HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 09/01/2015 - ITEMS RELATING TO THE ACQUISITION OF PROPERTY AT 4Agenda Item 19
Item # 19 Page 1
AGENDA ITEM SUMMARY September 1, 2015
City Council
STAFF
Mark Sears, Natural Areas Program Manager
John Stokes, Natural Resources Director
Tawnya Ernst, Real Estate Specialist III
SUBJECT
Items Relating to the Acquisition of Property at 4200 County Road 30.
EXECUTIVE SUMMARY
A. Resolution 2015-080 Authorizing the Execution of an Intergovernmental Agreement with the City of
Loveland to Acquire and Cooperate Regarding a Parcel of Land and Water Rights at 4200 County Road
30 Within the Fort Collins – Loveland Community Separator.
B. First Reading of Ordinance No. 111, 2015, Authorizing the Conveyance of a Right of First Offer and Right
of First Refusal to the City of Loveland for Property at 4200 County Road 30.
The purpose of this item is to seek Council approval of an Intergovernmental Agreement with Loveland
outlining the parties’ rights and obligations with respect to a proposed 113-acre acquisition in the Fort Collins-
Loveland Community Separator and approval of the conveyance of a Right of First Offer and Right of First
Refusal on the same parcel to Loveland. The City of Loveland’s Water & Power Department is purchasing 50
Units of Colorado Big Thompson Project (CBT) water historically associated with the land. In addition,
Loveland’s Parks and Recreation Department will contribute funds towards the land. In total, Loveland will
contribute $1.5M and Fort Collins will contribute $1.5M towards the purchase price of $3M.
STAFF RECOMMENDATION
Staff recommends the adoption of the Resolution and Ordinance on First Reading.
BACKGROUND / DISCUSSION
The Natural Areas Department has been working for 20 years in accordance with the 1995 Plan for The
Region between Fort Collins and Loveland to create a community separator by conserving agricultural lands
and open spaces. To date, approximately 5,800 acres of land has been conserved in the separator area; in
cooperation with and in partnership with Loveland and Larimer County. (Attachment 4)
Natural Areas proposes to partner with Loveland on the purchase of a 113-acre property and associated water
rights located at 4300 County Road 30. Natural Areas will contribute $1.5 million to acquire the land and the
ditch company water rights associated with the land (comprising 4 shares of the Louden Irrigating Canal &
Reservoir Company and 4 corresponding shares of the Louden Extension Canal and Reservoir Company
(together, “4 Louden Shares”)). Loveland will contribute $1.5 million to acquire the 50 CBT Units historically
associated with the land (which Fort Collins would have difficulties in acquiring because Fort Collins already
owns the maximum number of units allowed under current policies of the Northern Colorado Water
Conservancy District) and will contribute towards the purchase of the land. Fort Collins will hold the deed to the
land exclusively and own the 4 Louden Shares; and Loveland will own the 50 CBT Units outright. Although
Loveland’s ultimate long-term use of the CBT Units will be for municipal supply, Loveland has agreed to lease
Agenda Item 19
Item # 19 Page 2
back the 50 CBT Units to irrigate the parcel. The lease will continue as long as the site remains as irrigated
farm land, either owned by Fort Collins or subsequent owner of the land with a conservation easement
conserving the land for irrigated farming, and as long as there is no drought or other reason that would require
municipal use.
Staff explored partnering with Larimer County for this acquisition. After much discussion, it was determined
that there were even higher priority acquisitions for Fort Collins and Larimer County to partner on. These
potential projects are good candidates for leveraging local contributions with GOCO grants.
The long term use of the 113 acres has not been determined. There are at least three potential uses that
would allow the property to serve as a community separator: (1) the land could be leased out for irrigated or
dryland farming; (2) the land could be sold with a conservation easement removing development rights and
requiring it to remain in farming; and (3) the land could be restored to native vegetation and potentially opened
up to the public by constructing appropriate trails and parking. For the foreseeable future Natural Areas plans
to keep the land in irrigated agriculture assuming a tenant can be found.
As outlined in the IGA, Fort Collins will own, manage and maintain the property. If Fort Collins decides to sell
the property with a conservation easement preserving it for agricultural purposes, Fort Collins will receive the
entire proceeds from the sale in exchange for co-holding and monitoring the conservation easement and
Loveland will co-hold the conservation easement.
During negotiation of the IGA, Loveland asked the City to grant it the first right to buy the property. The Right
of First Offer and Right of First Refusal (Exhibit A to Ordinance No. 111, 2015,) grants Loveland these rights
relative to the purchase of the property in the unlikely event that Fort Collins decided to sell the land without a
conservation easement; also if sold in fee Loveland would either receive 22.5% of the proceeds and Fort
Collins would receive 77.5% of the proceeds or Loveland could chose to purchase the property for 77.5% of
the agreed upon price.
CITY FINANCIAL IMPACTS
The total purchase price for the 113 acres of land and the associated water rights is $3,000,000. Fort Collins
Natural Areas is contributing $1.5 million to purchase the land and 4 Louden Shares. These funds are already
appropriated and available to spend. Loveland is contributing $1.5 million: $1.1 million to purchase the 50
CBT Units and a $400,000 contribution to the purchase of the land.
Fort Collins will hold the deed and be fully responsible for costs of managing, maintaining and potentially
developing trails and parking on the land.
BOARD / COMMISSION RECOMMENDATION
At its August 12, 2015 meeting, the Land Conservation and Stewardship Board (LCSB) unanimously
recommended Council approve the IGA with Loveland and grant Loveland the Right of First Offer and Right of
First Refusal.
Loveland staff presented this proposed land purchase and partnership to its Open Lands Board on August 12,
where it received Board approval and will present the IGA to the Loveland City Council on September 1.
ATTACHMENTS
1. Loveland Parks and Recreation Commitment Letter, July 30, 2015 (PDF)
2. Loveland Water and Power Commitment Letter, July 31, 2015 (PDF)
3. 4200 CR 30 Vicinity Map (PDF)
4. Fort Collins-Loveland Community Separator Map (PDF)
5. Land Conservation & Stewardship Board minutes, August 12, 2015 (draft) (PDF)
ATTACHMENT 1
ATTACHMENT 2
4200 County Road 30
Vicinity Map
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Fossil Creek Reservoir Inlet
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Land Conservation & Stewardship Board Meeting Minutes
August 12, 2015
Excerpt
CRD 30 Land Purchase Partnership and Intergovernmental Agreement – John Stokes
John Stokes, Director of Natural Areas Department presented the proposed partnership
purchase of 113 acres north of CRD 30 and 50 Units of CBT water; and the terms of an IGA
with Loveland. NAD is seeking a recommendation to authorize the execution of an IGA as
well as an ordinance for right of first refusal. The price of the property is $3M and about half
of that value is in the water. We were having problem because the CBT Units are difficult for
us to acquire because the City of Fort Collins is at its CBT cap, creating a lot of challenges.
Loveland, as a partner on the acquisition, would acquire the CBT Units and then lease the
CBT Units back to us and subsequent owners for irrigation of this land. Our intention is to
keep the land in farming. Other options are to restore the area to native grassland and
construct trails and/or tie it into the regional trail. We have a lot of options at this point.
Loveland wants to do a ten year renewable lease. Their purchase of the CBT Units is a
backup drought water supply. Natural Areas is proposing the acquisition of 113 acres of land
and associated ditch company water rights in partnership with the City of Loveland. The City
of Loveland’s Water & Power Department is purchasing the 50 units of Colorado Big
Thompson Project (CBT) water historically associated with the land and their Parks and
Recreation Department is contributing funds to conserve the 113 acres of land in the Fort
Collins – Loveland Community Separator. Loveland will contribute $1.5M and Fort Collins
will contribute $1.5M towards the total purchase price of $3M.
Natural Areas will own, manage and maintain this property. If Fort Collins decides to sell the
property with a conservation easement preserving it for agricultural purposes Fort Collins will
receive the proceeds from the sale in exchange for co- holding and monitoring the
conservation easement. If for some reason Fort Collins decides to sell the land without a
conservation easement; Loveland will receive 22.5% of the proceeds and Fort Collins will
receive 77.5% of the proceeds. Loveland agrees to lease the CBT water to whoever is
farming this land as long as there is no drought or other reasons requiring Loveland to need
the water for municipal use.
Discussion
Some board members were concerned what Loveland might do if there was indeed an official
drought and how they would determine if it’s a drought or not.
John explained the agreement would tie in nicely with our community separator objectives but
he didn’t feel the property would remain as a farming property for long.
Gail asked if we use it as irrigated farm does Loveland still have control of the water. John
indicated that Loveland can withhold the water in a drought situation, but that if we didn’t
have the water we would have to foul the property. We have Louden shares but that’s not
enough to irrigate the entire property. Trudy asked if it was specified what constitutes a
drought or is it up to someone on Council when they want to pull that water. John wasn’t sure
how they determined that and said ultimately the long term prognosis on this property is that
it won’t stay in farming. Even if a portion stayed in farming we could use our Louden shares.
Raymond wanted to know how the regional trail system would tie in and John demonstrated,
on the map, the new trail around Fossil Creek and where it connects to the trail system.
ATTACHMENT 5
John explained that if Fort Collins decided to sell this property in fee, without a conservation
easement; Loveland has requested the Right of First Offer and the Right of First Refusal, to
give them the first chance to purchase the property. John indicated we would likely never sell
without a conservation easement. John explained that if Loveland did want to buy it; but
considered the asking price too high, the property could be put it on the market and if a buyer
made an offer lower than the original asking price, Loveland would have the right to outbid
the buyer. If the roles were reversed we would want the same arrangement. This property is
going to be really well protected over the next 20 years.
We are going to City Council on September 1, with a Resolution approving the IGA and an
Ordinance approving the Right of First Offer and Right of First Refusal.
Marcia Mallory-Patton made a motion that City Council approve a resolution
authorizing the execution of an Intergovernmental Agreement with the City of Loveland
to acquire the County Road 30-113 acre parcel and water rights within the Fort Collins-
Loveland Community Separator and ordinance right of first right of refusal to purchase
for the City of Loveland. Raymond Watts seconded the motion. Motion was
unanimously approved.
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RESOLUTION 2015-080
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL
AGREEMENT WITH THE CITY OF LOVELAND TO ACQUIRE AND COOPERATE
REGARDING A PARCEL OF LAND AND WATER RIGHTS AT
4200 COUNTY ROAD 30 WITHIN THE FORT COLLINS – LOVELAND
COMMUNITY SEPARATOR
WHEREAS, the City of Fort Collins Natural Areas Department, in cooperation with
Larimer County and the City of Loveland, has been working for 20 years to create a community
separator between Fort Collins and Loveland by conserving agricultural lands and open spaces;
and
WHEREAS, for the last several months, the City has been negotiating to purchase a 113-
acre parcel of agricultural land and associated water interests at 4200 County Road 30 (the
“Property”); and
WHEREAS, the City would have difficulty acquiring the Colorado-Big Thompson
Project (CBT) units associated with the Property because of the number of CBT units the City
already owns; and
WHEREAS, the City of Loveland (“Loveland”) has agreed to partner with the City on
this acquisition, with Loveland acquiring the CBT units and the City taking title to the land and
remaining water rights; and
WHEREAS, the proposed Intergovernmental Agreement setting out the terms of the
arrangement between the City and Loveland for acquisition of the Property as well as agreed
upon cooperation in the future regarding the use of the associated water rights and other terms
and conditions related to future management of the Property, dated August 19, 2015, is attached
as Exhibit “A” and incorporated herein by reference (the “IGA”); and
WHEREAS, the total purchase price for the Property and water interests is $3,000,000;
and
WHEREAS, under the IGA, Loveland will provide $1,100,000 for purchase of the CBT
units and $400,000 towards the purchase of the land, and the City will provide $1,500,000 for the
purchase of the land and the remaining water interests; and
WHEREAS, Loveland has also agreed to lease the CBT units back for use on the
Property by the City, its tenants, or future owners of the Property who buy the Property subject
to a conservation easement, as long as there is not drought or other reasons that would require
Loveland to use the CBT units for municipal purposes; and
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WHEREAS, the annual rental price for the CBT units would be the full open rate
municipal assessment cost per unit as set by the board of the Northern Colorado Water
Conservancy District, plus five percent for administrative costs; and
WHEREAS, the Land Conservation and Stewardship Board considered the IGA at its
regular meeting on August 12, 2015 and recommended that City Council approve the IGA; and
WHEREAS, Section 29-1-203 of the Colorado Revised Statutes allows governments to
cooperate or contract with one another to provide any function, service or facility lawfully
authorized to each of the cooperating or contracting units; and
WHEREAS, under Section 1-22 of the City code, intergovernmental agreements and
other cooperative arrangements between the City and other governmental entities are to be
submitted to the City Council for review, unless they fit within one of the exceptions that permit
authorization by the City Manager.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS, that the Mayor is hereby authorized to enter into the Intergovernmental
Agreement between the City and the City of Loveland in substantially the form attached hereto
as Exhibit “A”, with such modifications or additional terms and conditions as the City Manager,
in consultation with the City Attorney, determines are necessary or appropriate to protect the
interests of the City or to effectuate the purposes of this Resolution.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 1st
day of September, A.D. 2015.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
DRAFT 8-19-15
INTERGOVERNMENTAL AGREEMENT
Purchase and Ownership of Property and Water Interests at 4200 E. County Road 30,
and Ongoing Cooperation
THIS AGREEMENT is made and entered into this _____ day of September, 2015 (the
“Effective Date”), by and THE CITY OF FORT COLLINS, COLORADO, a municipal
corporation (“Fort Collins”) and THE CITY OF LOVELAND, COLORADO, a municipal
corporation (“Loveland”).
RECITALS:
A. The Fort Collins Natural Areas Department wishes to acquire approximately 113
acres of irrigated agricultural land more particularly described on Exhibit A, attached and
incorporated by reference (the “Property”) as an open space “separator” between developed
lands in Loveland and Fort Collins.
B. The Property includes four shares in the Louden Irrigating Canal and Reservoir
Company and Louden Extension Canal and Reservoir Company (“Louden”), and 50 Units of
Colorado-Big Thompson Project (CBT) water that Fort Collins cannot own because of the extent
of Fort Collins’s existing CBT holdings. The water interests are more particularly described on
Exhibit A.
C. Loveland would like to acquire the CBT Units for its water portfolio, and is
willing to lease the water back to Fort Collins and subsequent owners or lease holders for
continued irrigation of the Property.
D. The Colorado Constitution, Article XIV, Section §18 and §29-1-201, C.R.S., et
seq. provide for and encourage political subdivisions of the State of Colorado to make the most
efficient and effective use of their powers and responsibilities by cooperating and contracting
with each other.
E. Section 29-1-203, C.R.S., as amended, authorizes any political subdivisions or
agencies of the State of Colorado to cooperate or contract with one another to provide any
function, service, or facility lawfully authorized to each of the cooperating or contracting entities,
including the sharing of costs, imposition of taxes, or incurring of debt.
F. The parties wish to cooperate on the purchase of the Property and associated
water interests, and are entering into this Agreement to document their respective rights and
obligations related to the acquisition, ownership, management and maintenance, and future
disposition of the Property.
THEREFORE, in consideration of the mutual promises and covenants contained herein,
the parties agree as follows:
EXHIBIT A
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1. Purchase of the Property.
a. The purchase price of the Property, including all water rights, shall be Three
Million Dollars ($3,000,000.00). Subject to any necessary approvals by the
parties’ City Councils, the parties agree to provide the following amounts towards
the purchase price:
i. Loveland - $1,500,000
ii. Fort Collins Natural Areas - $1,500,000
b. Both parties will sign a Purchase and Sale Agreement with the sellers of the
Property, Roberta A. LeMaster, Sandra K. Wortley, and Shelley L. Skogen
(“Sellers”), in a form reasonably acceptable to all parties.
c. Loveland will work with the Sellers and Northern Colorado Water Conservancy
District (“Northern”) to obtain Northern’s approval of the transfer of the CBT
Units and complete the necessary paperwork for such transfer.
d. At closing on the purchase of the Property, Fort Collins will take title to the
Property, the Louden shares and all other associated rights and appurtenances,
except the CBT Units, which will be assigned to Loveland.
e. The parties agree that the purchase price of the CBT Units at closing shall be
$1,100,000 ($22,000 per Unit). The purchase price for the Louden shares shall
be $120,000. The purchase price for the land and other remaining rights and
appurtenances shall be $1,780,000 ($15,752 per acre), with $400,000 of the land
price (22.5%) provided by Loveland and $1,380,000 (77.5%) provided by Fort
Collins.
f. Fort Collins is responsible for any due diligence regarding the condition of and
title to the Property, including obtaining a title commitment, any environmental
investigations, surveys or review of existing surveys, and inspection of the
Property. Fort Collins will also arrange for payment of any earnest money deposit
to Sellers.
2. Lease of CBT Units to Fort Collins.
a. After finalizing the purchase of the CBT Units from Sellers and obtaining
approval of the transfer from Northern, Loveland agrees to lease back the fifty
(50) CBT Units to Fort Collins for use on the Property by Fort Collins, its tenants,
or future owners of the Property who acquire the Property subject to a
conservation easement. This lease is conditioned on the continued use of the CBT
units for irrigation on the Property, and if this condition is not met, the lease shall
terminate. In exchange for the use of the water, Fort Collins shall pay Loveland
the full open rate municipal assessment cost per unit as set by Northern’s Board,
plus 5% for administrative costs, to be paid annually. Loveland will send an
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invoice no later than April 30
th
, and Fort Collins will have thirty (30) days to
submit payment to Loveland, by May 30
th
each year the lease is renewed.
b. The lease will continue for ten (10) years and may be renewed by Fort Collins for
additional ten (10) year terms upon advance written notice to Loveland. The water
may be leased to Fort Collins for the Property until such time as Loveland needs
the water for municipal use and can no longer lease the water.
c. In the event Loveland has an urgent need for water, as determined in the sole
discretion of Loveland, for reasons including, but not limited to drought,
Loveland may terminate the lease. Loveland will endeavor to give thirty (30)
days’ notice of such termination, but shall not be required to do so. In the event of
such termination, Fort Collins shall be liable to pay Loveland for irrigation water
received to the effective date of termination. Loveland shall be liable to reimburse
Fort Collins any irrigation water previously paid for, but not delivered based upon
the rate established in the lease.
3. Management and Disposition of the Property.
a. As owner of the Property, Fort Collins shall be responsible for management and
maintenance of the Property and Loveland will have no responsibility or liability
of any kind whatsoever for the management and maintenance of the Property.
Except as otherwise agreed by the parties, including but not limited to a right of
notice and first offer or first refusal regarding sale of the Property that may be
conveyed by separate agreement, Loveland’s permission shall not be required for
any future leasing or disposition of the Property.
b. If at any time Fort Collins sells any interest in the Property or any portion of the
Property, including easements but not leasehold interests, the proceeds of such
disposition shall be divided between Fort Collins and Loveland in accordance
with the percentage of each party’s contribution to the land purchase as described
in paragraph 1.e above to be used for open space/natural areas purposes.
However, if Fort Collins sells the Property to a third party but retains a
conservation easement on the Property, Fort Collins and Loveland will co-hold
the conservation easement and Fort Collins will be entitled to the full proceeds of
such sale in exchange for Fort Collins monitoring and managing the conservation
easement.
4. Additional Terms and Conditions.
a. Governmental Immunity. Each party acknowledges and agrees that both
parties are governmental entities of the State of Colorado whose liability in
tort is at all times strictly limited and controlled by the Colorado
Governmental Immunity Act, CRS 24-10-101, et seq., as now or hereafter
amended, and that nothing herein is intended as a waiver of such immunity.
Without waiving such immunity, each party shall be solely responsible, to the
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fullest extent authorized by law, for its own negligence and the negligence of
its employees, authorized volunteers and agents acting within the scope of
their authority under this Agreement.
b. Binding Effect, Assignment and Delegation. This Agreement shall be
binding on and inure to the benefit of the parties, their successors and assigns.
Neither party shall assign any of the rights nor delegate any of the duties
created by this Agreement without the prior written consent of the other party.
c. Relationship of Parties. Nothing in this Agreement shall imply any
partnership, joint venture, or other association between Fort Collins and
Loveland. Neither party shall use the other’s name or logo to suggest co-
sponsorship or endorsement of any activity without the other’s prior written
approval
d. Interpretation. This document and the Purchase and Sale Agreement
represent the entire agreement of the parties and are deemed prepared by both
parties.
e. Laws. Performance of this Agreement is subject to the constitution and laws
of the State of Colorado and the parties’ respective Municipal Charters.
f. Severability. If any term of this Agreement is determined by any court to be
unenforceable, the other terms of this Agreement shall nonetheless remain in
full force and effect, provided, however, that if the severance of any such
provision materially alters the rights or obligations of the parties, the parties
shall engage in good faith negotiations in order to adopt mutually agreeable
amendments to this Agreement as may be necessary to restore the parties as
closely as possible to the initially agreed upon relative rights and obligations.
g. Remedies. In the event of any default in or breach of this Agreement or any
of its terms or conditions by a party hereto or any successor in interest to such
party that remains uncured after notice and a reasonable opportunity to cure,
the non-defaulting party shall have all remedies, at law or in equity, to which
it may be entitled. In the event a party defaults in any of the obligations of
this Agreement, the defaulting party will pay all reasonable costs of enforcing
this Agreement, including reasonable attorneys’ fees.
h. Notices. All notices which may be given to the parties shall be in writing and
sent by registered or certified mail or by overnight commercial courier to the
following addresses:
Fort Collins:
City of Fort Collins
Attn: City Manager
300 LaPorte Ave.
5
P.O. Box 580
Fort Collins, CO 80522
Loveland:
City of Loveland
Attn: Parks and Recreation Open Lands
500 E. Third St.
Loveland, CO 80538
i. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement. Signatures may be
delivered by electronic copy. Electronic signatures are binding on the parties
as if they were originals.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date and year written above.
[Signature pages follow.]
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THE CITY OF FORT COLLINS, COLORADO
a Municipal Corporation
By:
Wade O. Troxell, Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
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THE CITY OF LOVELAND, COLORADO
a Municipal Corporation
By:
Cecil Gutierrez, Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
- 1 -
ORDINANCE NO. 111, 2015
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CONVEYANCE OF A RIGHT OF FIRST
OFFER AND RIGHT OF FIRST REFUSAL TO THE CITY OF
LOVELAND FOR PROPERTY AT 4200 COUNTY ROAD 30
WHEREAS, the City’s Natural Areas Department and the City of Loveland (“Loveland”)
have been negotiating to acquire an agricultural property and associated water interests at 4200
County Road 30 (the “Property”); and
WHEREAS, by separate resolution the City Council is considering a proposed
intergovernmental agreement between the City and Loveland regarding the purchase and future
management of the Property (the “IGA”); and
WHEREAS, under the terms of the IGA Loveland would provide $1,100,000 to purchase
the Colorado-Big Thompson Project (CBT) units associated with the property and $400,000
towards purchase of the land, and the City would provide $1,5000,000 for the purchase of the
land and remaining water interests; and
WHEREAS, the City would own and manage the Property, and Loveland would own the
CBT units and lease them back to the City for irrigation of the Property; and
WHEREAS, in the process of negotiating the terms of the IGA Loveland asked that the
City grant it a right of first offer and right of first refusal on the Property, so that if the City ever
opted to sell all or any portion of the Property (except leases or easements) Loveland would have
the opportunity to purchase the Property first; and
WHEREAS, a proposed Right of First Offer and Right of First Refusal dated August 19,
2015, is attached and incorporated herein as Exhibit “A” (the “ROFO/ROFR”); and
WHEREAS, if approved, the ROFO/ROFR would be conveyed to Loveland when the
City takes title to the Property at closing; and
WHEREAS, City staff is recommending that Loveland not be required to pay the City
additional consideration for the ROFO/ROFR because of the public benefit provided by the
collaboration between the City and Loveland to purchase and manage the Property; Loveland’s
investment in the Property; the shared interest of the City and Loveland in preserving the
Property as a community separator; and the difficulty in calculating a fair market value for a
right of first refusal; and
WHEREAS, Section 23-111(a) of the City Code authorizes the City Council to sell,
convey or otherwise dispose of any and all interests in real property owned in the name of the
City, provided that the City Council finds, by ordinance, that such sale or other disposition is in
the best interests of the City; and
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WHEREAS, Section 23-411 of the City Code requires that the conveyance of a property
interest by the City be for fair market value unless the City Council determines that the sale
serves a bona fide public purpose.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby finds that the conveyance of the
ROFO/ROFR to Loveland as provided herein is in the best interests of the City.
Section 2. That the City Council additionally finds that conveyance of the
ROFO/ROFR to Loveland without additional compensation serves a bona fide public purpose
because:
(a) Loveland is making a significant contribution to the purchase of the Property, the
intended use of which supports the general welfare, benefits a significant segment
of the citizens of the City, and supports the City’s plan to create community
separators; and
(b) Conveyance of the ROFO/ROFR for less than fair market value will not result in
a direct financial benefit to any private person or entity, and will not interfere with
current City projects or work programs, hinder workload schedules, or divert
resources needed for primary City functions or responsibilities.
Section 3. That the Mayor is hereby authorized to execute the Right of First Offer
and Right of First Refusal in substantially the form attached as Exhibit “A”, with such
modifications or additional terms and conditions as the City Manager, in consultation with the
City Attorney, determines are necessary or appropriate to protect the interests of the City,
including, but not limited to, any necessary changes to the legal description of the Property, as
long as such changes do not materially change the character of the interests to be conveyed.
Introduced, considered favorably on first reading, and ordered published this 1st day of
September, A.D. 2015, and to be presented for final passage on the 15th day of September, A.D.
2015.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
- 3 -
Passed and adopted on final reading on this 15th day of September, A.D. 2015.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
DRAFT 8-19-15
RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL
4200 County Road 30
THIS RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL (“Agreement”) is
made and entered into this _______ day of ____________, 2015 (“Effective Date”), by and
between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation (“Fort
Collins”) and THE CITY OF LOVELAND, COLORADO, a municipal corporation (“Loveland”).
RECITALS
A. Fort Collins is the owner of a parcel of real property as more particularly described
in Exhibit A attached hereto and incorporated herein by reference (the “Property”).
B. The Property and associated water interests were purchased by Fort Collins and
Loveland in accordance with an Intergovernmental Agreement between the parties dated September
____, 2015 (the “IGA”).
C. Fort Collins has agreed to grant to Loveland a right of first offer and a right of first
refusal to purchase the Property, subject to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the terms and conditions of the IGA, and for the
further consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt
and adequacy of which are hereby confessed and acknowledged by Fort Collins, the parties hereto
agree as follows:
1. Term. All rights and interests created and set forth in this Agreement shall remain in
existence and shall constitute a valid encumbrance upon the Property; except that such rights and
interests shall be extinguished by the occurrence of any one or more of the following events:
(a) a sale of the entire Property to Loveland, its successor in interest or assignee,
upon compliance by Fort Collins with all of the terms and conditions of this
Agreement; or
(b) a sale of the entire Property to any person other than Loveland or its
successor in interest or assignee, pursuant to and upon compliance by Fort Collins
with all of the terms and conditions of this Agreement.
2. Applicability/Exclusions. The right of first offer and right of first refusal described
in this Agreement shall apply to all transactions involving a conveyance of title to the Property, or
any portion thereof, including but not limited to a purchase, an exchange, or any other transfer of
interest in the Property for consideration, other than leases, easements and rights of way.
EXHIBIT A
DRAFT 8-19-15
3. Right of First Offer.
(a) If at any time during the Term Fort Collins decides to offer for sale all or any
interest in the Property (the “Sale Property”), Fort Collins shall submit a contract
offering to sell the Sale Property to Loveland at the price (“Sale Price”) and on the
terms set forth in the proposed contract (the “Sale Offer”). The Sale Price shall be
stated as Fort Collins’s asking price for the Sale Property (“Asking Price”) less
twenty two and 5/10 percent (22.5%) in accordance with Loveland’s contribution to
the land purchase as described in the IGA.
(b) Loveland shall have thirty (30) days after receipt of the Sale Offer (the “Offer
Period”) within which to accept the Sale Offer. Acceptance shall be made, if at all, by
Loveland executing the Sale Offer and returning an executed copy to Fort Collins
within the Offer Period.
(c) If Loveland accepts the Sale Offer, Fort Collins and Loveland shall proceed to
close the sale and purchase of the Sale Property on the terms and conditions set forth
in the Sale Offer, along with such other terms and conditions as the parties may agree
to in writing. Notwithstanding the foregoing and notwithstanding anything to the
contrary contained in the Sale Offer, such closing shall occur within sixty (60) days,
but not sooner than thirty (30) days, after the date of acceptance by Loveland of the
Sale Offer, at a time and place mutually acceptable to Fort Collins and Loveland.
(d) If Loveland does not accept the Sale Offer within the Offer Period, then for a
period of two (2) years after the date the Sale Offer was given to Loveland (the “Sale
Period”), Fort Collins shall have the right to sell the Sale Property at a price not less
than 90% of the Asking Price set forth in the Sale Offer, on terms and provisions
materially similar to those set forth in the Sale Offer. On expiration of the Sale
Period Fort Collins may not sell the Sale Property without once again offering the
Sale Property to Loveland pursuant to the foregoing right of first offer.
(e) Upon the closing of the sale pursuant to the terms of subsection (d),
Loveland’s rights under this paragraph 3 and paragraph 4 below shall automatically
terminate as to the Sale Property, without need for further action by any party.
(g) If, during the Sale Period, Fort Collins desires to sell the Sale Property at a
price less than 90% of the Asking Price set forth in the Sale Offer, or on terms
materially different from the terms set forth in the Sale Offer, then Fort Collins shall
once again offer the Sale Property to Loveland in the manner set forth above, which
offer shall remain open for thirty (30) days.
(h) The right of first refusal hereinafter set forth shall not apply to any offer
received by Fort Collins during the Sale Period so long as the offer is at a price at
DRAFT 8-19-15
least 90% of the Asking Price and on terms which are not materially different from
the term set forth in the Sale Offer.
4. Right of First Refusal.
(a) If during the Applicable Term Fort Collins receives a bona fide written offer
to purchase (“the Purchase Offer”) all or any portion of Fort Collins's interest in the
Property (“the Purchase Property”), which Fort Collins is willing to accept, Fort
Collins shall deliver to Loveland a copy of the Purchase Offer signed by the
purchaser and shall indicate to Loveland, in writing, that Fort Collins is ready,
willing and able to accept the Purchase Offer.
(b) Loveland shall have thirty (30) days after receipt of the Purchase Offer (the
“Offer Period”) within which to notify Fort Collins in writing that Loveland will
purchase the Purchase Property at the price and on the terms and provisions set forth
in the Purchase Offer, which notice shall be accompanied by cash or certified funds
payable to Fort Collins in the amount of the earnest money deposit, if any, required
by the terms of the Purchase Offer.
(c) If Loveland notifies Fort Collins of Loveland's intent to acquire the Purchase
Property on the terms and conditions set forth in the Purchase Offer, then Fort Collins
and Loveland shall, within fifteen (15) days after such notice, execute an agreement
of purchase and sale at the price, less twenty two and 5/10 percent (22.5%) in
accordance with Loveland’s contribution to the land purchase as described in the
IGA, and on the terms and conditions set forth in the Purchase Offer, along with such
other terms and conditions as the parties may agree in writing. Notwithstanding the
foregoing and notwithstanding anything to the contrary contained in the Purchase
Offer, such closing shall occur within sixty (60) days, but not sooner than thirty (30)
days, after execution of the purchase and sale agreement, at a time and place
mutually acceptable to Fort Collins and Loveland.
(d) If Loveland fails to notify Fort Collins of Loveland's intent to acquire the
Purchase Property within the Offer Period, then Fort Collins may sell the Purchase
Property in accordance with the terms of the Purchase Offer, and Loveland shall have
no further right to purchase the Purchase Property pursuant to the terms of this right
of first refusal or the foregoing right of first offer. Loveland’s failure to exercise its
right to purchase with respect to any transfer of less than all of the Property shall not
be deemed a waiver of such right with respect to that part of the Property owned by
Fort Collins after such transfer.
(e) If Fort Collins does not sell the Purchase Property pursuant to the Purchase
Offer, then the right of first refusal shall not be deemed waived or cancelled but shall
remain in full force and effect. Upon receipt of any subsequent Purchase Offer, Fort
Collins shall once again offer the Purchase Property to Loveland in the same manner
DRAFT 8-19-15
as hereinabove provided, and Loveland shall have an additional thirty (30) days
within which to accept such subsequent Purchase Offer.
5. Disposition of Sale Proceeds. If Loveland declines to purchase the Property or
portions of the Property pursuant to its rights listed in paragraphs 3 and 4 above and Fort Collins
sells such interest in the Property or any portion of the Property to a third party, the proceeds of such
disposition shall be divided between Fort Collins and Loveland in accordance with paragraphs 3.b
and 1.e of the IGA.
6. Notice. Any notice required or desired to be given by any party pursuant to this
Contract shall be in writing and may be personally delivered; mailed, certified mail, return receipt
requested; sent by telephone facsimile with a hard copy sent by regular mail; or sent by a nationally
recognized, receipted, overnight delivery service. Any such notice shall be deemed given when
personally delivered; if mailed, three (3) delivery days after deposit in the United States mail,
postage prepaid; if sent by telephone facsimile on the day sent if sent on a business day during
normal business hours of the recipient (8:00 a.m. - 5:00 p.m.) or on the next business day if sent at
any other time; or if sent by overnight delivery service, one (1) business day after deposit in the
custody of the delivery service. The addresses and telephone numbers for the mailing, transmitting,
or delivering of notices shall be as follows:
If to Loveland, to:
Parks and Recreation
Open Lands Manager
500 E. Third Street, Suite 200
Loveland, CO 80537
With a copy to:
City Attorney’s Office
500 E. Third St.
Loveland, CO 80537
If to Fort Collins, to:
City of Fort Collins
Attn: City Manager
300 LaPorte Ave.
P. O. Box 580
Fort Collins, CO 80522
With a copy to:
City of Fort Collins
DRAFT 8-19-15
Attn: Real Estate Services
300 LaPorte Ave.
P. O. Box 580
Fort Collins, CO 80522
Notice of a change of address of any party shall be given in the same manner as all other notices as
hereinabove provided.
7. Assignment. This Agreement may not be assigned by Loveland without the prior
written consent of Fort Collins.
8. Binding Effect. This Agreement shall run with the land and shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns.
9. Notice to Buyers. Loveland shall cause this Agreement to be recorded in the real
property records of Larimer County, Colorado, promptly upon execution and delivery of the same.
Fort Collins shall further provide actual notice of the terms of this Agreement to any party seeking
to acquire any interest in or rights to the Property.
10. Remedies. In the event of default by Fort Collins in the performance of its
obligations under this Agreement, Loveland shall have the right to an action for specific
performance or damages, or both. In the event of any litigation arising out of this Agreement, the
court shall award to the party that substantially prevails in such litigation, all costs and reasonable
attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
[Signature pages follow]
DRAFT 8-19-15
THE CITY OF FORT COLLINS, COLORADO
a Municipal Corporation
Date: By:
Wade O. Troxell, Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
STATE OF COLORADO )
) ss
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this day of
__________________ , 2015, by Wade O. Troxell as Mayor of the City of Fort Collins.
Witness my hand and official seal.
My Commission expires:
______________ ____
Notary Public
DRAFT 8-19-15
THE CITY OF LOVELAND, COLORADO
a Municipal Corporation
Date: By:
ATTEST:
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
DRAFT 8-19-15
EXHIBIT A
Legal Description
The W1/2 of the SW1/4 and the SW1/4 of the NW1/4 of Section 22, Township 6 North,
Range 68 West of the 6th P.M., County of Larimer, State of Colorado
EXCEPTING THEREFROM the right of way for County Road as established and/or used;
ALSO EXCEPTING THEREFROM those parcels described in Deeds recorded December 11, 1985,
at Reception No. 85062821 and August 20, 1991, at Reception No. 91039306.
(Street Address: 4200 East County Road 30, Fort Collins, Colorado)
8
EXHIBIT A
Legal Description
The W1/2 of the SW1/4 and the SW1/4 of the NW1/4 of Section 22, Township 6 North,
Range 68 West of the 6th P.M., County of Larimer, State of Colorado
EXCEPTING THEREFROM the right of way for County Road as established and/or used;
ALSO EXCEPTING THEREFROM those parcels described in Deeds recorded December 11,
1985, at Reception No. 85062821 and August 20, 1991, at Reception No. 91039306.
(Street Address: 4200 East County Road 30, Fort Collins, Colorado)
Water Interests
Fifty (50) units of Colorado Big Thompson Project, represented by currently identified in:
(1) Contract ID 1559, Class D for 35 Units, Board Approved and Effective Date May 8, 1987;
(2) Contract ID 2530, Class D for 5 Units, Board Approved and Effective Date January 8, 1999;
and (3) Contract ID 2738, Class D for 10 Units, Board Approved and Effective Date June 14,
2002.
All right, title, interest and obligation in and to the stock, water rights, and other property
interests represented by Stock Certificate No. 3563 for four (4) shares of stock of the Louden
Irrigating Canal and Reservoir Company.
All right, title, interest and obligation in and to the stock, water rights, and other property
interests represented by Stock Certificate No. 275 for four (4) shares of stock of the Louden
Extension Canal and Reservoir Company.
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4200 CR 30 property
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E. County Rd. 30
Trilby Rd.
N. County Rd. 13 S. Lemay Ave.
N. County Rd. 11E
Boyd Lake Ave.
W. 57th St. E. 57th St.
S. County Rd. 19 S. Taft Hill Rd.
S. County Rd. 17 S. Shields St.
Carpenter Rd.
Kechter Rd.
Ziegler Rd.
S. County Rd. 11 Timberline Rd.
ATTACHMENT 4
Conservation easement property
E. County Rd. 34C
ATTACHMENT 3