terms and conditions herein and may only
be amended or terminated by mutual consent.
No member of Congress, or Resident Commissioner, shall be admitted to any share or part of this
agreement or to any benefit that may arise therefrom unless it is made with a corporation for its general
benefit(18 U.S.C. 431, 433).
IN WITNESS WHEREOF, the non-Federal party, by its duly authorized party, and the Director of
Physical Resources, acting for and on behalf of the Forest Service, USDA, have executed this
Agreement this day of , 2001.
CITY OF FORT COLLINS, COLORADO, a
Municipal corporation
By:
Title: Mayor
FOREST SERVICE
U.S. DEPARTMENT OF AGRICULTURE
By:
M. M. UNDERWOOD, JR.
Director of Physical Resources
Rocky Mountain Region, R-2
According to the Paperwork Reduction Act of 1995,an agency may not conduct or sponsor and a person is not required to respond to,a collection of
information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 0596-0105. The time required
to complete this information collection is estimated to average 4 hours per response,including the time for reviewing instructions,searching exisimg data
sources,gathering and maintaining the data needed,and ocmpleting and reviewing the collection of information.
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ACKNOWLEDGMENT
State of )
SS:
County of )
On this day of 2001, before me, a
Notary Public in and for said State, personally appeared as Mayor
of the City of Fort Collins, Colorado, a municipal corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public Signature
My Commission expires:
ACKNOWLEDGMENT
State of COLORADO )
SS:
County of JEFFERSON )
On this day of 2001_ before me, NANCY A. HOLLENKAMP,
a Notary Public in and for said State, personally appeared
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IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public Signature
My Commission expires: June 6, 2005
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SCHEDULE A
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Lands, interest in lands, that the non-Federal party will convey to the United States of America:
Fee title to the following lands in Colorado:
Sixth Principal Meridian
T. 8 N., R. 72 W.
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Sec. 5, SWIASE1/4.
T 8 N., R. 73 W.
Sec. 15, S1/2NE1/4, NWIASE1/4, NE1/4SW1/4;
See. 26, SWI/4NWI/4, NWl/4SW1/4; and
Sec. 27. NE1/4SE1/4, SE1/4NE1/4.
Containing 360.0 acres, more or less, in Latimer County.
Subject to:
Reservations: None
Outstanding Rights:
1. Reservations in patents.
2. Right of way for road purposes which contains a reverter clause, as granted to The United
States of America in deed recorded January 15, 1959 in Book 1084 at Page 511 and as
corrected in Deed recorded February 25, 1969 in Book 1087 at Page 204. (Affects
Sec. 5-8-72)
3. An easement and Right of Way for highway,which does contain a reverter clause, as granted
to The United States of America and more fully described in Deed recorded May 28, 1956 in
Book 1019 at page 293. (Affects Sec. 15-8-73)
4. Any rights, interest, or easements in favor of the riparian owners, the State of Colorado or the
general Public, which exist, have existed, or are claimed to exist in and over the waters and
present and past bed and banks of the Cache La Poudre River and Bennett Creek.
5. Lack of a right of access from the land to any open public road, street, or highway.
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Other:
1. The Lease for Expansion of Campground (Lease No. 57-82X9-8-98003) for Kelly Flats
Campground dated March 24, 1998, between the City of Fort Collins, Lessor, and the United
States of America, acting by and through the Forest Service, U.S. Department of Agriculture,
Lessee, shall become null and void upon consummation of this exchange.
2. The non-Federal party, pursuant to their letter dated August 27, 1999, confirming previous
understandings in a letter dated February 16, 1996 from Fischer, Brown, Huddleson, &
Gunn, P.C. Attorneys at Law on behalf of the Cities of Ft. Collins and Greeley, shall:
a) Upon completion of the land exchange referenced herein, the conditional storage decree
for 4,900 acre feet of water for the Rockwell Reservoir will be declared abandoned by the
City of Fort Collins to assure that none of these waters will be stored at Rockwell or the
rights transferred elsewhere. This requirement shall survive closing to allow procedural
time for completion through the State Engineers Office.
b) Immediately upon completion of the land exchange referenced herein, convey the
absolute 1888 direct flow water rights acquired by the City of Fort Collins with the
original Rockwell Ranch purchase to the Colorado Water Conservation Board to be
utilized by the Board for the maintenance of an instream flow from their sources on
Beaver Creek and the South Fork all the way to the mouth of the canyon.
The non-Federal party shall use their best efforts to ensure that the City of Greeley also
completes 2 a) and 2 b) pursuant to the letter dated February 16, 1996.
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SCHEDULE B
Lands, interest in lands, that the United States will convey to the non-Federal party:
Fee title to the following lands in Colorado:
Sixth Principal Meridian
T. 7 N. R. 76W.
Sec. 24, lots 2, 4, 6, 7, 10, 12 and 14, inclusive;
Sec. 25, lots 2, 3, 6, 7, 10, 12, and 15, inclusive; and
Sec. 26, lot 2.
Containing 203.51 acres, more or less, in Larimer County.
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Subject to:
Reservations:
Reserving to the United States a right-of-way thereon for ditches or canals constructed by the
authority of the United States, Act of August 30, 1890 (26 Stat. 391; 43 U.S.C. 945).
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OutstandingRights:
ights:
1. Right-of-way easement granted to City of Fort Collins for Joe Wright Reservoir(formerly
Cameron Pass Reservoir) on March 21, 1906, BLM Serial No. COC 0120018.
2. Right-of--way easement granted to Colorado Department of Highways for Cameron Pass
Highway Project#0014 on November 24, 1980.
3. Water Facility Easement granted to City of Fort Collins, Colorado, for reservoir and
appurtenant facilities on January 6, 1995. This easement shall be terminated at closing.
Other:
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1. The City of Ft. Collins shall comply with the Reasonable and Prudent Alternative outlined in
the Biological Opinion of the U.S. Fish and Wildlife Service dated ******** by making a
one-time contribution of$61,288.00 to the National Fish and Wildlife Foundation
immediately prior to consummation of this exchange.
2. As referenced in the Environmental Assessment and Decision Notice for this exchange, the
non-Federal party shall execute a Conservation Easement to the United States at closing.