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HomeMy WebLinkAbout065 - 05/21/2024 - AUTHORIZING THE CONVEYANCE OF A PERMANENT NON-EXCLUSIVE SEWER EASEMENT ON PROPERTY JOINTLY OWNED BYORDINANCE NO.065,2024 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CONVEYANCE OF A PERMANENT NON- EXCLUSIVE SEWER EASEMENT ON PROPERTY JOINTLY OWNED BY THE CITY OF FORT COLLINS AND THE CITY OF LOVELAND AT THE NORTHERN COLORADO REGIONAL AIRPORT A.The City of Fort Collins (“City”)and the City of Loveland (“Loveland”) (collectively,the “Cities”)jointly own property located in Loveland (the “Property”)known as the Northern Colorado Regional Airport (the “Airport’). B.The Cities currently operate and maintain the Airport pursuant to that certain Amended and Restated Intergovernmental Agreement for the Joint Operation of the Fort Collins-Loveland Airport dated January 22,2015,as amended (the “IGA”). C.In connection with the ongoing construction of the new airport terminal facility project,the South Fort Collins Sanitation District (the “District”)has requested a permanent non-exclusive easement across Airport property to allow for the installation and maintenance of a sanitary sewer line to serve the terminal (the “Easement”)over and across that portion of the Airport property legally described and depicted in the Easement Agreement,attached hereto and incorporated herein by this reference as Exhibit “A.” D.The Cities desire to grant the Easement on the terms and conditions as substantially set forth in the Easement Agreement,which includes that the District will not pay a specific purchase price for the easement but will instead provide sewer service necessary for the terminal. E.City Code Section 23-111(a)authorizes the City Council to sell,convey,or otherwise dispose of any interest in real property owned by the City,provided the City Council first finds,by ordinance,that such sale or other disposition is in the best interest of the City. In light of the foregoing recitals,which the Council hereby makes and adopts as determinations and findings,BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1.The City Council hereby finds that the City’s conveyance of the Easement subject to the terms and conditions substantially set forth in the Easement Agreement for less than fair market value serves a bona fide public purpose and is in the best interests of the City as required by City Code Section 23-114 because: a.The use to which the Easement Property will be put promotes health, safety or general welfare and benefits a significant segment of the citizens of Fort Collins by facilitating public investment in and improvement of the Airport and the users it serves,and will allow for sanitary sewer service for the new public terminal currently being constructed; b.The use to which the Easement will be put supports one (1)or more of the City Council’s goals,adopted policies,projects or plans,including the Airport Master Plan,which was approved by Council; c.The financial support provided by the City through the below-market disposition of the Easement will be leveraged with other funding or assistance enabling the construction and operation of the new terminal facility,which the City has partnered with Loveland to complete; d.The sale or lease will not result in any direct financial benefit to any private person or entity,except to the extent such benefit is only an incidental consequence and is not substantial relative to the public purpose being served because it will enable development of the new public terminal facility for the benefit of the Cities and the greater public;and e.Granting the Easement for less than fair market value will not interfere with current City projects or work programs,hinder workload schedules, or divert resources needed for primary City functions or responsibilities and will ultimately benefit the Airport and the Cities. Section 2.The City Council hereby authorizes the Mayor to execute the Easement Agreement 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 effectuate the purposes of this Ordinance. Introduced,considered favorably on first reading on May 7,2024,and approved on second reading for final passage on May 21,2024. ATTEST: c4~LL /P~~ Interim City Clerk Effective Date:May 31,2024 Approving Attorney:Ryan Malarky EASEMENT AGREEMENT THIS AGREEMENT, made and entered into as of the _____ day of __________, 20__, by and between the CITY OF LOVELAND, COLORADO, a municipal corporation, with an address of 500 E. Third Street, Loveland, CO 80537, and the CITY OF FORT COLLINS, COLORADO, a municipal corporation, with an address of 300 Laporte Ave, Fort Collins, CO 80521, hereinafter referred jointly to as “the Grantors” and South Fort Collins Sanitation District, a Political Subdivision of the State of Colorado, hereinafter referred to as “the District”. This Grant of Utility Easement is effective as of the date of the City’s Official Acceptance in the City’s signature block below. WHEREAS, the Grantors jointly own and operate the Northern Colorado Regional Airport (the “Airport”) located in Loveland, Colorado on a parcel of property legally described below; and WHEREAS, the District desires to install, and obtain an easement for a sanitary sewer line necessary to serve the Airport’s terminal facility that is under construction as of the date of this Agreement. WITNESSETH: For and in consideration of the mutual promises and covenants herein contained and other good and valuable consideration, the receipt and adequacy of which is hereby confessed and acknowledged, the Grantors have granted and conveyed and by these presents does grant and convey unto the District, its successors and assigns, a permanent non- exclusive easement for the installation, construction, maintenance, inspection, operation, replacement, or removal of one (1) or more sanitary sewer lines for the collection and service of sanitary sewer and wastewater, and all underground and surface appurtenances thereto, including metering stations and other fixtures, in, over, across, and upon: A ___30__ foot easement, the centerline of which is described in the attached Easement Exhibit: The parties hereto acknowledge that said easement (hereinafter referred to as “the Easement”) is located on a parcel of property owned by the Grantors legally described as follows and hereinafter referred to as “the Grantors’ Property”: A parcel of land, being part Larimer County Parcel No. 8633006902, situate in the Southeast Quarter (SEl/4) of Section Twenty-eight (28), Township Six North (T.6N.), Range Sixty-eight West (R.68W.) of the Sixth Principal Meridian (6th P.M.), City of Loveland, County of Larimer, State of Colorado In addition to the foregoing grant of easement by the Grantors to the District, the Grantors further grant and convey to the District the following rights and privileges: A. The right to grade the Easement for the full width thereof in such manner as the District may reasonably determine to be necessary or advisable. The District will coordinate with Airport staff to perform such grading at a time that does not unduly interfere with Airport operations. For purposes of this Agreement, “Airport staff” shall mean the individual(s) designated and authorized by Grantors to make the decisions and take the actions described and directed herein. The District may rely on information and direction given by Airport staff and shall have no obligation to verify if that particular individual has been duly authorized by the Grantors to provide such information and/or direction. B.Subject to Airport security requirements and prior written consent of Airport staff, which shall not be unreasonably withheld, the right of ingress and egress in, to, through, over and across the Easement by means of existing roads (whether public or private) located on the Grantors’ Property. C.The right to grade, construct, maintain, and use any access roads upon the Grantors’ Property for such purposes of initial construction and ongoing maintenance with prior written consent of the Airport staff in the exercise of its right of ingress and egress to and from the Easement. For any construction or alteration on the Easement or Grantors’ Property, the District will be required to complete and submit to the Federal Aviation Administration a Form 760-1 “Notice of Proposed Construction or Alteration.” D. To mark the location of the Easement with markers set in the ground provided that any such markers remaining after the period of construction of the sanitary sewer line and appurtenances shall be placed in locations which will minimize interference with any reasonable use of the Easement area by the Grantor. EXHIBIT A TO ORDINANCE NO. 065, 2024 E.For all the District’s access needs, such access is subject to the prior written consent of Airport staff pursuant to the Northern Colorado Regional Airport’s security requirements and other applicable laws, plans, policies, and rules and regulations. It is the parties’ intent to provide the District as much reasonable access as possible to the Easement while complying with the rules and regulations associated with operating the Airport. F.All other rights necessary and incident to the full and complete use and enjoyment of the Easement for the purposes herein granted. G.Other public utilities such as sanitary sewer, storm sewer, gas, electric, and cable lines may be installed in the Easement so long as they do not interfere with the District’s rights hereunder and meet he District’s requirements for separation and crossing of utilities. The Grantor hereby covenants and agrees to and with the District, its successors and assigns that: A.Except as otherwise provided in this subparagraph A, the Grantors, their heirs, personal representatives, administrators, successors, and assigns shall not erect or place any permanent building, structure, improvement, fence, tree, or other landscaping on the Easement excluding the installation of permanent paved surfaces, including but not limited to roadways and taxiways needed for Airport purposes. In the event of the placement of such obstacles on the Easement contrary to the provisions of this subparagraph A, the District shall have the right to require the Grantors to remove such prohibited obstacles from the Easement and, in the event the Grantors fail to do so upon request, the District may remove such obstacles without any liability for repair or replacement thereof. Notwithstanding the foregoing, the Grantors, their heirs, personal representatives, administrators, successors, and assigns shall have the right, without the consent of the District, to plant grasses and other groundcover and small shrubs upon the Easement area which are usual and customary for the full use and enjoyment of the Property. The District shall be responsible at its sole cost and expense for repair and replacement of any permanent paved surfaces and associated landscaping damaged or removed by the District B. The Grantors do hereby covenant and agree to and with the District that the Grantors are lawfully seized of the Easement and the Grantors’ Property, and that the Grantors have a good and lawful right to convey the Easement to the District. The District does hereby covenant and agree to and with the Grantors as follows: A.The District shall not fence or otherwise enclose the easement, except during periods of construction and repair. B.All trenches and excavations made in the laying or repairing of the sanitary sewer line shall be properly backfilled and as much of the original surface soil as reasonably possible shall be placed on top. All large gravel, stones, and clods will be removed from the finished backfill. The District will finish the backfill after normal settling of the soil so that the use and enjoyment of said Easement by the Grantors shall be suitable for the purpose now used. The District will maintain the trench area and the sanitary sewer line at its sole cost and expense. C.The District may not use the Easement or any of Grantors’ Property for any purpose other than to transport, serve and distribute potable water. If the Easement is used by the District for any purpose other than stated herein, the Easement may be terminated at the Grantors’ sole discretion and all of the right, title and interest of District (and District’s successors or assigns) in and to the Easement become null and void, and the Easement shall absolutely revert to and revest in Grantors as fully and completely as if this instrument had not been executed, without the necessity for suit or re-entry and District shall remove improvements. No act or omission on the part of any beneficiary of this paragraph shall be a waiver of the operation or enforcement of this paragraph. D.To the extent allowed by law, the District shall be liable for loss and damage which shall be caused by any wrongful exercise of the rights or ingress or egress to or from the Easement or by wrongful or negligent acts or omission of its agents or employees during the course of their employment on the Grantors’ Property. To the extent allowed by law, District agrees to indemnify and hold harmless the Grantors, their officers, employees, and agents, from and against all liability, claims, and demands on account of any injury, loss, or damage arising out of or connected with District’s use of the Easement, if such injury, loss, or damage, or any portion thereof, is caused by, or claimed to be caused by, the act, omission, or other fault of the District or any officer, employee, agent, or contractor of the District, or any other person for whom the District is responsible. The District shall notify Grantors and provide a copy of any and all written claims or demands within two EXHIBIT A TO ORDINANCE NO. 065, 2024 business days of receipt. The District’s indemnification obligation shall not be construed to extend to any injury, loss, or damage caused by the negligent act or omission of the Grantors. Written notices shall be directed as follows and shall be deemed received when hand-delivered or emailed to the then- current email address for the addressee, or three days after being sent by certified mail, return receipt requested: If to Grantors: City of Fort Collins Attn: City Manager City Hall West 300 LaPorte Avenue Fort Collins, CO 80521 With a copy to: City Attorney City of Fort Collins City Hall West 300 LaPorte Avenue Fort Collins, CO 80521 City of Loveland Attn: City Manager 500 E. Third Street Loveland, CO 80537 With a copy to: City Attorney City of Loveland 500 E. Third Street Loveland, CO 80537 If to District: District Engineer Fort Collins-Loveland Water District 5150 Snead Drive Fort Collins, CO 80525 It is mutually agreed between the parties hereto that: A. Except to the extent that such rights may be inconsistent with or interfere with the rights and privileges herein granted to the District, the Grantors shall retain the right to use and enjoy the Easement. B. The benefit and burdens of this Agreement shall inure to and be binding upon the respective heirs, personal representatives, successors, or assigns of the parties hereto. C. Whenever used herein, the singular shall include the plural and the plural the singular and the use of any gender shall apply to all genders. D. This Easement is and shall be subordinate to the provision of existing and future agreements between the Grantors and the United States relative to the operation or maintenance of the Airport, the execution of which has been or may be required as a condition precedent to the obtaining or expenditure of federal funds for the benefit of the Airport. Airport staff shall give the District adequate written notice of any future agreements that may impair any grant contained in this Agreement. E. This Agreement contains the entire agreement of the parties relating to the subject matter hereof and, except as provided herein, may not be modified or amended except by written agreement of the parties. In the event a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, such holding shall not invalidate or render unenforceable any other provision of this Easement. This Agreement shall be governed by the laws of the State of Colorado, and venue shall be in the County of Larimer, State of Colorado. EXHIBIT A TO ORDINANCE NO. 065, 2024 F. This Agreement may be executed in separate counterparts, and the counterparts taken together shall constitute the whole of this Agreement. Facsimile, scanned and other electronic signatures permitted by law, for purposes of this Agreement, shall be deemed as original signatures. G. The District shall at its sole expense record this Agreement in the real property records of the Clerk and Recorder of Larimer County, Colorado. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. GRANTOR: City of Fort Collins, Colorado A municipal corporation By: _____________________________________ Date: ____________________________________ Print Name: _______________________________ Tite: _____________________________________ ATTEST: Date: __________ Name: ______________ Title: _______________ APPROVE AS TO FORM: Assistant City Attorney GRANTOR: City of Loveland, Colorado A municipal corporation EXHIBIT A TO ORDINANCE NO. 065, 2024 By: _____________________________________ Date: ____________________________________ Print Name: _______________________________ Tite: _____________________________________ ATTEST: City Clerk Date APPROVE AS TO FORM: Acting Deputy City Attorney GRANTEE: SOUTH FORT COLLINS SANITATION DISTRICT, a Political Subdivision of the State of Colorado By: ______________________________________ District Engineer STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this __ day of _______________, 20__ by _________________________________. Witness my hand and official seal. My Commission Expires: _____________________ Notary Public EXHIBIT A TO ORDINANCE NO. 065, 2024 EXHIBIT A TO ORDINANCE NO. 065, 2024 EXHIBIT A TO ORDINANCE NO. 066, 2024